Beam v. Birmingham Slag Co.

Decision Date08 October 1942
Docket Number7 Div. 676.
Citation10 So.2d 162,243 Ala. 313
PartiesBEAM v. BIRMINGHAM SLAG CO.
CourtAlabama 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: "The plaintiff claims of the defendant Five Thousand Dollars ($5,000.00) as damages for that plaintiff is now and has been for several years preceding the bringing of this suit the owner of lots 115 102, 105, 107 and 107 1/2 Kiser Street, Alabama City Alabama, and also lot 129 Broadway, Alabama City, Alabama, all in the city of Gadsden, and upon which said lots there are situated six houses, which said houses are and have been occupied by tenants of plaintiff and by plaintiff, and which said property is located in the resident section of the city of Gadsden, Etowah County, Alabama. Plaintiff avers that within the past twelve months defendant has maintained and operated a certain slag crusher, which said slag crusher is within very close proximity to said residences, not more than fifty feet distant from the nearest of said houses. Plaintiff avers that defendant in and about the operation of said slag crusher, negligently or wrongfully caused noise, smoke, dust and soot to fall, go upon and be on said property of the plaintiff in such volume and character as to materially distress or discomfort the tenants of plaintiff in the enjoyment and use of plaintiff's said property as a residence and to materially interfere with the comfort, enjoyment and use of said property by plaintiff and his said tenants as a residence, and which noise, smoke, dust and soot having invaded or fallen upon said residences and plaintiff's said property and having materially interfered with the comfort or enjoyment of and use of said property by said tenants; plaintiff avers that by reason and as a proximate consequence of the defendant's negligently causing said noise, smoke, dust and soot to interfere as aforesaid with the comfort and enjoyment of said tenants in the use of said houses as residences, the value of plaintiff's property has been greatly depreciated, and he has suffered and sustained a loss in the rental value thereof and plaintiff avers that said noise is to the resident section unreasonable, intolerable, harsh, loud, constant and discomforting and of maintaining and creating of said noise, smoke dust and soot and disturbing said tenants and interfering with the comfort and enjoyment of said tenants of their said home; and the plaintiff further avers that plaintiff's damages and injuries were caused by the running and use of said slag crusher by the defendant to his damage as above stated."

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.

BOULDIN, Justice.

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: "When the wind is coming from the Northeast or from the East, we get the dust and it is equal to a continuous fog, but most of it is carried there only when the wind is from the East or Northeast and then it blows the dust all over my property and all in my house and damages my garden all along, kills my fruit trees and kills the grape vines and ruins my water. The dust gets in the house; it looks like lime dust, it is grit and dust mixed together, gets in everything that I have in my house and gets over everything. I have seen them mop the floors and wipe off the furniture and dust the furniture off and the piano, in one hour's time you could write your name on the same furniture, on the worst days it interferes with my breathing. It doesn't only get on my furniture and on my bed and on my bed clothing but when my wash woman or my wife washes our wearing material and hangs it out, it settles on it until it makes it real rough and not fit to put on again for clean clothes. The breathing part is mighty heavy on some certain days when the dust is very, very thick, and it makes you short of breath, it takes effect on my breath in most every way, it makes entrance of where you breathe, your nose and right around the edges of the nose and all inside of the nostrils get sore and also will make you cough; it burns the eyes like as if you had cayenne pepper in them."

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: "No manufacturing or other industrial plant or establishment, or any of its appurtenances, or the operation thereof, shall be or become a nuisance, private or public, by any changed conditions in and about the locality thereof after the same has been in operation for more than one year, when such plant or establishment or its appurtenances, or the operation thereof, was not a nuisance at the time the operation thereof began; but the provisions of this article shall not apply whenever a nuisance results from the negligent or improper operation of any such plant, establishment or any of its appurtenances. (1915, p. 744.)"

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...

To continue reading

Request your trial
15 cases
  • Morgan v. High Penn Oil Co., 667
    • United States
    • United States State Supreme Court of North Carolina
    • September 23, 1953
    ...R. Co., 2 Cir., 216 F. 72, L.R.A.1916B, 716; Terrell v. Alabama Water Service Co., 245 Ala. 68, 15 So.2d 727; Beam v. Birmingham Slag Co., 243 Ala. 313, 10 So.2d 162; Gus Blass Dry Goods Co. v. Reinman & Wolfort, 102 Ark. 287, 143 S.W. 1087; Curtis v. Kastner, 220 Cal. 185, 30 P.2d 26; Kafk......
  • 7-Eleven, Inc. v. DEQ
    • United States
    • Court of Appeals of Virginia
    • December 30, 2003
    ...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......
  • Evans v. Walter Industries, Inc.
    • United States
    • U.S. District Court — Northern District of Alabama
    • September 23, 2008
    ...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......
  • 7-Eleven, Inc. v. Department of Environmental Quality, Record No. 2380-01-2 (Va. App. 12/10/2002)
    • United States
    • Court of Appeals of Virginia
    • December 10, 2002
    ...temporary damages are not appropriate because an award for both would constitute a duplicative recovery. See Beam v. Birmingham Slag Co., 10 So.2d 162, 164 (Ala. 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 that the D......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT