Atlantic Coast Line R. Co. v. Woolfolk

• Decision Date: 30 May 1912
• Parties: ATLANTIC COAST LINE R. CO. v. WOOLFOLK.
• Court: Alabama Supreme Court

59 So. 633

178 Ala. 190

ATLANTIC COAST LINE R. CO. v. WOOLFOLK.

Supreme Court of Alabama

May 30, 1912

Rehearing Denied June 29, 1912.

Appeal from City Court of Montgomery; Armstead Brown, Judge.

Bill by Robert Woolfolk against the Atlantic Coast Line Railroad Company. From a decree for plaintiff, defendant appeals. Reversed and remanded.

T. H Seay and John R. Tyson, both of Montgomery, for appellant.

C. H Roquemore and E. T. Graham, both of Montgomery, for appellee.

MAYFIELD J.

This suit is for injunction to restrain the defendant from discharging drainage and surface water upon complainant's land, and, incidentally, to recover damages therefor. The equity of such bills in this state is well settled by a long line of authorities. See the case of Walshe v. Dwight Manufacturing Co., 59 So. 630, which states the law and cites the authorities.

The appeal is taken from an interlocutory decree overruling demurrers to the bill as last amended. It is insisted by appellant that the bill is defective in failing to allege or show whether the locus in quo is within or without the city of Montgomery. It is true, as is contended by appellant, that the law fixing and defining the rights and duties of owners of land to control and dispose of surface water is different in municipalities from that applying in the country. This difference has been repeatedly pointed out by this and other courts. In the case of Hall v. Rising, 141 Ala. 433 37 So. 587, it is said: "The rule adopted in this state from the civil law, which in general makes land legally subservient to the natural flowage of surface water, does not apply under the artificial conditions created by the building of cities and the improvement of city lots. Such inapplication has been recognized in cases wherein the court has affirmed the rule referred to. Farris & McCurdy v Dudley, 78 Ala. 124 ; Crabtree v. Baker, 75 Ala. 94 ; Nininger v. Norwood, 72 Ala. 277 . See, also, Gould on Waters, § 277; Sentner v. Tees, 132 Pa. 216 ; Phillips v. Waterhouse, 69 Iowa, 199 [28 N.W. 539, 58 Am. Rep. 220]."

Mr. Farnham, in his most excellent work on Waters and Water Rights (volume 2,§ 171b, pp. 909, 910), thus states the rule as to city property: "Adjoining proprietors have a right to improve their property as they see fit, and one cannot complain of the ordinary injuries consequent upon the other's improvements. This rule includes the altering of the grade of the property, so that one cannot complain if, by reason of the other's raising the surface of his land, the natural flow of surface water is changed, excepting so far as the interference may be with a natural swale or depression which forms a natural outlet for surface water, and in such cases the better reason denies the right to interfere unless a substitute for it is furnished. Municipal corporations are entitled to the benefit of this rule. Consequently, when they do more than merely raise the grade of a street, they are not liable for thereby preventing surface water from flowing onto the street from adjoining property, except in some states which refuse to permit any interference with the natural course of drainage; nor are they liable for causing the water to flow in the other direction onto the adjoining property. There is, therefore, no duty to provide for the carrying away the water so interfered with. In Wakefield v. Newell, 12 R.I. 75, 34 Am. Rep. 598, this absence of liability is placed upon the ground that the usual changes of grade must be presumed to have been contemplated and provided for at the laying out of the highway."

The rule is thus stated by the New Jersey court, in the case of Field v. West Orange, 36 N. J. Eq. 119-121 "And though, by our law, there is no redress for the injury done by the diversion of the surface water in the grading or regulation of streets, the doctrine cannot be applied so as to give license to municipal authorities to discharge the waters of streets on private property, thus condemning it to the use of the public without compensation. Such an application of the doctrine would not only be unreasonable, but would sanction flagrant and manifest injustice. A landowner has no right to cause, by means of artificial trenches or otherwise, the natural mode of discharge of surface water from his land on that of his neighbor to be changed to the injury of the land of the latter, by conducting it by new channels in unusual quantities to or on a particular part or parts of the latter's land. Washb. on Easements, 353; Ang. on Water Courses, 108; Bellows v. Sackett, 15 Barb. [N. Y.] 96; Foot v. Bronson, 4 Lans. [N. Y.] 47. He has no right, for example, to build a house on his land, to collect rainfall in a gutter on it, and to discharge it by a spout on his neighbor's land. * * * The law on that subject is well stated by Judge Dillon as follows: 'Authority to establish grades for streets, and to graduate them accordingly, involves the right to make changes in the surface of the ground which may affect injuriously the adjacent property owners; but where the power is not exceeded there is no liability, unless created by statute, and then only in the mode and to the extent provided, for the consequences resulting from its being exercised and properly...