Burnett v. Alabama Power Co.

• Decision Date: 21 December 1916
• Docket Number: 5 Div. 618
• Citation: 74 So. 459,199 Ala. 337
• Parties: BURNETT v. ALABAMA POWER CO.
• Court: Alabama Supreme Court

74 So. 459

199 Ala. 337

BURNETT v. ALABAMA POWER CO.

5 Div. 618

Supreme Court of Alabama

December 21, 1916

Rehearing Denied Feb. 15, 1917

Appeal from Circuit Court, Chilton County; W.W. Pearson, Judge.

Action by W.R. Burnett against the Alabama Power Company for damages for overflow and otherwise. Judgment for defendant, and plaintiff appeals. Reversed and remanded.

McClellan and Gardner, JJ., dissenting in part.

The counts referred to in the opinion are as follows:

(B) Plaintiff claims of the defendant the sum of $2,500 for that during the time of the grievances hereinafter complained of plaintiff resided with his family on a piece or parcel of land in Chilton county, Ala., in close proximity to Waxahatchee creek, a stream flowing into the Coosa river, and plaintiff avers that during the spring or summer of 1914 defendant by means of a dam across the Coosa river below the mouth of Waxahatchee creek negligently caused the water of said Waxahatchee creek to back back, or up, and cover with water a great area of land on each side of said creek, and negligently caused large amounts of stagnant water and many small pools of stagnant water to be and remain near plaintiff's said residence, and negligently caused large amounts of weeds, brush, logs, leaves, underbrush, and other vegetable matter to be and remain submerged and partially submerged in water, and negligently caused same to remain dying and decomposing, and great quantities of mud, slime filth, and litter was thereby caused to accumulate, settle and remain on said land so covered with water, and as a proximate consequence of said water becoming and being in the condition described above large numbers of frogs, tadpoles mosquitoes, and other insects were attracted to, created by and caused to multiply in and around said body of water, and said smaller pools of stagnant water, and to die and decay in and about said water and great quantities of noxious, odious and offensive gases, vapors, and odors were caused to be created in and around said water, and plaintiff avers that defendant has constantly maintained said body of water and small pools of water in the condition described above since, to wit. June, 1914, so close to plaintiff's said residence that as a proximate consequence thereof, he and his family have been forced to breathe said offensive gases, and smell said offensive odors continually by day and by night, and has continually been bit, stung, and annoyed by said mosquitoes and other insects, his said home has been caused to be infested with said mosquitoes and other insects, and has been permeated with said offensive and noxious gases and odors, and has been rendered unhealthy and unfit for a home. And plaintiff avers that as a proximate consequence of plaintiff and his family breathing said impure air, and smelling said offensive odors and being bit, stung, and annoyed by said mosquitoes and other insects as aforesaid, plaintiff and his family were caused to contract sickness, chills, fever, and malaria, and were for a long time rendered sick, and plaintiff and his minor children members of his family were thereby rendered unable to work and earn money, and plaintiff was caused to expend large sums of money for medicine and medical attention for himself and family, and to suffer much physical pain and mental anguish, and was caused to abandon his home, and plaintiff avers that he suffered said injuries and consequent damages as a proximate consequence of defendant causing said water to be and remain so near plaintiff's said residence as aforesaid, in the condition as aforesaid, and that same contributed to plaintiff's injuries as aforesaid.

