Hicks v. Swift Creek Mill Co.

Citation31 So. 947,133 Ala. 411
PartiesHICKS ET AL. v. SWIFT CREEK MILL CO.
Decision Date22 April 1902
CourtSupreme Court of Alabama

Appeal from circuit court, Autauga county; T. H. Alston, Judge.

Trespass by Hicks and others against the Swift Creek Mill Company. From a judgment for defendant, plaintiffs appeal. Reversed.

Appellants on the 7th day of September, 1900, instituted the present action of trespass in the circuit court of Autauga county against the appellee, alleging that, the plaintiffs being the owners of land which is known as the "Jim Nunn Creek Place," defendant "constructed, and has since without the consent of the plaintiffs, maintained, on said lands, a ditch for the purpose of floating logs down the same to Autaugaville to the mill of the defendant; that in constructing the said ditch, and to provide a supply of water, said defendant, at the point on said land where said ditch crosses what is known as 'Pineywoods' or 'Pine Creek,' which latter creek flows easterly across said lands to Swift creek, and accorded drainage to said lands, erected a dam across said Pine creek, whereby the waters accustomed to flow along said Pine creek into Swift creek were prevented from so flowing away, and the channel of said Pine creek was so filled up that on occasions of heavy rains the said water and sand, instead of flowing as it was and is accustomed to flow into the said Swift creek, has flowed out of the said channel of Pine creek * * * over and across the lands of the plaintiffs, and out of said ditch over and across the plaintiffs' lands," causing damage, etc.; that said ditch and obstruction had been maintained and said ditch used and operated by the defendant for a period of one year, and ever since the plaintiffs became the owner of said lands; and that plaintiffs have sustained damage to the amount of $5,000, for which they sue. In addition to the facts stated in the opinion, the plaintiffs introduced evidence tending to show that from the date of the plaintiffs' purchase of the lands to the bringing of the present suit the defendant used said ditch and dam for floating the logs in and down said ditch to the plaintiffs' lands. There was evidence tending to show damage to the lands from the overflow of Pine creek (across which the dam was erected) in case of heavy rains during said period, on account of said dam, in the way of rendering the land too wet for cultivation, and in depositing sand thereon and the amount of such damage. But the evidence on this point was contradictory, the defendant's evidence tending to show that there was no damage to the land, and none resulting from the ditch or dam, and that, if there was any damage to the lands at all, it was on account of the overflow of Swift creek by unusual and extraordinarily heavy rains, and not on account of the said ditch or dam. The evidence further tended to show that plaintiffs made claim of the defendant, within a few months after they purchased the land, for rent. They made no objection to the structures being there, but wanted rent for the land; and that the defendant continued to operate said structures until the time of bringing this suit. It was also shown without conflict that the erection of the said dam and ditch was made at great cost and expense of money and labor to the defendant, and that said permission was obtained before said work was done; that the defendant was then, and has since been, engaged in operating a sawmill in Autauga county for squaring timber for market, and that said ditch was used for the purpose of floating logs from the defendant's lands to the said sawmill. There was no evidence that the dam or ditch was erected or operated in a negligent manner, and there was no evidence that the defendant had done anything with reference to the said ditch or dam since the purchase by the plaintiffs except to run logs down said ditch to the defendant's mill, and it did not appear that any special damage complained of by the plaintiffs resulted from the running of the said logs.

