Alabama Great Southern R. Co. v. Cummings

• Decision Date: 13 December 1923
• Docket Number: 2 Div. 822.
• Citation: 100 So. 553,211 Ala. 381
• Parties: ALABAMA GREAT SOUTHERN R. CO. v. CUMMINGS.
• Court: Alabama Supreme Court

100 So. 553

211 Ala. 381

ALABAMA GREAT SOUTHERN R. CO. v. CUMMINGS.

2 Div. 822.

Supreme Court of Alabama

December 13, 1923

Rehearing Denied May 29, 1924.

Appeal from Circuit Court, Hale County; S. F. Hobbs, Judge.

Action for damages by W. O. Cummings against the Alabama Great Southern Railroad Company from the falling of his cow into a well on the right of way of defendant. Judgment for plaintiff, and defendant appeals. Transferred from Court of Appeals under section 6, Acts 1911, p. 449. Reversed and remanded.

Gardner Thomas, and Bouldin, JJ., dissenting.

Smith Wilkinson & Smith and R. B. Evins, all of Birmingham, for appellant.

Thomas E. Knight, of Greensboro, for appellee.

SAYRE J.

Plaintiff's (appellee's) cow fell into an abandoned or unused well on defendant's right of way and was thereby killed. The main question litigated on this appeal is whether defendant is liable to plaintiff by reason of the facts and the act of August 9, 1919 (Acts 1919, p. 195), providing that-

"Section 1. That all persons on whose premises or lands are located abandoned or unused wells, cisterns, or mining shafts be and they are hereby required, within ninety days after the approval of this act, to cover or fill them up, or in the event they wish to retain them for possible future use, they are required to place and maintain a substantial inclosure around such wells, cisterns or mining shafts, in order that no person or live stock may be injured thereby.

"Sec. 2. That any person violating the provisions of this act, shall on conviction, be fined not less than ten dollars, nor more than fifty dollars."

The case went to the jury on counts 2 and C, to which, as set out by the reporter, we refer for the facts. That defendant was not liable at the common law appears to have been ruled in the trial court, and we suppose there can be no reason to doubt the propriety of that ruling. However, we are referred to Union Pacific Railway Co. v. McDonald, 152 U.S 262, 14 S.Ct. 619, 38 L.Ed. 434, sometimes denominated the "Slack-Pit Case" and usually classed with the original "Turntable Case." Railroad Co. v. Stout, 17 Wall. 657, 21 L.Ed. 745. As we said in Athey v. T. C. I. Co., 191 Ala. 652, 68 So. 154, United Zinc Co. v. Britt,

258 U.S. 268, 42 S.Ct. 299, 66 L.Ed. 615, the Supreme Court of the United States has said that "the doctrine needs very careful statement not to make an unjust and impracticable requirement," and the court held that a landowner owes no general duty to keep his land safe even for children of tender years, or even from some hidden danger, if he has not directly or by implication invited them there. In its original application, and in some analogous cases, it has been accepted as sound law by this court. A. G. S. R. R. Co. v. Crocker, 131 Ala. 584, 31 So. 561; Clover Creamery Co. v. Diehl, 183 Ala. 429, 63 So. 196. But the doctrine was invented to save the case of children of tender years (Central of Georgia v. Robins, 209 Ala. 6, 95 So. 370), drawn into injury by attractive machinery and the like, and evidently should have no influence in the decision of this cause.

Plaintiff's case, as stated in the counts under consideration, rests upon the act quoted above, and the act must rest, if upon any substantial basis, upon the authority of the Legislature to exercise the police power for the suppression of nuisances.

"But the police power of the Legislature, in reference to the prohibition of nuisances, is limited to the prohibition or regulation of those acts which injure or otherwise interfere with the rights of others," and what is a nuisance is a judicial question. Tiedeman's Limitations of Police Power, § 122a.

The same authority says (section 122) that-

"It is not difficult to find the rule which determines the limitations upon the lawful ways or manner of using lands. It is the rule which furnishes the solution of every problem in the law of police power, and which is comprehended in the legal maxim, Sic utere tuo ut alienum non lædas."

And this (section 122a):

"The next thing to depriving a man of his property is to circumscribe him in its use, and the right to use property is as much under the protection of the law as the property itself, in any other respects, is, and the one interest can no more than the other be taken out of the hands of the ordinary tribunals. If a man's property cannot be taken away from him except upon trial by jury, or by the exercise of the right of eminent domain upon compensation made, neither can he, in any other mode, be limited in the use of it."

The foregoing is a statement of familiar general principles. Something further needs be said in respect of their application to the facts presented by the case in hand.

As we have said, the ground of liability in this case, if any, is that of a public nuisance causing special injury. Professor Jaggard adopts the following definition of a nuisance as being substantially that of Judge Cooley and as little objectionable as any:

"Nuisance is a distinct civil wrong, consisting of anything wrongfully done or permitted which interferes with or annoys another in the enjoyment of his legal rights." 2 Jaggard on Torts, p. 744.

Our cases have defined nuisance to the same effect, substantially. Cases cited to 10 Michie's Dig. p. 676, § 31. Assuming, for the purposes of this case, defendant's interest in its right of way to be the substantial equivalent of an ownership in fee-the act makes no discrimination between the proprietors of railroad rights of way and other landowners-and speaking therefore to the case of landowners in general, it can hardly be maintained that the owner who suffers an abandoned or unused well, cistern, or mining shaft to remain without inclosure upon his land thereby interferes with or annoys another in the enjoyment of his legal rights, unless, in the case of cattle running at large, the owner, by reason of the doctrine of A. G. S. R. R. Co. v. Jones, 71 Ala. 487, is entitled to exact of owners upon whose land they may stray the duty to take precaution for the safety of such animals.

In special conditions the right of landowners to make and maintain excavations upon their own land is limited. The theory of such limitation and the circumstances in which it becomes operative are stated by the Supreme Court of the United States in Hayes v. Mich. Cent. R. R. Co., 111 U.S. 235-236, 4 S.Ct. 369, 372 (28 L.Ed. 410), and we can do no better than to quote:

"In Barnes v. Ward, 9 C. B. 392, it was decided, after much consideration, that the proprietor and occupier of land making an excavation on his own land, but adjoining a public highway, rendering the way unsafe to those who used it with ordinary care, was guilty of a public nuisance, even though the danger consisted in the risk of accidentally deviating from the road, and liable to an action for damages to one injured by reason thereof; for the danger thus created may reasonably deter prudent persons from using the way, and thus the full enjoyment of it by the public is, in

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