Hamilton v. Alabama Power Co., 7 Div. 732

CourtSupreme Court of Alabama
Citation70 So. 737,195 Ala. 438
Docket Number7 Div. 732
PartiesHAMILTON et al. v. ALABAMA POWER CO.
Decision Date18 June 1915

70 So. 737

195 Ala. 438

HAMILTON et al.
v.
ALABAMA POWER CO.

7 Div. 732

Supreme Court of Alabama

June 18, 1915


On Rehearing, December 16, 1915

Appeal from Chancery Court, Talladega County; W.W. Whiteside, Chancellor.

Bill by the Alabama Power Company against G.F. Hamilton and others. From a decree for complainant, defendants appeal. Reversed and rendered.

Stallings, Nesmith, Hunt & Judge, of Birmingham, and Riddle, Ellis & Riddle, of Goodwater, for appellants.

Thomas W. Martin and Percy, Benners & Burr, all of Birmingham, O.R. Hood, of Gadsden, and Knox, Acker, Dixon & Bingham, of Talladega, for appellee.

This case was considered and decided under new rule 46, and the opinion of the court was delivered by Mr. Chief Justice ANDERSON.

This is a bill of peace, by this complainant, to enjoin the prosecution of numerous actions at law against it. The first and paramount step to be taken by a complainant in a bill of this character is the averment of a complete defense to the actions sought to be enjoined. He cannot invoke equity merely to have his wrongdoing adjudged in one suit instead of seven hundred. Turner v. City of Mobile, 135 Ala. 73, 33 So. 132.

The bill avers a series of suits for sickness resulting from conditions created by this complainant, as well as suits for damages to lands and property of the plaintiffs therein resulting from the erection and maintenance of the complainant's dam across the Coosa river. The bill sets up that the various suits at law, either expressly or by implication, charge that in raising, backing, and maintaining said waters as aforesaid and under the conditions aforesaid, the complainant's action was wrongful; that in a great many of said suits, and in other counts, [70 So. 738] the plaintiffs also aver and charge that the creating and maintaining of said pool of water in the aforesaid condition was negligent; and, again, in other counts, they charge that orator willfully, wantonly, and intentionally created and maintained said pool of water. The bill also avers that the plaintiffs contended, in effect, that the things charged constituted a continuing nuisance. The bill does not advise us as to what suits proceed upon the sole theory of injuries to the plaintiffs' property, and what ones are for injuries to the person; what ones charge a nuisance in the erection and maintenance of the dam and pool of water, or what ones, if any there be, charge negligence on the part of complainant in the erection and maintenance of the conditions causing injury to the plaintiffs' persons or property. The bill negatives generally and in detail any negligence on complainant's part and, in fact, charges that conditions are no worse since the creation of its works than they were before. The complainant also relies upon the fact that its works cannot be regarded as a nuisance, because not only sanctioned by, but the dam was constructed in compliance with, the law, federal and state.

If the conditions complained of by the plaintiffs do not exist, that is, if the pool of water in question has not injured any property rights, or has in no way rendered the community less healthful, etc., then the complainant has a complete and adequate defense to all of said actions. On the other hand, if the injuries complained of do exist, and the complainant has been guilty of negligence which proximately caused same, the complainant would be liable although the law authorized the construction and maintenance of the dam. If, however, the complainant has not been guilty of negligence, it is not liable as for the erection or maintenance of a nuisance, for the reason that the thing done was authorized by law, except perhaps for injuries to the plaintiffs' property--as will be hereinafter discussed.

"In England the rule prevails that an act, if expressly authorized by Parliament, and if done in accordance with the authority conferred, cannot be a nuisance, and though injury may result to another he cannot recover therefor. So, it has been declared in an English case that 'when the Legislature has sanctioned and authorized the use of a particular thing and it is used for the purpose for which it was authorized, and every precaution has been observed to prevent injury, the sanction of the Legislature carries with it this consequence that if damage results from the rise of such thing independently of negligence, the party using it is not responsible. It is consistent with policy and justice that it should be so.' And an act done under pursuance of a provisional order of the board of trade is protected in England to the same extent as other nuisances done under statutory authority
"This rule, however, does not prevail in this country to the same extent. The power of the Legislature is here recognized as omnipotent within constitutional limits, while it may legalize an act which might otherwise be a nuisance it cannot authorize the taking of private property for public use without just compensation. And the rule may be stated to be that, where one has the sanction of the state for what he does unless he commits a fault in the manner of doing it, he is completely justified, provided the Legislature has the constitutional power to act. And the Legislature may, except so far as it may be limited by constitutional restrictions, when deemed necessary for the public good, permit or require that to be done which would, on common-law principles, and without the statute, be deemed a nuisance. And it is a general rule that, where an act is made lawful by legislative sanction, annoyances in connection therewith must be borne by the individual subject to this qualification, that the act must be done without negligence or unnecessary disturbance, by the one doing it, of the rights of others. So, it has been declared that, 'when the Legislature directs or allows that to be done which would otherwise be a nuisance, it will be valid, upon the ground that the Legislature is ordinarily the proper judge of what the public good requires, unless carried to such an extent that it can fairly be said to be an unwholesome and unreasonable law.' And where legislative authority is granted for the construction of a work of public utility, upon making compensation, the one constructing it is liable only for such injury as results from the want of due skill and care in exercising the power conferred. So, this principle has been applied where, under such circumstances, one interferes with the current of a running stream." Joyce, Law of Nuisances, §§ 67, 68, 69.

