Cane Creek Coal Mining Co. v. Braden

• Decision Date: 01 November 1932
• Docket Number: 6 Div. 310.
• Parties: CANE CREEK COAL MINING CO. v. BRADEN.
• Court: Alabama Court of Appeals

144 So. 143

25 Ala.App. 256

CANE CREEK COAL MINING CO. v. BRADEN.

6 Div. 310.

Court of Appeals of Alabama

November 1, 1932

Appeal from Circuit Court, Walker County; Ernest Lacy, Judge.

Action for damages by Pat Braden against the Cane Creek Coal Mining Company. From a judgment for plaintiff, defendant appeals.

Affirmed.

John S Stone, of Birmingham, and J. Carl Shepherd, of Berry, and W W. Bankhead, of Jasper, for appellant.

J. J Ray, of Jasper, for appellee.

SAMFORD J.

The plaintiff cultivated some seven acres of bottom land adjoining Cane creek. The defendant maintained and operated a coal washer on a smaller creek flowing into Cane creek some four miles above plaintiff's land. On this same small creek, the Brilliant Coal Company maintained and operated a coal washer. These washers had been in operation from two to three years before the acts complained of by plaintiff resulted in damage. The plaintiff alleged in his complaint that defendant, through its agents, etc., dumped large quantities of coal, coal dust, coal slack, cinders, and other débris from its coal mine and washer into the creek, and, by reason of such action on the part of defendant, the débris, etc., caused the channel of Cane creek to become filled, clogged, or choked, and caused the flow of the water to be impeded, and caused the creek more readily to overflow its banks and plaintiff's lands; that it did by reason of said obstruction overflow, depositing large quantities of débris from said mines on to plaintiff's lands, making them wet and destroying plaintiff's crops. The evidence for plaintiff tended to prove his case as alleged; that is, that defendant maintained a coal washer on the small stream running into Coal creek; that from this washer there was put into the stream large quantities of waste and coal dust; that it tended to clog the stream running through plaintiff's land; that such clogging did cause the creek to more readily overflow during heavy rains; that as a proximate result of such clogging it did overflow at the time alleged; and that such overflow did destroy plaintiff's crops. The value of the crops was proven.

It is contended, however, by appellant that, while all this may be true, the evidence shows without conflict that the Brilliant Coal Company also maintained and operated a coal washer on the same creek, and that there was and is a concurrent liability on that company for a proportionate part of the damage, and that the burden rested upon plaintiff to prove what part of the damage was done by the tort of this defendant, and that there was no such evidence.

If this contention is borne out by the record, the point would be well taken. If the coal dust and other débris was deposited from different washers and by different companies, with no concert of action in the torts, the one would not be liable for the tort of the other, and the burden would be on plaintiff to prove the damage done by each. Jones v Tenn. Coal, Iron & R. Co., 202 Ala. 381, 80 So. 463; City of Mansfield v. Bristor, 76 Ohio St. 270, 81 N.E. 631, 10 L. R. A. (N. S.) 806, 118 Am. St. Rep. 852, 10 Ann. Cas....