The opinion
BROWN, J.
(dissenting).
That the permanent flooding of land by the erection or construction of artificial obstructions in a natural water course amounts to a taking of the land within constitutional provisions that private property shall not be taken for public use, without just compensation, is sustained by reason and the great weight of authority. United States v. Cress; United States v. Kelly et als., 243 U. S. 316 , 37 S. Ct. 380 , 61 L. Ed. 746 ; Thurston v. City of St. Joseph, 51 Mo. 510 , 11 Am. St. Rep. 463 ; 1 L. R. A. 298, note; Barron v. City of Memphis, 113 Tenn. 89 , 80 S. W. 832 , 106 Am. St. Rep. 810 , and authorities cited in note page 814; 10 R. C. L. 70, § 61.
Under the facts of this case, the taking, however, was by the state through its duly constituted officers, intrusted with the duty and authority to carry into effect the state’s enterprise of constructing public highways, and the fact that the state cannot be sued is the only fact that renders the decision of the case difficult.
By the act of taking through its constituted authorities in the furtherance of the state’s scheme of internal improvements, the state has impliedly promised to make just compensation, because the dictates of justice and the provisions of section 23 of the Constitution so require. U. S. v. Kelly, et al., supra; United States v. Great Falls Mfg. Co., 112 U. S. 645 , 5 S. Ct. 306 , 28 L. Ed. 846 ; United States v. Lynah, 188 U. S. 445 , 23 S. Ct. 349 , 47 L. Ed. 539 .
To state the proposition otherwise, the state of Alabama by the act of taking is liable ex Contractu to compensate the owner to the extent of the injury.
And the state by the issuance of its bonds has provided the money, and by statute has prescribed the procedure to ascertain and determine the amount of compensation to be paid in such cases. Acts 1927, pp. 348, 359, § 32.
And in the absence of any other remedy, mandamus is an appropriate remedy to compel the assessment (2 C. J. 1159, and authorities cited under note 79) and the payment of such damages (State Board of Administration et al. v. Roquemore, 218 Ala. 120 , 117 So. 757 ).
There is an absence of averment in the complaint showing that the defendants have been guilty of negligence or wrongdoing, and the facts averred negative the conclusion that they have taken the plaintiff’s property for their own use, and on no principle of law can they be made liable. Zeigler v. South & North Ala. R. R. Co., 58 Ala. 594 .