Goodyear Tire & Rubber Co. of Ala. v. Gadsden Sand & Gravel Co.

• Decision Date: 10 October 1946
• Docket Number: 7 Div. 846.
• Court: Alabama Supreme Court
• Parties: GOODYEAR TIRE & RUBBER CO. OF ALABAMA, Inc. v. GADSDEN SAND & GRAVEL CO., Inc.

27 So.2d 578

248 Ala. 273

GOODYEAR TIRE & RUBBER CO. OF ALABAMA, Inc. v. GADSDEN SAND & GRAVEL CO., Inc.

7 Div. 846.

Supreme Court of Alabama

October 10, 1946

Appeal from Circuit Court, Etowah County; J. H. Disque, Jr. Judge.

Hood, Inzer, Martin & Suttle, of Gadsden, for appellant.

Edw B. Miller and Roy D. McCord, both of Gadsden, for appellee.

The complaint is as follows:

Count one. 'The plaintiff claims of the defendant the sum of one hundred thousand and no/100 dollars ($100,000.00), for that on and prior to the grievances herein complained of, plaintiff was the owner of, and in possession of the following described real estate, situated in Etowah County, Alabama, to-wit: * * * The said property was not urban lots, but was and is farm property, and property from which the plaintiff had mined and was engaged in the act of mining, selling and hauling away large quantities of building and moulding sand.

'And plaintiff avers that the natural drainage and flow of water from said property in times of rainfall, was over and along an adjoining tract of land located on the East, Southeast and South side of plaintiff's said property; that the defendant built a dam several feet high on said lands adjoining plaintiff's property, which said dam prevented the natural flow of water in times of rainfall, from plaintiff's said property, and plaintiff avers that said dam, at various times during the Spring, and Summer of 1942, was added to and greatly increased in height and length, and prevented the water, in times of rainfall, during said seasons from flowing from plaintiff's property, and caused it to accumulate, overflow and stand on plaintiff's said property and caused the sand to become damp and saturated, with standing water, and prevented the plaintiff from removing and selling said sand, and as a proximate consequence of the defendant erecting, maintaining and increasing the size of said dam, the plaintiff's said property was greatly damaged and was rendered of greatly less value, and plaintiff's land was unfit for use, all to plaintiff's full damage as aforesaid, hence this suit.'

Count two: 'The Plaintiff claims of the defendant the sum of one hundred thousand dollars, as damages, and for cause of action respectfully represents, as follows:

'The plaintiff avers that it now owns and is in possession of, and for several years prior to the year of 1942, did own and was in possession of, the following described real estate situated in Etowah County, Alabama, to-wit: * * * and that said property was not divided into urban lots, but was acreage from which the plaintiff was engaged in, and had been engaged for many years in the business of mining, selling and hauling away large quantities of building and moulding sand.

'And plaintiff avers that the defendant corporation owns a tract of land adjoining the plaintiff's said lands, and that the natural drainage and flow of water in times of rainfall from said lands was by means of natural contours or drainage which conducted the surface waters from the defendant's said lands across and off the plaintiff's said lands, and that there was no natural stream or permanent source of water that flowed across the plaintiff's said lands, and the natural contours and drainage was sufficient to conduct all of the water from falls across and off the plaintiff's said lands and did not interfere with the plaintiff's mining of said lands;

'And the plaintiff avers that the defendant, acting by and through its agents or servants, within the line and scope of their employment, prior to the year 1942, erected and maintained a dam on, or near, the line which separated the plaintiff's said lands from the defendants lands, and thereby gathered and collected the surface waters into a pond, and:

'The plaintiff avers that the defendant, acting by and through its agents or servants within the line of their employment, also pumped large quantities of water from Coosa River which were used in connection with defendant's manufacturing plant, and then drained said water into the said pond, thereby causing the pond to spread and increase the water pressure against said dam, and:

'The plaintiff further avers that in the spring and summer of 1942, the defendant, acting by and through their agents or servants within the scope and line of their employment, greatly increased the height and length of said dam, thereby retaining a greater volume of water and causing the water pressure against the dam to increase and percolate or seep through or under the said dam, thereby saturating the plaintiff's said lands with water from the defendant's said pond, and causing the plaintiff's said lands to become and remain wet and saturated with standing water, and

'The plaintiff avers that as a proximate consequence of the defendant, acting by and through their agents and servants within the line and scope of their employment, increasing the size of said dam and maintaining it in its enlarged condition, the plaintiff was prevented from mining, selling and removing sand from its lands, and plaintiff's said property was greatly damaged and rendered unfit for use, and was rendered of greatly less value, and Plaintiff has lost large profits from its said business, to plaintiff's full damage as aforesaid.'

