Opinion
No. 37059.
September 26, 1949.
1. Roads — jurisdiction of — county or state highway department.
A county public road cannot become a state highway and be placed under the control and responsibility of the state highway department except by a legislative act affirmatively designating the road as a part of the state highway system, and the fact that, without such a legislative act the state highway department made a survey of the road and aided in its construction would not divest the county of jurisdiction of it.
2. Roads — Works Progress Administration — aid by in construction.
The Works Progress Administration, a temporary federal agency, had no power to acquire jurisdiction over a county road, nor authority to do any work on it without the permission of the board of supervisors and the fact that work was done by the agency on such a road, had no effect to divest the county of jurisdiction over it.
3. Roads — county public road — work in construction — contribution by other agencies.
When in the manner prescribed by statute, a particular road has been declared a public road to be constructed as such, the county has the right to arrange with the state highway department or the WPA or both to do the work of construction but this does not of itself divest the county of jurisdiction of it.
4. Evidence — roads — parol as to work done by county employees.
The fact that certain county employees did work with county machinery on a public road may be shown by parol without any recital of such fact in the minutes of the board of supervisors.
5. Roads — liability of a county.
A county is liable for damages to private property caused by the impounding of water thereon which has resulted from the negligent and improper construction of a public highway by the county.
6. Appeal — failure of chancellor to make finding as to material issues — remand.
When the chancellor has erroneously decided that the county for want of jurisdiction as to the subject matter is not responsible for damages to property however caused, and therefore pretermitted decision whether the alleged wrongful acts of the county caused the alleged damage or the extent thereof, or whether a mandatory injunction was justified, the cause will be remanded that these questions may be determined by him.
Headnotes as approved by Roberds, J.
APPEAL from the chancery court of Sharkey County; J.L. WILLIAMS, Chancellor.
John B. Gee, and Clements Clements, for appellants.
(A) County jurisdiction over road in question. Section 170, Constitution 1890; Section 6340, Code 1930; Section 8314, Code 1942; Chapter 196 Laws 1932; Section 8330 Code 1942; Section 6413 Code 1930; Section 8343 Code 1942. Appellee endeavors to escape liability in this case on the ground that it was not responsible for the construction of the road, but that the same was the enterprise of the WPA and the State Highway Department. They claim further that they are not responsible for it, because they have never accepted the road, their minutes being silent as to the acceptance of it, and that the board of supervisors can only speak through its minutes. We respectfully submit that the very argument by the appellee excludes any other jurisdiction over this road than the jurisdiction of the board of supervisors of Sharkey County. There is no contract, order, agreement, or any other like instrument of record in the minutes of the board of supervisors whereby this particular road was placed into the hands of the State of Mississippi, or its highway commission, or the WPA, or any private contractor for construction.
Not having entered into any agreement, contract, or otherwise turning this road over to any other agency for construction, there was under the statutes, no other way or manner for the construction of the road than the manner followed by the board of supervisors in the instant case. Claiborne v. Callender, 128 Miss. 159, 90 So. 722; Haven v. Hewes, 128 Miss. 650, 91 So. 397; Salter v. Board of Supervisors, 111 Miss. 867, 72 So. 700; Herod v. Carroll County, 162 Miss. 78, 138 So. 800; Herod v. Carroll County, 157 So. 533; Words Phrases, Perm. Ed., 15 p. 163, 40 p. 67; Bellard v. Bd. of Com'rs, Erie County, 31 Ohio App. 224, 167 N.E. 404, 405; Royal v. City of Des Moines, 195 Iowa 23, 191 N.W. 377.
