Franklin v. Pollard Mill Co.

• Decision Date: 19 November 1889
• Citation: 6 So. 685,88 Ala. 318
• Parties: FRANKLIN v. POLLARD MILL CO.
• Court: Alabama Supreme Court

6 So. 685

88 Ala. 318

FRANKLIN v. POLLARD MILL CO.

Supreme Court of Alabama

November 19, 1889

Appeal from chancery court, Escambia county; JOHN A. FOSTER Chancellor.

John Gamble and J. W. Posey, Sr., for appellant.

M A. Rabb and G. R. Farnham, for appellee.

SOMERVILLE J.

The bill is filed by the appellant, Franklin, as a riparian proprietor, to enjoin the defendant from diverting the waters of a running stream from what is claimed to be its natural channel through his land. This diversion is produced by the cutting of a ditch which conveys a large portion of the waters of two branches, or small streams, called "McCurdy's and Merritt's Branches," through an artificial channel or ditch, to the mill-pond of the defendant corporation, the Pollard Mill Company. These streams flow into a lake or bay, which embraces a considerable basin of water, being between three and four miles long, and from a third to three-quarters of a mile wide. From the lower part of the bay, below the track or embankment of the M. & M. R. R. Co., flows a small stream which is called "Black Creek." The complainant claims title to 20 acres of land above the lake, through a portion of which the defendant's ditch is dug, and also another tract below the lake, containing 160 acres, through which Black creek flows.

We have examined with attentive care the vast amount of testimony taken in the case, which is voluminous in its details, and from it we have deduced the following conclusions of fact: (1) The defendant corporation has in equity, at least, a prior easement, by purchase of the right to dig the ditch through the 20-acre tract; this right having been acquired from the owner, Mrs. Sturdevant, before she sold the land to the complainant; and the facts charge the complainant with full notice of this equity of the defendant. (2) The complainant fails to show title to the other tract of 160 acres, through a part of which Black creek flows. He is not, therefore, a riparian owner, and cannot claim to be protected, as such, against the alleged diversion of the water from the streams which flow into the lake, and from thence into Black creek. (3) It is made to appear satisfactorily that the complainant is not making any particular use of the waters of Black creek, and that his damage, if anything, is only nominal, by reason of the diversion of the waters of the two small streams that flow into the lake.

First, as to the defendant's right of way through the 20-acre tract. We are convinced from the testimony that Mrs. Sturdevant, on or about August 24, 1886,-after the death of her husband,-made a verbal sale to the Pollard Mill Company of the right to cut the ditch in question through this land. She referred Pringle, the agent of the company, to her brother-in-law, Johnson, as her agent; asserting that what he might do in the matter would be all right. Johnson made the sale of the easement in writing as her agent, received the purchase money, and paid it over to Mrs. Sturdevant. She kept the money several months, and stood by and permitted the defendant to expend a considerable amount of money in constructing the ditch, thus creating in the minds of the officers of that corporation an erroneous or mistaken belief of title. She does not seem to have returned the money until the complainant had purchased the land from her. While the defendant acquired no legal title to the easement to dig a ditch through the 20-acre tract in controversy by reason of the fact that Johnson had no written authority to convey, yet an equitable title to such easement was clearly acquired upon the principle of an estoppel in pais, which arises from the foregoing facts. Railroad Co. v. Railroad Co., 84 Ala. 570, 3 South. Rep. 286; Swann v. Miller, 82 Ala. 530, 1 South. Rep. 65; Ware v. Swann, 79 Ala. 333.

Franklin's claim of title to the 20-acre tract is based on a deed from Mrs. Sturdevant, bearing date April 10, 1886, and probated on November 30, 1886. If the deed was executed at the time it was dated, it was...