Jones v. Tennessee Coal, Iron & R. Co.

• Decision Date: 28 November 1918
• Docket Number: 6 Div. 783
• Citation: 202 Ala. 381,80 So. 463
• Parties: JONES et al. v. TENNESSEE COAL, IRON & R. CO.
• Court: Alabama Supreme Court

80 So. 463

202 Ala. 381

JONES et al. v. TENNESSEE COAL, IRON & R. CO.

6 Div. 783

Supreme Court of Alabama

November 28, 1918

Rehearing Denied Dec. 23, 1918

Appeal from Circuit Court, Jefferson County; J.C.B. Gwinn, Judge.

Action by Leo Jones and others against the Tennessee Coal, Iron &amp Railroad Company for damages for polluting a stream. Judgment for defendant, and plaintiffs appeal. Affrmed.

In the examination of the witness Ayers, objection on the part of the defendant was sustained to the following questions asked of the witness by the plaintiff:

"About how many cases have you prepared in this court for the Tennessee Coal, Iron & Railroad Company of this same character?"

"I will ask you if you have not been a witness and in every case used on the question of a nuisance in this creek for the last three years for the Tennessee Company?"

"I will ask you if the Tennessee Company don't use you for the purpose of collecting testimony in preparing for trials and presenting testimony to the jury as an expert here in all of the nuisance cases?"

The third count, after alleging the circumstances of the parties as to their relative positions on the creek, and the acts of the defendant in placing deleterious matters in the creek which damaged the plaintiffs' lands and diminished them in value and use, concludes as follows:

"That by the negligence, and as a consequence of the negligence, of the defendant in the use of said creek as aforesaid, the plaintiffs' property was damaged, and plaintiffs were inconvenienced and greatly wronged and prejudiced, to their damage as aforesaid."

The fourth count was for wantonly or willfully creating a nuisance to the plaintiffs, to their damage.

Pinckney Scott, of Bessemer, for appellants.

Percy Benners & Burr, of Birmingham, for appellee.

THOMAS J.

The suit was for damage by riparian proprietors for the pollution of a stream flowing through their lands.

Of the several assignments of error based on rulings in admission or rejection of evidence we have only to say the questions to witness Ayers, tending to show his bias or interest in defendant's behalf, should have been permitted on cross-examination. Patton v. State, 197 Ala. 180, 72 So. 401; Ex parte State, Johnson v. State, 74 So. 366; N., C. & St. L. Ry. v. Crosby, 183 Ala. 237, 62 So 889; Parker v. Newman, 75 So. 479, 484, 485; Allen v. Fincher, 187 Ala. 599, 65 So. 946; L. & N.R.R. Co. v. Stanley, 186 Ala. 95, 65 So. 39; Moore v. N., C. & St. L. Ry., 137 Ala. 495, 34 So. 617; A.G.S.R.R. Co. v. Johnston, 128 Ala. 283, 295, 29 So. 771; 1 Greenlf. Ev. (16th Ed.)§ 450; Hughes on Evidence, § 48, pp. 370-373. The questions sought to be propounded to the witness Ayers were different from that in Southern Railway Co. v. Harrison, 191 Ala. 436, 67 So. 597, where the justice pointed to the fact that the question did not show its relevancy to the issues being tried. The purpose of the instant cross-examination was apparent. When, however, the witness' whole testimony is considered, it shows his admission of employment by the defendant as an expert and in and about the matter in question, and identified the topographic maps of the drainage area, and admitted having testified in Turner's suit for the, "same pollution in 1916." The court was not informed there were other cases prepared in the court by the witnesses for the defendant, or that other than the instant case and the Turner case were tried for the pollution of said drainage area, or that the defendant had other suits of like nature in which the witness had testified on behalf of the defendant. The witness' interest, such as it was, in behalf of the defense, being shown, and the form in which the questions were put, enables us to say we do not think the case should be reversed for refusing to permit the further examination of the witness Ayers on this point on matters merely of a cumulative character.

The fact, or not, of the existence of fish in Valley creek, at any given time, was without the issues made by the pleadings for which damages were claimed. Tutwiler Coal & Iron Co. v. Nichols, 146 Ala. 364, 39 So. 762, 119 Am.St.Rep. 34; Ala. Cons. C. & I. Co. v. Vines, 151 Ala. 398, 44 So. 377; Yolande Coal & Coke Co. v. Pierce, 12 Ala.App. 431, 68 So. 563.

It is the settled law of this state: (1) That a riparian proprietor has the right to use the stream and water that flows through his land for ordinary purposes and the gratification of the natural needs, even though the stream be consumed in such use; that such ordinary or natural use extends "to the use of the water ad lavandum et potandum, both by himself and all living things in his legitimate employment." (2) Such proprietor has the right to the extraordinary or artificial use of the stream and its waters, provided that by the use of such water it is not forced back or unreasonably or improperly precipitated on the lands of adjacent proprietors, and after its use it is restored to its natural channel without unreasonable or material diminution before it leaves the land of persons diverting or subjecting it to artificial uses, and provided, further, it is not so polluted as to unreasonably, injuriously, or materially affect its ordinary and extraordinary use by the proprietor of the land into which the unused waters flow by its accustomed channel. Stein v. Burden, 29 Ala. 127, 65 Am.Dec. 394; Ulbricht v. Eufaula Water Co., 86 Ala. 587, 6 So. 78, 4 L.R.A. 572, 11 Am.St.Rep. 72; Ala. Cons. Coal & Iron Co. v. Turner, 145 Ala. 559, 649, 39 So. 603, 117 Am.St.Rep. 61; Stouts Mountain Coal & Coke Co. v. Ballard, 195 Ala. 283, 70 So. 172; Parsons v. T.C., I. & R. Co., 186 Ala. 84(3), 64 So. 591.

"Public concern about the reasonable exigencies of agriculture and manufacturing enterprise must be allowed to abate somewhat of the right of riparian proprietors to have a stream flow as it has been accustomed to flow, to receive and discharge it without appreciable impairment of its original volume or purity." Sloss-S.S. & I. Co. v. Morgan, 181 Ala. 587, 588, 589, 61 So. 283, 284.

The just rule, that may be reasonably applied to the circumstances of such cases, was stated by Judge Stone in T.C.I. Co. v. Hamilton, 100 Ala. 252, 260, 261, 14 So. 167, 170, 46 Am.St.Rep. 48, as follows:

"It is certainly true that, owing to the wants, if not the necessities of the present age--of agriculture, of manufactures, of commerce, of invention, and of the arts and sciences--some changes must be tolerated in the channels in which water naturally flows, and in its adaptation to beneficial uses. Reasonable diminution of its quantity in gratifying and meeting customary wants has always been permitted. So its temporary detention for manufacturing purposes, followed by its release in increased volume, is a necessary consequence of its utilization as a propelling force. Nor must we shut our eyes to the tendency--the inevitable tendency--of these and other uses, in which water is an indispensable element, to detract somewhat from its normal purity. These modifications of individual right must be submitted to, in order that the greater good of the public be conserved and promoted. But there is a limit to this duty to yield, to this claim and right to expect and demand. The water course must not be diverted from its channel, or so diminished in volume, or so corrupted and polluted, as practically to destroy or greatly impair its value to the lower riparian proprietor. 'Sic utere tuo' in such conditions is enjoined by social obligation and by law. It is difficult, if not impossible to declare a rule in language so clear and precise, as that it can be applied with certainty to every case that may arise. See Miss. Mills

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