(H) Plaintiff claims of the defendant the sum of $2,500 for that during the time of the grievances herein after complained of, plaintiff resided with his family on a piece or parcel of land in Chilton county, Ala., in close proximity to Waxahatchee creek, a stream flowing into Coosa river, and that the defendant had authority to back the water of said creek up on its lands in close proximity to plaintiff's said residence, and that said lands upon which the defendant had authority to back said water had on them large quantities of brush, logs, stumps, weeds, leaves and other vegetation and vegetable matter, wherefore it became the duty of the defendant before it backed said water up to clean off said lands in close proximity to plaintiff's said residence so as to destroy said débris, and plaintiff avers that this they negligently failed to do, but that in the summer time during very hot weather, to wit, the month of June, 1914, the agents or servants of the defendant while acting within the line or scope of their authority, as such agents or servants of the defendant, negligently caused said débris to be and remain on said land, and to become submerged with water and to remain and to decay, and to decompose in said water, and as a proximate consequence thereof said water become stagnant and become infested with large quantities of mosquitoes and was caused to give off offensive odors and large quantities of mosquitoes and other insects were attracted to, created by and caused to multiply in and around said water in the condition above described, all in close proximity to plaintiff's said residence, and adjacent to lands that he and his family were cultivating, and as a proximate consequence thereof he and his family were forced to breathe offensive odors and gases, and to smell same, and were constantly caused to be bit, stung, and annoyed by said mosquitoes and insects, and his home was caused to be infested with said mosquitoes and other insects, and to be permeated with said offensive gases and odors, and was thereby rendered unhealthy and unfit for a home, and plaintiff was thereby caused to abandon his said home. Plaintiff avers that as a proximate consequence of plaintiff and his family breathing said impure air and smelling

said offensive odors and being bit, stung, and annoyed by said mosquitoes and other insects that he and his family were caused to contract sickness, chills, fever, and malaria, and were for a long time rendered sick and caused to abandon his crop, and plaintiff was caused to expend large sums of money for medicine and medical attention for himself, and plaintiff avers that he suffered said injuries and consequent damages as a proximate consequence of the negligence of the defendant's agents or servants while acting within the line or scope of their employment as aforesaid.

Amendment: Plaintiff amends count H of his complaint by inserting immediately after the word "Matter," where same first appears in said count, the following words, and that to submerge said logs, stumps, weeds, leaves, and other vegetables with water would cause same to become sickly and unhealthy, and cause breeding places for mosquitoes, and cause odors to permeate plaintiff's home, but to clean away said logs, stumps, brush, leaves, weeds, and other vegetation would cause same to be less liable to become sickly and cause odors and breeding places for mosquitoes.

(L) Plaintiff claims of the defendant the sum of $2,500 as damages for that during the time of the grievances hereinafter complained of plaintiff resided with his family on a piece or parcel of land in Chilton county, Ala., in close proximity to the Coosa river, and plaintiff avers that on or about the month of June, 1914, the defendant by means of a dam across the said Coosa river, down the river from where plaintiff resided with his said family as aforesaid, caused the water of said river to back back, or up, and cover with water a great area of land on each side of said river, and negligently caused large quantities of stagnant water and many smaller pools of stagnant water to be and remain near plaintiff's said residence, and negligently caused large amounts of logs, brush, weeds, leaves, underbrush, and other vegetation and vegetable matter to be submerged and partially submerged in said water near plaintiff's said residence, and negligently caused same to remain in said water dying, decaying and decomposing, and great quantities of litter, filth, slime, mud, muck, and other débris was thereby negligently caused to accumulate and settle on said lands, so covered with water as aforesaid, and as a proximate consequence of said water becoming and being in the condition described above, great quantities of noxious, odious, and offensive gases, vapors, fumes and odors were caused to be created and generated in and about said water and large amounts of frogs, tadpoles, mosquitoes, and other insects were attracted to, created by, and caused to multiply in and around said body of water and said smaller pools of stagnant water, and died and decayed in and about said water, and plaintiff avers that the defendant has negligently maintained said water in the condition described above, continuously since, to wit, June, 1914, so close to plaintiff's said residence that he and his family have been caused to breathe said noxious and offensive vapors and gases, and to smell said offensive odors continually by day and by night, and have continually been bit, stung, and annoyed by day and by night, and have continually been bit, stung, and annoyed by said mosquitoes and other insects, and his home has continually been permeated with said odors and infested with said insects. And plaintiff avers that as a proximate consequence of plaintiff and his family breathing said impure air and smelling said offensive odors and being bit, stung, and annoyed by said mosquitoes and other insects as aforesaid, plaintiff and his family were caused to contract sickness, malaria, and fever, his home was rendered uncomfortable and unhealthy and uninhabitable, and plaintiff was caused to expend large

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