The court, in its general charge to the jury, instructed them that the plaintiffs were not entitled to recover, except for damages, if any were shown, resulting from negligent operation and maintenance of the dam and ditch mentioned in the complaint. The plaintiffs separately excepted to this portion of the court's oral charge. The court further charged the jury that, if the ditch and dam complained of were constructed prior to the time the plaintiffs purchased the land, and by and with an agreement or consent of Norwood Smith, who then owned the land, and the defendant was using and operating the ditch and dam under such consent and agreement when the plaintiffs purchased in 1899, and the plaintiffs, when they purchased, were informed of this fact, then they took the lands in that condition, and could not claim damages of the defendant for the reasonable and careful operation and use of said structures by the defendant for the purposes for which they were constructed. To the giving of this charge the plaintiffs excepted. Plaintiffs requested the court to give to the jury, among others, the following written charges: (1) "If the defendant had notice that the land upon which it entered was the plaintiffs', and if with such notice the defendant persisted in entering upon the same for the period between the purchase of the land to the bringing of this suit without the consent of the plaintiffs, this is evidence tending to show malice, and a reckless disregard of the property right, for which, in the discretion of the jury, exemplary damages may be awarded." (4) "That there is in this case no evidence of any legal authority in the defendant to enter upon the plaintiffs' land, and maintain and operate its ditch across the plaintiffs' land." The court refused to give each of the charges asked by the plaintiffs, and the plaintiffs separately excepted. The court, at the request of the defendant, gave to the jury, among others, the following written charges: (b) "The court charges the jury that the plaintiffs can recover no damages to the lands known as the 'Jim Nunn Creek Place,' except for such damage as may have been occasioned after their purchase of said lands, and prior to the bringing of this suit." (f) "The court charges the jury that if the ditch and dam complained of were cut and made by the defendant in 1896 by and under a license from the then owner of said land, and it required the expenditure of money and labor to cut the ditch and make the dam, then the defendant's use of the ditch and dam has not been wrongful, and the plaintiffs cannot recover in this action." (j) "The court charges the jury that if the ditch and dam complained of were constructed during the year 1896 by and with an agreement and consent of Norwood Smith, who then owned the land known as the 'Jim Nunn Creek Place,' and defendant was using and operating said ditch and dam under such consent and agreement when plaintiffs' claim to have purchased said land, in 1899, and plaintiffs were informed of this fact when they purchased, then the plaintiffs cannot recover of the defendant in this case." (k) "The court charges the jury that if they are reasonably satisfied from the evidence that prior to the purchase of the lands known as the 'Jim Nunn Creek Place' by the plaintiffs, and while said lands were owned by Norwood Smith, and the defendant constructed the ditch and dam in question on said land, by and with the consent and agreement of said Smith, and said ditch and dam were on said lands at the time plaintiffs purchased the same, and were being then used and operated by the defendant in the same manner it had been used previous to plaintiffs' purchase, and that defendant has been guilty of no negligence in the operation of said ditch and dam since the purchase of said lands by the plaintiffs, then your verdict should be in favor of the Swift Creek Mill Company." To the giving of each of these charges the plaintiffs separately excepted. There were verdict and judgment for the defendant. The plaintiffs appeal, and assign as error the several rulings of the trial court to which exceptions were reserved.

Gunter & Gunter, for appellants.

Lomax, Crum & Weil, for appellee.

TYSON J.

Practically but a single question is presented for our consideration and determination. It is whether the defendant, who is sued for a trespass upon the plaintiffs' lands, acquired an irrevocable license from the plaintiffs' grantor to use and maintain a ditch and dam for the purpose of floating logs. The facts out of which this question arose are undisputed, and are these: One Smith, being the owner of the lands, in 1896 gave verbal permission to the defendant to construct and operate the ditch and dam upon them, which was done by it at great cost. In August, 1899, the plaintiffs became the owners of the lands by deed upon which these structures were constructed, and went into possession of them, with full knowledge that the defendant was actively using and operating the ditch and dam, claiming the right to do so under the permission given it by Smith. Preliminary to a discussion of the question, it may not be amiss to say that under these facts no question of adverse possession can possibly arise. The entry by defendant being permissive, its possession was not adverse, but was in subordination of the rightful title. Collins v. Johnson, 57 Ala. 304; Organ Co. v. Forbes (Ala.) 29 So. 683; 18 Am. & Eng Enc. Law (2d Ed.) 1130. It is not insisted by appellee that the permission granted to it created an easement. Clearly, such an insistence, if made, would be untenable, for the reason that it would have required a deed to have conveyed such a right; for "an easement must be an interest in or over the soil," and does not lie in livery, but in...

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