City of Birmingham v. City of Fairfield

• Decision Date: 31 August 1979
• Citation: 375 So.2d 438
• Parties: CITY OF BIRMINGHAM v. CITY OF FAIRFIELD et al. 78-137.
• Court: Alabama Supreme Court

Page 438

375 So.2d 438

CITY OF BIRMINGHAM v. CITY OF FAIRFIELD et al.

78-137.

Supreme Court of Alabama.

Aug. 31, 1979.

Rehearing Denied Sept. 28, 1979.

James K. Baker, L. H. Warren and Herbert Jenkins, Jr., Birmingham, for appellant.

Norman K. Brown, Bessemer, for appellees.

BEATTY, Justice.

Defendant, City of Birmingham, appeals from a trial court's decree enjoining the City's maintenance of certain public and private nuisances and from a judgment awarding four individuals an aggregate of $13,000.00 in damages. We reverse and remand.

Plaintiff, the City of Fairfield, sought a permanent injunction to restrain Birmingham from "collecting and diverting surface waters . . . into drains, pipes, conduits or artificial channels and precipitating and casting such surface waters in increased quantity, volume, and velocity" onto the streets of Fairfield and upon the property of the citizens of Fairfield. The complaint characterized the conditions complained of as a public nuisance and sought an award of money damages in addition to abatement (by injunction) of the nuisance. Approximately one year after the complaint was filed, several Fairfield residents were allowed to intervene under ARCP 24 as parties plaintiff. They too sought both injunctive relief and money damages.

Evidence at the trial court level was taken before two special masters appointed by the court under Rule 53, ARCP. In general the record reveals that, prior to 1971, there was a flooding problem in the Mechanicsville area of Birmingham. It appears that this flooding resulted from the overflowing of a natural drainage ditch utilized by Birmingham in its storm drainage system. For many years the open ditch has run to the Birmingham city limits, where it connects with a 36-inch pipe which is located at the beginning of Fairfield's storm drainage system. Several Mechanicsville residents (whose property had become flooded when the ditch overflowed) sued Birmingham, seeking both injunctive relief and damages. That suit was settled when Birmingham agreed to improve the system in the Mechanicsville area by putting pipes in the ditch and covering them. The improvements were made in late 1970 and early 1971, culminating with a 66-inch pipe terminating near the Birmingham-Fairfield boundary. From the point where the Birmingham pipe ends, the open ditch continues for approximately 15 feet to the Fairfield city limits; at that point the ditch joins the 36-inch pipe that represents the inception of Fairfield's storm sewer system.

The improvements were successful in alleviating the flooding problem in the Mechanicsville section of Birmingham, but a Pre-existing flooding problem in Fairfield was aggravated to some degree due to the increased rate of flow through the 66-inch pipe. This increased flooding in Fairfield is the subject of this action.

Apparently Fairfield's 36-inch pipe cannot handle all of the water flowing into it from the ditch at the end of the Birmingham system. During relatively heavy rains, storm water flows over the banks of the ditch and onto Avenue H in Fairfield; the water eventually collects on the private property of some of the Fairfield residents who intervened in this action.

At the conclusion of the evidence, the special masters made detailed findings of fact and conclusions of law which may be summarized as follows:

Fairfield's storm drainage system was inadequate at its inception and no flooding would occur if Fairfield had an adequate system. On the other hand, the Birmingham improvements were soundly constructed in accord with good engineering practices. The area now drained by the two systems is the same as it was before the improvements were made, but the new Birmingham pipe "had the result of shifting a flooding problem downstream, thereby aggravating an infrequent existing flooding problem downstream (in Fairfield)." Since the installation of the improvements, the flooding has increased in frequency and severity due to the fact that a smaller storm now has the same flooding effect that a more severe storm had before the new pipe was installed; the capacity of Fairfield's 36-inch pipe is now reached more quickly as a consequence of the increased and more efficient discharge of water that was made possible by the Mechanicsville improvements.

The masters concluded that "the increased flooding caused by the increased rate of discharge and decrease in the time of concentration constitutes a public nuisance and a private nuisance" (to four of the intervenors) and that the nuisances should both be abated. The masters also recommended that damages be awarded to the four prevailing intervenors.

