Finnell v. Pitts

(dissenting).

The question is whether or not there is liability of highway officers who, in building a *294 public highway according to specifications approved by state and federal engineers, affected or diverted the flow of a stream, thereby raising the level of the lake that caused the damage by overflow upon lands of the plaintiff. Trial was had on several counts, of which count 5 will illustrate the question presented by the facts.

Appellee contends that such act and result were the taking of private property for public use with compensation, and that such taking was by the defendants as individuals; that section 23 of the Constitution forbade the defendants, the state, or any department thereof, acting as agents, servants, or officials, from constructing that highway as to cause plaintiff’s alleged injury, and without just compensation being paid.

The contention of appellants is that the state may not be made a defendant in any court, law or equity, and that defendants’ acts were those of the state. Section 14, Const.; Ex parte State, 52 Ala. 231, 23 Am. Rep. 567; Louisville & N. R. Co. v. Holmes, 206 Ala. 304, 89 So. 610; Louisville & N. R. Co. v. Shikle, 206 Ala. 494, 90 So. 900; Moon v. Hines, Director General of Railroads, 205 Ala. 355, 87 So. 603, 13 A. L. R. 1020.

In Moon v. Hines, etc., supra, it is stated generally (page 358 of 205 Ala., 87 So. 603, 605, 13 A. L. R. 1020).

“* * * It is an established principle of ‘jurisprudence in all civilized nations that the sovereign cannot be sued in its own courts, or in any other, without its consent and permission.’ Hill v. U. S., 9 How. 386, 13 L. Ed. 185; Beers v. Arkansas, 20 How. 527, 15 L. Ed. 991; U. S. v. Diekelman, 92 U. S. 520, 23 L. Ed. 742; Ball v. Halsell, 161 U. S. 72, 16 S. Ct. 554, 40 L. Ed. 622; Belknap v. Schild, 161 U. S. 10, 16 S. Ct. 443, 40 L. Ed. 599. The doctrine rests on reasons of public policy— the inconvenience and danger -frhich would follow from a different rule. Belknap v. Schild, supra; 25 R. C. L. p. 412, § 49 et seq.

“There is no distinction between suits against the government directly and suits against its property. Stanley v. Schwalby, 147 U. S. 508, 13 S. Ct. 418, 37 L. Ed. 259; Id., 162 U. S. 255, 16 S. Ct. 754, 40 L. Ed. 960; Belknap v. Schild, supra; Overholser v. Nat. Home for Disabled Volunteer Soldiers, 68 Ohio St. 236, 67 N. E. 487, 62 L. R. A. 936, 96 Am. St. Rep. 658.”

And the text to 25 R. C. L. § 50, pp. 413, 414, based on the general authorities, is to the effect:

“The immunity of a state from suit is absolute and unqualified, and the constitutional provision securing it is not to be so construed as to place the! state within the reach of the process of the court. Accordingly, suits against officers of a state as representing the state in action and liability, where the state, although not a party to the record, is the real party against which relief is sought, and where a judgment for the plaintiff, although nominally against the defendant as an individual, could operate to control the action of the state or subject it to liability, are suits against the state. * * * The immunity of the State from suit does not relieve officers of the state from responsibility for illegal trespasses or torts on the rights of an individual, even though they act or assume to act under the authority and pursuant to the directions of the state; or where they unlawfully deprive a citizen of his property or prevent his free enjoyment of it.”

This statement of the general rule is supported by many well-considered decisions by ' the Supreme Court of the United States, Florida, Tennessee, Kentucky, New York, Pennsylvania, Oklahoma, and Virginia. See, also, 36 Cyc. 915, 917, where an exception to this rule is stated, as:

“A suit against an individual who, claiming to act as a state officer, has committed or threatens to commit acts of wrong and injury to the rights and property of plaintiff, either without authority from the state or under col- or of an unconstitutional statute, brought to recover property wrongfully taken by defendant in behalf of the state, or for damages, or for an injunction, is not a suit against a state, for defendant, in assuming to act without lawful authority, lays aside his official character and becomes liable as an individual to persons injufed by his unlawful acts; he is not sued as or because he is an officer of the state, but as an individual, and the court is not ousted of jurisdiction because he asserts authority as such officer; to make out his defense he must show that his authority was sufficient in law to protect him.”

