Alabama Power Co. v. Smith

• Decision Date: 10 May 1934
• Docket Number: 6 Div. 339.
• Parties: ALABAMA POWER CO. v. SMITH et al.
• Court: Alabama Supreme Court

155 So. 601

229 Ala. 105

ALABAMA POWER CO. v. SMITH et al.

6 Div. 339.

Supreme Court of Alabama

May 10, 1934

Rehearing Denied June 28, 1934.

Appeal from Circuit Court, Jefferson County; J. Russell McElroy Judge.

Action for damages by Carroll C. Smith and Fred R. Smith, partners doing business as the Bosworth Smith Company, against the Alabama Power Company. From a judgment for plaintiffs defendant appeals.

Reversed and remanded.

Martin Turner & McWhorter and Walter Bouldin, all of Birmingham, for appellant.

Coleman, Spain, Stewart & Davies, of Birmingham, and Rushton, Crenshaw & Rushton, of Montgomery, for appellees.

GARDNER Justice.

Plaintiffs, under a contract with the state, began, in March, 1929, the construction of a bridge across the navigable Coosa river, at Wetumpka, previously authorized by Congress, and the location and plans for which had been approved by the Secretary of War.

Defendant at the same time owned and operated what is known as Jordan Dam, for the operation of a hydroelectric plant, across said river at a point some 7 or 8 miles above the bridge site. This dam (plans and specifications for which had been approved by the Secretary of War) had been constructed and was operated in 1928 by authority of a certificate of convenience from the Public Service Commission of Alabama, and a license issued by the Federal Power Commission, under the terms of what is known as the Federal Water Power Act. 16 USCA, chapter 12 (section 791 et seq.).

On September 20, 1929, plaintiffs had practically completed the piers for the bridge, with the exception of pier No. 6, which presented the greater difficulty, as it was to be located near the center of the channel of the river, about 200 feet in width at that point, and more or less precipitous on account of a drop of several feet in a distance of a thousand yards above the bridge's location. The erection of the pier necessitated the construction of a cofferdam, which in turn must be protected by a "breakwater," consisting of five cribs built of pine poles, spiked together, and filled with rock. This breakwater was practically complete, and the incomplete cofferdam was anchored thereto by cables. Plaintiffs' testimony tended to show that on the morning of September 20, 1929, there was a very rapid rise in the channel of the river, which washed away one of the cribs, turned over another, and partially destroyed a third; the cofferdam was destroyed, the barge sunk and lost together with the tools and equipment thereon.

As to the matter of damages, plaintiffs testified that the overturning of the cribs so strewed the loose rock over the area where the cofferdam was to be placed as to render it practically impossible to construct a cofferdam of the type originally contemplated, and rendered necessary the building of two smaller cofferdams, one for each footing of the pier, with narrowed retaining walls, sealed with cement; that the wreckage made it impossible to complete the pier during the working season of 1929, and the completion of the job was delayed seventeen months; and that additional equipment, material, and labor was required.

Plaintiffs further testified, over defendant's objection, that the estimated cost of the bridge at the time of the execution of their contract, was $155,000, which was a reasonable cost, and that the actual cost of the bridge was $331,000, which also was reasonable, and nothing except the accident increased the cost. There was judgment for the plaintiffs in the sum of $185,387, from which defendant prosecutes this appeal.

This brief outline will suffice to show that both plaintiffs and defendant were lawfully in the use of this navigable stream, the right to the use of which as highways has been held analogous to the use of highways on land and governed by like principles. As said in Harold v. Jones, 86 Ala. 274, 5 So. 438, 439, 3 L. R. A. 406: "Any and all of the public have an equal right to the reasonable use of a highway. * * * No precise definition of what constitutes a reasonable use, adapted to all cases, can be laid down. Whether or not any particular use is reasonable depends on the character of the highway, its location, and purposes, and the necessity, extent, and duration of the use, under all the attendant and surrounding circumstances. * * * It must not be incompatible with the reasonable free use of others, who may have occasion to travel or transport over it, and the obstruction must not be continued longer than the continuance of the necessity, and a reasonable time for its removal. * * * The same principles are applicable, and regulate the use of water-courses as highways." The right of a license is therefore a qualified, and not an absolute right of property. Ulbricht v. Eufaula Water Co., 86 Ala. 587, 6 So. 78, 4 L. R. A. 572, 11 Am. St. Rep. 72.

