Mountain Brook Estates v. Solomon

• Decision Date: 10 May 1945
• Docket Number: 6 Div. 318.
• Citation: 23 So.2d 1,247 Ala. 157
• Parties: MOUNTAIN BROOK ESTATES, Inc., v. SOLOMON.
• Court: Alabama Supreme Court

23 So.2d 1

247 Ala. 157

MOUNTAIN BROOK ESTATES, Inc., v. SOLOMON.

6 Div. 318.

Supreme Court of Alabama

May 10, 1945

Rehearing Denied July 26, 1945.

Appeal from Circuit Court, Jefferson County.

Smyer & Smyer, of Birmingham, for appellant.

Chas. M. Hewitt and Solomon & Berkowitz, all of Birmingham, for appellee.

BROWN Justice.

The bill was filed December 16, 1943, by the appellee Solomon against the appellant Mountain Brook Estates, Inc., A. B Tanner and William Jemison, and was subsequently amended seeking to enjoin the defendants, 'From committing any further trespass, either in connection with, or without any use of said easement, upon any portion of complainant's property, and especially upon all portions of complainant's property outside of and included within said easement, and in general, * * * from any further misuser of said easement, or from any other illegal use or trespass upon complainant's property, and for general relief.'

The defendants demurred to the bill as amended, and on submission on the demurrers, the court entered a decree sustaining the demurrers as to the individual defendants, with leave to complainant to amend, and overruled the demurrers of the defendant corporation.

The complainant failed to exercise the right to amend the bill and the defendants were entitled to have the bill dismissed. Dudley v. Whatley, 245 Ala. 202, 16 So.2d 192; McIntosh v. Alexander, 16 Ala. 87.

The defendant corporation failed to insist upon its right to have the bill dismissed, and filed an answer stating, 'For further answer thereto respondent says that by reason of Complainant's failure to further amend his bill, it is this respondent's understanding that A. B. Tanner and William Jemison are no longer parties respondent in the above styled cause.'

The case was submitted by the complainant and the corporate defendant on pleadings as thus formed, and the proof, and in the final decree, the court observed 'After consideration of the pleadings, exhibits and testimony in this cause the Court is of the opinion that the Complainant is entitled to an injunction against the respondent Mountain Brook Estates, Inc., restraining and enjoining the said respondent from causing or allowing water or other substance to flow or encroach upon the property of the complainant beyond the bounds of the defined easement of respondent upon said premises. The Court is further of the opinion that the said respondent should be granted a reasonable time to repair, modify or alter the artificial drainage system, same comprising said easement.' The decree also awarded the complainant $100 compensatory damages for injury suffered from the overflow of surface water from said ditch into complainant's basement. From that decree the corporate defendants, Mountain Brook Estates, Inc., has appealed. Neither Tanner nor William Jemison were made parties to this appeal, they have not voluntarily appeared, and no steps have been taken to bring them within the jurisdiction of this court.

The cross assignments of error are directed only against said individual defendants, and for the reasons above stated, said cross assignments are without merit.

The decree of the court shows that the evidence consisted of testimony given ore tenus, answers of the defendant to interrogatories propounded to it under the statute, and documentary evidence. The testimony given ore tenus was not transcribed by the reporter nor is it incorporated in the record. In lieu thereof, the parties have substituted a statement of the substance of the testimony, which the trial court held was without dispute, and we think supports, in substance, the allegations of the bill as last amended. Therefore, the result must be cast upon the sufficiency or not of the allegations of the bill to make a case for equitable relief.

