To my mind such serious consequences attend the majority decision as to call for an expression of views which impel me to dissent.
In recent years the state of Alabama has entered upon the construction and maintenance of public highways through the state highway department, a state agency recognized by Constitution and statute. It is further recognized by federal laws, and a program of co-operative construction by the two governments has proceeded for many years.
It is a vast complicated constructive enterprise of business character. No one questions the power of the highway department to bind the state by contracts approved by the Governor, and in case of federal projects approved also by the federal highway authorities.
Necessarily plans and specifications, including drains and bridges, are a part of all such contracts, state contracts. It must follow that the plans and specifications are state plans, government made and government approved. When a contract is let to construct a road as per such plans and specifications, the rights of the builder under contract with the sovereign state become involved.
Now, the majority opinion holds in effect that the members of the highway commission are insurers against any subjection of lands to public use, although located far away from the roadway, unless condemnation proceedings are first had and compensation paid before the taking.
Note the opinion proceeds on the hypothesis that the lands are taken for public use under the power of eminent domain, which is to say they are taken by the state, become the property of the state for the uses to which they are devoted. How can they be acquired by the state unless the officers taking them are acting for the state? Again the opinion recognizes that recovery is for the just compensation due the owner because of such taking for the state's use. So the state, through its judicial department, is saying to its officers, you shall pay for lands taken by the state for the state.
The complaint rests on no want of engineering skill or negligence.
The opinion declares as matter of law an unqualified duty to foresee and forestall any flooding of lands, not only by those who make the survey, plans, and specifications, but declares a like duty on all plans already approved by the state and federal governments and in course of construction.
That the performance of official duty is presumed until the contrary appears has heretofore been regarded a maxim in the law; but it seems such rule, under the majority opinion, affords no protection to officers charged with the duty of executing contracts made by predecessors in office, contracts conforming in all respects with the requirements of law and approved by the highest executive authority.
It seems the principle here announced is that any officer or agent of the state, or any one acting under him, who takes private property for the use of the state, or imposes a servitude thereon for like use, and while the state holds the property and is daily using it for public purposes, is personally liable for the just compensation due the owner. All this, because the proper authority did not in the first instance condemn the property and make compensation before the taking.
In my humble judgment such view imposes upon officers, contractors, bondsmen, and even employees, the obligation of insurers, a risk of such far-reaching consequences that we may expect it to be reflected in the cost of such undertakings, an outlay of public funds *Page 308 because of such contingencies far exceeding the just compensation which is due and should be paid for private property devoted to public use under conditions shown in this case.
When we write that the state through its agencies has taken this property and devoted it to the uses of the state, and still holds it for such use, we should write that the obligation to pay for it is a state obligation.
Now it seems all the hardship and injustice above noted must be visited on officials and others because the landowner is entitled under the Constitution to just compensation, and the state is not subject to suit.
Because the state is not subject to suit does not mean the citizen is without remedy to enforce obligations of the state. Daily, hundreds of state obligations or debts are incurred by its multiform agencies payable from public funds devoted to that purpose. Nowhere has the officer having the duty to ascertain and pay the same been held personally liable for the debt; but mandamus to require the performance of duty enjoined by law is widely recognized.
Accepting the view that this is a taking of private property for public use, that the state has taken it, and the state holds it, then the obligation to pay for it is a state obligation — an obligation payable from state highway funds.
For all that appears, the taking of this land for drainage purposes may be less expensive than cutting in a bridge in the midst of a lake and on a high fill. In any event, when the present authorities were informed that a servitude of this kind was cast upon plaintiff's land, it was their duty to either remedy it by installing a proper drain, or to retain it as property devoted to the state's use, and, in the latter event, to pay the reasonable compensation therefor by agreement with the owner, or failing to so agree, proceed to ascertain the same by condemnation proceedings. I see no reason why mandamus would not lie to require the highway commission to proceed thus to ascertain and pay the just compensation due the landowner.
I would be understood as expressing no views on other questions discussed by my associates, preferring to limit my opinion solely to what is above written.