(B) Liability of Sharkey County for damage resulting from improper construction of road. We have here a case wherein a county highway has been constructed by completely filling up one drainage ditch of a duly created drainage district, and by placing of a dirt fill with culverts therein in the bed or stream of another lateral ditch of said drainage district. That the resulting interference with the drainage has brought about serious damage to the appellants, all of whom joined in this suit. Little effort, if any, was made on the part of the appellee to deny that appellants were seriously damaged by the interference with their drainage. Parker v. State Hwy. Comm., 173 Miss. 213, 162 So. 162; State Highway Comm. v. Mason, 4 So.2d 345; Covington Co. v. Watts, 120 Miss. 428, 82 So. 309; Thompson et al. v. City of Philadelphia, 180 Miss. 190, 177 So. 39; Campbell v. Covington Co., 161 Miss. 374, 137 So. 111; City of Vicksburg v. Porterfield, 164 Miss. 581, 145 So. 355; Corley v. Bd. of Levee Commrs., 95 Miss. 617, 49 So. 266; Rosamond v. Carroll Co. et al., 101 Miss. 701, 57 So. 979.
(C) The right to mandatory injunction to remove obstructions to drainage. Viator v. Stone, 29 So.2d 658, (Miss.); 24 Cyc. Page 817 Notes; 2 R.C.L. Page 270; Sperry v. Sperry, 196 So. 653 (Miss.); Harris v. Newman, 5 Howard 654, 657, 658; Y. M.V.R.R. Co. v. McConnell et al., 127 Miss. 581; Stigall v. Sharkey County, 197 Miss. 307, 20 So.2d 664.
Wright Glazier, John S. Joor, Brunini, Brunini Everett,
(A) Supervisors must act as a body and not individually. The whole argument of counsel for the appellants is that when the board of supervisors of Sharkey County granted the request of the appellants in July, 1938, and ordered the road declared a public road to be opened and worked as such that the county then and there became liable for every unlawful act committed on this strip of road through the appellants' land. That even though the board of supervisors refused to go any further and refused to build the gravel road through their land, which is located in the 4th district of said County, that Mr. Cortright, as President of the board of supervisors, as President of the Otter Bayou Drainage District, and as a member of the board of supervisors from the 3rd district, knowingly or unknowingly, permitted or ordered any employee of the county, whether he be roadman or one in charge of county convicts, to take the county's road machinery, or the county convicts to cut trees for a right of way, fill up ditches and cause damages to the appellants, the county is liable. If this contention be true, then the taxpayers of Sharkey County, Mississippi, "are insurers against damages instead of being contributors to a fund to be used", and such a holding is contrary to the opinion of this court as shown in the opinion of Nugent v. Board of Levee Commissioners, 58 Miss. 219; Smith et al v. Board of Supervisors of Tallahatchie County, 124 Miss. 36, 86 So. 707; Section 8330 Code 1942; Section 6381 Code 1930; Simpson County v. Panther Oil Grease Company, 185 Miss. 506, 188 So. 566; Lee County v. James, 178 Miss. 554, 174 So. 76; Pearl Realty Co. v. State Highway Commission, 170 Miss. 103, 154 So. 292.
(B) Minutes of the board of supervisors are the sole and conclusive evidence of the acts of the board. A county can be bound only to the extent and within the limits which its legally constituted authorities have bound it, and have contracted by order of its governing board entered on its minutes, no additional burden or additional obligation can be imposed on it, except by an order duly entered on the minutes of the board. Pearl Realty Co. v. State Highway Commission, 170 Miss. 103, 154 So. 292; Bridges Hill v. Board of Supervisors, 58 Miss. 817; Tallahatchie Drainage District #1 v. Yocona-Tallahatchie Drainage District #1, 148 Miss. 182, 114 So. 264.
