Alabama Fuel & Iron Co. v. Vaughn

• Decision Date: 13 November 1919
• Docket Number: 7 Div. 2
• Citation: 83 So. 323,203 Ala. 461
• Parties: ALABAMA FUEL & IRON CO. v. VAUGHN.
• Court: Alabama Supreme Court

83 So. 323

203 Ala. 461

ALABAMA FUEL & IRON CO. v. VAUGHN.

7 Div. 2

Supreme Court of Alabama

November 13, 1919

Appeal from Circuit Court, St. Clair County; O.A. Steel, Judge.

Action by J.A. Vaughn against the Alabama Fuel & Iron Company, for damages for the deposit of deleterious matter upon his lands. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Percy Benners & Burr and J.R. Forman, all of Birmingham, for appellant.

Frank S. Andress, of Birmingham, for appellee.

GARDNER J.

Plaintiff appellee here, brought this suit as lower riparian owner to recover damages which he insists he has suffered by reason of the pollution of a stream, known as Black creek, running through a portion of his land. The defendant operated a coal mine above the plaintiff's land, and at a distance of something over a mile above his land had constructed a washer and a dam on said creek. As a result of this washer, coal dust and other sediment were deposited in the creek, and after leaving defendant's premises said sediment was carried down across this land until it reached plaintiff's. When the creek rose from rains, it would, to some extent, overflow the plaintiff's land leaving deposits or sediment when the water subsided. In an overflow during July, 1917, much of the deposits and damages complained of occurred.

The evidence for the plaintiff tended to show that the sediment deposited in the creek covered, in varying thicknesses, a large area of his farm, damaging his crops, rendering less valuable his land, creating an offensive odor, and destroying the usefulness of the creek for domestic purposes, and the watering of stock; it being the only running stream on his premises.

Whatever damage was inflicted, it appears from the undisputed evidence in the case, was neither intentional, direct, or immediate, but was consequential, and therefore discloses an action in case as plaintiff's remedy, limiting the right of recovery to such damages as he suffered within 12 months prior to the commencement of the suit. Tutwiler Coal & Coke Co. v. Nichols, 146 Ala. 364, 39 So. 762, 119 Am.St.Rep. 34; Parsons v. Tenn., C. & I. Co., 186 Ala. 84, 64 So. 591; Tenn., C. & I. Co. v. Hamilton, 100 Ala. 252, 14 So. 167, 46 Am.St.Rep. 48; Drake v. Lady Ensley Coal, Iron & Ry. Co., 102 Ala. 501, 14 So. 749, 24 L.R.A. 64, 48 Am.St.Rep. 77.

There was exception duly reserved to that part of the oral charge of the court in which he instructed the jury that the plaintiff was entitled to recover for all damages suffered from one year prior to the commencement of the suit up to the time of the trial. The suit was begun on the 20th of November, 1917, and the case tried in August, 1918. This would cover a period of nearly two years and was error...