Its text as to the general rule is (36 Cyc. pp. 915, 916):

“Suits against officers of a state as representing the state in action and liability, and in which the state, although not a party to the record, is the real party against which relief is sought and in which a judgment for plaintiff, although nominally against defendant as an individual, could operate to control the action of the state or subject it to liability, are suits against the state. A broad line of demarcation separates such suits, in which it is sought to compel the performance, by affirmative official action on the part of defendants, of an obligation which belongs to the state in its political capacity, from suits against defendants personally on account of wrongs done or threatened to the personal or property rights of plaintiffs without authority or under color of authority unconstitutional and void. It seems that the rule which for *295 bids a suit against state officers because in effect a suit against the state applies only where the interest of the state is through some contract or property right, and it is not enough that the state should have a mere interest in the vindication of its laws or in their enforcement as affecting the public at large or the rights of individuals or corporations; it must be an interest of value in a material sense to the state as a distinct entity.”

The rule in this jurisdiction is thus announced or immunity from suits extended in Alabama Girls’ Industrial School v. Reynolds, 143 Ala. 579, 580, 42 So. 114, where the bill for accounting was by the corporation against its treasurer who sought relief against it by way of cross-bill. The latter’s effort was denied notwithstanding the fact of its incorporation and its express authorization for suit. It was held (headnotes 4 and 5):

.“If a corporation is a mere State agency, a representative of the State instituted and maintained for the exercise of a governmental function, and any judgment or decree against it must be satisfied, if at all, out of property held by it, and this property belongs to the State, though the title is eo nomine in the corporation, — a suit against such corporation is in effect a suit against the State, and is prohibited by the Constitution.

“The constitutional provision, that the State should not be made a defendant in any suit at law or in equity, applies to a cross-bill as well as to an original bill, and prohibits the filing of a cross-bill to an original bill filed by the State.”

In Alabama Industrial School v. Addler, 144 Ala. 555, 42 So. 116, 113 Am. St. Rep. 58, the suit was assumpsit to recover advance money paid by Addler & Company through their agent on a contract entered into in the name of said agent with the school, for the purchase from it of certain lands donated to it by Congress; held the school was within the constitutional prohibition against the state being made a party defendant to any suit. The case of Cox v. Board of Trustees of University of Alabama, 161 Ala. 639, 49 So. 814, 817, was a suit in ejectment by said trustees for the recovery of land belonging to the university. It was said of this character of public institutions, its property, and the rule as to actions by limitations, that:

“* * * The University of Alabama, by whatever corporate name or under the control of whatever agents it may be, is a part of the state; that it was founded by the state; that it is under the state control, and that the University is therefore a public municipal corporation; that as to its lands the state is and has always been the trustee; and that the board of trustees are mere agents of the state. Winston’s Case, 5 Stew. & Port. 17; Bullock v. Governor, 2 Port. 484.

“It was decided by this court in the case of White v. Alabama Insane Hospital, 138 Ala. 479, 35 So. 454, that the hospital was a mere state agency created for the purpose of caring for and treating the unfortunate insane citizens of the state — purely a governmental function, wise and beneficial. It was also decided by this'court in the case of Ala. Girls’ Industrial School v. Reynolds, 143 Ala. 579, 42 So. 114, that this school, popularly known as ‘Montevallo School,’ is a mere agency of the state, and that all of its property is owned by the state, and that an action against it is substantially an action against the state. This ease was affirmed, and, if possible, made stronger, by the decision .of this court in the ease of Alabama Industrial School v. Addler, 144 Ala. 555, 42 So. 116, 113 Am. St. Rep. 58. The cases above referred to settle the law in this state that public institutions created by the state purely for chari-. table or educational purposes are a part of the state, or a mere agency of the state; that the property of such corporations is really and in fact the property of the state, and that they are not subject to suit under section 14 of the Constitution of-1901.”

In Creighton v. Air Nitrates Corporation, 208 Ala. 330, 94 So. 356, 358, the action was for work done and labor furnished in carrying out a governmental function, and contained the observation of the authorities aforediscussed, that “these institutions and their property belong to the state of Alabama; and an action against either is substantially an action against the state of Alabama.”

We will defer for the present a decision as to pleading under section 14 of the Constitution and under the evidence, until important questions presented in arguments under sections 23 and 235 of the Constitution are disposed of. At the outset, the decisions make a distinction as to the field of operation for interdictions contained in the last-cited sections of the Constitution. The authority of section 23 is stated in Duy v. Alabama Western Railway Co., 175 Ala. 162, 173, 57 So. 724, 727, Ann. Cas. 1914C, 1119, as follows:

“As to the state itself, the sole restraint in the particular now important is Const. § 23, wherein it is provided that ‘private property shall not be taken for, or applied to, public use, unless just compensation be first made therefor.’ Section 235 is addressed to the restraint of ‘municipal and other corporations and individuals invested with the privilege of taking property for public use.’ This latter section does not apply to the state itself in the exercise of its sovereign power in restraint of which, in so far as we are now concerned, Const. § 23, alone operates.”

