SOMERVILLE, J.
The gravamen of the complaint is the operation by defendant of a sewage plant, whereby a large volume of sewage is collected on the hanks of Valley creek in tanks and vats, from which quantities of foul and poisonous substances and fluids are discharged into tbe creek, poisoning its waters, and rendering them unfit for use, and producing an intolerable stench upon and adjoining lands of plaintiffs, interfering with or preventing their cultivation and their use for stock or for human habitation.
[1]
It is settled by the decisions of this court, and is, Indeed, a generally recognized principle of law, that counties, when acting, as ordinarily, in their public capacity and as auxiliaries of the state government, are not upon common-law principles subject to liability in tort, and that they c-an he required to answer to such liability only by virtue of its imposition by statutes or constitutions. Askew v. Hale County, 54 Ala. 639, 25 Am. Rep. 730; Dallas County v. Dillard, 156 Ala. 354, 47 South. 135, 18 L. R. A. (N. S.) 884; 15 Corp. Jur. 568. In the Dallas County Case it was held that counties are liable under section 235 of the Constitution for consequential injuries to property resulting from the construction or enlargement of their works, highways, or improvements, for which, in the absence of condemnation under the statutes, they may be sued in an action on the case.
[2]
But in the case of Meharg v. Ala. Power Co., 201 Ala. 555, 78 South. 909, it was held that consequential damage resulting from the maintenance or operation of an authorized dam is not within the scope of
section 23, or section 235, of the Constitution. That ruling is a clear negation of any right of action here under those constitutional provisions.
[3]
We may here take judicial knowledge of the fact that this sewage plant is being operated by the authorized officers ana agents of Jefferson county under the authority granted by the act of February 28, 1901 (Terry’s Local Laws of Jefferson County, p. 532); and we think it is clear, upon a consideration of all of the provisions of that act, that the Legislature contemplated and intended full responsibility by the county for any injuries done to private property in the survey and selection of routes for the trunk sewer and its laterals, and also in their construction and enlargement; that is to say, in the exercise of its granted powers of eminent domain. But we do not find in the act any provision for liability of the county, for indirect injuries resulting to adjacent property owners, or lower riparian proprietors, by reason of a nuisance created or aggravated by the maintenance or operation of a sewage plant such as this.
Section 8 of the act provides:
‘‘That the said commission shall have the power and authority to purify sewerage at any point the same may be concentrated, and may erect a purification plant or plants at such place or places as it sees fit, and do everything necessary or needful for the purification ot destruction of ^the sewerage.”
But it imposes neither duty nor liability in the promises.
Section 38 of the act does, indeed, provide for and regulate suits against the county for acts'done or omitted by the commission or its agents; but this is plainly referable to suits upon those causes of action which are recognized by the act, or authorized by tbe Constitution, and that provision cannot be extended by any reasonable implication to actions for injuries for which the county would not he liable on common-law principles.
It results that plaintiffs’ action against the county cannot be maintained except upon the theory that, with respect to the construction and operation of this sewage plant, and the consequential’pollution of the water of Valley creek and of the atmosphere on plaintiffs’ land, the county is not acting in a political or governmental capacity, but is acting, quoad hoc, in a merely ministerial capacity, in the performance of a self-imposed corporate duty; and that it ought to be hold liable for any resulting injury to private rights, as are other municipal corporations, properly so called.
We are convinced that this theory of the ease is sound in principio, and it seems to be fully supported by the authorities. In 15 Corp. Jur, § 272, p. 569, it is said;
“Also a county is liable for its torts when it is acting, not as a governmental agent, but as a private corporation, or is performing special duties imposed upon it with its consent, or voluntarily assumed by it.” Hannon v. St. Louis County, 62 Mo. 313; Barfield v. Macon County, 109 Ga. 386, 34 S. E. 596; Comanche County v. Burks (Tex. Civ. App.) 186 S. W. 470; Coburn v. San Mateo County (C. C.) 75 Fed. 520; Rowland v. Kalamazoo County, 49 Mich. 553, 14 N. W. 494.
It is true that the statute authorized the construction of this sewage plant, and, by necessary implication, authorized also its operation for the purpose of purifying or destroying the noxious material concentrated and carried by the county sewers. But, as said in Adler & Co. v. Bruitt, 169 Ala. 213, 220, 53 South. 315, 317 (32 L. R. A. [N. S.] 889), where the subject under consideration was a nuisance caused by the operation of a sewage plant by private parties under contract with Jefferson county, and constructed under this very act:
“In tbe absence of express statutory provision to that effect, it cannot be assumed that it was intended to legalize an act which would necessarily result in a nuisance, nor can it be assumed that the sewer would have been constructed to discharge a great volume of sewerage at a point where it would seriously interfere with plaintiff’s right to enjoy pure and wholesome air in connection with her use of her property hut for the provision for its treatment in the purification plant. The plant was authorized, and there is no doubt that it was designed and expected to render the sewerage innocuous.”
