City of Tuscaloosa v. Williams
Citation | 229 Ala. 542,158 So. 753 |
Decision Date | 17 January 1935 |
Docket Number | 6 Div. 596. |
Parties | CITY OF TUSCALOOSA v. WILLIAMS et al. |
Court | Supreme Court of Alabama |
Appeal from Circuit Court, Tuscaloosa County; Henry B. Foster Judge.
Bill for injunction by John H. Williams and Mrs. L. F. Williams against the City of Tuscaloosa. From a decree overruling a demurrer to the bill, respondent appeals.
Reversed and remanded.
S. H Sprott and Reuben H. Wright, both of Tuscaloosa, for appellant.
W. D Partlow, Jr., and George A. Le Maistre, both of Tuscaloosa, for appellees.
This bill against the city sought to "remove the obstruction of the natural watercourse on the land of the complainants and to restore said watercourse to its original dimensions in width and depth" and to enjoin the respondent from obstructing the natural flow of water.
The demurrer of the city to the bill as amended being overruled, the appeal is prosecuted from that decree.
The respective rights of riparian owners of land as to the natural flow of water and use thereof, the discharge of water falling upon or flowing through or from lands, and the rights of owners of upper and lower estates with respect to the water course thereof, have often been declared by this court, and need not be repeated. McCary v. McLendon et al., 195 Ala. 497, 70 So. 715; Smith et al. v. McElderry, 220 Ala. 342, 343, 124 So. 896; Gulf States Steel Co. v. Law et al., 224 Ala. 667, 669, 141 So. 641; Jones et al. v. Tennessee Coal, Iron & R. Co., 202 Ala. 381, 80 So. 463; Tennessee Coal, Iron & Railroad Company v. Hamilton, 100 Ala. 252, 14 So. 167, 46 Am. St. Rep. 48; Sloss-S. S. & I. Co. v. Morgan, 181 Ala. 587, 61 So. 283.
This action is against the city, for injunction and for damages alleged to be recurring by reason of its construction and maintenance of an artificial sewer, drain, or line, constructed after and maintained under a contract with the appellees for the right of way across their lands. The statute gave the city the right of condemnation for such use and purpose of a right of way. Section 2296, Code; City of Birmingham v. McConnell, 227 Ala, 438, 150 So. 342.
The municipality, for its own convenience, acquired that right of way by purchase on the terms indicated by the deed exhibited, which will be taken and considered with the bill. Grimsley v. First Ave. Coal & Lumber Co., 217 Ala. 159, 115 So. 90.
This court, in Clifton Iron Co. v. Dye, 87 Ala. 468, 472, 6 So. 192, 193, a case by a riparian proprietor against an industrial enterprise for injunction against the pollution of a stream, held that, even when no consideration passes and no easement or right of way is acquired, the riparian proprietor may maintain an action at law for damages. Mr. Chief Justice Stone, writing for the court, said: 1 High, Inj. § 797; Wood v. Sutcliffe , supra."
The text in 1 High on Injunctions (4th Ed.) pp. 762, 763, § 797, is to the effect, that "while a court of equity may interfere for the protection of the legal right to the use of water in a stream which is being fouled, and whose value is being impaired for manufacturing purposes, by defendant's works farther up the stream, yet if complainants have not used due diligence in the assertion of their rights, and have for a long period allowed defendants to erect and operate their works without objection, an injunction will be refused, especially when the injury complained of can be compensated in damages at law, and when the granting of the relief would inflict serious injury upon defendants, without doing any practical good to complainants."
This text is rested upon the English case of Wood v. Sutcliffe, 2 Sim. (N. S.) 163, 168, 170, 42 Eng. Ch. Rep. 163-170, in which the Vice Chancellor weighed the respective rights and inconveniences of the parties, observing:
"I incline to think also that the injunction ought to be refused on the ground that the injury complained of is capable of being compensated by money; and, in my opinion, it ought also to be refused on the ground that the granting of it would inflict serious damage upon the defendants, without doing any real practical good to the plaintiffs." 42 Eng. Ch. Rep. 167, 168, 169, 2 Sim. (N. S.) 163, 167, 168, 169.
The case of Clifton Iron Co. v. Dye, 87 Ala. 468, 6 So. 192, with many other decisions, is cited in the note to the statement under subhead in 61 A. L. R. p. 926, which reads as follows: "On the ground that the right to an injunction is not absolute and unqualified, but that such an application appeals to the conscience of the court, requiring the exercise of a wise and sound discretion, and should be granted or withheld according to the equities of the case as made to appear by the record, the right has been asserted and the duty held to be imposed upon the court, upon hearing for a permanent injunction to restrain the operation of a business, on the ground that the operation thereof constitutes a nuisance, to weigh the advantages to the defendant and to the locality by the continued operation of the business, and to take into consideration the extent of the injury resulting from such operation, and refuse injunctive relief where the advantages greatly preponderate over the injuries resulting therefrom."
This doctrine was recognized in Arizona Copper Co. v. Gillespie, 230 U.S. 46, 33 S.Ct. 1004, 1006, 57 L.Ed. 1384, where the court, through Mr. Justice Lurton, said:
The case of Clifton Iron...
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