Nashville, C. & St. L. Ry. v. Yarbrough

• Decision Date: 20 May 1915
• Docket Number: 821
• Citation: 69 So. 582,194 Ala. 162
• Parties: NASHVILLE, C. & ST. L. RY. v. YARBROUGH.
• Court: Alabama Supreme Court

69 So. 582

194 Ala. 162

NASHVILLE, C. & ST. L. RY. v. YARBROUGH.

No. 821

Supreme Court of Alabama

May 20, 1915

Rehearing Denied June 30, 1915

Appeal from Circuit Court, Madison County; D.W. Speake, Judge.

Action by C.F. Yarbrough against the Nashville, Chattanooga & St Louis Railway for overflowing plaintiff's property by maintenance of an embankment. There was a judgment for plaintiff, and defendant appealed to the Court of Appeals and it transferred the cause, under Gen. Acts 1911, c. 449, § 6, to the Supreme Court. Affirmed.

Count 2 avers, in effect, that the culvert or pipe leading through the embankment was insufficient to carry off the water when it rained, and on this occasion a heavy rain fell, and the said culvert being insufficient to carry off said rainfall the water was backed on plaintiff's property, and the same was flooded. The follows a catalogue of the damages done.

Count 3 describes the embankment maintained, as well as the situation of defendant's property, and alleges that the natural flow of the surface water was diverted or obstructed by said embankment; that on September 23d there was a heavy rainfall which caused a large flow of surface water, and that said embankment obstructed or diverted the natural flow of the surface water, and thereby caused the water to overflow on and flood plaintiff's property, stating the damage caused.

The pleas sufficiently appear from the opinion.

The following charges were refused to defendant:

(1) Affirmative charge as to the second count.

(2) Affirmative charge as to the third count.

(4) Cause of action set up in the third count is barred by the statute of limitations of one year.

(9) Under the evidence in this case, plaintiff can recover nothing on account of mental annoyance, or mental harassment, or mental discomfort.

(5) If you believe from the evidence that the injury to plaintiff would not have occurred, but for an unprecedented rainfall, and but for the insufficiency of the county bridge, plaintiff cannot recover in this case.

(13) If you believe from the evidence that in building this bridge the county built it with so small an opening as to cause the water on the occasion in question to be forced back and overflow the county road, and run down towards Yarbrough's property, defendant would not be liable for any damages so caused.

Spragins & Speake, of Huntsville, for appellant.

Douglass Taylor and Ed C. Betts, both of Huntsville, for appellee.

THOMAS J.

This is an action for damages for diversion of water by appellant's railroad embankment, causing it to flow on the property of appellee. The case was tried on counts 2 and 3 of the complaint as amended. Appellant pleaded to count 2 in short by consent the general issue, with leave to offer evidence of any other defense. To count 3 the general issue is pleaded, together with three special pleas, in substance as follows:

(3) That the plaintiff acquired said property after said embankment had been constructed, and while it was being so maintained by defendant, with full knowledge of the location of said embankment with reference to the location of his property, and with full knowledge of how it was maintained, and the effect it had upon surface waters, or natural drainage.

(4) That appellant provided the embankment with culverts sufficient in size to carry off the surface water from ordinary rainfalls, but that the rain referred to in the complaint was unprecedented.

(5) That the cause of action is barred by the statute of limitations of one year.

1. To an action for damages for diverting water, it is no defense that plaintiff purchased the property with full knowledge of the location of the embankment in reference to his property, and of how it was maintained, and of its effect upon the surface water or natural drainage. Bigbee Fertilizer Co. v. Scott, 3 Ala.App. 385, 58 So. 86; Alabama Western Railroad Co. v. Wilson, 1 Ala.App. 306, 55 So. 932; McKee v. St. L.R. Co., 49 Mo.App. 174; San Antonio R. Co. v. Dickson, 42 Tex.Civ.App. 163, 93 S.W. 481; 40 Cyc. 582 (111); Gulf v. Provo (Tex.Civ.App.) 84 S.W. 275; C. & A.R.R. Co. v. Henneberry, 42 Ill.App. 130; O. & M. Ry. Co. v. Wachter, 123 Ill. 440, 445, 15 N.E. 279, 5 Am.St.Rep. 532; O. & M.R.R. Co. v. Singletary, 34 Ill.App. 425, 429. There was no error in sustaining appellee's demurrer to plea three to count 3 of the complaint.

