Lindsey v. Southern Ry. Co.

• Decision Date: 14 February 1907
• Citation: 43 So. 139,149 Ala. 349
• Parties: LINDSEY v. SOUTHERN RY. CO.
• Court: Alabama Supreme Court

43 So. 139

149 Ala. 349

LINDSEY v. SOUTHERN RY. CO.

Supreme Court of Alabama

February 14, 1907

Appeal from Circuit Court, Lawrence County; A. H. Alston, Judge.

Action by Sarah E. Lindsey against the Southern Railway Company. Judgment for defendant, and plaintiff appeals. Reversed and remanded.

The complaint as originally filed was as follows: "Plaintiff claims of the defendant the sum of one thousand dollars, for that, whereas, during the latter part of the year 1902 she owned the following described real estate, in the county of Lawrence, in the state of Alabama: [Here follows a description of the land.] That during said time the defendant has owned and operated a railroad track and roadbed adjacent to said land. That some time during the year 1900 the defendant cut a ditch on the south side of its said track and also on the south side of the above-described land and along its right of way to a certain creek which runs north and across said railroad track, and that said ditch has been kept open to the time of bringing this suit. Plaintiff alleges that on account of the digging of the said ditch and the maintaining of the same by the defendant the waters from said creek during high water flows west along said ditch and in great torrents, and makes its way through openings under said track and overflows the above-described premises. That the said waters did not overflow the land of the defendant before the digging of the ditch. That during the latter part of the year 1902, and during a part of the year 1903, the waters that were thrown back upon the premises of the plaintiff by maintaining of said ditch washed the soil from portions of the land, caused a deposit of sand upon other portions of it, created a pond of water upon a portion of the land, and destroyed plaintiff's crops that were growing thereon, to plaintiff's damage as aforesaid."

To this complaint the defendant filed the following demurrers "(1) It does not state the cause of action. (2) It does not appear from said complaint that the opening or constructing of said ditch was the proximate cause of the injury set forth in the complaint. (3) That in the digging and constructing said ditch defendant was in the rightful exercise of its power of dominion over its own land, as appears from the complaint. (4) It does not appear that the said ditch was opened or constructed in an unskillful or negligent manner, so that the said opening or construction of said ditch itself caused the injury. (5) For that it appears that the injury complained of was caused by high water or flood. (6) For that it does not appear that the injury complained of would not have happened at particular time if there had been no ditch. (7) It does not appear from said complaint that the defendant exercised its right of dominion over its land in a wrongful, careless, or negligent manner. (8) It does not appear that the injury complained of was caused by the exercise of the defendant's power of dominion over its land in a wrongful, careless, or negligent manner. (9) It does not appear that defendant opened or constructed said ditch with due care and diligence. (10) It does not appear from that said ditch was wrongfully carelessly, or negligently constructed. (12) It does not appear in said complaint that at the time of the opening of said ditch that plaintiff had any interest in said land. (13) It appears that at the time of the cutting of said ditch defendant was upon its right of way and in the rightful exercise of its right of eminent domain. (14) It does not appear that the defendant was a trespasser, or that its right of way upon which said ditch was cut was not properly condemned, and compensation therefor paid to the owner of the land. (15) It appears that said ditch was cut along the right of way of defendant's said railroad before and prior to the plaintiff's acquiring any interest in said land, and said ditch was open and in use by defendant for the purpose for which it was cut and opened continuously from the opening of it to the institution of this suit."

These demurrers were sustained, whereupon...