City of Birmingham v. Land

• Decision Date: 02 June 1903
• Parties: MAYOR, ETC., OF BIRMINGHAM v. LAND.
• Court: Alabama Supreme Court

34 So. 613

137 Ala. 538

MAYOR, ETC., OF BIRMINGHAM v. LAND.

Supreme Court of Alabama

June 2, 1903

Appeal from Circuit Court, Jefferson County; A. A. Coleman, Judge.

Action by William M. Land against the mayor and aldermen of Birmingham. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

Demurrers to the original complaint were sustained by the court. Thereupon the plaintiff amended his complaint by adding a third count thereto. In the amended complaint the plaintiff claimed of the defendant $1,000 damages. It was then averred in said complaint that the plaintiff owned a certain tract of land, specifically described, and the complaint then averred as follows: "Plaintiff, with his family, resides upon said land as his home, and keeps a milk dairy and farm upon said land as a means of livelihood; and for that the city of Birmingham is a large and populous city, lying in a northeasterly direction from said land, and defendant has caused the sewerage system of said city to empty into said Valley creek a short distance up stream, to wit, one mile above said land; and for that said Valley creek was, before said sewerage system was caused to be emptied into it, a constantly flowing stream of reasonably pure water, fit for the use of stock and for various domestic purposes; and for that residence along the banks of said stream was reasonably healthful, but since said sewerage system was caused to be emptied into said Valley creek as aforesaid from the 1st of December, 1898, to the present time, as a proximate consequence of the emptying of said sewerage system into said creek as aforesaid, the waters of said creek have been tainted and befouled with the offal and refuse of said city and have been rendered wholly unfit for domestic purposes and for the use of stock, and rendered poisonous to stock, and rendered offensive to the smell, and said offal and refuse is often caused to be deposited along the banks of said creek and residence upon said land above described has been caused to be unhealthful and dangerous, and said land has been rendered greatly less valuable than it otherwise would be and plaintiff has suffered sickness personally, and in the persons of the various members of his family, and has been put to great trouble, inconvenience, and expense in or about procuring medicine, medical attention, care, and nursing, and in or about treating said sickness, and plaintiff has been put to great trouble, expense, and inconvenience in or about procuring water for domestic use and for his stock, and in or about getting said stock to water, and in or about working at or near said creek at or upon said land, and plaintiff has lost a large part of his stock by same being poisoned or otherwise caused to die, and others of said stock were made sick and damaged, as a proximate consequence of the continued emptying of said sewerage system into said Valley creek as aforesaid." It was then averred in the complaint that before the filing of the suit the plaintiff made application to the board of mayor and aldermen of Birmingham for the payment of the amount sued for, and said application was refused by said board. The complaint as amended was demurred to upon the following grounds: "(1) For that it is not alleged that the acts complained of were done or caused to be done by the municipal authorities acting within the scope of their authority. (2) It is not shown what members of plaintiff's family were made sick. (3) It is not alleged what cattle, or how many, were poisoned or caused to die, nor how many were made sick." This demurrer was overruled. The defendant pleaded the general issue, and by separate special plea set up the statute of limitations of one, six and ten years. The defendant also filed the following special pleas: "(6) That its sewer system was constructed and so built as to empty into Valley creek in the year 1888, and more than ten years before the commencement of this suit, and has been so maintained and operated ever since said time continuously, openly, notoriously, adversely, and of right. (7) That its sewerage system is of a permanent nature constructed underground, and that it caused the same to be constructed and so built as to empty into Valley creek, as alleged in said complaint, in the exercise of its governmental powers conferred by its charter, and for the public purpose of draining the city; and, in the exercise of such powers, it has caused the same to be so maintained, continuously, openly, notoriously, uninterruptedly, and as of right, for more than ten years before the institution of this suit, to wit, from the 1st day of September, 1888, to the present time. (8) That its said sewer system is a permanent structure, constructed underground, and so as to flow into Valley creek; and when such system was so constructed the plaintiff was not the owner nor occupant of the land described in the complaint as amended, nor did he have any title to nor interest in the same; that said sewers were so built as to empty into Valley creek in the year 1888, and have been so maintained since said time; that, if plaintiff is now the owner or occupant of said land, he became such owner or occupant a long time, to wit, ten years, after such sewers had been so constructed, and while the same were being so maintained as to empty into Valley creek, and with knowledge of the fact that such sewers had been so constructed and were being so maintained as to empty into Valley Creek as aforesaid. (9) That said sewer system was constructed and is maintained in accordance with the most approved scientific methods, under and in the exercise of its governmental powers, and that...