2. A cause of action arises when one erects or maintains an obstruction or embankment on his own land, which collects or diverts surface water and causes it to submerge, or to flow in an unnatural manner upon, the lands of another, to his damage. In City of Eufaula v. Simmons, 86 Ala. 515, 6 So. 47, Mr. Justice Somerville apparently first declared the rule that, where the municipal authorities, in the construction of sewers and ditches, caused large quantities of rainwater, which naturally flowed in another direction, to be diverted so as to flow on the plaintiff's premises in destructive quantities, resulting in injury, the corporation would be liable in damages, whether the work was done negligently or not. And a fortiori is the defendant liable when such ditches and sewers have been constructed in a negligent manner. The rule was extended to private individuals in Arndt v. Cullman, 132 Ala. 540, 547, 31 So. 478, 90 Am.St.Rep. 922. In Savannah, A. & M.R. v. Buford, 106 Ala. 303, 312, 17 So. 395, 398, the action was against a railroad company, to recover damages for injury to land resulting from the wrongful construction of an embankment so that surface waters were thereby caused to flow over and across the plaintiff's lands in a not natural way, and without plaintiff's will. Chief Justice Brickell said:

"It is not deemed material whether the water is diverted from a running stream, or is surface water, caused to flow where it did not flow before. *** It is settled by the current and weight of authority that a railroad company has not more right to obstruct the natural flow of water by an embankment, or other artificial means, or by the collection of it into an artificial channel, forcing or conducting it to a discharge upon the lands of another, than it has in the same way to dispose of water from water courses; and it is as liable for the resulting damage in the one case as in the other." C. of G. v. Windham, 126 Ala. 552, 28 So. 392; Lindsey v. Southern Railway Co., 149 Ala. 349, 43 So. 139; 6 Mayf.Dig. p. 921, § 5.

In Central of Georgia v. Champion, 160 Ala. 517, 49 So. 415, Mr. Justice Denson said:

"That a landowner, through whose lands a stream of water flows, has a right to have the water course or flow from his land according to nature; and while railroad companies, in constructing and maintaining their roads, may build them across streams, they must exercise due care not to obstruct streams to the detriment of landowners, by the pending back of the water and overflowing their lands." Ala. Gt. Sou. R.R. Co. v. Prouty, 149 Ala. 71, 43 So. 352.

A suit for damages, for the overflow of land caused by obstructing the natural flow of a stream, was maintained in Sloss-Sheffield Steel & Iron Co. v. Mitchell, 161 Ala. 278, 49 So. 851, and it was declared that the injurious consequences arising from the nuisance, rather than the act that produced the nuisance, is the cause of action. It was declared in Alabama Western Railway Co. v. Wilson, 1 Ala.App. 306, 55 So. 932, where there was a ruinous deposit of sand, gravel, dirt, and débris upon the plaintiff's land, naturally resulting from the presence of an artificial embankment or fill erected on the higher land of the defendant, that such condition "constituted an actionable nuisance," regardless of whether the defendant was negligent or unskillful in the original erection of that structure.

There was no error in the overruling of the appellant's demurrer to the amended complaint.

3. In some of the cases considered the defendant was guilty, at the time of the erection of the obstruction, of a wrongful interference with the usual flow of water which, in the course of nature, would not have interfered with the plaintiff's rights. In the instant case the testimony shows that, when the embankment of the appellant's road was constructed, it had a...