And inferentially to the same effect is Meharg v. Alabama Power Co., 201 Ala. 555, 78 So. 909. It was under section 235, Const., that *296 our cases of City Council v. Townsend, 80 Ala. 489, 2 So. 155, 60 Am. Rep. 112, and City Council of Montgomery v. Maddox, 89 Ala. 181, 7 So. 433, allowed consequential damages. The provision for damages and injuries to property by one having the right of eminent domain did not exist until incorporated in the Constitution of 1875, § 7, art. 14; article 18, § 5, Const. 1867.

The effect 'of a class of our decisions as to “just compensation,” where property was taken for construction of public roads, was recently reviewed in Rudder v. Limestone Co. (Ala. Sup.) 125 So. 670, 1 and Conecuh County V. Carter (Ala. Sup.) 126 So. 132. 2 it is apparent from the authorities (Duy v. Alabama Western Railway Co. and Meharg v. Alabama Power Co., supra) that we should now consider, not section 235 of the Constitution, providing for “municipal and other corporations and individuals invested with the privilege of taking property f or public use,” but the limitations placed upon the state by section 23, Const. It is therein declared that the right of eminent domain shall not be abridged, etc., to prevent the Legislature (1) from taking the property and franchises of corporations to subject them to public use in the same manner in which like properties of individuals are taken and subjected; (2) that private property “shall not be taken for, or applied to public use, unless just compensation be first made therefor”; nor shall private property be taken for private use, or for the use of corporations, other than municipal, without the consent of the owner; (4) provides for the passage of laws to secure to persons or corporations right of ways; (5) and for the passage of general laws for and to regulate the exercise of “rights herein reserved” by the Constitution, but that “just compensation shall, in áll cases, be first made to the owner” ; (6) and that the right of eminent domain shall not be so construed as to allow taxation or forced subscription for the benefit of “railroads or any other kind of corporations, other than municipal, or for the benefit of any individual or association.”

It will be noted that section 23, Constitution, so far as concerns the state, requires just compensation for the taking of property and franchises for public use, as specified, unless just compensation be first made therefor, and does not extend to “inquiry,” etc., as provided in section 235 of the Constitution; hence the proper distinction has been made between consequential damages (as under section 235) and the “taking” (as under section 28, Const.). And this distinction has been 'observed in applying like and applicable provisions of the Federal Constitution. In Bedford v. United States, 192 U. S. 217, 24 S. Ct. 238, 48 L. Ed. 414, Mr. Justice McKenna for that court held that:

“Injury from overflow and erosion to the lands of a riparian proprietor as the result of the action of the Mississippi river through a series of years is not such a direct consequence of the construction by the Federal government farther up the stream of a revetment along the banks, which did not change the course of the river as it then existed, but operated to prevent further changes, as to make such governmental action a taking of private property for public use within the meaning of the 5th Amendment to the Federal Constitution.”

He illustrates the distinction and application as follows (192 U. S. 217, 24 S. Ct. 238. 240, 48 L. Ed. 417):

“The Constitution provides that private property shall not be taken without just compensation, but a distinction has been made between damage and taking, and that distinction must be observed in applying the constitutional provision. An excellent illustration is found in Gibson v. United States, 166 U. S. 269, 41 L. Ed. 996, 17 S. Ct. 578. The distinction is there instructively explained, and other cases need not be cited. It is, however, necessary to refer to United States V. Lynah, 188 U. S. 445, 47 L. Ed. 539, 23 S. Ct. 349, as it is especially relied upon by appellants. The facts are stated in the following excerpt from the opinion:

“ ‘It appears from the 5th finding,' as amended, that a large portion of the land flooded was, in its natural condition, between high-water mark and low-water mark, and was subject to overflow as the water passed from one stage to the other; that this natural overflow was stopped by an embankment, and in lieu thereof, by means of flood gates, the land was flooded ■ and drained at the will of the owner. From this it is contended that the only result of the raising of the level of the river by the government works was to take away the possibility of drainage. But findings IX. and X. show that, both by seepage and percolation through, the embankment and an actual flowing upon the plantation above the obstruction the water has been raised in the plantation about 18 inches; that it is impossible to remove this overflow of water, and, as a. consequence, the property has become an irreclaimable bog, unfit for the purpose of rice culture or any other known agriculture, and deprived of all value. It is clear from these findings that what was a valuable rice plantation has been permanently flooded, wholly destroyed in value, and turned into an irreclaimable bog; and this as the necessary result of the work which the government has undertaken.’

