Alabama Great Southern R. Co. v. Prouty

• Decision Date: 22 November 1906
• Citation: 43 So. 352,149 Ala. 71
• Parties: ALABAMA GREAT SOUTHERN R. CO. v. PROUTY.
• Court: Alabama Supreme Court

43 So. 352

149 Ala. 71

ALABAMA GREAT SOUTHERN R. CO. v. PROUTY.

Supreme Court of Alabama

November 22, 1906

Rehearing Denied March 2, 1907.

Appeal from Chancery Court, Etowah County; R. B. Kelly, Chancellor.

Bill by Fannie A. Prouty against the Alabama Great Southern Railroad Company. From a decree in favor of plaintiff, defendant appeals. Affirmed.

This was a bill in chancery to abate a nuisance and to recover damages on account thereof. The pleadings and amendments are sufficiently set out in the opinion, and the facts upon which the opinion is rested sufficiently appear therein.

Amos E Goodhue, for appellant.

Sam Will John, for appellee.

HARALSON. J.

The bill was filed by the complainant to abate a continuing nuisance created on the lands of the Alabama Great Southern Railroad Company, and incidentally thereto, to recover the damages inflicted upon her and her property by said nuisance.

By the averments of the bill, the complainant owned and occupied as a home, a five-acre tract of land, in shape a parallelogram at the foot of Lookout Mountain; that the northern end of the tract was much higher than the southern, and that there was a ridge, running north and south through the center of the land, so that it dipped towards the south and towards the east and west.

It was futher averred, that the Rome & Decatur Railroad Company condemned a right of way across the southern end of complainant's said land, and built thereon a railroad on a high embankment and afterwards, the Southern Railroad Company became the owner of the railroad, and was operating it at the time of the injuries complained of by complainant. Two embankments were built on the right of way of the railroad across complainant's land, the one first referred to, constructed by the Rome & Decatur road, which the Southern Railroad Company came to own and possess, and the other, by the Atlanta Railroad Company, which road was afterwards leased to the defendant, the Alabama Great Southern Railroad Company.

The last embankment was built by the latter company parallel with, and up to or abutting the first, so that when completed, the two formed a solid embankment running east and west over the lands of complainant and other lands. On each embankment railroad tracks were laid. The first of these embankments, the one that the Southern Company came into control and possession of, was pierced by an opening or culvert for the passage of storm or rain water, which came down from the mountain side, along and through a natural depression in the surface of the earth, and is called the Patrick ditch or culvert. This culvert was at a point about 250 feet east of the east line of complainant's land. For years, as is alleged and shown, this culvert, or water way was kept open and the storm water which fell on the mountain side, on the lands of other persons, flowed through the culvert to lower lands lying south of said railroad embankments, and then flowed into a natural drain, and thence into Black creek.

It is alleged, that in constructing this last named embankment, by the Alabama Great Southern Railroad Company, there was left through or under it, over the Patrick ditch a water way for the rain or storm waters to flow from above, into the Patrick ditch, and for several years all the waters which came down the mountain, passed through said opening by way of their accustomed and natural channels, into Black creek. Averment is made, that some time in 1897, from neglect of those whose duty it was to keep it open, said culvert began to fill up and in 1898 became entirely closed, so that no water could pass or flow through it, and it was thrown on to complainant's land, and deposited soil or earth to the injury of complainant, and overflowed and greatly damaged a fine sulphur spring on her land of known medicinal properties; that it carries away large quantities of her soil and collects and gathers up large quantities of water, soil stones and trash, together with filth from privies located over said ditch, above the land of complainant, all from the lands of others, depositing large quantities thereof in and upon the southwestern part of complainant's land, etc. It is averred, that to relieve this situation, the Alabama Great Southern Railroad Company cut a ditch along the northern side of its embankment and at the foot thereof, and inside its right of way, across the lands of complainant, and then backed the water up and emptied it into Black creek above the railroad track.

The bill was demurred to on many grounds, some of which will be noted, which demurrer was overruled.

By an amendment of the bill, of the 21st of March, 1902, it is averred: "That much of the greater part, if not the whole of these injuries are due directly to the cutting of said ditch along the north side of said double embankment, by the defendant, the Alabama Great Southern Railroad Company, and complainant does not seek to recover damages therefor of, or from the other defendant, the Southern Railway Company in this case, but avers that it is the duty of said Southern Railway Company to reopen or restore the water way under its track over said Patrick ditch, and place it in such condition, as that it will be of sufficient capacity to carry through it, all the water that flowed through that opening, before said company allowed it to fill up."

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