(C) The county is not liable for negligent or tortious acts of its officers or employees. State Highway Commission v. Mason, 192 Miss. 576, 4 So.2d 345; Stevens v. Beaver Dam Drainage District, 123 Miss. 648, 86 So. 641; Brabham v. Board of Supervisors, 54 Miss. 363, 28 Am. Rep. 352; Nugent v. Board of Levee Commissioners, 58 Miss. 197; Rainey v. Hinds County, 79 Miss. 238, 30 So. 636; Sutton v. Carroll County, 41 Miss. 236; Brabham v. Hinds County, 54 Miss. 363, 28 Am. Rep. 352; Warren County v. Miss. River Ferry Co., 170 Miss. 183, 154 So. 349; Lee County v. James, 178 Miss. 554, 174 So. 76; State Highway Commission v. Mason, 192 Miss. 576, 4 So.2d 345; Smith County v. Jones, 75 Miss. 325, 22 So. 802; State Highway Commission v. Knight, 170 Miss. 60, 154 So. 263.
(D) Unless the finding of the chancellor is against the overwhelming weight of the evidence the decree of the chancellor should not be reversed. Stubblefield, et al v. Stubblefield, et al., 36 So.2d 796 (Miss.); Lindeman's Estate, et al. v. Herbert, et al, 188 Miss. 842, 193 So. 790; Hibernia Bank Trust Company v. Turner, et ux, 156 Miss. 842, 127 So. 291.
The question for decision on this appeal is whether or not Sharkey County had jurisdiction of a certain road which was so constructed, as alleged in the bill, as to cause the overflow of the lands and damage to crops of complainants for the years of 1940, 1941 and 1942. The negligent and wrongful acts charged to the county were the filling up of an existing drainage canal and the construction of the road bed upon that fill, and also the placing under this road, where it crosses another drainage canal, of culverts too small to carry the water.
On the first hearing a demurrer was sustained to the bill. On appeal to this court the cause was reversed and remanded. 197 Miss. 307, 20 So.2d 664.
On the hearing on the merits much evidence was taken on the propositions (a) whether the county had control and jurisdiction of the road, (b) the amount of the damage, if any, caused by said alleged acts, and (c) whether such damage was the result of a continuing condition justifying the issuance of a mandatory injunction. The Chancellor found that complainants had failed to show that the county was responsible for the construction of the road, or had jurisdiction thereof, and pretermitted a finding on the last two questions. Therefore, on this appeal we pass only upon the correctness of the decision of the first question.
Is the proof sufficient to establish that the county had jurisdiction over this road?
On June 8, 1938, J.M. Stigall and his wife and L.M. Elliott, three of the original complainants herein, together with a number of other persons, being more than ten landowners and householders of Sharkey County, filed a petition with the board of supervisors of that county, praying for the construction of a public road, setting out generally the starting point, terminus, width and general direction of the road, and offering to donate the right of way for that purpose, reciting that the public interest and convenience required the establishment and construction of the road. The petition complied in all respects with Section 6340, Miss. Code 1930, now Section 8314, Miss. Code 1942, which prescribes the manner and essentials for laying out and constructing public roads by the counties of the State. The petition asked the supervisors "to lay out and mark same, if found practicable."
On the same day the supervisors, by order on their minutes, recited the filing of the petition; that it was heard upon oral and documentary proof; found it was signed by more than ten freeholders; that all of the landowners over whose land the road would pass had signed the petition and had agreed to donate to the county the right of way for the road, and further found that "the interest and convenience of the public requires that said road" be laid out and constructed. It then appointed the members of the board from the second and fifth supervisors' district a committee "to view and examine the proposed road and that if they find the same a practicable route, they shall mark and lay out said road, and report their proceedings in writing to this Board."
At the July, 1938, meeting the committee filed with the Board its written report, reciting that the two members constituting the committee had viewed the proposed route and found the same a practicable route "and that the public interest and convenience requires that said road be laid out as prayed for in the petition, and we have therefore marked and laid out said road as directed". The order of the Board on this report ordered "that the foregoing report of the committee be received and spread on the minutes of this Board and that said above described road shall be declared a public road and opened and worked as such". Another order of the Board appears on the minutes adopted at said July meeting headed "In re: Laying Out Public Road In the Fourth District of Sharkey County, Mississippi," recites that Clinkscales and Moore, the committee theretofore appointed to "mark and lay out" said described "public road", had filed their report with the Board. The report was ordered to be received and spread upon the minutes of the supervisors "and that the following be declared a public road", describing it as in the petition, the former orders of the board and the report of the committee.
