Abbot v. Braswell

• Citation: 289 Ala. 90,265 So.2d 871
• Decision Date: 03 August 1972
• Docket Number: 1 Div. 674
• Parties: J. Lloyd ABBOT v. Bob BRASWELL.
• Court: Supreme Court of Alabama

Page 871

265 So.2d 871

289 Ala. 90

J. Lloyd ABBOT v. Bob BRASWELL.

1 Div. 674.

Supreme Court of Alabama.

Aug. 3, 1972.

Pillans, Reams, Tappan, Wood & Roberts, Mobile, for appellant.

Johnston, Johnston & Kendall, Mobile, for appellee.

MADDOX, Justice.

Bob Braswell, plaintiff, brought an action for damages against defendant J. Lloyd Abbot and Flaco Corporation as a result of mud and water washing onto his property in Mobile County. Flaco was given the affirmative charge and the case went to the jury against Abbot on counts 4--A and 5--B, as amended. The jury returned a verdict in favor of the plaintiff for $12,500. Abbot appeals from the judgment entered pursuant to the jury verdict and the judgment of the trial court overruling his motion for a new trial.

Braswell owned an interest in land lying east of a public way in Mobile County known as Braswell Lane or Atwell Road. Abbot owned land to the west of the roadway, which, until 1963, was used as a pasture. Braswell's land was used as a horse pasture and riding stable. A portion had been subdivided, and some eight houses had been constructed thereon.

In 1963, Abbot entered into the first of four contracts with Flaco, which granted Flaco the right to remove dirt from designated areas at a rate of 10 cents per yard. ¹ Flaco began to remove dirt in 1963 and continued to remove it through 1966. The dirt was being used in the construction of the interstate highway projects located near the property.

Abbot contended in the trial court and here that Flaco violated its agreement by excavating below the contours agreed upon, and failed to refill areas on the property, as agreed. At one place on Abbot's property there was a large hole dug which Braswell estimated would hold 100 million gallons of water. In the summer of 1966 Flaco dug a ditch from this lake to Braswell Lane and released this trapped water. The water rushed into Braswell Lane and across it onto the property of Braswell and other persons living in the neighborhood. The relase of the water discharged silt and dirt onto the property of Braswell and others.

Braswell claimed, and the jury could have found, that there had been little or no trouble with dirt, mud or silt washing across Braswell Lane prior to the excavation work and the digging of the ditch, but that there was a continual problem after that and dirt, mud and silt would wash on Braswell's property from the Abbot property every time there was a hard rain.

Abbot said he told Braswell and other property owners that he had tried to get Flaco to restore his property to the contours he claimed were agreed upon, but that Flaco had refused. Abbot claimed he could not correct the situation because Flaco had the right of possession until January, 1969.

Abbot assigns numerous errors, some of which Braswell claims are not sufficiently argued in brief. Braswell has filed a motion to affirm on the ground that Abbot, as appellant, has failed to comply with Rule 9, Supreme Court Rules, in that the assignments of error are not sufficiently argued in brief.

The case was submitted to the jury on counts 4--A and 5--B.

Count 4--A charged that Abbot owned the land, that he entered into agreements to sell dirt to Flaco, that Flaco excavated dirt and because of the excavation and changing of contour lines, a nuisance was created and 'the defendants knew that said diversion of surface waters constituted a nuisance, and a demand has been made upon defendants to abate or remove said nuisance; and defendants have jointly wrongfully maintained said nuisance.'

Count 5--B charged that the nuisance was created by Abbot's agent, Flaco.

Abbot claims that the court erred in overruling his demurrer to count 4--A of the complaint, as amended. The gravamen of count 4--A was the maintenance of a nuisance after a demand had been made to Abbot to abate it. Appellant's sole argument, in brief, is as follows:

'The Court erred in overruling Appellant's demurrer to count 4--A of the complaint because the complaint shows on its face that Abbot did not create the nuisance, but instead that the Defendant Flaco, by the excavation of dirt and changing the contour levels, created the nuisance. The allegation that the Defendants have jointly wrongfully maintained said nuisance is but a conclusion of the pleader and a demurrer addressed to this point should have been sustained, both as to Counts 1--A and 4--A.'

