Alabama Consol. Coal & Iron Co. v. Turner
| Decision Date | 23 November 1905 |
| Parties | ALABAMA CONSOL. COAL & IRON CO. v. TURNER. |
| Court | Alabama Supreme Court |
Appeal from City Court of Talladega; G. K. Miller, Judge.
"To be officially reported."
Action by J. B. Turner against the Alabama Consolidated Coal & Iron Company. From a judgment for plaintiff, defendant appeals. Reversed.
Action for damages for taking water from a running stream, and polluting the stream. The complaint alleges, after setting forth that plaintiff is the owner of a tract of land and describing it, and that plaintiff has a mill and mill pond on said tract of land across and on Cheaha creek, that on said Cheaha creek, above plaintiff's premises and near thereto, located in T. county, Ala., defendant has constructed and is now operating a pumping station, whereby defendant has diverted and is now diverting large quantities of water from the channel of said creek, and preventing said waters from flowing as they were accustomed to flow down said stream and into said pond of plaintiff's, wherefore plaintiff avers and charges that by said wrongful act of the defendants he is and has been greatly injured and damaged and has been put to great inconvenience and trouble, all of which damage up to this time and accruing in 12 months prior to the bringing of this suit amounts to the sum of $3,000 and avers that near said creek and above the lands of plaintiff defendant has constructed a dam, and in said dam has constantly allowed and caused to collect large quantities of red mud, filth, and débris, and within said last 12 months said dam has from time to time broken and discharged its accumulated contents of red mud, filth, and débris into the waters leading into said Cheaha creek, and down to the dam of plaintiff across Cheaha creek, filling up said dam of plaintiff to such an extent as to materially lessen the amount of said water of right accustomed to accumulate therein; and plaintiff avers that defendant's dam has so broken and discharged its red mud, filth, and débris in plaintiff's dam as aforesaid by reason of the negligence of the defendant, wherefore plaintiff avers that by said wrongful acts of the defendant he is and has been within the last 12 months prior to the bringing of this suit greatly damaged and injured and put to great expense and trouble and inconvenience, and charges defendants with operating ore washers and willfully opening the floodgates to the dam, and letting down on plaintiff red mud, filth, and débris, and rendering the dam and other property less valuable, all within 12 months prior to bringing of suit.
There were two assignments of demurrer setting up misjoinder of causes of action, one for diverting water and the other polluting water. These were overruled.
Counts 4 and 5 were added by way of amendment, and are enlargements and amplifications of counts 2 and 3. Demurrers were overruled to these counts.
Defendant's plea 4 alleged that the defendant for more than 10 years prior to the bringing of plaintiff's suit has used the waters of said Cheaha creek in the same manner as alleged in the complaint that it was used by the defendant to the injury of the plaintiff, and defendant avers that such user was continuous, adverse, and under a claim of right, and for more than 10 years before the bringing of this suit, and was so used with the knowledge of the plaintiff and that by virtue of such user defendant has acquired the right to continue such use. Plea 5 was a short plea of the statute of 10 years. Plea 8, interposed to the first and fourth counts, alleged "that the water diverted by its pumping station was pumped out of Cheaha creek at a pumping station owned by it to its ore washers and furnaces at Ironton; that the water so pumped, after passing through its washers, was returned to Cheaha creek through Fane's creek; and that no water was used from that pumped, except that is necessary for the purpose of operating its plant, and that all the water so used is used with due care to the rights of the lower riparian owner, and that there is no material diminution of the amount returned from that diverted, the same being used in a reasonable manner for the manufacturing purposes above set forth."
Demurrers were interposed to these pleas, and sustained by the lower court.
Charge 12, requested by the defendant and refused, was: "The court charges the jury that if the mud dams constructed by the defendant were constructed in the usual manner, and that such mud dams so constructed were properly constructed, and were so constructed as to be able to hold and resist all the water coming from the ordinary, usual, and expected freshets then the defendant would not be liable for damages resulting from the breaking of such dams on account of any extraordinary and entirely unexpected floods."
Knox Dixon & Burr, for appellant.
Browne, McElderry & Harrison, for appellee.
The principles of law involved in the decision of this case have been the subject of repeated decisions in this and other courts. We may refer to these, especially from our own court, as furnishing a guide for the determination of questions presented.
In the old case of Stein v. Burden, 29 Ala. 127, 65 Am Dec. 394, it was held, that a riparian proprietor has no property in the water itself which flows through his land, but a simple usufruct while it passes along; that he may use the water passing through his land as he pleases, subject among other things to the condition, that after using it, he return the water to its ancient channel; that where a proprietor has diverted water from its accustomed channel, to the injury of a land owner on the stream below him the water should be returned into the ancient channel, at the cost of the defendant. Many authorities are referred to as sustaining these principles. It was again said: ...
To continue reading
Request your trial
-
McLemore v. Alabama Power Co.
...that, in part, opinions as to value by expert witnesses may be based on hearsay. In Alabama Consolidated Coal & Iron Co. v. Turner (1906), 145 Ala. 639, 652, 39 So. 603, 606, 117 Am.St.Rep. 61, in a suit by a riparian owner against a mill owner for taking water from, and polluting, a stream......
-
Jones v. Tennessee Coal, Iron & R. Co.
...was not informed there were other cases prepared in the court by the witnesses for the defendant, or that other than the instant case and the Turner case were tried for the pollution of said drainage area, that the defendant had other suits of like nature in which the witness had testified ......
-
Cove Properties, Inc. v. Walter Trent Marina, Inc.
...of § 6-2-33(2), the 10-year statute of limitations. This was the ruling of the Alabama Supreme Court in Alabama Consol. Coal & Iron Co. v. Turner, 145 Ala. 639, 39 So. 603 (1905), in which the 10-year statute of limitations was held to be applicable to a claim that an upper riparian proprie......
-
Smejkal v. Empire Lite-Rock, Inc.
...152 A.L.R. 338 (1944), But cf. Roughton v. Thiele Kaolin Co., 209 Ga. 577, 74 S.E.2d 844, 847 (1953); Alabama Consol. Coal & Iron Co. v. Turner, 145 Ala. 639, 39 So. 603, 606 (1905). Defendants, as previously noted, concede that their activities might constitute a public nuisance. They also......