After the masters report was submitted to the trial court, over defendant-Birmingham's objection the report was wholly confirmed and adopted by the court. Birmingham was permanently enjoined from continuing to maintain the condition deemed a public and private nuisance and was ordered to pay intervenor Watkins $10,000.00 and to pay intervenors Cherry $3,000.00. Birmingham appeals on several grounds.

I

Defendant Birmingham principally contends that the trial court erred in ordering the Abatement of the condition that was deemed to be a nuisance. The thrust of defendant's argument is that no abatable nuisance can arise from the doing of statutorily authorized acts if the acts themselves are done in a proper manner. Because municipalities are given express statutory authority to make all needful drainage improvements (See Code of 1975, § 11-50-50), Birmingham asserts that a nuisance resulting from sewerage improvements may not properly be ordered abated in the absence of both Allegations and Proof of negligence in the construction, operation or maintenance of the improvements. Birmingham contends that negligence was neither pleaded nor proved and that the complaint therefore should have been dismissed.

It is true that neither the original complaint nor the intervenors' complaint charged Birmingham with "negligence"; instead, both alleged that Birmingham was guilty of creating and maintaining a "nuisance." The nuisance allegation was sufficient to give Birmingham notice of what Fairfield's claim was and the grounds upon which it was based; under our Rules of Civil Procedure, that is all that is necessary. E. g., Carter v. Calhoun County Board of Education, Ala., 345 So.2d 1351 (1977). The term "nuisance" refers "to the interests invaded, to the damage or harm inflicted, and not to any particular kind of act or omission which has led to the invasion." Prosser, Handbook of the Law of Torts § 87 (4th ed. 1971). Although a nuisance May result from acts or omissions that constitute negligence, a nuisance may also result from non-negligent (or even lawful) conduct; the terms nuisance and negligence are commonly thought of as denoting distinct torts. See Terrell v. Alabama Water Service Co., 245 Ala. 68, 15 So.2d 727 (1943). In this instance, although plaintiffs did not specify with particularity the character of the conduct giving rise to the condition claimed to be a nuisance, they did state what the conduct itself consisted of and the result of that conduct. Such allegations sufficiently comply with ARCP 8(a)(1), which requires only "a short and plain statement of the claim showing that the pleader is entitled to relief." We are unable to say that "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief"; as a result it was proper not to dismiss the complaint for failure to state a claim. See Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957); Watwood v. R. R. Dawson Bridge Co., Inc., 293 Ala. 578, 307 So.2d 692 (1975).

However, by relieving plaintiff and intervenors of the burden of making a ceremonial averment of negligence, we have not relieved them of the burden of proving that the "nuisance" was produced by the negligent acts or omissions of defendant Birmingham, for our prior decisions consistently support defendant's contention that proof of negligence is required to sustain injunctive relief ordering abatement of a nuisance when the conduct giving rise to the conditions complained of was expressly authorized by legislative act.

A 'nuisance' is anything that works hurt, inconvenience or damage to another. The fact that the act done may otherwise be lawful does not keep it from being a nuisance. . . ." Code of 1975, § 6-5-120. If a particular activity falls under the general definition of a nuisance and, additionally, "damages all persons who come within the sphere of its operation," it will be deemed a public nuisance (Code of 1975, § 6-5-121), which is generally abatable by a city when it injures "the health, morals, comfort or welfare of the community or any portion thereof." Code of 1975, § 6-5-122. Such a public nuisance may also give an individual a cause of action for abatement when he has suffered damages different in degree and kind from those suffered by the general public. See Barnes v. Kent, 292 Ala. 508, 296 So.2d 881 (1974). However, the Abatement remedy is limited when the conduct giving rise to the damage is Statutorily authorized. The rule of our cases is that "(t)here can be no abatable nuisance for doing in a proper manner what is authorized by law." Fricke v. City of Guntersville, 251 Ala. 63, 36 So.2d 321 (1948).

A number of our statutes specifically confer upon cities the power to engage in certain activities; for example, cities are expressly given the power to own and control city cemeteries (Code of 1975, § 11-47-40), the power to establish and maintain garbage incinerators, § 11-47-135, the power to establish, control and regulate slaughterhouses, § 11-47-138, etc. Municipalities are also given the power to provide for their own drainage via sewers and other means. Code of 1975, § 11-50-50 provides:

All cities and towns may make all needful provisions for the drainage of such city or town, may construct and maintain...