We think the argument is without merit. The complaint in Southern Ry. Co. v. Lewis, 165 Ala. 555, 51 So. 746 (1910) is similar to the complaint in this case. Title 7, § 212, Code of Alabama 1940, provides:

'All pleadings must be as brief as is consistent with perspicuity, and the presentation of the facts, or matter to be put in issue, in an intelligible form; no objection can be allowed for defect of form, if facts are so presented that a material issue in law or fact can be taken by the adverse party thereon.'

Count 4--A was not defective. See Adler & Co. v. Pruitt, 169 Ala. 213, 53 So. 315 (1910).

Assignment of Error 7 is as follows:

'7. The court erred in refusing to give at the request of the appellant before the jury retired the following written charges: . . . (Then under this single assignment appellant lists 14 separate written charges which were refused.)'

Included in this general assignment was the following:

'7(b). Defendant J. Lloyd Abbot's charge No. 5. I charge you, members of the jury, that if you believe the evidence in this case, you cannot return a verdict for the plaintiff against the defendant Abbot under count 5--B of the complaint.'

This assignment of error is much too general and we refuse to consider it on this ground. Supreme Court Rule 1; Southern Ry. Co. v. Nowlin, 156 Ala. 222, 47 So. 180 (1908).

Besides being too general, Assignment of Error 7 embraced fourteen separate rulings of the trial court. In such instances, this court has said many times that an assignment of error, which embraces more than one ruling, must, to be sustainable, be good as to all. 2A Ala.Dig., Appeal and Error, k 736. In this case, the assignment was not good as to all the rulings.

Furthermore, appellant's argument in brief in support of Assignment of Error 7(b) is less than one page in length. Without citing any authority, appellant contends that he was entitled to have the affirmative charge given on Count 5--B since Flaco was eliminated from the case on the ground that the statute of limitation of one year had run against Flaco, the alleged agent of the appellant, and consequently, the statute had also run against the appellant. Whether the trial court was correct in giving the affirmative charge in favor of Flaco as to Count 5--B is not before us. Appellee filed no cross-appeal.

The writer of this opinion recognized that there was substantial noncompliance with the Rules of Practice, but nevertheless researched the point raised by Assignment of Error 7(b) and proposed that the Court express an opinion on the merits. The writer was unable to secure unanimous agreement of the Justices on the division to write to the merits of Assignment of Error 7(b).

Personally, the writer does not like to decide appeals by applying a strict construction to this Court's Rules of Practice. The writer thinks that procedural rules, in both trial and appellate courts, should be designed to insure the speedy, inexpensive, efficient and just determination of every controversy. The writer thinks that most, if not all, the Justices of this Court feel the same way. However, until the Rules of Practice of this Court are changed, each party is entitled to the benefit of the Rules, as interpreted by decisions of this Court. When opposing parties insist upon substantial compliance with the Rules, as was the case here, the writer does not think that it would be fair not to enforce substantial compliance. But appellee raised the point that appellant had failed to comply substantially with the Rules of Practice by filing a motion to affirm. Appellee stated in brief filed in support of his motion to affirm:

'Appellee takes no pleasure in filing this motion. However, in view of the extent to which Appellee's position in preparing a reply brief was prejudiced by the failure of Appellant to make any substantial compliance with this court's rules with regard to argument, Appellee has no choice. The situation was aptly described by this Court in Ogburn-Griffin Gro. Co. v. Orient Ins. Co., 188 Ala. 218, 66 So. 434:

'We are not at all disposed to a strict construction of such rules, but are rather inclined to construe them liberally in favor of litigants who show substantial compliance with their terms. But we cannot permit them to be ignored or entirely disregarded, however innocently, for they were framed and adopted to facilitate business and be an aid to the court in its prompt and orderly disposition, a result in which the profession and those whom it represents are greatly interested. If the rule is to be enforced at all, and even as construed most liberally, we are of the opinion that in this case we should consider the remaining assignments of error as waived, for the reasons above assigned.' (Citations omitted)'

Had we reached the merits here, the writer thinks the result would have been the same.

As the writer reads Count 5--B, the gravamen of the claim is the Continuance of the nuisance. Admittedly, the nuisance was allegedly created more than one year next preceding the filing of the complaint, but damages were sought for the period of one year next preceding the filing of the bill of complaint. Even though Abbot may not have created the condition which caused the nuisance, or even if he created it through an agent (here alleged to be Flaco), he, nevertheless, could be liable. One who actively continues a nuisance is as much answerable therefor as he who first created it. 66 C.J.S. Nuisances § 85, p. 839. Therefore, the evidence that Abbot failed to abate the nuisance after...