Layman v. Beeler

Opinion of the court by JUDGE O’REAR

Reversing.

Appellant was the owner of a tract of land in Larue county through which was located a county road. This road divided appellant’s land into two parts of about equal size. It existed in that condition, and upon the grade at which it was found when the acts complained of m this suit were* committed, for about 20 years. The county of Larue determined to alter the grade of the road under the authority of section 4306 of the Kentucky Statutes, which provides: “The fiscal court of each county shall have charge and supervision of the public roads and bridges therein, and shall prescribe necessary rules and regulations for repairing and keeping same in order, and for the proper management of all roads and bridges in said county under and subject to the provisions of said act.” Section 4339 of the Kentucky Statutes provides for the cutting-down of hills on county roads, and for letting the work. Larue county let to appellees, Walters and Beeler, the contract for repairing this road, in accordance with certain specifications which involved the cutting down of the hill and ditching the road to such an extent that it is alleged -it impaired the value of plaintiff’s lands, making it impracticable, without larue expenditure, for Mm to go from one *225 part of Ixis farm to the other. A demurrer to plaintiff's petition was sustained as to Larue county, upon the idea, it is said, that the county was not liable to an action for tort. This, as a general proposition, is true. There is no liability upon the part of the county unless it be authorized expressly or by necessary implication by statute. Downing v. Mason Co., 87 Ky., 208 ( 10 R., 105 ) ( 8 S. W., 264 , 12 Am. Rt. Rep., 473). The question is, was there such an authorization in the cast1 at bar? Rection 242 of the present Constitution is as follows: “Municipal and other-corporations, and individuals invested with the privilege-of taking private property for. public use, shall make just compensation for property taken, injured or destroyed by them; which compensation shall be paid before such taking, or paid or secured, at the election of such corporation or individual before such injury or destruction. The General Assembly shall not deprive any person of an appeal from any preliminary assessmetít for damages against any such corporation or individual made by commissioners or otherwise; and upon appeal froin such preliminary assessment, the amount of such damages shall, in all cases, be-determined by a jury, according to the course of the common law.” It has been held, under the foregoing section of the Constitution, that where a municipality, by the erection of public works or improvements, so damages the idjacent property of the owneiyas to impair its value, that is the taking-, injuring or destroying of property within the contemplation of the section quoted. City of Ludlow v. Detweller ( 20 R., 894 ) (47 R. W., 881); City of Mt. Sterling v. Jephson ( 21 R., 1028 ) (53 R. W., 1046); City of Henderson v. McLain, 102 Ky., 402 ( 19 R., 1450 ) ( 43 S. W., 700 ), 39 L. R. A., 349.

*226 The matter of opening public roads, their improvement and repair, are exclusively within the jurisdiction of the fiscal count of flu; county. This tribunal is authorized to institute condemnation proceedings to take such lands and material as may be necessary for the purpose of construction of the public highways. This right of eminent domain, however, is, and under our Constitution, must be, subordinate to the right of the citizen to be first reimbursed for his damages occasioned by the taking. This means, not only that he shall be paid the value of the thing taken, but that he shall be paid the damages done to the adjacent property by the taking' and manner óf use of the citizen’s lands for the public. City of Paducah v. Allen, 111 Ky., 361 ( 23 R., 701 ), 63 S. W., 981 .

The provision of the Constitution which requires that the municipality taking private property for public use “shall make just compensation for the property taken, injured or destroyed by them,” necessarily implies that, if the corporation should fail to make the compensation before the taking or injuring, it is liable therefor after such taking or injury, and that, if it will not pay the damages, an action is necessarily authorized to be instituted against it; for it would be idle to give to a party a right without a remedy to enforce it. We therefore conclude that, if the facts as alleged in the petition be true, — that is, that the improvement of the highway in question did so impair the plaintiff’s adjacent lands and their value as to damage him— that was a taking and injury within the contemplation and meaning of the Constitution, and the language of that section necessarily implies a right upon the part of the citizen to maintain his action against the county to recover such damages, if not otherwise settled.

The other defendants pleaded that they did the work un *227 tier tlie authority and employment of the fiscal court of Larue county, and. did same in a careful and prudent manner, according to the specifications furnished them. Under this plea of justification, the case went to a trial before a jury, resulting in a verdict for the defendants. The only quest ion necessary to be considered on this branch of the appeal is as to the correctness of the instructions given. The court gave the following, among others: “If the jury believe from the evidence that the defendants were appointed by the fiscal court to grade, gravel and cut down the hill adjacent to plaintiff’s premises, and that in doing said work the defendants used due and proper care, and did no other or greater damage to plaintiff’s property than was necessary to complete the work which they were appointed to do, then the law is for the defendants, and the jury will so find.” We are of opinion that! this instruction was erroneous. If Larue county could not, without liability to the owner for damages, do the work in question so as to injure the plaintiff’s premises, it must follow that it could not authorize another to do it with immunity. The order of the fiscal court afforded its employes no protection against a suit for damage's by the person aggrieved by their acts where the court itself would have been liable for such acts. “The agent can not avert legal responsibility for* his own wrongful act by pleading that he was employed or directed by a person who had no lawful authority. . . . An agent or servant is responsible for. his own tortious act, even though it was done in submission to the command or authority of his employer or master.” Poole v. Adkisson, 1 Dana, 112 .

The judgment is reversed, and cause remanded for a new-trial under proceedings not inconsistent herewith.

Whole court sitting.