Defendant's power plant was constructed under state and federal sanction, and the plans and specifications therefor approved by the federal authorities. It had a capacity for what is referred to as a 10-10 load, and we do not understand that it is appellees' contention that the mere operation of the plant at full capacity alone and of itself would constitute negligence. It would seem that our cases of Hamilton v. Alabama Power Co., 195 Ala. 438, 70 So. 737, and Burnett v. Alabama Power Co., 199 Ala. 337, 74 So. 459, would be a sufficient answer to any such contention.

True the exact provision in the Federal Water Power Act, § 10(c), 16 USCA § 803(c), to the effect that the "licensee hereunder shall be liable for all damages occasioned to the property of others by the construction, maintenance, or operation of the project works or of the works appurtenant or accessory thereto, constructed under the license, and in no event shall the United States be liable therefor," was not involved in the above-noted cases, though a somewhat similar provision was embraced in the statute under which the dam there referred to was constructed. 34 U.S. Stat. at Large, c. 2912, p. 1288.

We are of the opinion the above-noted provision was not intended to create any liability, but was inserted more as a matter of precaution, and to the end that whatever damages may legally arise are to be assumed by the licensee. Corrigan Transp. Co. v. Sanitary District (D. C.) 125 F. 611. And we find nothing in the cases of Ford & Son v. Little Falls Fibre Co., 280 U.S., 369, 50 S.Ct. 140, 74 L.Ed. 483; Taylor v. Indiana & Michigan Elec. Co., 184 Mich. 578, 151 N.W. 739, L. R. A. 1915E, 294; Levin v. Philadelphia Elec. Power Co. (D. C.) 34 F. (2d) 224; and Wine v. Northern Pac. R. Co., 48 Mont. 200, 136 P. 387, 49 L. R. A. (N. S.) 711, Ann. Cas. 1915D, 1102, that in any manner conflicts with these views. And in the Hamilton and Burnett Cases, supra, the opinions disclose a liability for negligence; but the effect of the holding was that the mere execution by the licensee of that specifically authorized by law, could not of itself be made the ground of liability as for negligent conduct.

Speaking to the provision in the Federal Water Power Act, found in 16 USCA§ 803(c), counsel for appellee in reply brief say: "We have never urged that these provisions imposed any liability on appellant. We simply insist that the granting of the permit conferred no immunity." This, likewise, is our view, and that the law is now, as it was when the Hamilton and Burnett Cases, supra, were decided, that liability follows from proven negligence, and against such liability the permit and license for construction and operation intended no immunity.

It is settled by our decisions that one who constructs a dam in a navigable stream is not an insurer against damages to lower owners, even when such damages are caused by the breaking of the dam. Some element of negligent conduct must appear. Sloss-Sheffield S. & I. Co. v. Wilson, 183 Ala. 411. 62 So. 802.

The trial court so recognized this principle in charges given for defendant, as well as also the rule that a licensee in the regular operation of its plant was under no duty to exercise diligence to ascertain whether such operation would be attended with peril, unless and until there was something to put it on notice to that effect. Southern R. Co. v. Dickson, 211 Ala. 481, 100 So. 665; Alabama Power Co. v. Shaw, 215 Ala. 436, 111 So. 17.

Measured by these rules, we think count A3 not subject to the demurrer interposed thereto. The count discloses notice to defendant of plaintiffs' construction of the cofferdam in the channel of the river, its control of the water, and that it knew, or by the exercise of reasonable diligence, would have known, that the release of any unusually large quantity of water through Jordan Dam would likely or probably result in great damage to plaintiffs' bridge building operations. It is then charged that defendant negligently caused an unusually and unreasonably large quantity of water to be released from and through its said dam.

Appellant argues that the use of the word "unreasonably" adds nothing to the count, as it is but a mere conclusion. But we think, as argued by appellees, that the words "reasonable use" in the law of waters have acquired a well-defined significance (North Ala. C., I. & R. Co. v. Jones, 156 Ala. 367, 47 So. 144; Stein v. Burden, 29 Ala. 127, 65 Am. Dec. 394; 27 R. C. L. 1084; Farnham on Water & Water Rights, vol. 2, p. 619), and carries to the defendant sufficient information of plaintiffs' claim.

Under the facts as stated in the count the averments in this respect suffice for all practical purposes, and contain no element of surprise.

The complaints in Mauldin v. Cent. of Georgia R. Co., 181 Ala. 591, 61 So. 947, and Worthington v. Davis, 208 Ala. 600, 94 So. 806, were materially different from the...