Alabama Western R. Co. v. Wilson

• Decision Date: 16 May 1911
• Parties: ALABAMA WESTERN R. CO. v. WILSON.
• Court: Alabama Court of Appeals

55 So. 932

1 Ala.App. 306

ALABAMA WESTERN R. CO. v. WILSON.

Court of Appeals of Alabama

May 16, 1911

Appeal from Circuit Court, Marion County; C. P. Almon, Judge.

Action by John Wilson against the Alabama Western Railroad Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Percy Benners & Burr and W. C. Davis, for appellant.

E. B. & K. V. Fite and Bankhead & Bankhead, for appellee.

WALKER, P.J.

The defendant pleaded in abatement of the suit that it is a corporation organized under the laws of the state of Alabama doing business by agent in Jefferson county, the place of the service of the summons and complaint in the cause, and that at the time of the institution of the suit it was not doing business by agent in Marion county. This plea was demurred to, upon the ground, among others, that it did not show that the act or omission complained of in the complaint did not occur in Marion county. The action of the trial court in sustaining this demurrer is assigned as error. While the predecessor of section 6112 of the Code contained the single provision that "a foreign or domestic corporation may be sued in any county in which it does business by agent," it was decided that, as to an action not on contract, that provision did not have the effect of exempting a corporation from liability to suit in a county in which it was not doing business by agent, and that the statute which now is section 6110 of the Code authorized an action ex delicto against a corporation to be brought in the county in which the act or omission complained of may have been done or may have occurred, though such corporation, at the time of the institution of the suit, was not doing business by agent in that county. Montgomery Iron Works v. Eufaula Oil &amp Fertilizer Co., 110 Ala. 395, 20 So. 300.

With this construction fixed upon the two venue statutes, the addition to the statute above quoted of the provision now contained in the second clause of section 6112 of the Code made no change in the law governing the venue of suits against corporations further than, in an action against a corporation for personal injuries, to limit the choice of the plaintiff of the county in which the suit is to be brought, so that, instead of having the right, which was vested in him before this change was made in the statute, of bringing the suit in any county in which the defendant corporation was doing business by agent, he must bring such action, either in the county where the injury occurred or in the county where the plaintiff resides, if such corporation does business by agent in the county of plaintiff's residence. The change in the statute did not affect the right of the plaintiff, in an action ex delicto against a corporation, not for personal injuries, to sue in the county in which the act or omission may have been done, or may have occurred, as authorized by section 6110 of the Code, as construed in the case above cited, though, at the time the suit is brought, the defendant corporation is not doing business in that county by agent. The result is that, this not being an action on contract, nor an action for personal injuries, the ruling of the lower court on the demurrer to the plea in abatement cannot be declared to have been erroneous, as the demurrer disclosed the failure of the plea to state a legal ground for abating the suit.

The only other assignments of error which are sought to be sustained by the argument of the counsel for the appellant are those relating to the action of the trial court in overruling the demurrer to the complaint as amended, and in refusing to give affirmative charges in its behalf requested by the defendant; and the single proposition put forward in the argument in support of those assignments of error is that, the fills, or embankments, from which the plaintiff claimed that sand, dirt, clay, gravel, and other débris were washed upon and deposited over his lands in large quantities, to the great injury of the same, having been built by the defendant on its own land, bought from the plaintiff, in the construction of its railroad thereon, it could not be made liable to the plaintiff for the injury complained of, unless such injury was caused by the negligent or improper construction by the defendant of such fills or embankments; in other words, that it was an essential part of the claim sought to be sustained by the plaintiff that he allege and prove that the injury he claims to have suffered proximately resulted from a negligent or improper construction by the defendant of the structures mentioned.

