Central of Georgia Ry. Co. v. Champion

• Decision Date: 15 April 1909
• Citation: 49 So. 415,160 Ala. 517
• Parties: CENTRAL OF GEORGIA RY. CO. v. CHAMPION.
• Court: Alabama Supreme Court

49 So. 415

160 Ala. 517

CENTRAL OF GEORGIA RY. CO. v. CHAMPION.

Supreme Court of Alabama

April 15, 1909

Rehearing Denied May 11, 1909.

Appeal from Chancery Court, Shelby County; W. W. Whiteside Chancellor.

Bill by S. Z. T. Champion against the Central of Georgia Railway Company. From a decree for complainant, respondent appeals. Affirmed.

London & Fitts, for appellant.

Sam Will John, for appellee.

DENSON J.

The bill in this cause is filed by the complainant, Champion against the Central of Georgia Railway Company, and seeks to abate a continuing nuisance alleged to have been created by the respondent, intentionally, in the filling up of an open waterway that bisected an embankment of the respondent's road.

The bill shows that complainant is the owner in fee of the northwest quarter of the northwest quarter of section 2 township 18, range 1 east, in Shelby county, Ala., subject to an easement in favor of the respondent to maintain and operate a railroad over or across the northeast corner of the tract. The respondent acquired its right of easement in succession to the Columbus & Western Railway Company, and that company acquired the right from S. S. and R. E. Elliott. The latter company constructed the railroad across the lands named. The complainant deduces his title by mesne conveyances from the Elliotts. In constructing the road, a high embankment of earth was thrown up, across the land in question; but an open waterway, by means of trestling, was left through the embankment, through which ran a stream, "sometimes called 'Elliott's branch,' " which had its course across the land described. It is alleged that the waterway left by the company was about 20 feet wide at the "natural surface of the earth, and about 50 feet wide at the top, which was about 10 feet above the bed of Elliott's branch." It is then shown by the bill that this open way was of sufficient size or capacity to admit all the water which flowed down Elliott's branch, which, it is alleged, collected the water from an area of about 2,000 acres, and carried same, through the embankment and under the trestle and by way of a bed or channel of its own, for a distance of 2 miles, to and into Bear creek, a much larger stream. It is shown that the foregoing was the condition of the land and the railroad at the time complainant became the owner of the land in February, 1902, and that this status remained unchanged until about the month of August, 1903 when it is alleged, the waterway under the trestle was filled up by the agents or servants of the respondent. It is shown by the bill that, shortly after the filling up of the waterway through the railroad embankment under the trestle and the closing of such outlet for the waters of Elliott's branch, said branch or stream, being dammed up, was forced back upon the land of complainant covering several acres with water and rendering it unfit for use. It is further shown that shortly after the waterway was filled up, the respondent's agents or servants cut a narrow ditch along the southwestern side of the railroad embankment, from Elliott's branch, into Bear creek. It is averred that, instead of giving the ditch a fall toward Bear creek it is made to fall in the opposite direction and toward Elliott's branch, so that, in times of high water in Bear creek, it is diverted therefrom and flows through the ditch back upon complainant's land and is added to the water that comes down Elliott's branch, effectually overflowing and submerging several acres of plaintiff's land, filling up his ditches, destroying his crops and causing a rank growth of trees, etc., on the land, thus not only rendering the land unfit for cultivation, but causing, and will continue to cause, sickness in complainant's family. The bill alleges that complainant has already been damaged by the nuisance in the sum of $1,000. It is then averred that the injury to complainant's land is continuing in its nature, ever recurring, and, if not abated, will very soon destroy the value of complainant's farm and homestead. The prayer of the bill is for a mandatory injunction, commanding respondent to open the waterway through the embankment under the trestle to its original dimensions in width and depth, and that respondent be perpetually enjoined from closing the waterway under the trestle. It is...