Adler & Co. v. Pruitt

Citation53 So. 315,169 Ala. 213
PartiesADLER & CO. ET AL. v. PRUITT.
Decision Date06 July 1910
CourtSupreme Court of Alabama

Appeal from City Court of Birmingham; C. W. Ferguson, Judge.

Suit by Mary Ella Pruitt against Adler & Co. and others. From a decree for plaintiff against defendant Adler & Co., it appeals. Reversed and remanded.

Having in view the construction and maintenance of main or trunk lines of sanitary sewers for the purpose of carrying away the sewerage of municipalities and thickly populated communities in the county of Jefferson, the Legislature by its act of February 28, 1901 (Loc. Acts 1900-01, p. 1702), created a public corporation known as the Jefferson County Sanitary Commission, with powers ample for the need in view. Section 5 of the act provided that the commission should act and be held to act for the county of Jefferson, and that no member thereof should be held personally liable for any act of said commission, or for any act done by him as commissioner, while acting in pursuance of the powers and authority conferred. Proceeding in accordance with the purpose and authority of the act, the commission procured the construction of a system of sanitary sewers suitable for the drainage of large areas in Jefferson county, including parts of the cities of Birmingham and Bessemer. Section 8 of the act authorized the commission to erect purification plants at points where sewerage might be concentrated, "and do everything necessary or needful for the purification or destruction of the sewerage," and empowered the commission to acquire by gift, purchase, or condemnation any lands deemed necessary for the construction of sewers and stations for the disposal or purification of sewerage. At the outlet of the sewer the commission acquired a tract of land and upon it constructed a purification plant. The plant consists of a series of tanks covering something less than an acre, through which the sewerage slowly flows by gravitation depositing its sand and grit in the first of the series, known as the grit chamber while in succeeding tanks the organic matters rise to the surface in the form of a thick scum which, after fermentation during some weeks, is removed at intervals and used to fertilize the surrounding tract of land. The water, thus freed of the grit and in large measure of the offensive organic matter, issues from the plant in a condition suitable for manufacturing and certain commercial purposes and valuable for such purposes at that point.

Prior to the construction of the purification plant, the sanitary commission entered into a contract with the appellants by which the latter, in consideration of a lease of so much of the tract of land as may not be needed for the purification plant and of the exclusive right to have and use the separated products of the plant for a term of 99 years, bound themselves to pay the cost of its construction--a large sum--and the cost of its maintenance from year to year, of which accounts are kept by the county. The plant was constructed for the county by its own agents and contractors the cost being paid by appellants according to the agreement. The county stipulated for the exclusive and absolute control of the purification of the sewerage and the right to judge of the means to be used and the degree to which the sewerage is to be purified. Section 7 of the contract provided as follows: "The party of the first part is willing for the party of the second part to operate and maintain the septic tanks, filter beds and such other means and devices for purifying said sewage as the party of the first part may construct and put in use, paying the cost and expense of such operation and maintenance, directly; instead of reimbursing the party of the first part for such cost and expense as herein provided. Provided, however, that the party of the first part shall have the exclusive right at all times to direct the mode and manner of such operations and maintenance, and shall have at all time the exclusive control over employee or employees working in any way in and about such operation and maintenance. And the party of the first part may at any time it sees fit take the entire matter of the operation and maintenance of the septic tanks, filter beds or other devices or means for the purification of the sewage out of the custody of the party of the second part the party of the first part paying the cost and expense thereof and requiring reimbursement for such cost and expense from the party of the second part, as herein provided." Appellants have exercised their option and are operating the plant paying the cost thereof directly. Ordinarily this involves nothing more than the service of one man for less than an hour a day. The plant operates automatically in large measure and needs only that a course screen, arranged to catch matters of some bulk and foreign to sewerage, be kept clear so as not to interrupt the flow of the sewerage into the tanks. At such time as it is necessary employés of appellants go there under the orders of the commission's engineer and do what is necessary about the operation of the plant. These men are employed and paid by appellants, but act under the direction of the engineer. Plaintiff (appellee) owned and lived upon a small but well-improved and well-ordered farm about one-half a mile from the purification plant.

Percy, Benners & Burr, for appellant.

Pinkney Scott and Bowman, Harsh & Beddow, for appellees.

SAYRE J.

Plaintiff sued the Jefferson County Sanitary Commission, Jefferson county, and Adler & Co., in two counts, the one as for the creation, the other as for the maintenance, of the purification plant as a nuisance, charging that it emitted foul and sickening odors and noxious gases which caused plaintiff and her family to be sick, and greatly impaired the value of her property. Rulings of the trial court having resulted in the elimination of the county and the commission as parties defendant, the cause proceeded to judgment against Adler & Co. The question of leading interest is presented by appellants' contention that the act of municipal authority as a result of which the sewerage was caused to flow through the sewer and into the filtration or purification plant must be taken and considered as the sole proximate and efficient cause of the injury which thereby resulted to the plaintiff, and, along the same line, that neither the act of their employés in removing from time to time obstructions to the flow of sewerage into the plant under the circumstances detailed in the statement of facts nor their own immediate act of reimbursing the county for the cost of the plant, nor these acts collectively, can in law be considered as the proximate cause of the presence of the sewerage at that place, any more than the act of the capitalist who lent the money with which to build the sewer, or the engineer who designed, or the contractor who executed, it. In this connection, it may be well enough to note that the sewerage system which had its outlet into the purification plant was an artificial system, and while doubtless it was constructed along the line of least difficulty--that is, in general conformity with the natural drainage of the territory it served--it does not appear that without it there would have been any natural concentration of offensive matter in hurtful proximity to plaintiff's property. In the 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 but 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 innoxious. The evidence went to show that the plant was constructed according to the latest and best scientific principles governing the disposal of sewerage by purification or filtration plants, and that there was no lack of judgment and care in its operation. Much of the evidence also conduced to the conclusion that the plant was not a nuisance in fact; but as to that there was such weight of opposing testimony as clearly required the submission of that question to the jury. It must, therefore, on the evidence which tended to support plaintiff's theory of the case, and in the state of our knowledge of the subject, be assumed that the plant was inherently unequal to the complete accomplishment of the end in view. If so, and if the result of the construction and maintenance was a material interference with plaintiff's comfortable use and enjoyment of her property, and her health, there was an actionable nuisance, and there can be no reason for saying that the plaintiff must have suffered though the plant had not been constructed, nor any occasion to speculate as to the consequences of a different arrangement, for, if it had been determined that the arrangement should be different in any respect, it is impossible to know in what respect, and with what different result, it would have been different. On plaintiff's evidence the plant as...

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