Cobia v. Ellis
| Decision Date | 18 December 1906 |
| Citation | 149 Ala. 108,42 So. 751 |
| Parties | COBIA ET AL. v. ELLIS. |
| Court | Alabama Supreme Court |
Appeal from Chancery Court, Cherokee County; W. W. Whiteside Chancellor.
Bill by I. A. Ellis against M. E. Cobia and others. Defendants demurred to the bill, and moved to dismiss it for want of equity. From a decree overruling the demurrers and motion to dismiss, they appeal. Affirmed.
The facts made by the bill are that the complainant, Ellis, owned land just above lands owned by respondent Cobia on the Chattooga river, in Cherokee county; that Cobia operated a sawmill for some years by means of a dam across the river of four feet head; that some years later, and within three or four years of the filing of the bill, the height of the dam has been increased to seven feet, causing the river at time of high water to overflow lands belonging to Ellis, and that this is constantly recurring at such periods of high water that the roadway, which is a public road, is inundated, and access to and from the land cut off.
Motion was made to dismiss for want of equity, and demurrers interposed: (1) For that the bill does not set out such a state of facts as entitles complainant to relief. (2) For that said bill shows on its face that complainant has a full and adequate remedy at law. (3) For that the averments of damage are too vague, indefinite, and uncertain. (4) For that it does not appear that the injury complained of is irreparable or irremediable. (5) For that it does not appear from said bill how much of plaintiff's land is injured nor to what extent. (6) For that it does not appear from said bill when said injury occurred, nor whether it is of a permanent or continuing nature, nor that it will occur again in the future. For that it does not appear in said bill that any material injury has occurred or will occur to said land. For that it appears that the complainant has been guilty of such laches in applying to this honorable court as will bar him from any relief herein.
From a judgment overruling the demurrers and denying the motion to dismiss for want of equity, this appeal is taken.
Matthews Martin & Matthews, for appellants.
Burnett, Hood & Murphee, for appellee.
The bill in this case was filed to abate a nuisance, alleged to have been caused by an increase in the height of a dam erected by the defendant across the Chattooga river, resulting, "at high tide," in an overflow of the lands of complainant, and of the public road between them; and for damages caused by said overflow.
The defendant demurred to the bill, and moved to dismiss it for want of equity, and from a decree overruling the demurrers and motion to dismiss, this appeal is taken.
The bill avers "that at high tide of said river said waters are thrown back over the lands of orator much higher than they were before said dam was raised, and have been caused to overflow other lands not overflown before the raising of the dam."
To protect a landowner against constant or frequently recurring injuries from the wrongful diversion of water, equity has jurisdiction concurrent with courts of law, and will enjoin the wrongdoer without regard to his ability to respond in damages, since a single action at law will not furnish an adequate remedy, and a multiplicity of suits can be avoided by proceedings in chancery. Roberts v. Vest, 126 Ala. 355, 28 So. 412; Farris v. Dudley, 78 Ala. 124, 56 Am. Rep. 24; Nininger v. Norwood, 72 Ala. 277, 47 Am. Rep. 412.
When for such purpose, jurisdiction has been assumed by equity, "th...
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WATER WORKS AND SEWER BD. v. ILI
...means that the methods of repair (remedies at law) are inadequate." Fleet Wholesale Supply, 846 F.2d at 1098. In Cobia v. Ellis, 149 Ala. 108, 42 So. 751 (1906), the plaintiff sought an injunction after the defendant had increased the height of a dam he had erected across the Chattooga Rive......
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Law v. Gulf States Steel Co., 7 Div. 251.
... ... only connection defendant had with it, the statute of ... limitations of ten years has no application. Cobia v ... Ellis, 149 Ala. 108, 42 So. 751 ... [156 So. 841.] ... There ... is no claim for damages from the maintenance of the road at ... ...
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Town of York v. McAlpin
... ... Co., 55 Ala. 480; Sullivan v. Rabb, 86 ... Ala. 433, 5 So. 746; Ashurst v. McKenzie, 92 Ala. 484, 9 ... So. 262." ... And in ... Cobia et al. v. Ellis, 149 Ala. 108, 111, 42 So ... 751, 752, the court, in treating this subject, said: ... "To ... protect a landowner ... ...
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McCary v. McLendon
... ... accrue until some damage is done, and the statute does not ... begin to run until there is a right of action. Cobia et ... al. v. Ellis, 149 Ala. 108, 42 So. 751; Nininger v ... Norwood, supra; Wright et al. v. Moore et al., 38 ... Ala. 593, 82 Am.Dec. 731; ... ...