City of Birmingham v. Estes

Decision Date17 January 1935
Docket Number6 Div. 548.
Citation229 Ala. 671,159 So. 201
PartiesCITY OF BIRMINGHAM v. ESTES.
CourtAlabama Supreme Court

Rehearing Denied Feb. 21, 1935.

Appeal from Circuit Court, Jefferson County; John Denson, Judge.

Action for damages by John Estes against the City of Birmingham. From a judgment for plaintiff, defendant appeals.

Reversed and remanded.

W. J Wynn and Leigh M. Clark, both of Birmingham, for appellant.

Horace C. Wilkinson, of Birmingham, for appellee.

KNIGHT Justice.

This action was commenced against the city of Birmingham, and the commissioners of said city, but was subsequently amended by striking all parties defendant except the city of Birmingham.

The cause was tried on counts A and B added by amendment.

It is averred in count A that plaintiff in June, 1931, owned and was in possession of certain real property in the city of Birmingham, upon part of which his residence was located, and the residue of the property consisted of lots which were vacant.

It is averred that all of this property was in close proximity to a natural waterway known as Valley creek; that during said month of June, 1931, the defendant caused the channel of said creek to be changed and a new channel constructed; that said new channel "was and is permanent"; that the flow of said water was permanently transferred and diverted from the "old creek channel" to the new channel; that the old channel was filled in or destroyed after the diversion of the water from the old to the new channel was accomplished.

It is further averred that this new channel "was and is permanently insufficient to carry the drainage water and that by reason and as a proximate consequence of the permanent smallness and permanent insufficiency of said new channel plaintiff's said property is flooded and subjected to overflow from same." Then follows averments as to the injuries and damages to his property, and personal injuries sustained by him, resulting proximately from the said acts of the defendant.

Count B is identical in language with count A, with the added averment: "Plaintiff avers that the defendant negligently constructed or negligently maintained said small and insufficient new channel and as a proximate consequence of said negligence plaintiff sustained the injury and damage complained of."

The evidence for plaintiff tended to show that, following the construction of the channel and the change in the channel of Valley creek, plaintiff's property was overflowed at times, especially when rainfall would amount to as much as an inch; that such conditions did not obtain prior to the change made in the channel of the creek.

We think the evidence for plaintiff was sufficient to carry the case to the jury, unless it be that there was a variance between the allegations of plaintiff's complaint as to the cause of the overflow and the cause as proved at the trial.

Under the evidence we do not think a variance was presented. Without doubt, the defendant changed the channel of Valley creek, and diverted the water, which customarily flowed through the old channel, into this new channel. The evidence tended to show that in straightening the creek, and in taking out the curves, the water collecting in the new channel flowed down the same with much greater rapidity. It then had a straight course, with no obstacles to impede its progress or to hold it back. The evidence further tended to show that at a given point, after passing plaintiff's property, the new channel stopped, and the outlet was insufficient to accommodate the water collected in the new channel, causing it to overflow plaintiff's property. If this was true the defendant would be liable as for constructing or maintaining a channel insufficient to accommodate the water. Defendant would have no right to divert water from its regular channel and flow, and leave it at any given point without further outlet, or with an insufficient one, to the hurt of another. Arndt v. City of Cullman, 132 Ala. 540, 31 So. 478, 90 Am. St. Rep. 922; Sisco v. City of Huntsville et al., 220 Ala. 59, 124 So. 95; City of Birmingham v. Flowers, 224 Ala. 279, 140 So. 353; City of Birmingham v. Greer, 220 Ala. 678, 126 So. 859. While the above cases relate specifically to the construction of sewers, or culverts, yet the principles of law underlying the case now before the court and the cited cases are the same.

In the case of City of Eufaula v. Simmons, 86 Ala. 515, 6 So. 47, it was held that, if a municipal corporation, in the construction of ditches and sewers in the improvement of its streets, causes a large quantity of rainwater, which naturally flowed in another direction, to be diverted to flow on the plaintiff's property in destructive quantities, the defendant corporation would be liable therefor, whether the work was done negligently or not, and a fortiori the defendant would be liable when such ditches and drains have been constructed in a negligent manner. In this respect a corporation stands on the same footing as a private individual, and incurs the same liability. 10 Amer. & Eng. Ency. Law (2d Ed.) 350-352. See, also, Nashville, C. & St. L. Ry. Co. v. Yarbrough, 194 Ala. 162, 69 So. 582.

In 24 Amer. & Eng. Ency. Law, 946, 947, the principle is thus stated: "The accumulation in one channel of a large volume of water by the act of the city, places upon it the duty to see to it that suitable provision is made for the escape of the water into natural water courses or other channels which will carry it off without injury to private property; and if by reason of the insufficiency of the drain or sewer provided, the...

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12 cases
  • Howell v. City of Dothan
    • United States
    • Alabama Supreme Court
    • May 13, 1937
    ... ... Code, § ... 1907; Town of Linden v. American-La France & Foamite ... Industries, 232 Ala. 167, 167 So. 548. The City of ... Birmingham v. Jones, 228 Ala. 160, 153 So. 213; ... Elmore County v. Moon (C.C.A.) 293 F. 297; ... Maddox v. Birmingham, 232 Ala. 383, 168 So. 424, ... cases ... an offense against his person and is a personal injury ... City of Birmingham v. Estes, 229 Ala. 671, 159 So ... 201, 97 A.L.R. 114. Not having claimed and presented such ... element of damages to the municipality, as required by the ... ...
  • Levene v. City of Salem
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    • Oregon Supreme Court
    • March 21, 1951
    ...the additional water, then the city is liable for having diverted the water into an insufficient channel. City of Birmingham v. Estes, 229 Ala. 671, 159 So. 201, 97 A.L.R. 114, 116. These considerations lead us to the conclusion that, in limiting the amount of plaintiffs' recovery to the su......
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    • Alabama Court of Appeals
    • March 7, 1950
    ...v. Aiken, 205 Ala. 35, 88 So. 135; Stouts Mountain Coal & Coke Co. v. Tedder, 189 Ala. 637, 66 So. 619; City of Birmingham v. Estes, 229 Ala. 671, 159 So. 201, 97 A.L.R. 114; City of Birmingham v. Greer, 220 Ala. 678, 126 So. 859; Nauvoo Black Creek Coal Co. v. Johnson, 230 Ala. 174, 160 So......
  • State Ex Rel. Lawson v. Woodruff
    • United States
    • Florida Supreme Court
    • October 21, 1938
    ... ... G. R. Lawson, against C.J. Woodruff, as Chief of Police of ... the City of Tampa, Florida. To review a judgment remanding ... the petitioner to the custody of the Chief ... ...
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