Law v. Gulf States Steel Co., 7 Div. 251.

• Decision Date: 11 October 1934
• Docket Number: 7 Div. 251.
• Parties: LAW et al. v. GULF STATES STEEL CO.
• Court: Alabama Supreme Court

156 So. 835

229 Ala. 305

LAW et al. v. GULF STATES STEEL CO.

7 Div. 251.

Supreme Court of Alabama

October 11, 1934

Appeal from Circuit Court, Etowah County; R. B. Carr, Judge.

Action by John L. Law and another against the Gulf States Steel Company to recover damages for destruction of crops by water. Judgment for defendant, and plaintiffs appeal.

Reversed and remanded.

Culli &amp Culli, of Gadsden, for appellants.

Roger Suttle and O. R. Hood, both of Gadsden, for appellee.

BOULDIN Justice.

The action is to recover damages for alleged destruction of growing or ungathered crops by impounding or damming up the waters of Big Wills creek in times of heavy rains.

The motion to strike the bill of exceptions because it sets forth the entire testimony in narrative form is not well taken.

When instructions to the jury, whether in the oral charge, in given charges, or refusal of written charges, or rulings on evidence, are to be reviewed, whose correctness, materiality or injurious effect can best be determined in the light of the entire testimony, it is proper to set it all out.

In cases where the trial court has given an instruction on the weight of the evidence, or has considered same on motion for new trial, and such rulings are presented for review, it is essential that all the evidence be set out in the bill of exceptions.

The motion to strike certain original maps, showing United States Geological Survey of the water shed of Big Wills creek, and certain photographs showing the flood waters, is likewise denied.

Supreme Court rule 47, looking to the incorporation of such matters in the record, is sufficiently complied with when the bill of exceptions shows they were offered in evidence, as such are made part of the bill of exceptions, and are identified by date, number, or other accurate designation, and the originals, bearing the same identifying data, are made a part of the record by inserting same as separate sheets, bound as other sheets.

If as here, the document discloses on its face that its reproduction on transcript paper would be "difficult or impractical," there is no need for a special certificate to that effect.

If the transcript clearly identifies the document, and the original incorporated therein conforms to such identification, the general certificate to the correctness of the transcript meets the spirit and purpose of the rule.

The plaintiffs brought a similar action for injury to crops by headwaters in time of freshet in 1929. On appeal from that judgment, our decision discussed the facts and legal principles pertinent to various phases of the case presented on the present appeal. Gulf States Steel Co. v. Law et al., 224 Ala. 667, 141 So. 641.

The instant suit was brought for injury to crops of 1932.

The complaint in three counts, 2, 3, and 4, claimed damages for alleged injuries on three distinct rises; namely, on or about July 7th, August 15th, and October 17th.

Count 2 alleged: "That on and prior to July 7, 1932, and up until the time of bringing this suit the defendant corporation maintained a dam, wall or other obstruction across said Big Wills Creek below and near the lands of the plaintiffs. That by the maintenance of said dam, wall or other obstruction the natural flow of water in time of heavy rainfall is obstructed causing said water in said stream to be thrown back and upon plaintiffs' said land, causing said lands to be overflowed and the crops growing thereon to be destroyed. That from to-wit, July 7, 1932, and up to the date of the filing of this complaint the defendant wrongfully caused the water of Big Wills Creek in time of heavy rainfall to be thrown back upon plaintiffs' said lands, and to spread out over large areas thereof caused by the maintenance of said dam, wall or other obstruction in said Big Wills Creek. That as a proximate consequence" crops were destroyed, etc.

Counts 3 and 4 are similar, except as to date of overflow.

The plea was in short by consent; allowing any defense which could be specially pleaded, etc.

We first note some tendencies of the evidence in the light of which the instructions to the jury, and rulings on evidence, relied upon as error to reverse, must be considered.

In 1928, appellee, Gulf States Steel Company, erected a concrete dam across the channel of Big Wills creek, raising the level of the water above the dam at ordinary stages some 3 feet 8 inches, and backing up or eddying the water in the channel some three-fourths of a mile, and alongside plaintiffs' bottom lands, lying on the west of the creek.

A county highway bridge, known as McCartney bridge, spans the creek some 200 feet above the dam.

In connection with the dam defendant constructed a concrete wall on the west side of the creek extending from the dam up to the bridge. This wall is some 8 feet in height above the top of the dam, and at upper end on a level with the floor of the bridge. A similar wall was constructed on the east side of the creek from the dam up to defendant's pumping station, some 50 feet.

From the bridge a county road runs westward across the bottom just below plaintiffs' lands. For more than 20 years this road has been maintained by the county. Across the bottom, this road, at and prior to defendant's construction work, was on a fill or embankment, the height of which above the level of plaintiffs' bottom lands is not without conflict in the evidence. From time to time high waters broke over such embankment, washed it away in part, and it was repaired from year to year.

Plaintiffs' evidence tends to show that in connection with the construction of the dam and lateral walls, defendant, under the terms of a conveyance and contract with Chadwick, who owned the lands west of the creek and below this road, aided and assisted the county authorities in raising the height of this embankment, and especially in the low stretch where the waters were accustomed to break over.

The agreement with Chadwick is set forth in the former opinion, 224 Ala. 669, 141 So. 641, where it was held that evidence of the raising of this road and the impounding of the waters as the joint effect of the dam, walls, and raised embankment in times of high water was admissible.

Plaintiffs' evidence in the instant case tended to show that, as a proximate result of these obstructions, high waters were diverted from their natural course, made to flow in increased quantity over plaintiffs' bottom lands, impounded and raised to a higher level, and caused to remain longer over the crops of corn and hay in which plaintiffs were interested, and which were thus destroyed.

Defendant's evidence tended to show two different conditions as a defense to plaintiffs' demand:

First. That in fact the waters in 1932 were not diverted by the dam or walls in the channel of the creek; that from heavy and protracted rains the waters rose to a height which flowed evenly over the top of the dam, spread out over the low lands, and destroyed plaintiffs' crops. In other words, that the alleged obstructions had no causal connection with the injury, because the level of high water was not raised by the obstructions, and the injury would have ensued had there been no such obstructions.

Second. That the flood waters in question were so extraordinary and unprecedented during the crop growing season as not to be reasonably anticipated; and the injury was, therefore, the result of an act of God.

Defendant's given charge No. 6, which reads, "If the waters of Wills Creek reached to a height that the crops in which plaintiffs were interested would have been destroyed had the dam not been in existence or the road raised, plaintiffs would not be entitled to recover," was obviously a correct statement of the law as applied to any phase of the evidence.

Defendant's given charge, made the basis of the third assignment of error, reads: "If the crops in which plaintiffs were interested were destroyed as a result of an unusual and excessive rainfall in the Wills Creek water shed plaintiff would not be entitled to recover."

An "unusual and excessive" rainfall is not a correct definition of an act of God.

It is insisted this charge deals merely with causal connection.

If there lands lay so low that "unusual and excessive" rains caused the destruction of crops, this was a natural hazard of farming such lands, and it would be immaterial whether the waters rose to such unprecedented height as could not reasonably be anticipated and guarded against.

But this charge was given along with others dealing with the act of God.

We think the charge omissive and misleading. Although the floods may have been "unusual and excessive," if the obstructions diverted or...