Ex parte Tennessee Coal, Iron & R. Co.

• Citation: 90 So. 876,206 Ala. 403
• Decision Date: 30 June 1921
• Docket Number: 6 Div. 466
• Parties: Ex parte TENNESSEE COAL, IRON & R. CO. v. PEROLIO. TENNESSEE COAL, IRON & R. CO.
• Court: Alabama Supreme Court

90 So. 876

206 Ala. 403

Ex parte TENNESSEE COAL, IRON & R. CO.

TENNESSEE COAL, IRON & R. CO. v. PEROLIO.

6 Div. 466

Supreme Court of Alabama

June 30, 1921

Rehearing Denied Oct. 6, 1921

Certiorari to Court of Appeals.

Application by the Tennessee Coal, Iron & Railroad Company for certiorari to the Court of Appeals to review and revise the judgment of said court, rendered on the appeal in Tennessee Coal Iron & Railroad Company v. Zack Perolio, 90 So. 875. Writ granted, and judgment of the Court of Appeals reversed.

Percy Benners & Burr and Salem Ford, all of Birmingham, for appellant.

Harsh Harsh & Harsh, of Birmingham, for appellee.

McCLELLAN J.

The plaintiff (Perolio) claimed damages caused to his town or city lot through interference or prevention by defendant with the natural flow of surface waters from plaintiff's higher lot onto defendant's adjoining and lower town or city lot. In the oral charge to the jury the court thus described the situation and the results:

"*** And the plaintiff claims he was the owner of a certain lot in Wylam, in the city of Birmingham, which was somewhat higher grade--upon a somewhat higher grade--than the adjoining property owned by the defendant company; that he had on that lot a storehouse and certain other buildings; and that the defendant erected a fence upon its own property of such a character, in such a way that the natural flow, the natural drainage of surface water was impeded and instead of flowing away from defendant's land, as it flowed prior to the erection of that fence, and as it had been accustomed to flow according to the natural contour of the land; that it was caused to dam up and collect on his own property, by reason of which and as a proximate consequence of this collection of the natural surface water his property was injured; that a portion of his property was caused to decay on account of the collection of this water and as a consequence of the collection, the retention of that water on the land he lost the use of the land for a time and the rents therefrom that he had been accustomed to receive."

At the request of the defendant the court gave special instructions to these effects: That defendant had a right to erect a fence or "stockade" or "chock house" on its own property, and that "plaintiff had no cause of action by reason of any such erection by defendant on its own property," if the jury decided from the evidence that such structures were erected on the defendant's property. Given a finding by the jury that the fence or stockade was erected on defendant's own property, the last-quoted instruction (numbered 6 in the transcript) was, in effect, a direction to the jury that plaintiff was not entitled to recover.

Exceptions were severally reserved to these, among other, excerpts from the court's oral charge:

"And if by artificial means, or even by any improvements of his own property, he injures another by a wrongful diversion or by diversion of the surface waters in such way as to make them flow in a manner different from what they had been accustomed to flowing and in which they ought to flow, and as a consequence of that injury is inflicted on the other person, then he is liable for such injury as proximately results from that act."

"But the mere fact that the land or the lot in question may be inside of the corporate limits of the city, unless it is shown that there is some drainage provided by law, or that the lots in question were used for city lots, for city purposes, why then the exception would not exist."

These extracts were inconsistent with the principles stated, as upon apt authority therein cited, in Shanan v Brown, 179 Ala. 425, South. 891, 43 L.R.A. (N.S.) 792. It was there pronounced, in accordance with previous decisions, that city or town lots are an exception to the civil-law rule "which in general makes land legally subservient to the natural flowage of surface waters" ( Hall v. Rising, 141 Ala. 433, 37 So. 587); this, "because of artificial conditions created or to be created" in the improvement of urban properties, the owner of a city or town...