Drake v. Lady Ensley Coal, Iron & Ry. Co.

Decision Date02 February 1894
PartiesDRAKE v. LADY ENSLEY COAL, IRON & R. CO.
CourtAlabama Supreme Court

Appeal from circuit court, Franklin county; H. C. Speake, Judge.

Action by Andrew J. Drake, as executor of J. M. Kirk, deceased against the Lady Ensley Coal, Iron & Railroad Company, to recover damages alleged to have been sustained by the testator's estate by reason of certain acts of the defendant. Judgment for plaintiff for $112.50. Plaintiff appeals. Reversed and remanded.

This suit was brought to recover $5,000 damages. There were joined trespass and case in the original and amended complaint. The defendant demurred to the amended complaint on the ground that it "joined separate and distinct injuries and trespasses, and embraces separate and distinct trespasses and injuries in the same count." This demurrer was sustained. The defendant pleaded the general issue and several special pleas, among which was the statute of limitations of one year. To this latter special plea the plaintiff demurred on the grounds that the plea sets up no defense to the action, and that the cause of action is not barred by the statute of limitations of one year. This demurrer was overruled. Most of the facts of the case are sufficiently stated in the opinion. The defendant showed by its testimony that the ore had to be washed before it could be properly prepared for market, or used; and in answer to this evidence the plaintiff proved that, by the use of proper dams, the water could be held until it was almost entirely rid of the "slush" clay and refuse ore from the mines, and in this way would not affect the land in question. There was some evidence for the defendant denying the practicability of this. Upon the introduction of all the evidence the court charged the jury, ex mero motu, "that the plaintiff could not recover in this case for damages to the realty by reason of any trespass, but that his right of recovery, if any, was limited to the depreciation in the rental value of the farm for one year next preceding the institution of this suit." The plaintiff excepted to this portion of the court's charge, and also separately excepted to the court's refusal to give the following written charges requested by him: (1) "If the jury believe from the evidence that the defendant knowingly used the water in said creek in such a manner that it naturally resulted in injury to plaintiff's land, then I charge you the defendant was guilty of trespass, and the plaintiff is entitled to recover in this suit all the damages you believe from the evidence he sustained from such injury, not to exceed the sum of five thousand dollars." (2) "The plaintiff can recover in this suit for such permanent injuries as you believe from the evidence the defendant has caused to his land during the year next preceding the institution of this suit." (3) "If the jury believe from the evidence that the defendant, while washing ore in its mines, caused clay and refuse ore to be carried down by a natural stream and deposited on the plaintiff's land, and on the banks of, and in the bed of, the creek on plaintiff's land, and further believe from the evidence that such deposits were injurious to the land, then the plaintiff is entitled to recover such an amount in damages as it would require to remove the deposit from the land and creek, not to exceed five thousand dollars, if this amount is less than the depreciation in the whole farm; but, if this amount is greater than the depreciation in the farm, then the plaintiff is entitled to recovered the difference in the value of the farm before the deposits were put there and its value at the time the suit was instituted." (4) "If the jury believe from the evidence that the defendant negligently caused the clay and refuse ore from its mines to be carried, by the natural flow of the water in Payne creek down on plaintiff's land, and deposited on his land, and in the bed of the creek where it runs through his land, and that the plaintiff has been damaged thereby, then the plaintiff is entitled to recover in this suit." (5) "If the jury believe from the evidence that the plaintiff's land has been permanently injured by the defendant causing clay and refuse ore from its mines to be deposited on it, then your verdict should be for the plaintiff, and you should assess such damages as you believe from the evidence that the plaintiff has sustained, not to exceed the sum of five thousand dollars." The court, at the request of the defendant, instructed the jury that "the plaintiff is not entitled to recover anything in this action for the trespass by defendant." To the giving of this charge, the plaintiff duly excepted.

Kirk &amp Almon, for appellant.

Wm. J Bullock, for appellee.

COLEMAN J.

This action was instituted to recover damages for an alleged injury to realty. The complaint consists of several counts, some of which were framed in trespass, and others in case. The important questions for consideration, and the decision of which will determine the several assignments of error, are: First, whether the facts will support the complaint, in either of its aspects; and if so, second, whether the proper action is trespass or case; and, third, if the action is maintainable, what is the proper measure of damages? The trial court held that the action should be in case, that the statute of limitations for one year applied, and that the proper measure of damages was the diminution of the rental value for one year preceding the bringing of the action. The undisputed facts show that for many years prior and up to the time of his death, which occurred in the year 1890, plaintiff's testator had owned and been in possession of the lands claimed to have been damaged, cultivating them as a farm, and since his death the plaintiff, as executor, had been in possession of the lands; that through the lands there flowed a creek of clear, healthy water, useful for, and used for, watering stock, and at times for drinking purposes; that defendant owned a tract of land above the land of plaintiff, on the same creek, from which, for five or six years previous to the bringing of the suit, defendant had been engaged in mining iron ore, and washing its ore with the waters of the creek; that for this purpose the water was pumped into large reservoirs, and, after utilizing the water in washing the iron ore, it was allowed to escape in a way so as to return to its natural channel, above plaintiff's land. There was evidence also tending to show that, when the water reached plaintiff's farm, it was laden with red clay, refuse ore, and debris, rendering it unfit for stock and drinking purposes, and that in some places a thick sediment or "slush" was deposited upon portions of the farm, impairing its fertility, and in some places it was so deep as to destroy its usefulness for cultivation. The evidence conflicted as to the extent of the damage sustained. The evidence also conflicted as to whether, by the construction of proper basins to receive and hold the water, after having been used by defendant, it could not have been retained until all the objectionable matter or substance contained in it had settled in the basins, so as to restore the water to its natural purity.

Appellee contends that, if there is error in the record, it is error without injury, inasmuch as plaintiff was not entitled to recover, in any event, and in support of his contention cites the case of Iron Co. v Dye, 87 Ala. 468, 6 So. 192 in which the court uses this language: "The court will take notice that in the development of the mineral interest of this state, recently made, very large sums of money have been invested. The utilization of these ores, which must be washed before using, necessitates, in some measure, the placing of sediment where it may flow into streams which constitute the natural drainage of the section where the ore banks are situated. This must cause a deposit of sediment on the lands below; and, while this invasion of the rights of the lower riparian owner may produce injury entitling him to redress, the great public interests and benefits to flow from the conversion of these ores into pig metal should not be lost sight of. As said by the vice chancellor in Wood v. Sutcliffe, [2 Sim. (N. S.) 163,] 'Whenever a court of equity is asked for an...

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34 cases
  • Howell v. City of Dothan
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    • May 13, 1937
    ... ... 252, 14 So. 167, 46 ... Am.St.Rep. 48; Drake v. Lady Ensley, etc., Co., 102 ... Ala. 501, 14 So. 749, ... 202 Ala. 82, 79 So. 476, L.R.A.1918F, 1020; Central Iron ... & Coal Co. v. Vandenheuk, 147 Ala. 546, 41 So. 145, 6 ... ...
  • Sussex Land & Live Stock Co. v. Midwest Refining Co.
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    ...to the ascertainment of damages are influenced and controlled by the following authorities: Drake's Exr. v. Lady Ensley Coal, Iron & Ry. Co., 102 Ala. 501, 14 So. 749, 24 L.R.A. 64, 48 Am.St.Rep. 77; Alabama Consol. Coal & Iron Co. v. Vines, 151 Ala. 398, 44 So. 377; Sloss-Sheffield Steel &......
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