No further order appears on the minutes with reference to the highway. The other facts, except as to pay of county employees who worked upon the road, must be deduced from oral evidence. That evidence is somewhat vague and indefinite, due largely, no doubt, to the fact that two of the complainants and the president of the board of supervisors, who was the most active member of the board as to this matter, had died before the case was heard upon the merits.
The road was constructed in the fall of 1939 and winter and spring of 1940. On behalf of the county there is evidence that the actual survey of and plans for construction of the road were prepared by an engineer of the State Highway Department and the gravel placed thereon was furnished by that Department. Mr. Davidson, the Highway engineer who testified in the case, said he did not know who actually constructed the road. On May 20, 1943, Mr. Davidson wrote a letter to one of the attorneys of counsel for the county in this cause in which he described the method of constructing this road in these words:
"The construction of this road was sponsored jointly by the Works Progress Administration, the County and the State Highway Department. The W.P.A. furnished all labor and the necessary small drainage structures. The County furnished all equipment, operators and bridge material. The State Highway Department made the survey and drew up the plans under the direction of the County Supervisor, also set the necessary construction stakes and furnished the gravel surface course.
"A set of plans is furnished the W.P.A. prior to approval of the project and any change in these plans during construction will have to be approved by the W.P.A. before such changes can be made. The rules governing the participation of the W.P.A. in this type of work sets out that the construction shall be under the supervision of a Superintendent furnished by them. This man is directly in charge of all construction work-materials and equipment furnished by the other sponsors." Again he said in this letter, "As stated above the Highway Department, in making survey for this road, did so from instructions given by the County Supervisor . . . Since the State Highway Department had no supervision of construction of this road we were not aware of any agreement between the property owners, W.P.A. and County. As also stated above the roadway was built and accepted by the County and W.P.A. before the State began applying the gravel surface course". Again, in a letter from Mr. Davidson to the same attorney, dated June 3, 1943, he said that the Highway Department had no minutes, or records, pertaining to the construction of this road other than a minute showing the purchase of the gravel for and placing the same on this road; that all instructions to the engineer of the Highway Department were given orally by the county, the WPA and the Department. In this letter he also stated that the statement in his former letter reading "As also stated above the roadway was built and accepted by the County and W.P.A. before the State began applying the gravel surface course was a mis-statement. The roadway was accepted by the Department before they would proceed with the gravel surface course". Mr. Davidson further testified that when he referred in his letter to "supervisor" he meant Mr. Geo. C. Cortright, a member and president of the County Board of Supervisors, who was the member of the board mainly in charge of this project, but who had died before trial of this cause on its merits.
On behalf of complainants it was shown that they complained to Mr. Cortright about this matter and he discussed with them methods of trying to remedy the situation; that in 1942 the county opened some ditches by the side of the road in an effort to relieve the condition; that some five or six men, regular employees of the county at the time, helped to construct the road, using tractors, graders and road machinery of the county, and that after completion of the road these same men, with the county machinery and equipment, worked upon and maintained the road. The act of operating the road machinery and equipment upon the road was shown by oral proof but the minutes of the supervisors were introduced to show the rate of pay to such employees by the county.
It might be added, as throwing light on the situation, that instead of placing the road on the spoil bank of an existing drainage ditch, as was intended by petitioners (although the petition itself says nothing of that), that bank was actually pulled down into the ditch, and the road constructed thereon, thereby entirely stopping up the ditch and rendering it useless for drainage purposes, and that, according to abundant proof on behalf of complainants, culverts too small to carry the water were placed under the road where it crossed another existing drainage ditch, both ditches being a part of the drainage system of Otter Bayou Drainage District of Issaquena, Sharkey and Washington Counties.