i
From the allegations of the complaint in the instant case it appears that the operation of this plant has created a nuisance resulting proximately in actionable injury to plaintiffs, for which, prima facie, the defendant county is liable. The complaint does not show that the county is acting within the authority and to the end authorized by the act of February 28, 1901. Of course if the county is so acting, and is guilty of no negligence in the exercise of the powers granted by tlie Legislature, this would he a complete answer to the .complaint, for there can be no liability for a legally authorized nuisance. Hamilton v. Ala. Power Co., 195 Ala. 438, 70 South. 737; Meharg v. Ala. Power Co., 201 Ala. 555, 78 South. 909.
It results that the trial court was in error in justifying its order for a new trial upon the theory of the legal immunity of the county.
[4]
Counsel for plaintiffs has erroneously assumed that our review of the action of the court must be limited to that ground of the motion thus singled out by the trial court in the explanatory memorandum subjoined to the order, but forming no part of the order itself. On appeal such a memorandum cannot be considered for any purpose. Richard
v. Steiner Bros., 152 Ala. 803,
44
South. 562;
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SOMERVILLE, J.
The gravamen of the complaint is the operation by defendant of a sewage plant, whereby a large volume of sewage is collected on the hanks of Valley creek in tanks and vats, from which quantities of foul and poisonous substances and fluids are discharged into tbe creek, poisoning its waters, and rendering them unfit for use, and producing an intolerable stench upon and adjoining lands of plaintiffs, interfering with or preventing their cultivation and their use for stock or for human habitation.
[1]
It is settled by the decisions of this court, and is, Indeed, a generally recognized principle of law, that counties, when acting, as ordinarily, in their public capacity and as auxiliaries of the state government, are not upon common-law principles subject to liability in tort, and that they c-an he required to answer to such liability only by virtue of its imposition by statutes or constitutions. Askew v. Hale County, 54 Ala. 639, 25 Am. Rep. 730; Dallas County v. Dillard, 156 Ala. 354, 47 South. 135, 18 L. R. A. (N. S.) 884; 15 Corp. Jur. 568. In the Dallas County Case it was held that counties are liable under section 235 of the Constitution for consequential injuries to property resulting from the construction or enlargement of their works, highways, or improvements, for which, in the absence of condemnation under the statutes, they may be sued in an action on the case.
[2]
But in the case of Meharg v. Ala. Power Co., 201 Ala. 555, 78 South. 909, it was held that consequential damage resulting from the maintenance or operation of an authorized dam is not within the scope of
section 23, or section 235, of the Constitution. That ruling is a clear negation of any right of action here under those constitutional provisions.
[3]
We may here take judicial knowledge of the fact that this sewage plant is being operated by the authorized officers ana agents of Jefferson county under the authority granted by the act of February 28, 1901 (Terry’s Local Laws of Jefferson County, p. 532); and we think it is clear, upon a consideration of all of the provisions of that act, that the Legislature contemplated and intended full responsibility by the county for any injuries done to private property in the survey and selection of routes for the trunk sewer and its laterals, and also in their construction and enlargement; that is to say, in the exercise of its granted powers of eminent domain. But we do not find in the act any provision for liability of the county, for indirect injuries resulting to adjacent property owners, or lower riparian proprietors, by reason of a nuisance created or aggravated by the maintenance or operation of a sewage plant such as this.
Section 8 of the act provides:
‘‘That the said commission shall have the power and authority to purify sewerage at any point the same may be concentrated, and may erect a purification plant or plants at such place or places as it sees fit, and do everything necessary or needful for the purification ot destruction of ^the sewerage.”
But it imposes neither duty nor liability in the promises.
Section 38 of the act does, indeed, provide for and regulate suits against the county for acts'done or omitted by the commission or its agents; but this is plainly referable to suits upon those causes of action which are recognized by the act, or authorized by tbe Constitution, and that provision cannot be extended by any reasonable implication to actions for injuries for which the county would not he liable on common-law principles.
It results that plaintiffs’ action against the county cannot be maintained except upon the theory that, with respect to the construction and operation of this sewage plant, and the consequential’pollution of the water of Valley creek and of the atmosphere on plaintiffs’ land, the county is not acting in a political or governmental capacity, but is acting, quoad hoc, in a merely ministerial capacity, in the performance of a self-imposed corporate duty; and that it ought to be hold liable for any resulting injury to private rights, as are other municipal corporations, properly so called.
