Harris v. Town of Tarrant City

• Decision Date: 28 June 1930
• Docket Number: 6 Div. 691.
• Citation: 221 Ala. 558,130 So. 83
• Parties: HARRIS v. TOWN OF TARRANT CITY.
• Court: Alabama Supreme Court

130 So. 83

221 Ala. 558

HARRIS v. TOWN OF TARRANT CITY.

6 Div. 691.

Supreme Court of Alabama

June 28, 1930

Rehearing Denied Oct. 9, 1930.

Appeal from Circuit Court, Jefferson County; Joe C. Hail, Judge.

Action by R. S. Harris against the Town of Tarrant City for damages as the result of the construction and maintenance of a sewer ditch. From a judgment for defendant, plaintiff appeals. Transferred from Court of Appeals.

Affirmed.

G. M Edmonds, of Birmingham, for appellant.

Miller Graham & Wingo, of Birmingham for appellee.

FOSTER J.

On August 29, 1928, appellant sued appellee for damages alleging that plaintiff owned a certain lot on Sloan avenue in defendant city; that defendant on or about June 1, 1928, constructed a large open ditch ten feet wide and six feet deep in front of his lot along said avenue, containing a turn of ninety degrees, all for draining surface and storm water in that section of the city; that plaintiff was by the ditch cut off from crossing the avenue; that it is dangerous to the life and health of plaintiff and family, and has greatly decreased the value of his property; that in seasons of rain dirt, silt, sand, filth, rocks, decayed vegetables and animal matter, and other débris is carried down said ditch and lodges at the elbow, filling up and causing the polluted water to overflow on plaintiff's property, undermining the foundation of his house, making the same damp and unhealthy.

On August 15, 1929, appellant brought another suit for a less sum, in substantially the same language of the former, except that instead of alleging his ownership of the lot, in the latter suit, it is said that for the past six months he has been in the possession of it and the dwelling on it (the same lot); but does not allege the date of the construction of the ditch.

In the first suit in the last paragraph it is stated that the damage was caused by the wrongful and negligent construction of the ditch; in the second suit in said last paragraph, it is stated that the damage was caused by the wrongful and negligent construction, and allowance of same to remain in unfit and bad repair.

The question we have is whether the pendency of the first suit is the proper basis of a plea in abatement of the second one. The test is sometimes said to be whether a final judgment in the prior suit would be conclusive between the parties and operate as a bar to the second. Kaplan v. Coleman, 180 Ala. 267, 60 So. 885; Foster v. Napier, 73 Ala. 595.

The principle is that the latter action is deemed unnecessary, and therefore the judgment in the prior suit would be conclusive and operate as a bar to the latter. Williams v. Gaston, 148 Ala. 214, 42 So. 552. Another test is whether the proof of one will sustain the other. Western Union Tel. Co. v. Crumpton, 138 Ala. 632, 36 So. 517; Cannon v. Brame, 45 Ala. 262.

The argument which appellant makes to reverse the judgment abating the second on account of the pendency of the first is in effect that both suits show that the action is for an abatable nuisance, and that each suit is for the recovery of damages upon the theory that in the former damages may be recovered to the date of its institution, and that in the latter such may be recovered as accrued subsequent to the institution of the former and extending to the date when the latter was begun.

The theory of law as argued is well sustained if applicable. We may restate the rules as follows: For an abatable nuisance the cause of action does not arise until the harmful consequences occur, and each occurrence or recurrence of such damages constitutes a separate cause of action. Alabama Great So. R. R. Co. v. Shahan, 116 Ala. 302, 22 So. 509; Sloss-Sheffield Co. v. Mitchell, 161 Ala. 278, 49 So. 851; Crawford v. Union Cotton Oil Co., 202 Ala. 3, 79 So. 299. But for an injury by a permanent and unabatable condition the damages are estimated on the hypothesis of an indefinite continuance of the nuisance, and thus affecting the permanent value of the property. In such event, one may not recover in successive suits, but his damages are awarded in solido in one action. Sloss-Sheffield Co. v. Mitchell, supra; Crawford v. Union Cotton Oil Co., supra.

The principles of the above cases as now controlled by what is section 235 of the Constitution apply to cities. Section 235 of the Constitution makes a city liable for just...