“The question was asked: ‘Does this amount to a taking?’ To which it was replied: ‘The case of Pumpelly v. Green Bay & M. Canal Co. 13 Wall. 166, 20 L. Ed. 557, *297 answers this question in the affirmative.’ And further: ‘The Green Bay Company, as authorized by statute, constructed a dam across Fox river, by means of which the land of Pumpelly was overflowed and rendered practically useless t,o him. There, as here, no proceedings had been taken to formally condemn the land.’ In both cases, therefore, it was said that there was an actual invasion and appropriation of land as distinguished from consequential damage. In the case at; bar the damage was strictly consequential. It was the result of the action of the river through a course of years. The case at bar, therefore, is distinguishable from the Lynah Case in the cause and manner of the injury. In the Lynah Case the works were constructed in the bed of the river, obstructed the natural flow of its water, and were held t<> have caused, as a direct consequence, the overflow of Lynah’s plantation. In the case at bar the works were constructed along the banks of the river, and their effect was to resist erosion of the banks by the waters of the river. There was no other interference with natural conditions. Therefore, the damage to appellants’ land, if it can be assigned to the works at all, was but an incidental consequence of them.”

This case has been followed in that jurisdiction in Peabody v. United States, 231 U. S. 530, 34 S. Ct. 159, 160, 58 L. Ed. 351, 353, by Mr. Justice Hughes, who declares:

“* * * If the government had installed its battery, not simply as a means of defense in war, but with the purpose and effect of subordinating the strip of land between the battery and the sea to the right and privilege of the government to fire projectiles directly across it, for the purpose of practice or otherwise, whenever it saw fit, in time of peace, with the result of depriving the owner of its profitable use, the imposition of such a servitude would constitute an appropriation of property for which compensation should be made. The subjection of the land to the •burden of governmental use in this manner might well be considered to be a ‘taking’ within the principle of the decisions (Pumpelly v. Green Bay & M. Canal Co., 13 Wall. 166, 177, 178, 20 L. Ed. 557, 560; United States v. Lynah, 188 U. S. 445, 469, 47 L. Ed. 539, 548, 23 S. Ct. 349; United States v. Welch, 217 U. S. 333, 339, 54 L. Ed. 787, 789, 28 L. R. A. (N. S.) 3S5, 30 S. Ct. 527, 19 Ann. Cas. 680), and not merely a consequential damage incident to a public undertaking, which must be borne without any right to compensation (Northern Transp. Co. v. Chicago, 99 U. S. 635, 642, 25 L. Ed. 336, 338; Gibson v. United States, 166 U. S. 269, 41 L. Ed. 996, 17 S. Ct. 578; Scranton v. Wheeler, 179 U. S. 141, 164, 45 L. Ed. 126, 137, 21 S. Ct. 48; Bedford v. United States, 192 U. S. 217, 224, 48 L. Ed. 414, 417, 24 S. Ct. 238; Jackson v. United States, 230 U. S. 1, 23, 57 L. Ed. 1363, 1374, 33 S. Ct. 1011.”

Likewise the subject is again adverted to in United States v. George F. Archer, 241 U. S. 119, 36 S. Ct. 521, 524, 60 L. Ed. 918, 921, 922, as. follows:

“The court [47 Ct. Cl. 265], through Mr. Justice Barney, said:

“ ‘In the decision of this ease it may be admitted that if the government had' owned the site of the Leland dike at the time of its erection, or if it had been owned by a stranger to this suit, and hence had made no invasion upon the lands of the plaintiff, it would not have been liable for the destruction thereby inflicted, under the ruling in the Bedford Case, 192 U. S. 217, 48 L. Ed. 414, 24 S. Ct. 238.’

“But it was further said: ‘Under tbe decisions of the Supreme Court in all eases of this character, it is the invasion upon the lands and the actual and visible possession which constitutes the taking, and when thus taken, all of the consequences incident to suqh invasion necessarily follow, among which is the liability to pay for the damage thereby occurring to the balance of the tract to which the land thus taken belongs.’ Citing United States v. Grizzard, 219 U. S. 180, 55 L. Ed. 165, 31 L. R. A. (N. S.) 1135, 31 S. Ct. 162.

“Claimants concede the power of the government over the river, and that they ‘do not base their claim upon any raising of the flood levels of the Mississippi river, although it is stated by them and was found as a fact by the lower court that the high-water, flood level of the Mississippi river had been raised 6 feet by the completion of the general levee system.’

