Beam v. Birmingham Slag Co.
Decision Date | 08 October 1942 |
Docket Number | 7 Div. 676. |
Citation | 10 So.2d 162,243 Ala. 313 |
Parties | BEAM v. BIRMINGHAM SLAG CO. |
Court | Alabama Supreme Court |
Appeal from Circuit Court, Etowah County; W. M. Rayburn Judge.
The Count of the complaint on which the trial was had is as follows:
E. L. Roberts and Motley & Motley, all of Gadsden, for appellant.
Bradley, Baldwin, All & White and Kingman C. Shelburne, all of Birmingham, and Hood, Inzer, Martin & Suttle and Frank J. Martin, all of Gadsden, for appellee.
Action to recover damages alleged to have been suffered from maintaining a private nuisance. At the conclusion of plaintiff's evidence, the trial court sustained a motion to strike same because insufficient to sustain the action, and dismissed the case. The cause was tried on Count Six of the complaint (set out in report of the case) and plea in short by consent.
Plaintiff's evidence disclosed ownership of the several lots, with residences thereon. Lot 115 is the residence property of plaintiff and family. The others are rental properties. It appeared one rental lot was within 100 feet of the crusher, the others some 450 feet therefrom. The injuries to which plaintiff's evidence was directed were from loud and disturbing noises, and most of all, from slag dust filling the atmosphere and settling on the premises. As to this the plaintiff testified:
This, with other corroborating testimony, made a case for the jury on the issue of a dust nuisance so annoying and discomfiting to normal persons as to be actionable unless other facts and conditions disclosed a good defense as matter of law. Martin Bldg. Co. v. Imperial Laundry Co., 220 Ala. 90, 124 So. 82; Harris v. Randolph Lumber Co., 175 Ala. 148, 57 So. 453; Dixie Ice Cream Co. v. Blackwell, 217 Ala. 330, 116 So. 348, 58 A.L.R. 1223; Hundley v. Harrison, 123 Ala. 292, 298, 26 So. 294; Shelby Iron Co. v. Greenlea, 184 Ala. 496, 500, 63 So. 470; Kyser v. Hertzler, 188 Ala. 658, 65 So. 967; 39 Am.Jur. pp. 327, 328, § 45.
The trial court, it appears, held the case presented by plaintiff's evidence is governed by Section 1088, Title 7, Code of 1940.
We quote:
This statute derives from the Act of 1915.
Quite clearly it applies: 1st: To a plant whose operation was not a nuisance when the plant was erected and operations begun. 2nd: If so, it cannot become a nuisance by reason of changed conditions in the locality thereof after it has been in operation for one year, unless it becomes a nuisance by negligent or improper operations.
The "changed conditions in * * * the locality," which, under then existing law, would render further operations a nuisance, are not subject to catalogue, but to be determined as each particular case arises.
The act followed the decision in Shelby Iron Co. v. Greenlea, 184 Ala. 496, 63 So. 470, 471, decided in 1913, wherein this court approved a Maryland case, and commenting thereon, said:
"In regard to the claim that the defendant's works were first in order of time, the court held that the defendant had no right to erect works which would be a nuisance to the adjoining land owned by the plaintiff, and thus measurably control the uses to which the plaintiff's land might in the future be subject, and that it could not, by the use of its own land, deprive the plaintiff of the lawful use of his property." We think it can be said of Section 1088: Where an industrial plant for the conduct of a lawful and useful business, not a nuisance per se, is so located that operations will not constitute a nuisance to owners of nearby properties at the time operations begin, the owner and operator of the plant is not required to anticipate a change of conditions in the locality which will render operations a nuisance beyond twelve months after operations begin. The statute protects the operator from being mulcted in damages because of change of conditions over which he has no control after he has operated such plant for twelve months, unless his operations become a...
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...temporary damages are not appropriate because an award for both would constitute a duplicative recovery. See Beam v. Birmingham Slag Co., 243 Ala. 313, 10 So.2d 162, 164 (1942); 58 Am.Jur.2d Nuisances § 276; see also Averett, 218 Va. at 207-08, 237 S.E.2d at In my view, 7-Eleven's claim tha......
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Evans v. Walter Industries, Inc.
...continuous in character, endured for ten years without remedial action, is forever barred by prescription." Beam v. Birmingham Slag Co., 243 Ala. 313, 10 So.2d 162, 165 (1942). In opposition to U.S. Pipe's prescription defense, Plaintiffs argue that the "Defendant has not proven that the al......
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7-Eleven, Inc. v. Department of Environmental Quality, Record No. 2380-01-2 (Va. App. 12/10/2002)
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