City of Mountain Brook v. Beatty

• Decision Date: 28 March 1974
• Citation: 292 Ala. 398,295 So.2d 388
• Parties: CITY OF MOUNTAIN BROOK, a municipal corporation v. Mary Alice BEATTY, Individually and as Executive Under the Will of Ola P. Fulghum, Deceased; and Donald C. Beatty. Mary Alice BEATTY, Individually and as Executrix Under the Will of Ola P. Fulghum, Deceased; and Donald C. Beatty v. CITY OF MOUNTAIN BROOK, a municipal corporation. SC 215, 215--X.
• Court: Alabama Supreme Court

Page 388

295 So.2d 388

292 Ala. 398

CITY OF MOUNTAIN BROOK, a municipal corporation v. Mary Alice BEATTY, Individually and as Executive Under the Will of Ola P. Fulghum, Deceased; and Donald C. Beatty.

Mary Alice BEATTY, Individually and as Executrix Under the Will of Ola P. Fulghum, Deceased; and Donald C. Beatty v. CITY OF MOUNTAIN BROOK, a municipal corporation.

SC 215, 215--X.

Supreme Court of Alabama.

March 28, 1974.

Rehearing Denied June 20, 1974.

Cabaniss, Johnston, Gardner & Clark, and L. Vastine Stabler, Jr., Birmingham, for appellant and cross-appellee

Sadler, Sadler, Sullivan & Sharp, Birminghm, for appellees and cross-appellants.

HEFLIN, Chief Justice.

This is an appeal of a suit seeking injunctive relief and damages. The complainants-appellees-cross appellants Beattys (Complainants) allege that the respondent-appellant-cross appellee City of Mountain Brook (Respondent) has dumped water and will continue to dump even more water on the property of the complainants by virtue of a proposed new storm drainage pipe. Complainants sought and obtained temporary and permanent injunctive relief precluding further construction on the proposed new pipe, and also sought a declaration of the rights of the parties with regard to the present use of an open drainage ditch across the complainants' property. In addition, complainants sought damages after alleging that the city's use of the open ditch amounted to a nuisance.

The trial court entered a final decree which, in effect, (1) enjoined Mountain Brook from channeling waters through the open ditch (6 to 8 feet deep and 7 to 10 feet wide) from an old existing storm sewer pipe, (2) enjoined the flow of water into the ditch out of the new pipe (36 ) under construction, but (3) conditioned the decree so that the respondent was granted an easement across the complainants' property where the ditch now lies and respondent would be relieved of the restrictions of (1) and (2) if it constructed a new underground storm sewer on its easement equivalent to the new pipe already under construction. The trial court did not award money damages to the complainant.

The facts as established by the testimony taken ore tenus are as follows: Mrs. Beatty acquired title to lot 171, Mountain Brook Estates, New County Club Sector, in the City of Mountain Brook in 1945 as a gift from her mother, and she is the executrix and sole beneficiary of her mother's estate which includes lot 196 which adjoins lot 171. When the Beatty's built their home in 1949 or 1950 there was in existence an old 24 storm sewer which passed under most of lot 171 and emptied into what was described as a 'babbling brook' traversing lot 196. In about 1950, this old pipe was replaced by the City with a 36 brick storm sewer which also emptied into the brook. The brook ran about 300 feet, crossed several other lots, then ran into two other city pipes (termed take-off pipes), one 36 main pipe, and a 24 pipe which was equipped with a restraining wall so that it carried no water until a certain level was reached. This brook and the drainage pipe system are located in the natural drainage basin for the area and constitute a portion of the City of Mountain Brook's storm drainage system. When the City installed the 36 pipe in 1950 there was 'quite a considerable change' in the drainage, and by 1955 or 1956 the water had so eroded the ditch that a bridge had to be built to facilitate crossing the ditch. Seven or eight years prior to the start of the litigation the drainage ditch began to overflow during periods of heavy rain causing flooding on the complainants' lots. About five years prior to the litigation (which began on May 26, 1972), the complainants and their neighbors began to notice evidence of raw sanitary sewage in the ditch, and, after an overflow raw sewage would be deposited on their lots. For eight years prior to the trial, the complainants made protests to various city officials in an effort to have the problem alleviated. Just prior to the litigation the respondent began construction of several new underground pipes designed to improve the overall drainage system in the area and not to deal only with the problem of the ditch across lot 196. The proposed construction would include installation of another 36 take-off pipe at the lower end of the ditch and installation of a 36 pipe which would carry water under Overhill Road, underneath lot 172 (owned by a different party) near its boundary with lot 171, and dump it into Finally, the city manager of Mountain Brook testified that he was prepared to have the ditch cleaned out and straightened as much as possible if his men were permitted access to it by the complainants.