Now, who, under these circumstances, had jurisdiction of this road, and is liable, if the facts show damage as a result of these acts?
The road was constructed. It was either a private, a drainage district, a WPA, a State, or a county road. No claim is made it was either a private or drainage district road. Nor is it contended that the Works Progress Administration had any power to do work upon a public county highway without the consent of the county, or that, even though WPA did do work upon such highway that it thereby acquired, or could acquire, any jurisdiction and control over such highway. (Hn 1) The Legislature did not place this road under the control and supervision of the State Highway Department. Section 170 of the Constitution of Mississippi confers upon supervisors full jurisdiction over roads, ferries and bridges in their counties, with the power in the Legislature to designate certain highways as state highways and place them under the control and supervision of the State Highway Commission. That has not been done, or attempted, in the instant case. A survey by the state and aid in construction of the road would not divest jurisdiction of the county and invest the State with jurisdiction of this road. Bellard v. Board of Com'rs of Eare County, 31 Ohio App. 224, 167 N.E. 404. That must be done by affirmative act of the legislature. (Hn 2) Nor could work upon the road by WPA workers invest such jurisdiction in the Works Progress Administration, a federal agency set up as a temporary expediency to aid employment. That Agency had no power to acquire such jurisdiction. (Hn 3) The petition in this case was addressed to and filed with the supervisors. It followed the plan outlined in the statute for establishment of public highways by the county. It proposed to, and when properly acted upon did, vest in the county the title necessary for establishment and construction of a highway for the public. The supervisors accepted that petition, appointed a committee to determine the necessity and feasibility of constructing a public road; the committee reported, in the usual manner, the necessity and feasibility of the road, and the supervisors, by minutes, declared it should be constructed as a public road. The method prescribed by law was followed. Section 8314, Code 1942. The county, together with the State Highway Department and workers for WPA, all did certain work towards the actual construction. However, neither the Highway Department nor the WPA had the right to, or could, contribute to, or do any work towards, the construction of the road without permission of the supervisors. Section 8330, Miss. Code 1942, Section 6381, Code 1930, authorizes roads to be constructed and worked and maintained by the supervisors by use of different methods. They may purchase or hire equipment, purchase materials, employ labor and workmen, a road commissioner, "and may do any and all things necessary to be done to work, construct, reconstruct and maintain the public roads, and build bridges as herein provided . . . under the direct supervision of the board of supervisors," or it can do all of these things by contract. The board had the power to arrange with the State Highway Department and the WPA to furnish the materials and do the work shown to have been furnished and done by such agencies in this case. That in no wise divested the supervisors of jurisdiction of the road. The proof is competent and sufficient to establish jurisdiction of the road in the county. (Hn 4) All facts, except as next stated, are shown by minutes, including employment by the county of workers upon the road. The oral proof simply shows the fact that these employees helped to construct the road and thereafter maintain it by using county machinery. This could be shown by parol. Herod v. Carroll County, 162 Miss. 78, 138 So. 800; Id., 171 Miss. 217, 157 So. 533; City of Vicksburg v. Porterfield, 164 Miss. 581, 145 So. 355; Armstrong v. Itawamba County, 195 Miss. 802, 16 So.2d 752.
(Hn 5) A county is liable for damage to private property caused by the impounding of water thereon which has resulted from the negligent and improper construction of a public highway by the county. Section 17, Constitution of Mississippi; Copiah County v. Lusk, 77 Miss. 136, 24 So. 972; Rainey v. Hinds County, 78 Miss. 308, 28 So. 875; Covington County v. Watts, 120 Miss. 428, 82 So. 309; City of Vicksburg v. Porterfield, supra.
(Hn 6) The Chancellor did not decide whether the alleged wrongful acts caused complainant damage, and, if so, the extent thereof, nor whether mandatory injunction was justified, and, therefore, we express no opinion on those questions. The cause is remanded for determination of these questions upon another hearing.
Reversed and remanded.