City of Roanoke v. Johnson

• Decision Date: 30 November 1934
• Docket Number: 5 Div. 188.
• Citation: 158 So. 182,229 Ala. 496
• Parties: CITY OF ROANOKE v. JOHNSON et al.
• Court: Alabama Supreme Court

158 So. 182

229 Ala. 496

CITY OF ROANOKE v. JOHNSON et al.

5 Div. 188.

Supreme Court of Alabama

November 30, 1934

Rehearing Denied Jan. 3, 1935.

Appeal from Circuit Court, Randolph County; W. B. Bowling, Judge.

Bill for injunction by C. B. Johnson, J. W. Collier, and C. H Cole against the City of Roanoke. From a decree for complainants, respondent appeals.

Affirmed.

D. R Boyd, of Roanoke, and Denson & Denson, of Opelika, for appellant.

D. T Ware, of Roanoke, for appellees.

THOMAS Justice.

The bill sought injunctive relief to prevent discontinuance by the city of water service to complainants. Such was the decree of the circuit court, from which the city appealed.

The testimony taken by depositions tended to show that complainants owned lots (with houses thereon accorded water service by the city) adjoined to the water basin of that municipality; that water seeped through the foundation of that basin, injured adjacent lands, and rendered useless the wells then in use in each of said houses; that, pursuant to an agreement with the municipality, each complainant installed water and plumbing fixtures which were connected by the city with its water supply, and each complainant was furnished water free of charge by the city pursuant to the contract ordinance. There is a further tendency of evidence that, because of damages to the three wells, several and respective claims for damages by suits against the city were not pressed, and these wells were discontinued, filled with dirt and cinders, as requested or required by the city, and were never again used; that the free water service was granted or accorded as long as the condition of disuser and damage obtained, which condition did and continued to obtain to the date of the trial and the decree.

The conditions, damages, and settlement of same with and by the city are fully set out in paragraph 4 of the bill and supported by the proof. Among other things, it is averred and shown: "That at the time and prior to that time the complainants had no water works fixtures in their homes and were depending entirely for their water supply upon their wells. That complainants appeared before the City Counsel of the City of Roanoke, Alabama, and made known the extent of their damages as set out in this Bill of Complaint, and that there and then the Mayor and Council of the City of Roanoke entered into an agreement with each of your complainants, that the city would furnish water free to each of your complainants, if complainants would not bring an action at that time against the city for damages heretofore set out and described in this Bill of Complaint. That at a regular meeting of the City Council of the City of Roanoke, Alabama, held in the City Hall of the City of Roanoke, on December 8th, 1921, when the Mayor, G. B. Walker, was present and councilmen B. B. Brannan, J. R. Muldrew, D. M. Yates, J. G. Wheeler and H. Enloe were present, the following among other orders and proceedings were made and done: 'On motion which was seconded and duly carried, the council voted to allow C. B. Johnson three thousand gallons of water free, or until his well is again used. This also applies to any other person near the water works, if their wells should become damaged from the city water works settling basin. Signed G. B. Walker. Attest, O. L. Mullendore, City Clerk.' That from the passage of the above order, on December 8th, 1921, the City of Roanoke, Ala., furnished to and supplied your complainants with free water. That your complainants were never and have never been able to use their wells of water, and that some of them have been filled with earth. That the same condition has existed continuously all of the time and is existing today. That some years ago the City Council ordered and authorized the complainants to fill their wells with dirt as they were a nuisance on account of being filled with water which drained from the said water basin or reservoir; that complainants accepted the proposition of receiving free water as compensation for not filing their suits against the City of Roanoke, Alabama, for damages as aforesaid, and that they have never sued the City of Roanoke, Alabama, for damages, and that they have received in keeping with the agreement, free water up until this day."

The record further shows that "at the request of both parties to this suit, and in the presence of the parties and their respective attorneys, the Court visited the property and made a personal visual inspection of the premises, their slopes, contour, directions and distances"; and it is recited in the decree from which this appeal is prosecuted that "this inspection has been of marked benefit to the Court in weighing the testimony and reaching a satisfactory conclusion as to its probative effect," in rendering the decree making the temporary injunction perpetual against the respondent city, and in restraining and enjoining the city, its agents or employees, and each of them, from discontinuing or cutting off the water supply for domestic purposes of each of these complainants, or from charging, collecting, or attempting to collect, "any charge for said water so long as said reservoir or basin is maintained in its present location and condition and continues to cause damage to the properties of said complainants."

Several questions presented by brief of counsel are now to be considered.

The questions of misjoinder of parties and causes of action and stipulations in contracts for the benefit of third parties were recently discussed and authorities collected in Planters Warehouse & Commission Company v. Katie S Barnes, Individually, etc., et al. (Ala. Sup.) 159 So. 63, and First National Bank of Eutaw v. Katie S. Barnes, as Executrix, et al. (Ala. Sup.) 159 So. 68, where it was stated, on ample authority, that no universal rule is admitted to be established as to cover all possible case...