Alabama Great Southern R. Co. v. Killian

• Decision Date: 27 October 1921
• Docket Number: 7 Div. 214
• Citation: 90 So. 906,206 Ala. 541
• Court: Alabama Supreme Court
• Parties: ALABAMA GREAT SOUTHERN R. CO. v. KILLIAN.

90 So. 906

206 Ala. 541

ALABAMA GREAT SOUTHERN R. CO. v. KILLIAN.

7 Div. 214

Supreme Court of Alabama

October 27, 1921

Appeal from Circuit Court, De Kalb County; W.W. Harralson, Judge.

Action by W.E. Killian against the Alabama Great Southern Railway Company for damages for overflowing his land. Judgment for the plaintiff and the defendant appeals. Transferred from Court of Appeals under § 6, Acts 1911, p. 450. Reversed and remanded.

Goodhue & Goodhue, of Gadsden, for appellant.

Isbell & Scott and C.A. Wolfes, all of Ft. Payne, for appellee.

THOMAS J.

The trial was had on count 1, the gravamen of which was that--

Defendant "owned a railroad right of way in De Kalb county, Ala., upon which its roadbed was constructed over which it operated its trains, which said right of way extended through plaintiff's farm in said county, which said farm plaintiff was then the owner of and in the possession of, and that the defendant, for the purpose of maintaining its said roadbed over and across a creek passing through plaintiff's said farm, said creek being known as the Portersville creek, maintained a culvert on its said right of way for the purpose of carrying the water of said creek through or under said roadbed, and plaintiff avers that on said day said culvert was insufficient to take care of the water of said creek, or was maintained in such a position or manner as to prevent it taking care of said water, and as a proximate result thereof said creek did on said day overflow plaintiff's said farm thereby washing plaintiff's said land, leaving large deposits of rocks, sand, dirt, and gravel thereon, and damaging and injuring" plaintiff's crops on his said lands.

Defendant's pleas were the general issue and res adjudicata. Defendant insists that, taking the pleading most strongly against the pleader, under the alternative averment, it must be assumed that the culvert was constructed sufficiently and suitably to take care of the flow of water at the place or point indicated, and was not sufficient to maintain an action for obstructions occurring without its knowledge, etc. Lamb Rec'r, v. Roberts, 196 Ala. 679, 680, 72 So. 309 L.R.A. 1916F, 1018; S.-S.S. & I Co. v. Wilson, 183 Ala. 411, 62 So. 802. The foregoing authorities distinguish between a case of construction or maintenance of an insufficient culvert, etc (N.C. & St. L. v. Yarbrough, 194 Ala. 162, 167, 69 So. 582), and a subsequent obstruction or diversion of the flow of water at such culvert without knowledge or the negligence of the...