Atlantic Coast Line R. Co. v. Woolfolk
| Decision Date | 07 November 1914 |
| Docket Number | 69 |
| Citation | 66 So. 464,189 Ala. 253 |
| Parties | ATLANTIC COAST LINE R. CO. v. WOOLFOLK. |
| Court | Alabama Supreme Court |
Appeal from City Court of Montgomery; Gaston Gunter, Judge.
Action by Robert Woolfolk against the Atlantic Coast Line Railroad Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.
T.H Seay and John R. Tyson, both of Montgomery, for appellant.
Roquemore & Graham, of Montgomery, for appellee.
DE GRAFFENRIED, J.
In this case, on the former appeal (see Atlantic Coast Line R Co. v. Woolfolk, 178 Ala. 190, 59 So. 633), this court held that the bill of complaint was subject to demurrer. There is nothing in the bill as amended which shows that it is the duty of the railroad company to keep open the sewer which is described in the bill as amended, and which sewer if the allegations of the bill as amended are true, is the real cause of the flow of water on the complainant's land. The sewer may be the property of the city of Montgomery, and upon the city of Montgomery may rest the duty, from aught that appears in the bill as amended, to keep the sewer open.
It is true that the bill as amended alleges that the railroad company has knocked a hole in another sewer, thereby causing water to flow on the land of the complainant. The water which is thus caused to go upon the complainant's land is water which, but for the stoppage of the sewer first above mentioned, would not be thrown into the sewer in which the hole had been knocked, and from aught that appears from the bill as amended the sewer in which the hole has been knocked is the property of the railroad company. In other words, it is plainly inferable from the bill as amended that water flows upon the railroad company's land by reason of the failure of the city of Montgomery to keep open a sewer which it is its duty to keep open, and that the railroad company has, to get rid of this water, knocked a hole in one of its own sewers and the water has thus been thrown onto the complainant's land. If this is the situation, then the city of Montgomery, and not the defendant railroad company is the party really at fault. Hall v. Rising, 141 Ala. 431, 37 So. 586; Shanan v. Brown, 179 Ala. 425 60 So. 891, 43 L.R.A. (N.S.) 792; Southern Railway Co. v. Lewis, 165 Ala. 555, 51 So. 746, 138 Am.St.Rep. 77.
2. It is contended by the appellant that the opinion of this court on the former appeal (Atlantic Coast Line Railroad Co....
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