We are convinced that this theory of the ease is sound in principio, and it seems to be fully supported by the authorities. In 15 Corp. Jur, § 272, p. 569, it is said;
“Also a county is liable for its torts when it is acting, not as a governmental agent, but as a private corporation, or is performing special duties imposed upon it with its consent, or voluntarily assumed by it.” Hannon v. St. Louis County, 62 Mo. 313; Barfield v. Macon County, 109 Ga. 386, 34 S. E. 596; Comanche County v. Burks (Tex. Civ. App.) 186 S. W. 470; Coburn v. San Mateo County (C. C.) 75 Fed. 520; Rowland v. Kalamazoo County, 49 Mich. 553, 14 N. W. 494.
It is true that the statute authorized the construction of this sewage plant, and, by necessary implication, authorized also its operation for the purpose of purifying or destroying the noxious material concentrated and carried by the county sewers. But, as said in Adler & Co. v. Bruitt, 169 Ala. 213, 220, 53 South. 315, 317 (32 L. R. A. [N. S.] 889), where the subject under consideration was a nuisance caused by the operation of a sewage plant by private parties under contract with Jefferson county, and constructed under this very act:
“In tbe absence of express statutory provision to that effect, it cannot be assumed that it was intended to legalize an act which would necessarily result in a nuisance, nor can it be assumed that the sewer would have been constructed to discharge a great volume of sewerage at a point where it would seriously interfere with plaintiff’s right to enjoy pure and wholesome air in connection with her use of her property hut for the provision for its treatment in the purification plant. The plant was authorized, and there is no doubt that it was designed and expected to render the sewerage innocuous.”
i
From the allegations of the complaint in the instant case it appears that the operation of this plant has created a nuisance resulting proximately in actionable injury to plaintiffs, for which, prima facie, the defendant county is liable. The complaint does not show that the county is acting within the authority and to the end authorized by the act of February 28, 1901. Of course if the county is so acting, and is guilty of no negligence in the exercise of the powers granted by tlie Legislature, this would he a complete answer to the .complaint, for there can be no liability for a legally authorized nuisance. Hamilton v. Ala. Power Co., 195 Ala. 438, 70 South. 737; Meharg v. Ala. Power Co., 201 Ala. 555, 78 South. 909.
It results that the trial court was in error in justifying its order for a new trial upon the theory of the legal immunity of the county.
[4]
Counsel for plaintiffs has erroneously assumed that our review of the action of the court must be limited to that ground of the motion thus singled out by the trial court in the explanatory memorandum subjoined to the order, but forming no part of the order itself. On appeal such a memorandum cannot be considered for any purpose. Richard
v. Steiner Bros., 152 Ala. 803,
44
South. 562;
4
Corp. Jur. 96. The rule is that an order granting a new trial, a good reason therefor appearing in the motion, will not be reversed on appeal, even though the court based its action upon an improper ground. Choate v. A. G. S. R. R. Co., 170 Ala. 590, 54 South. 507.
[5, 6]
On this principle the granting of the new trial must be sustained for at least several of the reasons set out in the motion. The complaint does not allege that the statement of plaintiffs’ claim was presented to the county board within twelve months of its accrual, as required by section 150 of the Code. Autauga County v. Davis, 32 Ala. 703; Marshall County v. Jackson County, 36 Ala. 613, 615. Nor does it allege, even as amended, that the statement was itemized and sworn to by the claimant, or some person in his behalf, having knowledge of the facts, as required by section 147 of the Code. Washington County v. Porter, 128 Ala. 278, 29 South. 185; Schroeder v. Colbert County, 66 Ala. 137. Both of these defects were pointed out by appropriate grounds of demurrer, which were erroneously overruled.
[7, 8]
On the showing made by the record, it is clear that the trial court erred in overruling defendant’s motion to require an election by plaintiffs as between the prosecution of their suit in chancery, for damages for the identical .conduct and injuries here complained of, and the prosecution of this action at law. Rule 112, p. 1564, Code of 1907; Doe v. McLoskey, 1 Ala. 708; P. &. M. Bank v. Borland, 5 Ala. 531; P.
&
M. Bank v. Walker, 7 Ala. 926, 944. While this rule of election is enforceable only by the court of chancery under a system of separate courts of law and chancery, yet where both jurisdictions are united in the circuit court, as now, the motion for election may be made on either side of the court having jurisdiction of both proceedings. Authorities, supra.
It would seem that the election in this ease need only be specific if plaintiffs choose to proceed at law; that is, they would not be required to abandon their chancery suit in toto, but only as respects the claim therein for the damages claimed in this action at law. P. & M. Bank v. Walker, 7 Ala. 926, 942. Plaintiffs are of course entitled to prosecute their suit in chancery for injunctive relief, but they are not entitled to prosecute a claim for the same damages, for the same wrongs, in two concurrent causes in law and in equity.
For the reasons stated, the order of the trial court granting a new trial will be affirmed ; and the order overruling the motion for an election by plaintiffs will be reversed, and an order here made and entered, granting that motion and requiring an election as set forth.
Affirmed in part, and reversed and rendered in part.
All the Justices concur.