McDonnell v. Murnan Shipbuilding Corporation

• Decision Date: 24 January 1924
• Docket Number: 1 Div. 283.
• Citation: 210 Ala. 611,98 So. 887
• Parties: MCDONNELL ET AL. v. MURNAN SHIPBUILDING CORPORATION.
• Court: Alabama Supreme Court

98 So. 887

210 Ala. 611

MCDONNELL ET AL. v. MURNAN SHIPBUILDING CORPORATION.

1 Div. 283.

Supreme Court of Alabama

January 24, 1924

Appeal from Circuit Court, Mobile County; Joel W. Goldsby, Judge.

Action by William F. McDonnell and James F. McDonnell, as executors of the estate of Kate McDonnell, deceased, against the Murnan Shipbuilding Corporation. Following adverse rulings on the pleadings, plaintiffs take a nonsuit and appeal. Reversed and remanded.

Harry T. Smith & Caffey, of Mobile, for appellants.

Stevens McCorvey, McLeod & Goode, of Mobile, for appellee.

GARDNER J.

Plaintiffs as riparian proprietors seek to recover of the defendant the statutory charge of 5 cents a day for each log or stick of timber of the defendant fastened to certain piles alleged to have been maintained by the plaintiffs in front of their property situated on the banks of the Mobile river.

The suit is brought under the provisions of section 4818 of the Code of 1907. The demurrer to the complaint as originally framed and subsequently amended having been sustained plaintiffs took a nonsuit and appeal.

Counts 1 and 2 as last amended and counts A and B, added by amendment, disclose that plaintiffs were the proprietors of certain lots on Blakely Island, upon the east side of Mobile river fronting thereon, and that the plaintiffs lawfully maintained in said river, directly in front of said lots, and between the high-water mark thereof, and the east harbor line of said river, a number of piles, such as the plaintiffs were authorized to maintain, and the piles as so maintained did not obstruct the free navigation of said river. While they were so maintained by the plaintiffs, the defendant from time to time, during the months therein named, fastened logs and sticks of timber, and allowed them to remain fastened thereto for many days.

We are of the opinion that these counts introduced in the last amendment of the complaint were sufficient as against the demurrer interposed thereto. The averments follow substantially the language of the statute giving the right of action. In A. G. S. R. R. Co. v. Cardwell, 171 Ala 274, 55 So. 185, this court said, in stating a statutory right of action, it is safe to follow the language the statute prescribes. See, also, Blanchard-Hamilton Furniture Co. v. Colvin, 32 Ind.App. 398, 69 N.E. 1032; Pittsburgh, C., C. & St. L. R. Co. v. Newsom, 35 Ind.App. 299, 74 N.E. 21.

It is insisted by counsel for appellee that the averment, "plaintiffs lawfully maintained the piles," states but a conclusion of the pleader, and that facts should have been stated rather than such conclusion-citing in support thereof Mauldin v. Cent. of Ga., 181 Ala. 591, 61 So. 947, and Blackman v. Mauldin, 164 Ala. 337, 51 So. 23, 27 L. R. A. (N. S.) 670. These authorities, however, were not dealing with the sufficiency of the complaint upon a right of action conferred by statute following substantially the language of the statute, and they do not therefore militate against the conclusion which we have here reached. The trial judge therefore erred in sustaining the demurrer to the complaint as last amended.

Counsel for appellants insist, however, the complaint was sufficient as originally filed. This argument is based upon the theory that the complaint discloses the piles were rightfully placed in the river in front of their lots by virtue of their rights as riparian owners.

By immemorial usage and custom in this state the doctrine is recognized that a riparian proprietor, whose land is bounded by a navigable stream, has a right of access to the navigable part thereof in front of his land, and to construct a wharf, pier, or piles projecting into the stream for his own use or the use of others; but this right is subject to such rules and regulations as the Legislature may prescribe for the protection of the public. Turner v. City of Mobile, 135 Ala. 73, 33 So. 132; Mobile Trans. Co. v. City of Mobile, 153 Ala. 409, 44 So. 976, 13 L. R. A. (N. S.) 352, 127 Am. St. Rep. 34; Sullivan Timber Co. v. City of Mobile (C. C.) 110 F. 186; Shively v. Bowlby, 152 U.S. 1, 14 S.Ct. 548, 38 L.Ed. 331.

This right accorded to riparian owners is subject to the rights of navigation and the rules of public control, and all state laws and regulations with respect to navigable waters and rights acquired thereunder are subject to the...