Louisville & N.R. Co. v. Higginbotham

Decision Date14 November 1907
PartiesLOUISVILLE & N. R. CO. v. HIGGINBOTHAM ET AL.
CourtAlabama Supreme Court

Appeal from City Court of Birmingham; C. W. Ferguson, Judge.

Action by A. L. and P. W. Higginbotham against Louisville &amp Nashville Railroad Company. Judgment for plaintiffs, and defendant appeals. Affirmed.

Action for damages for diverting water by pumping and for the obstruction of the stream, causing a filling of the spring. The complaint as amended is as follows: "Count 1 Plaintiffs claim of the defendant $1,999 as damages, for that heretofore, to wit, during the whole of the six years immediately preceding the filing of this suit, plaintiffs were in possession of certain real estate in Jefferson county, Ala., described as follows: [Here follows the description.] Plaintiffs aver that upon said land there were during the said time certain springs of water, and during a great part of said time defendant habitually caused to be taken or pumped from said land a great part of the water of said springs, and maintained upon said lands certain piping and a box or reservoir by means of which defendant took water from said land; and as a proximate consequence of the taking of said water as aforesaid, one or more of said springs were filled or partially filled, and the flow of water therefrom was obstructed, and said springs were rendered less beautiful and attractive, and plaintiffs were deprived of the use of said water for themselves and their families and their live stock, and for the various and sundry uses to which said water should be put, and the value of the use of said land during said time was greatly lessened, and plaintiffs were put to great inconvenience, trouble, and expense in or about their efforts to have defendant cease or stop pumping said water and cease filling or causing said springs to be filled and in and about removing the obstructions from said land and said land was greatly disfigured and obstructed. Plaintiffs allege that defendant's servants or agents, acting within the line and scope of their authority as such, wrongfully took or pumped said water as aforesaid." Count 2 is the same as count 1 as to description of the land and time of possession of plaintiffs, and as to the existence of springs, and adds that defendant during said time caused a part of said water flowing from said spring to be taken or pumped from said land, and in or about taking or pumping said water defendant's servants or agents so negligently conducted themselves that said springs or a part thereof were filled up, and said land was obstructed, and plaintiffs suffered the injuries and damages set out in the first count. The following demurrers were interposed: First, to the complaint as a whole because there is a misjoinder of counts--the first count being trespass, and the second count being trespass on the case, and the two counts not relating to the same subject-matter; to count 1 because it does not set out a cause of action in trespass, and because it does not show that the acts done were done wrongfully or without the consent of the plaintiffs, and to the second count because it does not show in what the negligence of defendant's servants consisted; and the following additional grounds of demurrer to the complaint as a whole: "The land is not sufficiently described. The owners of the remaining undivided three-fourths interest in said land are not made parties. The suit is for injury only to an undivided interest, and not to the entire interest."

The evidence tended to show that the father of the plaintiffs devised to plaintiffs all the interest he owned in the land described in the complaint at the time of his death; that there were eight or nine springs of water on a part of the lands described, which were bold, free, running springs of clear water; that the father of plaintiffs and his wife executed to defendant a proper deed conveying a right of way through the lands, and also granted to defendant the right to use the water out of one of the springs near the right of way, and to lay a pipe through the lands, to be covered with earth, to connect the spring with a water tank; that after the pipe line had been laid and the box sunk plaintiffs' father pointed out to defendant one of the springs from which he desired the water to be pumped, and where the water from but one spring would be pumped, and consented that the box be placed in the spring branch, where it was placed, and that the water be pumped from this point temporarily until the designated spring could be walled up and made available; that afterwards, when the box was renewed, it was agreed that it might be placed in the branch at the same point, provided a floodgate was made in the box, to be left open when no pumping was going on or when it was raining; but when this second box was renewed it was put in with heavier timbers, and without floodgates, and against the consent of the plaintiffs, and as a result the water backed up over the spring and caused sand and other débris to settle in the spring and render the springs unfit for use, etc. There was evidence tending to show that the lands on which the springs were located had been surveyed and plotted, and lots sold therefrom, and that the particular piece of land on which the springs were was marked on the map "Spring Park," and the map was so recorded. Evidence also tended to show that the railroad had been using the water as indicated in the testimony for the plaintiffs since 1888, and that part of this time, and up to the time the suit was brought, the railroad had furnished plaintiffs water for domestic purposes by means of a pipe line from the railroad tank to the plaintiffs' residence. The other facts sufficiently appear in the opinion of the court.

Charge 7, referred to in the opinion, was as follows: "(7) The jury must find from the evidence that the land on which the springs are located was a dedicated public park during the time of the grievances complained of in the complaint."

Tillman, Grubb & Bradley, for appellant.

Bowman, Harsh & Beadow, for appellees.

SIMPSON J.

This was an action by the appellees against the appellant, claiming damages on account of the pumping of water by the defendant from certain springs on land claimed to be in the possession of the plaintiffs. The first assignment of error insisted on is to the action of the court in overruling the defendant's demurrer to the complaint for misjoinder of counts; it being claimed that the first count is in trespass, and the second in case, and that they do not relate to the same subject-matter. Under our statute trespass and case may be joined (Code 1896, § 3293), and the counts in this case relate to the same subject-matter. Consequently there was no error in overruling the demurrer on this ground.

The second assignment is to the action of the court in overruling the demurrer to the first count of the complaint. Said first count is in trespass for the wrongful act of pumping the water from the land and filling the springs (Southern Bell Tel. Co. v. Francis, 109 Ala. 224, 233, 238, et seq., 19 So. 1, 31 L. R. A. 193, 55 Am. St. Rep. 930), and the demurrer to the same was properly overruled. The demurrer to the second count was properly overruled. L. & N. R. R Co. v. Marbury Lumber Co., 125 Ala. 237, 28 So. 438, 50 L. R. A....

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