We state the substance of the bill's allegations. In the year 1926-27, the corporate defendant was the owner of urban property consisting of farm lands, rough and hilly in terrain. The quantity is not stated in the bill. This property was laid out in a subdivision known as 'The Mountain Brook Estates,' and each of said estates consisted of a commodious building lot laid out for residence purposes, and restricted to that purpose in the conveyance. Said subdivision was graded, streets and public ways established and laid out, a sanitary sewerage system was established, so that each of said estates could be equipped with modern conveniences; drains and sewers created to take care of surface water in time of rainfall, which included a ditch with concrete bottom, nine feet in width and four feet deep, which traversed the rear of Estate 290 and the Southwesterly 25 feet of Estate 159. The complainant purchased the above described property from the corporate defendant in February, 1941, some thirteen years or more after said ditch was installed by the corporate defendant on its own property. In the deed conveying said 'Estate 290' and fractional part of 'Estate 159' to complainant, the following reservation was made: 'Easements are hereby reserved for sanitary sewerage and drainage ditch across said property, as shown from blue print attached marked Exhibit A, which is made a part hereof as fully and completely in all respects as if incorporated here.' Said exhibit showed the existence and location of the drainage ditch and sanitary sewerage. Other reservations were made as to power lines and power wires and stay wires, not here important. Under the terms of the conveyance, the dwelling to be constructed was to cost not less than $10,000 in value, to be constructed according to the plans designed for said residential district, and the plans were to be, and were, approved by the grantor. Complainant's property is located in the 'Canterbury Sector' fronting westerly on Canterbury Road, which leads northeasterly and southwesterly, and bounded on the southerly line by Cambridge Road, which leads in a northwesterly and southeasterly direction.

The surface water sewers and drains in said Canterbury Sector, as described in the bill, 'consist of two circular concrete pipes, each 36"' in diameter same extending below the southerly boundary of Canterbury Road about 50 feet at which point the above described open artificial drainage ditch commences and thereafter about 60 feet downstream enters and extends across complainant's property. About 100 feet downstream and below complainant's said property, respondent corporation constructed as an outlet an opening under Cambridge Road. Complainant represents unto the Court that the aforesaid drainage ditch is inadequate and is improperly constructed among other things in this, that the outlet is smaller in area than the inlets; that is to say, the area of the cross section of the outlet 12 square feet and the area of the cross section of the inlets is 14.1 feet. All and each part of the constructions just mentioned are a part of the said artificial drainage scheme wholly constructed by complainant both above, and downstream of, complainant's property; all as a part of its general scheme of drainage for the subdivision being sold by it to the public for profit.'

At the time the drainage system was planned and constructed, the corporate defendant owned the dominant estate above said property, later purchased by complainant, and said two concrete storm sewers which emptied into said ditch, drained the dominant area above said Estate 290 in the Canterbury Sector.

All of said dominant estates had been sold by the corporate defendant for home sites before complainant purchased his lot, and said dominant estates had been improved by the construction of residences thereon, and the only property owned by the corporate defendant in said subdivision which was unsold was located outside of Canterbury Sector. To quote from the bill: 'Complainant shows unto the court that the respondent corporation at the time of this amendment is still the owner of many unsold lots in said real estate subdivision of Mt. Brook Estates.' The bill also avers that said ditch was not necessary to the draining of complainant's property, but was wholly for the benefit of the estates in the dominant area, sold by said respondent and developed by the purchasers.

Said drainage system, including said ditch, was completed in 1927 in laying out said subdivision and has remained in its then condition without repairs or maintenance by anyone, except the complainant, who undertook to heighten the west bank after the same overflowed on his property; and so far as the allegations of the bill show, said ditch had not overflowed and caused damage until the latter part of December, 1943, after complainant purchased said building lot and constructed his residence thereon. Before said first alleged overflow occurred and after complainant purchased his home site, said subdivision was incorporated in and became a part of the municipality of Mountain Brook, a municipal corporation, incorporated under the statutes providing for such corporation.

In paragraph 8 of the bill, the complainant draws bald conclusions as to the duty resting upon the corporate defendant in respect to said drainage ditch, not supported by the facts alleged in the bill. The bill also contains averments as to representations made by the sales agent Smith, who handled the negotiations with complainant and his wife in the sale of the property, as to the adequacy of the ditch to carry away surface water in time of rainfall. Nevertheless, the complainant accepted the conveyance of the property, without exacting any warranties or agreements, as to its adequacy to take care of the surface water in time of rainfall.

The substance of appellee's contention is that the holding corporation, Mt. Brook Estates,...