City of Birmingham v. Flowers, 6 Div. 98.

• Decision Date: 10 March 1932
• Docket Number: 6 Div. 98.
• Citation: 224 Ala. 279,140 So. 353
• Parties: CITY OF BIRMINGHAM v. FLOWERS.
• Court: Alabama Supreme Court

140 So. 353

224 Ala. 279

CITY OF BIRMINGHAM v. FLOWERS.

6 Div. 98.

Supreme Court of Alabama

March 10, 1932

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

Action by S. J. Flowers against the City of Birmingham for damages to property by overflow of water from a culvert. From a judgment for plaintiff, defendant appeals. Transferred from Court of Appeals.

Affirmed.

Wilkinson Burton & Wilkinson, of Birmingham, for appellant.

Altman & Koenig, of Birmingham, for appellee.

ANDERSON C.J.

While the border line, in some instances, is close as to when certain overflows to land are to be regarded as permanent and the damage to the land is to be based upon the difference in the value of the land with or without the cause of the overflow, or whether the said overflows occurring at different times are to be regarded as occasional recurrent ones and each overflow constitutes a separate and distinct cause of action, yet it our case of Sloss-Sheffield S. &amp I. Co. v. Mitchell, 181 Ala. 576, 61 So. 934, 935, it was said: "Where the channel of a stream is so obstructed by a permanent dam or fill as to cause a constant overflow upon another's lands, the damages are regarded as original and must be recovered in one action. But where the dam or fill is provided with a culvert sufficient to carry off the water of the stream in its usual volume, and causes only occasionally recurrent overflows, the damage is continuing, and each overflow constitutes a separate and distinct cause of action."

Count A charges the maintaining of a permanent culvert insufficient to take care of the water naturally flowing through said ditch or drain and that said water backed up and flowed over plaintiff's land causing the damage therein set out. Therefore the gravamen of the action was the substitution of a permanent culvert for the existing ditch or drain and which said culvert was inadequate to carry off the natural flow of water, and states but a single cause of action. True, the complaint gives the different dates of the overflows, but this was a mere averment of evidential facts which did not amount to stating separate and distinct causes of action in the same count of the complaint. The test between the two classes seems to be not merely in the permanence of some special injury to the freehold, but rather in the permanence of the original cause and completeness of its injurious results once and for all. St. Louis, I. M. & S. R. Co. v Biggs, 52 Ark. 240, 12 S.W. 331, 6 L. R. A. 804, 20 Am. St. Rep. 174. The present complaint charges a permanent culvert and which is insufficient to carry off the water in its natural or usual volume.

In our leading case of Alabama G. S. R. Co. v. Shahan, 116 Ala. 302, 22 So. 509, 511, the damage and overflow was charged to be due to negligence in permitting the culvert to be obstructed from extraneous causes and not that it was insufficiently constructed so as to carry off the usual flow of water. In other words, the opinion states that the complaint is not clear as to whether the pleader intended to aver that the culvert was insufficiently constructed for the passage of water, or whether it had become insufficient for the passage of water by reason of extraneous causes, and which were negligently allowed to remain. "Construing the pleadings most strongly against the pleader, we hold that the latter is the legal construction to be placed upon the averment."

The case of Town of Tarrant City v. Pope, 221 Ala. 662, 130 So. 390, is in no wise opposed to the present holding. It merely discussed what would and would not come within the protection of section 235 of the Constitution, and states that negligence in maintaining the ditch resulting in its becoming choked and causing overflows would stand on a different footing. This we think meant a temporary cause rather than a permanent one such as considered in the Shahan Case, supra, and not a permanent culvert inadequate to discharge the natural flow of water as described in the present complaint.

The case of Harris v. Town of Tarrant City, 221 Ala. 558, 130 So. 83, supports rather than opposes the present holding, and draws the same distinction that we have attempted in the present opinion; that is, if the improvement is of a permanent character and not abatable as a nuisance, the injury thereby done should be assessed in solido. If the improvement itself is proper but the damage results from a negligent maintenance of same, each recurring injury resulting therefrom affords separate rights of action.

True the negligence charged is in the maintenance rather than the construction of the culvert, but the negligence in the maintenance is due to a culvert insufficient to discharge the volume of water and not to the maintenance ...