McCary v. McLendon

• Decision Date: 16 December 1915
• Docket Number: 6 Div. 999
• Citation: 195 Ala. 497,70 So. 715
• Parties: McCARY v. McLENDON et al.
• Court: Alabama Supreme Court

70 So. 715

195 Ala. 497

McCARY v. McLENDON et al.

6 Div. 999

Supreme Court of Alabama

December 16, 1915

Appeal from Chancery Court, Jefferson County; A.H. Benners Chancellor.

Action by D.E. McLendon and others against Mattie S. McCary. Decree for plaintiffs, and defendant appeals. Affirmed.

Henry Upson Sims, of Birmingham, for appellant.

L.J Cox, of Birmingham, for appellees.

This cause was submitted and considered under new rule 46 (65 South. vii), and the opinion of the court was delivered by Mr. Justice THOMAS.

Appellant and appellees are owners of contiguous tracts of land, that of appellant lying lower than that of appellees. Through both tracts there flows a creek which crosses the line dividing the two. On appellant's land, a short distance from appellees' land, she erected a dam across said creek, in consequence of which, as the chancellor found, the lands of appellees were overflowed from time to time. The decree declared the dam a nuisance, ordered its abatement, and awarded damages for the injury sustained. From the decree this appeal is taken.

The principles of law applicable here are well established. The owner of the dominant estate has a natural easement in the servient estate; this carries the right to discharge waters naturally falling upon or flowing through his land, upon or over the servient estate, and denies to the servient owner the right of interrupting or obstructing such natural flow or passage of the waters, to the detriment of the land of the dominant proprietor. This theory has found expression in the maxim, "Aqua currit et debet currere, ut currere solebat." This rule provides for the natural flow of water from the upper, over the lower lands, where the industry of man has not intervened to create the servitude. The proprietor of the higher or dominant estate can be deprived of this right only by his own grant or license, actual or implied, or by condemnation for public use. Any obstruction resulting in the unnatural enlargement of the stream, to the injury of the upper proprietor, gives a right of action. Sloss-Sheffield Steel & Iron Co. v. Mitchell, 167 Ala. 226, 52 So. 69; Nininger v. Norwood, 72 Ala. 277, 47 Am.Rep. 412; Central of Ga. Ry. Co. v. Champion, 160 Ala. 517, 49 So. 415; Southern Railway v. Plott, 131 Ala. 312, 31 So. 33; Shahan v. A.G.S.R.R. Co., 115 Ala. 181, 22 So. 449, 67 Am.St.Rep. 20; Ulbricht v. Eufaula Water Co., 86 Ala. 587, 6 So. 78, 4 L.R.A. 572, 11 Am.St.Rep. 72; 40 Cyc. 569, et seq.

A riparian owner may erect a dam or detain water for reasonable purposes; the reasonableness being a matter for deduction from the facts of each particular case. If the detention of water substantially injures other owners, by flooding their lands, actionable injury results. This question, as indeed the whole law of nuisances, rests upon the familiar maxim, "Sic utere tuo ut alienum non laedas;" a man must use his own property with reasonable regard for the rights of others. Sloss-Sheffield, etc., Co. v. Mitchell, supra; 40 Cyc. 570, 572.

Where such a dam as that above referred to is erected, and, in consequence thereof, upper estates are flooded, a right of action accrues. Where it appears that such injury is, in its very nature, permanent and constantly recurring--as the testimony tended to show the fact in this case to be--instead of merely temporary and fugitive, legal remedies will not afford adequate redress nor protection, and a court of equity may be appealed to. Upon a proper showing, such a court will use its power of injunction to abate the nuisance, in order to prevent irreparable injury and a multiplicity of suits. Central of Ga. Ry. Co. v. Champion, supra; Nininger v. Norwood, supra; A.G.S.R.R. Co. v. Prouty, 149 Ala. 71, 43 So. 352.

The doctrine of acquiescence, in instances of nuisances, may be thus stated: One who has slept on his rights for a considerable time by acquiescing in the alleged nuisance will in a proper case be denied equitable relief and left to his remedy at law; but the fact that a person knows that a structure is being built and the purpose for which it is to be operated, and makes no objection thereto, does not estop him to afterward sue to abate it as a nuisance because of injuries arising from its use,...