Fricke v. City of Guntersville

• Decision Date: 30 June 1948
• Docket Number: 8 Div. 438.
• Citation: 36 So.2d 321,251 Ala. 63
• Parties: FRICKE v. CITY OF GUNTERSVILLE.
• Court: Alabama Supreme Court

36 So.2d 321

251 Ala. 63

FRICKE v. CITY OF GUNTERSVILLE.

8 Div. 438.

Supreme Court of Alabama

June 30, 1948

Marion F. Lusk, of Guntersville, for appellant.

Starnes & Starnes, of Guntersville, for appellee.

LAWSON Justice.

By this appeal appellant, who was the complainant below, seeks to reverse a decree of the circuit court of Marshall County, in equity, refusing to require the City of Guntersville to fill or cover a drainage ditch.

Block 41 of the City of Guntersville is bounded on the north by Gilbreath Street, on the west by O'Brig Avenue, on the south by Henry Street, and on the west by Dunlap Avenue. There is an alley 20 feet wide which runs through the block from north to south, thus connecting Gilbreath and Henry Streets.

John D Fricke, a minor, owns lots 1, 3, and 5 in Block 41, according to the Richardson survey of the town of Guntersville. These lots are 50 feet wide and front on O'Brig Avenue. Lot no 1, the northernmost of the three, is bounded on the north by Gilbreath Avenue. All of the lots are bounded on the east by the aforementioned alley. Lot no. 7 of the Richardson survey which is owned by a person not here involved, is immediately south of lot no. 5, owned by Fricke. Considering these lots as one parcel of land, it is bounded on the north by Gilbreath Street, on the west by O'Brig Avenue, on the south by lot no. 7, and on the east by the alley. A residence is located on lot no. 5. The other two lots are vacant, but are used by complainant and his mother, with whom he lives as a garden.

The northeastern portion of lot no. 1, which is also the northeastern corner of the block, is the highest point in the block. For a number of years surface water has flowed from this property in a southeasterly direction, across the alley, onto the property situated east of the alley. The property east of the alley is used exclusively for business purposes with the business establishments fronting on Dunlap Avenue. On numerous occasions when there has been excessive rainfall the business property east of the alley and the merchandise in the stores and shops have been considerably damaged as a result of the water flowing from Fricke's property across the alley onto the property east of the alley.

In order to alleviate this situation the City of Guntersville had a drainage ditch dug in the alley along its western boundary, which is along the eastern boundary of complainant's property. This ditch is three feet wide. It is six feet deep at the northern end and three feet deep where it bounds the last 50 feet of complainant's property, which is lot no. 5. As a result, the surface water which had theretofore run across the alley onto the business property is caught in the ditch and then flows north into a culvert which leads to the north side of Gilbreath Street.

The City did not consult Fricke or his guardian before undertaking this drainage project. But they saw the work being done and made no complaint until it was completed. Thereafter, Mrs. Fricke, the guardian and mother, complained of the ditch to the city authorities. They installed tile and covered the...