STAKELY, Justice.

This is a suit brought by Gadsden Sand & Gravel Company, Inc. (appellee) against Goodyear Tire & Rubber Company of Alabama, Inc. (appellant) for damages by water to a deposit of moulding sand in the land of the plaintiff. There was a verdict and judgment for the plaintiff. Hence this appeal.

The plaintiff owns about 50 to 60 acres of land containing sand deposits adjoining the land of the defendant on which is located the defendant's manufacturing plant. On the land of plaintiff there is an overburden of dark, sandy loam 6 to 10 inches deep before moulding sand is reached. The moulding sand has a depth of 8 to 12 feet when building sand and gravel is reached. According to tendencies of the evidence water does not damage building sand and gravel but when moulding sand, which is used in pipe manufacture etc becomes damp or saturated with water, it is worthless while in this condition. Further, according to tendencies of the evidence, if the moulding sand in the present case becomes worthless, it constitutes too great an overburden over the building sand and gravel to justify the expense of its removal in order to get to the building sand and gravel. The only damage sought in the present action grows out of the alleged saturation with water of the moulding sand on plaintiff's property.

In 1936 or 1937 defendant erected a dam on its property with only a ditch intervening between the dam and plaintiff's property. The dam was substantially repaired in 1940 after a break-through. The dam impounded water which formed a pond or lake on defendant's property. It is claimed that the dam was greatly increased in size in the spring and summer of 1942. According to the evidence the dam when completed was 900 feet in length and broad enough across the top to furnish a roadway for an automobile. The complaint consists of two counts to each of which the defendant pleaded the general issue and the statute of limitations of one year. (Report of the case will set out counts 1 and 2, omitting from each the legal description of plaintiff's lands. Count 1 was amended to omit the word 'erecting.')

The claim in each count is for damages resulting from a private nuisance. There is no doubt that the reconstructed dam preventing the natural flow of surface waters from plaintiff's lands, as alleged in count 1, is a private nuisance. § 1081, Tit. 7, Code of 1940; Nininger v. Norwood, 72 Ala. 277, 47 Am.Rep. 412; Gulf States Steel Co. v. Law, 224 Ala. 667, 141 So. 641; Mobile & O. R. Co. v. Red Feather Coal Co., 218 Ala. 582, 119 So. 606. Furthermore we think that the reconstructed dam impounding the waters of the pond or lake, as shown in count 2, and resulting in seepage or percolation with consequent damage to adjoining property, is also a private nuisance. § 1081, Tit. 7, Code of 1940; Crommelin v. Coxe, 30 Ala. 318, 68 Am.Dec. 120; Wilson v. City of Bedford, 108 Mass. 261, 11 Am.Rep. 352; 38 A.L.R. 1244; 39 Am.Jur. p. 343. See also Terrell v. Alabama Water Service Co., 245 Ala. 68, 15 So.2d 727.

We think it is further clear that the erection of the dam under the circumstances constituted a permanent nuisance as distinguished from an abatable nuisance. City of Clanton v. Johnson, 245 Ala. 470, 17 So.2d 669; Sloss-Sheffield Steel & Iron Co. v. Mitchell, 161 Ala. 278, 49 So. 851; Crawford v. Union Cotton Oil Co., 202 Ala.

3, 79 So. 299; City of Birmingham v. Flowers, 224 Ala 279, 140 So. 353; Harris v. Town of Tarrant City, 221 Ala. 558, 130 So. 83; Steinman v. Baltimore Antiseptic Steam Laundry Co., 109 Md. 62, 71 A. 517, 21 L.R.A.,N.S., 885; Vol. 32, Words and Phrases, Perm.Ed., p. 132. Damages for the construction of the dam 'are estimated on the hypothesis of an indefinite continuance of the nuisance, and thus affecting the permanent value of the property. In such event, one may not recover in successive suits, but his damages are awarded in solido in one action. * * *.' The damages for the construction of the improvement are as though it were permanent for that is not abatable. But for an improper or negligent maintenance the rule applicable to an abatable condition has application. Harris v. Town of Tarrant City, supra; City of Clanton v. Johnson, supra. While the cause of action for a permanent nuisance arises on construction of the nuisance, the cause of action for an abatable nuisance 'does not arise until the harmful consequences occur and each occurrence or recurrence constitutes a separate cause...