Kay-Noojin Development Co. v. Hackett

• Citation: 253 Ala. 588,45 So.2d 792
• Decision Date: 02 March 1950
• Docket Number: 8 Div. 512,KAY-NOOJIN
• Parties: DEVELOPMENT CO. v. HACKETT et al.
• Court: Supreme Court of Alabama

Page 792

45 So.2d 792

253 Ala. 588

KAY-NOOJIN DEVELOPMENT CO. v. HACKETT et al.

8 Div. 512.

Supreme Court of Alabama.

March 2, 1950.

Rehearing Denied May 4, 1950.

Douglass Taylor, Robt. K. Bell, Taylor, Bell & Taylor and Patrick W. Richardson, all of Huntsville, for appellant.

Clarence L. Watts and Walter F. Eigenbrod, of Huntsville, for appellees.

FOSTER, Justice.

This suit comes to us on appeal from a decree overruling the demurrer to a bill in equity. Appellees filed the bill against appellant seeking to enjoin appellant from maintaining an alleged nuisance consisting in the collection of surface water upon its property by appellant as the upper proprietor in the City of Huntsville and casting it upon complainants' property being the lower of them. The demurrer contained only one ground, that there is no equity in the bill.

Appellee's property is his dwelling house and lot. The property of appellant was being developed as a residential section. In so doing it was laid off in streets and ways, which were opened, causing ditches to drain the rain water collecting and depositing it upon said property of appellee.

It is further alleged that this caused appellee's residence to be damp, moldy and unfit for occupancy as a residence and to become a hazard to his health and that of his family, and causing damage to his property to the amount of to wit $7,500.

The bill seeks to invoke a well known equitable principle in this State, which prevents an upper proprietor from casting rain water deposited upon his lot upon the premises of the lower proprietor in greater volume and greater rapidity and in a channel to his damage, whereas such water would naturally spread out over a wide surface and pass off without injury. Such 'owner has no right to so grade his land or to so erect embankments as to thus turn the natural flow of the surface water, nor can he gather this surface water into a body on his own land, and then discharge it in a body, when without being so collected and discharged it would have been scattered and diffused over greater territory.' Southern Railway v. Lewis, 165 Ala. 555, 51 So. 746, 749, 138 Am.St.Rep. 77; Perry v. McCraw, 226 Ala. 400, 147 So. 178; Vinson v. Turner, 252 Ala. 271, 40 So.2d 863; Drummond v. Franck, 252 Ala. 474, 41 So.2d 268. It is also said in the Lewis case, supra: 'The better or at least the more general rule seems to be that the natural drains must be kept open, and that the lower estate is subject to the servitude of receiving this water through its accustomed and natural channels.'

Our cases make a distinction where the property is situated in an incorporated city or town. In the Lewis case, supra, the suit was, as here, by the proprietor of the lower lot against that of the upper and it was in an incorporated town. This Court observed that there is 'an exception or a limitation to the rule above announced, and that is, it does not apply to city or village lots, property for which artificial drainage has been obtained, or which, from necessity, must be so drained.' In Shanan v. Brown, 179 Ala. 425, 60 So. 891, 43 L.R.A., N.S., 792, the distinction between town and rural property was asserted without the limitation expressed in the Lewis case, supra.

In the case of Ex parte Tennessee Coal, Iron & R. R. Co., 206 Ala. 403, 90 So. 876, this Court took note of the limitations expressed in the Lewis case, supra, but declined to apply...