Bigbee Fertilizer Co. v. Scott

• Decision Date: 08 February 1912
• Citation: 58 So. 86,3 Ala.App. 385
• Parties: BIGBEE FERTILIZER CO. v. SCOTT.
• Court: Alabama Court of Appeals

58 So. 86

3 Ala.App. 385

BIGBEE FERTILIZER CO. v. SCOTT.

Court of Appeals of Alabama

February 8, 1912

Rehearing Dismissed April 4, 1912.

Appeal from City Court of Montgomery; Gaston Gunter, Judge.

Action by M. C. Scott against the Bigbee Fertilizer Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Steiner, Crum & Weil, for appellant.

Ray Rushton and William M. Williams, for appellee.

DE GRAFFENRIED, J.

It appears from the complaint in this case that the plaintiff M. C. Scott, was during the year 1909 in possession of 35 acres of land under a lease from the Montgomery Land &amp Improvement Company, and that the land so in possession of the plaintiff adjoined lands upon which the defendant, the Bigbee Fertilizer Company, owned and operated a fertilizer factory. The complaint further alleges that the plaintiff during the said year planted said lands in oats, corn, and watermelons, and that during said year the defendant, in the operation of its fertilizer factory, "operated and maintained acid chambers for the manufacture of sulphuric acid, and that during the months of April, May, and June 1909, the defendant, in the conduct of said fertilizer factory and in the manufacture of said commercial fertilizer and in the manufacture of said sulphuric acid, generated and liberated large quantities of noxious and injurious fumes and gases from its said fertilizer factory, and that said noxious and injurious fumes and gases were of a nature highly deleterious and destructive to vegetation, and by reason thereof the plaintiff's crops were damaged and killed," etc. The complaint sought the recovery of damages suffered by the plaintiff by reason of the nuisance so maintained, to plaintiff's injury, by the defendant.

There were a number of special pleas to which the plaintiff interposed demurrers. The action of the trial court in sustaining the demurrers to said special pleas is the only matter which we are called upon to review.

Taking as we are required to do, the allegations of the pleas to which the demurrers were sustained most strongly against the pleader, and at the same time stating the facts alleged in said pleas in their most favorable aspect on behalf of the defendant, the defense attempted to be set up by the pleas was as follows: That the defendant or those through whom it claims bought the land upon which the fertilizer factory was situated from the Montgomery Land & Improvement Company by deed with covenants of warranty as to title and possession for the purpose of erecting a fertilizer factory thereon; that the plaintiff was a stockholder and director in said Montgomery Land & Improvement Company, and not only actively participated in making the sale of the land to the defendant or those through whom it claims, but knew of the purposes for which the land was sold and approved of such purpose; that pursuant to such purpose the fertilizer plant was at large cost erected upon the said land, and had been, for several years prior to the year 1909, operated by the defendant in the same manner in which it was operated by it during the year 1909 without objection on the part of the Montgomery Land & Improvement Company, and with the knowledge of the plaintiff and without objection on his part; that with the full knowledge of all the above facts the plaintiff leased the said 35 acres of land from the Montgomery Land & Improvement Company and planted it as stated in the complaint in oats, corn, and watermelons, during the year 1909, and that therefore, although the plaintiff suffered in his crops as claimed in the complaint, he is not, for the reasons above stated, entitled to recover.

1. There is no...