the ditch upstream near the boundary between lot 171 and lot 196. The water carried by this last pipe would flow into the ditch at about the same place it would if permitted to flow naturally, but would flow at a faster rate through the pipe thus putting a larger volume of water in the ditch in a relatively shorter time after a downpour. Since the completion of the new 36 take-off pipe (located some 300 feet downstream at the end of the ditch) apparently there has been no flooding in the area. An expert witness (an engineer) called by the complainants testified that a stump in the ditch 'serves as an obstruction about 80% Of the drainage capacity of the ditch,' and that rocks and bushes are also great obstacles to the flow of the water. He stated that his opinion was that the ditch 'will continue to flood until the channel is inproved, or cleaned up, or opened up in some nature.' The expert was also of the opinion that the two 36 take-off pipes and the 24 take-off pipe would be insufficient to carry off all water in peak periods of heavy rains, but felt that two underground 36 pipes replacing the open ditch 'would be enough to handle the water 90 to 99% Of the time.' The city engineer for Mountain Brook stated that the planned additional pipes would decrease the flooding problem in the area.

The sketch below, not purporting to be to scale, shows the relative position of the various lots and drainage pipes. Reference to this sketch may aid in understanding the factual context of this case.

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

On appeal, the respondent alleges the decree is erroneous in all of its aspects and argues that (1) the City of Mountain Brook had acquired rights to use the open ditch by prescription; (2) the evidence of sanitary sewage in the ditch does not provide a proper basis for the injunction against drainage from the old or the proposed pipe; (3) the city cannot be enjoined from constructing the new pipe on property (lot 72) adjacent to the complainants' land; (4) the injunctive relief should not obtain against the proposed pipe because it is merely a prospective or threatened nuisance with only doubtful injury; and (5) the trial court was not empowered to establish and prescribe the specifications of public works for the respondent city.

The complainants filed a cross appeal alleging the trial court was in error for (1) failing to award any damages in lieu of a condemnation award for the improperly granted easement; (2) failing to grant damages resulting from a nuisance created by the city in allowing raw sewage to pollute the open ditch; (3) granting the respondent the right to construct a storm sewer on the complainants' property; and (4) granting the respondent an easement on complainants' land if respondent chooses to construct the sewer.

ON APPEAL

The key issue in this case--the one issue upon which practically all claims of both parties stand or fall--is whether the City of Mountain Brook has the right to drain water across the Beattys' property, and, if so, to what extent such right exists. This court finds that the city does possess the right to drain across the complainants' property in the ditch, but does not have the right to flood the complainants' property. The case is to be remanded to the trial court with instructions to modify the injunction in a manner not inconsistent with this opinion.

The issue of whether the city has the right to drain across the complainants' property is raised by respondent's first contention, by which the respondent claims that '(w)hatever rights the City of Mountain Brook may have required were acquired by prescription.' Apparently what the respondent means by this proposition is that if the general water law of Alabama does not give the city the right to channel water across lot 196, then the city has acquired the right to do so by prescription. However, the respondent does not argue the general water law in brief, but argues only the claim of prescription. Thus under Rule 9, Revised Rules of Practice in the Supreme Court, the court will not consider the ground not argued, see, e.g. Thrasher v. Darnell, 275 Ala. 570, 156 So.2d 922 (1963), but will examine only the claim of an easement by prescription.

The issue whether a party can obtain an easement for drainage by continuous use for the prescriptive period has been rarely litigated in this state. The only Alabama case on this issue cited by either party seems to recognize that such a right exists, but the court there held that the evidence did not support the lower court's finding. See Kratchoville v. Cloverleaf Plaza, Inc., 276 Ala. 562, 165 So.2d 112 (1964). See also Roundtree v. Brantley, 34 Ala. 544 (1859).

The general principles have been succinctly stated as follows:

'An easement of drainage through a ditch to or across the land of another may be acquired by prescription, and the principles and requisites of the acquisition of an easement by prescription in a private way apply. In order to acquire the right, the use must have extended the required time, and must have been adverse, peaceable, uninterrupted, and under a claim of right . . .. The ditch or drain must have been an apparent, open, visible, or notorious encumbrance; and...