Atlanta & B. Air Line Ry. v. Wood

• Decision Date: 11 May 1909
• Parties: ATLANTA & B. AIR LINE RY. v. WOOD.
• Court: Alabama Supreme Court

49 So. 426

160 Ala. 657

ATLANTA & B. AIR LINE RY. v. WOOD.

Supreme Court of Alabama

May 11, 1909

Appeal from City Court of Anniston; T. W. Coleman, Jr., Judge.

Action by C.J. Wood against the Atlanta & Birmingham Air Line Railway for damages caused by filling up a millpond. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

W. C Tunstall, Jr., and Knox, Acker & Blackmon, for appellant.

Willett & Willett, for appellee.

MAYFIELD J.

The complaint, as amended, contained six counts. The affirmative charge was given as to the fourth count, at the request of the defendant, appellant here, and we need not pass on the rulings of the lower court as to the demurrers to it. The other five counts, properly interpreted, stated a substantial cause of action in case, and were not subject to any of the grounds of demurrer assigned. A demurrer goes to the whole count, and, except in suits on bonds, assigning special breaches, is not the proper mode of raising an objection to only a part of the count. Pryor v Beck, 21 Ala. 393; Hester v. Ballard, 96 Ala. 410, 11 So. 427; L. & N. R. R. Co. v. Hine, 121 Ala. 234, 25 So. 857; Kennon v. Telegraph Co., 92 Ala. 399, 9 So. 200.

The first three counts, as amended, set out with particularity the plaintiff's ownership of a mill site and mill on Ohatchie creek, situated on certain described lands, and further alleges that said mill "and pond which supplies and supplied it with water have been situated and located at the point they now are for many years, and plaintiff at the time of the injuries complained of had the right to maintain said pond in the condition it was then in." Construing this language most strongly against the pleader, as we must, and acting on the presumption that, if the pond had been entirely located on the lands of plaintiff, he in suing for his alleged injuries would have so claimed, the presumption follows that these allegations mean and were intended to mean that plaintiff's mill and mill site were on his lands, and that the place where the embankment was constructed and where the earth, sand, mud, and rock which were put into the pond or creek near said embankment was on the lands of defendant, or some person other than plaintiff. It is true that other allegations of these counts, such as "defendant put in or caused to be put in said pond near said embankment quantities of loose dirt, rock," etc., would indicate that the counts were in trespass, but the allegations of such consequential damages as the washing of this loose material down to his mill so as to fill up and continue to fill up the mill race and water house of his mill are sufficient to make a complete claim for at least nominal damages. Capital City Water Co. v. City Council, 92 Ala. 366, 9 So. 343. Defendant's grounds of demurrer are all seemingly based on the theory that the counts were in trespass. None of them pointed out any defects, and the court below cannot be put in error for overruling them.

Counts 5 and 6 are plainly actions on the case by a lower against an upper riparian owner or proprietor for damages resulting as a consequence of a pollution of the waters of the stream. In the case of Tennessee Coal, Iron & R. R. Co. v. Hamilton, 100 Ala. 252, 14 So. 167, 46 Am. St. Rep. 48, we quote at length from the numerous authorities pertaining to the rights of parties so situated, and it is the settled law of this state that an action lies for "the casting upon one's land of dirt and foul water, or substances which reach the stream by percolation; * * * the letting off of water made noxious by precipitation of minerals, * * * or rendering the water unfit for domestic, culinary or mining purposes, or for cattle to drink of, or for fish to live in, or for manufacturing purposes." Tennessee, etc., Co. v. Hamilton, supra; Drake v. Lady Ensley C. I. & R. Co., 102 Ala. 501, 14 So. 749, 24 L. R. A. 64, 48 Am. St. Rep. 77, and authorities cited. While the strict rule thus laid down is modified in all cases by a due consideration of the needs and wants of the age, and with due regard to all reasonable uses of the water flowing in the stream, and of the lands contiguous thereto, to put into the stream within 450 feet of plaintiff's property such quantities of loose earth, sand, and rock as would by natural drifting or washing fill up plaintiff's pond, mill race, and water house to such an extent as "to make it frequently impossible for plaintiff to operate his mill at all," sufficiently states a cause of action for damages.

The testimony is quite lengthy, and very numerous objections were interposed and exceptions reserved. Many, if not the most, of these rulings, were free from error, and we will refer to only a few. The objection to the question to the witness Gray: "You say the more land cleared around the banks of a creek the muddier it becomes. I will ask you if it is not also true that the more land that is cleared in and around creeks and mills the more valuable the mill site becomes"--we first held should have been sustained. On further examination we find no valid objection to this question. The answer to it might tend to show the value of the property and the extent of the damage, if any. The fact that the jury knew this as well as the witness would tend to show that no injury could result from it which is necessary to constitute reversible error. Plaintiff had a right to show the general nature and character of the mill and its surroundings, and any and all facts showing or tending to show its advantageous location and the proximity of the railroad may have had some bearing on the question of value and it was competent to show that "the engineers or those in charge of building the new line came over the east and west tracks" because tending to show that they had knowledge of the location of this mill and of the fact that the work they were doing would probably injure or damage it. It might tend to show punitive damages. Windham's Case, 126 Ala. 552, 28 So. 392. It was competent to prove the depth of the mud above as well as below the fill, as the difference in them might tend to show...