“They ‘recognize the fact that the right of the United States government to complete the levee system and maintain the samé is indisputable, and that any purely incidental injury which might have resulted to them solely from raising the flood level would be a damnum absque injuria. They claim nothing by reason of said fact, adducing the same merely by way of inducement as showing that the ruin, which would inevitably have come to their plantation from the deflecting thereon of the flood waters by the construction of Leland dike, was merely accelerated and expedited, but not caused, by the raising of the flood level.

“ ‘Their claim is that the deposit of safid and gravel and the destruction of their lands thereby were a direct and immediate result of the construction of the dike which was built on their plantation, using a part of it for the base thereof and the material thereof, and constructing the same without any condemnation of their lands and ouster of *298 them therefrom, which, with the destruction, constituted the taking of their lands within the meaning of the 5th Amendment, and entitled them fo compensation therefor.’ :i * *

“Great problems confronted the national and state governments; great and uncertain natural forces were to be subdued or controlled, great disasters were to be averted, great benefits acquired. There might be liability to the individual; if so, the liability should be clear, the cause of it direct and certain. This we explained in Jackson v. United States, 230 U. S. 1, 57 L. Ed. 1363, 33 S. Ct. 1011, and in Hughes v. vUnited States, 230 U. S. 24, 57 L. Ed. 1374, 46 L. R. A. (N. S.) 624, 33 S. Ct. 1019. There is an effort in the present case to satisfy those conditions, but we do not think it goes far enough,’’

The result was a reversal of the judgment of the Court of Claims awarding damages, and remandment of the cause for more specific finding of fact.

This question was again considered in United States v. Cress, 243 U. S. 316, 37 S. Ct. 380, 383, 61 L. Ed. 749, 751; the authorities were reviewed, and under the right of eminent domain a' taking by overflow caused in navigation improvement was defined. Mr. Justice Pitney observed that:

“Pumpelly v. Green Bay & M. Canal Co. 13 Wall. 166, 20 L. Ed. 557, involved the right to compensation for land overflowed with backwater from a dam erected and maintained in the Fox river, under authority of the state of Wisconsin, for the improvement of navigation. (A permissible exercise of state power, in the absence of action by Congress, although it was an interstate navigable water. Willson v. Black Bird Creek Marsh Co., 2 Pet. 245, 251, 7 L. Ed. 412, 414; Gilman v. Philadelphia, 3 Wall. 713, 18 L. Ed. 96.) The raising of the river above its natural stage, by means of an artificial structure, was the gravamen of the complaint. It was argued (page 174 [of 13 Wall., 20 L. Ed. 557]) that the state might, in the interest of fhe public, ‘erect such works as may be deemed expedient for the purpose of improving the navigation and increasing the usefulness! of a navigable river, without rendering itself liable to individuals owning land bordering on such river, for injuries to their lands resulting from their overflow by reason of such improvements.’ This court; overruled the contention, and held there was a taking without compensation, contrary to the applicable provision of the Constitution of Wisconsin.

“In United States v. Lynah, 188 U. S. 445, 47 L. Ed. 539, 23 S. Ct. 349, the same principle was applied in the case of an operation by the government of the United States. For the improvement of the navigation of the Savannah river certain dams and other obstructions were placed and maintained in its bed, with the result of raising the water above- its natural height and backing it up against plaintiff’s embankment upon the river and interfering with the drainage of their plantation. This was held (pages 465, 471, [of 188 U. S., 23 S. Ct. 349, 47 L. Ed. 539]) toi be a taking of private property, requiring compensation under the 5th Amendment, notwithstanding the work was done by the government in improving the navigation of a navigable river. The raising of the water above its natural level was held to be an invasion of the private property thereby flowed. * * *

“It follows from what we have said that the servitude of privately-owned lands forming the banks and bed of a stream to the interests of navigation is a natural servitude, confined to such streams as, in their ordinary and natural condition, are navigable in fact, and confined to the natural condition of the stream. * * *

“But the authority to make such improvements is only a branch of the power to regulate interstate and foreign commerce, and, as already stated, this power, like others, must be exercised, when private property is taken, in subordination to the 5th Amendment. Monongahela Nav. Co. v. United States, 148 U. S. 312, 336, 37 L. Ed. 463, 471, 13 S. Ct. 622; United States v. Lynah, 188 U. S. 445, 465, 471, 47 L. Ed. 539, 546, 549, 23 S. Ct. 349. And we deem it clear that so much of the properties of the respective defendants in error as was unaffected by the flow of the rivers or their tributaries prior to the construction of the locks and dams in question was private property, and not subject to be overflowed, without compensation, in the raising of the level of the rivers by means of artificial dams.”

This distinction was made at the outset in cases where there was direct invasion of the lands of a claimant whose damages were allowed; and damages have been denied where that result was “altogether consequent