Iron City Min. Co. v. Hughes

• Decision Date: 30 May 1906
• Parties: IRON CITY MIN. CO. ET AL. v. HUGHES.
• Court: Alabama Supreme Court

42 So. 39

144 Ala. 608

IRON CITY MIN. CO. ET AL. v. HUGHES.

Supreme Court of Alabama

May 30, 1906

Appeal from Circuit Court, Calhoun County; John Pelham, Judge.

"To be officially reported."

Action by James A. Hughes against the Iron City Mining Company and others. From a judgment in favor of plaintiff, defendants appeal. Reversed.

The bill of exceptions was stricken because one of the orders made, extending the time for signing, was made after the time of the previous order had expired.

McCartey & Merrill, for appellants.

Mathews Martin & Matthews, for appellee.

ANDERSON J.

While under our system of pleading as well as under the common law counts for distinct and independent torts, of the same nature, and upon all of which the same judgment was to be given, could be joined in separate counts in the same action there is no law permitting the plaintiff to unite in one count several torts, constituting distinct and separate causes of action. A. G. S. R. R. Co. v. Shahan, 116 Ala. 302, 22 So. 509; L. & N. R. R. Co. v. Cofer, 110 Ala. 491, 18 So. 110; Railroad Co. v. Dusenberry, 94 Ala. 413, 10 So. 274; Offield v. Wabash, etc., R. R., 22 Mo.App. 607; S. A. & M. Ry. v. Buford, 106 Ala. 303, 17 So. 395.

Count 3 charges, first, an overflow of water upon the plaintiff's land by reason of the erection of a levee or embankment by the defendant; second, injuries to the agricultural productive capacity of the land caused by digging a ditch along the side of the land, through which the water permeates and percolates the plaintiff's lands; third, the operation by the defendant at various times of an iron ore washer on lands adjacent to plaintiff and to continue to operate said washer until there was an accumulation of mud slush, and other substance, which defendant at various times permitted and allowed to escape and flow upon and overspread twelve or fifteen acres of the plaintiff's land. The fourth count is also defective and the trial court erred in not sustaining demurrers 10 and 11, as numbered 54, 55, 56, 57, and 58, under the subdivision. The case of Tenn. Coal & Iron Co. v. Hamilton, 100 Ala. 252, 14 So. 167, 46 Am. St. Rep. 48, is not in support of the correctness of these counts. There was but one count in that case, and the injuries complained of were the result of the erection and use of the iron ore washer. As the bill of exceptions was not signed within the time allowed by law, the ...