City of Tuscaloosa v. Williams

Citation229 Ala. 542,158 So. 753
Decision Date17 January 1935
Docket Number6 Div. 596.
PartiesCITY OF TUSCALOOSA v. WILLIAMS et al.
CourtSupreme 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.

THOMAS Justice.

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: "Complainant saw the effect of it on the stream, and made no objection thereto. The company then erected the second washer in 1884, and nearly two years elapsed before relief was sought. Clearly it was the duty of complainant to give the company some intimation of his objection, and not to stand by with full knowledge, and permit it to make large outlays on these washers, and then seek the aid of a court of equity to arrest their operations. Reasonable diligence in the assertion of his rights was the measure of complainant's duty in this case, and, failing in this, he must now seek relief in a court of law for any damage he may have suffered. 1 High, Inj. § 797; Wood v. Sutcliffe [2 Sim. (N. S.) 162], 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:

"* * * To grant the injunction would have the effect of seriously injuring, if not ruining the defendants. Weighing, then, the injury that may accrue, to the one party or the other, by granting or refusing the injunction, I think that if my decision were to turn on this point alone, I should be bound to refuse it.
"Another condition which, as I have said, is necessary in order to induce a court of equity to interfere by injunction, in a case similar to that now before me, is that the mischief complained of is such that it cannot be properly and adequately compensated by pecuniary damages. * * *"
"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 "a. Doctrine that injunction is discretionary," 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: "Whatever the relative importance of the great mining and reduction works using the water on the upper reaches of the Gila river and its tributary streams, and of the agriculturists using the same water below, from either a public or private point of view, the right of the lesser interest is not thereby subordinated to the greater. That is sometimes a consideration when a plaintiff seeks relief by injunction rather than by an action at law for damages. The wrong and injury, whether it results from pollution of a stream or otherwise, is not condoned because of the importance of the operations conducted by the defendant to either the public or the wrongdoer, and for that wrong there must be a remedy. Whether upon a bill such as this a court of equity will restrain the acts of the party complained of, or leave the plaintiff to his action at law for damages, must depend upon the nature of the injury alleged, whether it be irremediable in its nature, or whether an action at law will afford an adequate remedy, and upon a variety of circumstances, including the comparative injury by granting or refusing the injunction. Atchison v. Peterson, 20 Wall. 507, 22 L.Ed. 414."

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6 cases
  • Howell v. City of Dothan
    • United States
    • Alabama Supreme Court
    • May 13, 1937
    ... ... shown. McCary v. McLendon et al., 195 Ala. 497, 70 ... So. 715; Samples v. Grizzell et al., 230 Ala. 176, ... 160 So. 538; City of Tuscaloosa v. Williams, 229 ... Ala. 542, 158 So. 753 ... In a ... claim for damages made against a municipality, due regard ... must be had for ... ...
  • W & H Mach. & Tool Co. v. National Distillers & Chemical Corp.
    • United States
    • Alabama Supreme Court
    • September 20, 1973
    ...There is an adequate remedy at law. Merchant's National Bank v. Roche, 227 Ala. 639, 151 So. 591, 593 (1933); City of Tuscaloosa v. Williams, 229 Ala. 542, 158 So. 753, 756 (1935); Gulf Compress Co. v. Harris, Cortner & Co., 158 Ala. 343, 48 So. 477, 480 (1908). As applied to the case at ba......
  • Pate v. Bruner
    • United States
    • Alabama Supreme Court
    • January 7, 1943
    ... ... v. Hewlitt, ... 115 Ala. 510, 22 So. 128; Hunt v. Jones, 203 Ala ... 541, 84 So. 718; City of Tuscaloosa v. Williams, 229 ... Ala. 542, 158 So. 753; 8 Alabama Digest, Equity, p. 426, k43 ... ...
  • Town of Frisco City v. Green
    • United States
    • Alabama Supreme Court
    • March 18, 1943
    ... ... 213; Hanna v ... Harman, 230 Ala. 620, 162 So. 109; Town of York v ... McAlpin, 232 Ala. 158, 167 So. 539. The case of City ... of Tuscaloosa v. Williams, 229 Ala. 542, 158 So. 753, in ... no wise militates against the holdings of the foregoing ... authorities ... We are ... ...
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