Unless the fact of the purchase of the land from the plaintiff would have changed this result, there would be no room to claim that the proposition advanced by the counsel for the appellant (defendant below) could be successfully maintained, without a repudiation of a number of well-considered rulings in this state, if the alleged injury to the plaintiff's land had been attributable, either to a diversion by the defendant of the natural flow of water, whereby a stream or surface rain water which otherwise would have run in a different direction was conveyed to and allowed to overflow plaintiff's lands, to his damage, or to an act or omission of the defendant which resulted in committing refuse from its land to a stream by which it was carried and deposited as a sediment over plaintiff's land below, to the impairment of its fertility and value. Savannah, Americus & Montgomery Ry. v. Buford, 106 Ala. 303, 17 So. 395; Central of Georgia Ry. Co. v. Windham, 126 Ala. 559, 28 So. 392; Sloss-Sheffield Steel & Iron Co. v. Mitchell, 161 Ala. 278, 49 So. 851; Id., 52 So. 69; Polly v. McCall, 37 Ala. 20; Hughes v. Anderson, 68 Ala. 280, 44 Am. Rep. 147; Nininger v. Norwood, 72 Ala. 277, 47 Am. Rep. 412; Lindsey v. Southern Ry. Co., 149 Ala. 349, 43 So. 139; Drake v. Lady Ensley Coal, Iron & R. Co., 102 Ala. 506, 14 So. 749, 24 L. R. A. 64, 48 Am. St. Rep. 77; Ala. Consolidated Coal & Iron Co. v. Vines, 151 Ala. 398, 44 So. 377.

In the opinion in the case of Central of Georgia Railway Co. v. Windham, supra, which was an action against a railway company to recover damages claimed to have been suffered by reason of the construction by the defendant of its roadway and depot, and the digging of ditches and culverts necessary thereto, causing the surface or rain water to flow over the premises of the plaintiff, causing injuries thereto, it was said: "The foundation of the suit being the active creation of a nuisance, and not merely a wrong arising from negligence, the degree of care used by the defendant in constructing waterways is immaterial in determining the right to recover actual damages."

In the case of Lindsey v. Southern Ry. Co., supra, also an action to recover damages for flooding lands, it was said: "It is not necessary in such cases that there be an averment that the excavations, though made by the defendant on his own lands, were negligently constructed. The flow of water is governed by well-known natural laws. The comparative levels of the banks of a stream and of neighboring lands are of easy ascertainment. It is not an unjust application of the maxim, 'Sic utere tuo,' etc., to require a party in cutting ditches on his own lands to ascertain at his peril whether he will thereby divert the water from a stream, and cause it to overflow the lands of his neighbor. Speaking of averments of

negligence, etc., this court declared, in Savannah, Americus & Montgomery Ry. v. Buford, supra

: "This verbiage may be rejected as surplusage, for it is obvious the gravamen of the complaint is that the roadbed and embankment, at a particular time after their construction, caused the surface water to flow from the right of way of the defendant, in and upon the lands of the plaintiff, where it did not flow naturally, to her injury."

In the case of Sloss-Sheffield Steel & Iron Co. v. Mitchell, supra, it was said: "In cases of damage by nuisance, it is considered that the injurious consequences resulting from the nuisance, rather than the act which produces the nuisance, is the cause of action, and hence it is held that the cause of action does not arise until harmful consequences occur," etc. These expressions are all in harmony with the rule on the subject generally prevailing in other jurisdictions. "Negligence of the defendant is not ordinarily an essential element in an action for damages sustained by reason of a nuisance. The action is founded on the wrongful act in creating or maintaining it, and the negligence of the defendant, unless in exceptional cases, is not material." Joyce on Nuisances, § 44.

In behalf of the appellant (defendant below), it is claimed that, because of some of its features, this case is not within the influence of the rulings above referred to. It is pointed out that the fill or embankment from which was washed the sand, etc., which was deposited on the appellee's land, was constructed on a strip of land 100 feet wide, purchased from the plaintiff, on which to build defendant's railroad; and some emphasis is laid on the fact that the construction of the fill involved no diversion of water, as it ran along a natural ridge or divide, which before the fill was built upon it, caused the water...