The foregoing is in line with the decisions of this court. Southern Ry. Co. v. Ables, 153 Ala. 523, 45 So. 234; Albes v. Southern R. Co., 164 Ala. 362, 51 So. 327; Hall v. A., B. & A.R.R. Co., 158 Ala. 271, 48 So. 365; Duy v. Ala. Wes. R.R., 175 Ala. 162, 57 So. 724, Ann.Cas.1914C, 1119.

While, as above set forth a legislative sanction of the thing done will prevent it from being a public nuisance and will render it immune from prosecution as such, or from liability to damages resulting therefrom, except for negligence, it cannot escape liability for injuries done to another's property, resulting from the construction or enlargement of its works, etc.

Section 235 of the Constitution says:

"Municipal and other corporations and individuals invested with the privilege of taking property for public use, shall make just compensation, to be ascertained as may be provided by law, for the property taken, injured, or destroyed by the construction or enlargement of its works, highways, or improvements, which compensation shall be paid before such taking, injury or destruction. The Legislature is
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39 practice notes
  • Finnell v. Pitts, 8 Div. 133.
    • United States
    • Supreme Court of Alabama
    • May 1, 1930
    ...89 Ala. 181, 7 So. 433; Duy v. Alabama Western Ry. Co., 175 Ala. 162, 57 So. 724, Ann. Cas. 1914C, 1119; Hamilton v. Ala. Power Co., 195 Ala. 438, 70 So. 737; U.S. v. Grizzard, 219 U.S. 180, 31 S.Ct. 162, 55 L.Ed. 165, 31 L. R. A. (N. S.) 1135; Campbell v. U. S., 266 U.S. 368, 45 S.Ct. 115,......
  • Alabama, T. & N. Ry. Co. v. Aliceville Lumber Co., 6 Div. 177
    • United States
    • Supreme Court of Alabama
    • December 21, 1916
    ...alleged, appellees submitted to the jurisdiction of the chancery court. AEtna Ins. Co. v. Hann, 72 So. 48; Hamilton v. Alabama Power Co., 70 So. 737; [74 So. 445] Cleveland v. Insurance Co. of North America, 151 Ala. 191, 44 So. 37; Roanoke Guano Co. v. Saunders, 173 Ala. 358, 359, 56 So. 1......
  • Branyon v. Kirk, 8 Div. 917.
    • United States
    • Supreme Court of Alabama
    • October 5, 1939
    ...v. Kroman, 221 Ala. 203 (5), 128 So. 166; Burnett v. Alabama Power Co., 199 Ala. 337 (3), 74 So. 459; Hamilton v. Alabama Power Co., 195 Ala. 438, 70 So. 737. The true basis of the claim of appellee in this connection is the amount of consequential damages to his property under section 235,......
  • Alabama Power Co. v. Smith, 6 Div. 339.
    • United States
    • Supreme Court of Alabama
    • May 10, 1934
    ...the plant at full capacity alone and of itself would constitute negligence. It would seem that our cases of Hamilton v. Alabama Power Co., 195 Ala. 438, 70 So. 737, and Burnett v. Alabama Power Co., 199 Ala. 337, 74 So. 459, would be a sufficient answer to any such contention. True the exac......
  • Request a trial to view additional results
39 cases
  • Finnell v. Pitts, 8 Div. 133.
    • United States
    • Supreme Court of Alabama
    • May 1, 1930
    ...89 Ala. 181, 7 So. 433; Duy v. Alabama Western Ry. Co., 175 Ala. 162, 57 So. 724, Ann. Cas. 1914C, 1119; Hamilton v. Ala. Power Co., 195 Ala. 438, 70 So. 737; U.S. v. Grizzard, 219 U.S. 180, 31 S.Ct. 162, 55 L.Ed. 165, 31 L. R. A. (N. S.) 1135; Campbell v. U. S., 266 U.S. 368, 45 S.Ct. 115,......
  • Alabama, T. & N. Ry. Co. v. Aliceville Lumber Co., 6 Div. 177
    • United States
    • Supreme Court of Alabama
    • December 21, 1916
    ...alleged, appellees submitted to the jurisdiction of the chancery court. AEtna Ins. Co. v. Hann, 72 So. 48; Hamilton v. Alabama Power Co., 70 So. 737; [74 So. 445] Cleveland v. Insurance Co. of North America, 151 Ala. 191, 44 So. 37; Roanoke Guano Co. v. Saunders, 173 Ala. 358, 359, 56 So. 1......
  • Branyon v. Kirk, 8 Div. 917.
    • United States
    • Supreme Court of Alabama
    • October 5, 1939
    ...v. Kroman, 221 Ala. 203 (5), 128 So. 166; Burnett v. Alabama Power Co., 199 Ala. 337 (3), 74 So. 459; Hamilton v. Alabama Power Co., 195 Ala. 438, 70 So. 737. The true basis of the claim of appellee in this connection is the amount of consequential damages to his property under section 235,......
  • Alabama Power Co. v. Smith, 6 Div. 339.
    • United States
    • Supreme Court of Alabama
    • May 10, 1934
    ...the plant at full capacity alone and of itself would constitute negligence. It would seem that our cases of Hamilton v. Alabama Power Co., 195 Ala. 438, 70 So. 737, and Burnett v. Alabama Power Co., 199 Ala. 337, 74 So. 459, would be a sufficient answer to any such contention. True the exac......
  • Request a trial to view additional results

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