Mobile & O.R. Co. v. Red Feather Coal Co.

• Decision Date: 18 October 1928
• Docket Number: 2 Div. 920
• Citation: 218 Ala. 582,119 So. 606
• Parties: MOBILE & O.R. CO. v. RED FEATHER COAL CO.
• Court: Alabama Supreme Court

119 So. 606

218 Ala. 582

MOBILE & O.R. CO. v. RED FEATHER COAL CO.

2 Div. 920

Supreme Court of Alabama

October 18, 1928

Rehearing Denied Jan. 24, 1929

Appeal from Circuit Court, Bibb County; Thomas E. Knight, Judge.

Action for damages by the Red Feather Coal Company against the Mobile & Ohio Railroad Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Foster Rice & Foster, of Tuscaloosa, and Lavender & Thompson and J.T. Fuller, all of Centerville, for appellant.

Bowers & Dixon, of Birmingham, for appellee.

BOULDIN J.

The action is for damages for flooding the coal mines of Red Feather Coal Company. Count 2 of the complaint charges:

"Plaintiff was the lessee and was in possession of the following real estate (describing it) on which plaintiff was operating coal mines; that defendant owned a right of way upon which it had constructed a railway track across a valley on said land in which was a running stream; that prior to said date defendant had maintained a trestle across said valley, permitting the water in said stream to flow freely under said railway tracks and across said right of way, and on, to wit, the said date, defendant caused to be constructed and thereafter maintained an embankment across said valley in which was situated said running stream, that on, to wit February 27th, 1926, there was a rainfall which increased the volume of water in said stream, and as a proximate consequence of the construction and maintenance of said embankment as aforesaid, the water of said stream was diverted from its normal course upon plaintiff's said property, flooding plaintiff's said mines, drowning out and causing plaintiff to lose much coal, to wit, fifteen thousand (15,000) tons, wherefore, plaintiff sues."

Counts 3, 4, and 5, in like form, charge injuries due to rainfalls on March 6, March 13, and March 20, 1926, respectively. These counts are challenged by demurrer for failure to aver negligence in diverting the water from its normal course.

Obstructing the flow of waters, so as to divert same from its natural flow and thereby work injury to the properties of another, is a tort in the nature of a private nuisance. The law charges the tort-feasor with the duty to avoid such result. No express averment or proof of negligence is required. S. A. & M. Ry. v. Buford, 106 Ala. 303, 17 So. 395; Central of Ga. Ry. Co. v. Windham, 126 Ala. 552, 28 So. 392; Lindsey v. So. Ry. Co., 149 Ala. 349, 43 So. 139; So. Ry Co. v. Lewis, 165 Ala. 555, 51 So. 746, 138 Am.St.Rep. 77; N., C. & St. L. Ry. Co. v. Yarbrough, 194 Ala. 162, 69 So. 582; Nininger v. Norwood, 72 Ala. 277, 47 Am.Rep. 412.

The law relating to flooding lands in general, so far as applicable, applies to the flooding of mines. 40 C.J. 1190.

Plaintiff's evidence tended to show flooding of the mines with consequent injury from four successive freshets, the first occurring the latter part of February and the fourth on March 22d. No dates of the two rains in the interim were given. Appellant insists that, because of such omission or failure of proof, it was entitled to the affirmative charge as to counts 3 and 4, alleging injuries on March 6th and March 13th, respectively. Such omission was within the letter and spirit of Circuit Court Rule 35, requiring same to be called to the attention of the trial court, and requiring the court thereupon to permit proof at any time before the conclusion of argument. This rule was not observed by defendant on the trial.

The complaint charged diversion of the waters of a "running stream." The evidence was to the effect that the branch or stream in question drained an area of 45 to 48 acres, usually carried some water 10 months in the year, and was dry two months. Appellant insists this is a fatal variance. This is not a case involving riparian rights of proprietors of lands bordering on a continuously flowing stream. Diverting surface waters, or the waters of an intermittent branch, or waters of a perennial stream, to the injury of a landowner having a servitude for their free passage, is governed by the same rules of law. In this complaint "running stream" is merely descriptive. It had a channel, under the evidence of both sides, to which its waters were confined, except in times of overflow. It was not inaptly described as a running stream, by way of distinction from unchanneled, spread-out surface water.

Plaintiff's lease ran some 18 months after the alleged flooding of the mines. Evidence of the available coal remaining unmined, its value in place, and of the average daily output, was introduced as going to the quantum of damage. In connection with evidence of available labor supply for that kind of mining, it was competent to show equipment recently installed to increase the output and the capacity of such equipment in handling coal.

Much of the alleged coal consisted of pillars left in the mines in advance work many years before. This coal, under plaintiff's evidence, was being robbed out. In this connection evidence of the size and condition of pillars, small cost of mining same, and the high quality of coal so derived was offered. The evidence of witness Hamp Smith, going to the condition of the mine in this regard, as seen some 15 years before, was properly admitted.

Appellant insists the evidence furnished no sufficient data from which the jury could reasonably ascertain the extent of damage due to flood waters diverted by defendant; that the affirmative charge was due defendant on this ground; and, at all events, the verdict should have been set aside as speculative and excessive.

Defendant for many years maintained a trestle across a little valley where its right of way crossed over plaintiff's mines. In the fall of 1925 this trestle was replaced with a fill or embankment with a culvert for passage of the water. A few feet off the right of way and above the embankment, and very near the old run of the stream, was a hole in the ground...