North Alabama Coal, Iron & Ry. Co. v. Jones

• Decision Date: 18 June 1908
• Citation: 156 Ala. 360,47 So. 144
• Parties: NORTH ALABAMA COAL, IRON & RY. CO. v. JONES.
• Court: Alabama Supreme Court

47 So. 144

156 Ala. 360

NORTH ALABAMA COAL, IRON & RY. CO. v. JONES.

Supreme Court of Alabama

June 18, 1908

Appeal from City Court of Talladega; G. K. Miller, Judge.

Action by A. F. Jones against the North Alabama Coal, Iron & Railway Company for damages for the improper retention of water in a stream. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

The complaint was in the following language: "Plaintiff claims of defendant, a body corporate, for this: That the plaintiff owns and occupies, and at the time of the accrual of this action then did own, certain lands in Talladega county known as the 'Doc Jones Place.' [ Here follows a description of the land.] That aforetime through said premises there flowed a stream of water known and called 'Clear Creek,' which was clear and suitable for domestic purposes, and was a source of profit, comfort, and enjoyment to the plaintiff. That at the time of the accrual of this action plaintiff was, and for a long time had been using the waters of said Clear creek for domestic purposes and for generating steam to run and operate a gin, a gristmill, and a sawmill located on said premises. That said stream so flowing in and through plaintiff's said premises caused the lands along its bank to be more fertile and productive of profit to plaintiff, and was to him a source of comfort, convenience, and profit. That above plaintiff's premises, at or near Renfroe, Ala., and across said stream the defendant has erected a dam across said Clear creek, and by means of said dam across said creek does detain the waters of said creek in an unreasonable manner and for an unreasonable time, and causes the waters of said creek there to form a pond and spread over a large amount of land, thereby causing the water of said Clear creek to evaporate, sink into the ground, and cease to flow down its usual and customary channel in, upon, and through plaintiff's said premises, as the same were accustomed to flow, and that thereby plaintiff had been damaged, has been made uncomfortable in his home, and put to great expense and loss of profit from his said gin, sawmill, gristmill, and farm; and plaintiff avers defendant's detention of said waters of Clear creek are unlawful, wrongful, and injurious to plaintiff, and that such wrongful act within the last 12 months before the bringing of this suit damaged the plaintiff in the sum of $1,000."

Demurrers were filed to the complaint, as follows: "(1) There is not shown to be any diversion of said water, nor any unreasonable use of the same by the said North Alabama Coal Iron & Railway Company. (2) The fact, if it be a fact, that a dam was erected across said Clear creek, and that the waters of said creek evaporated and sank into the ground and ceased to flow below does not in any way show liability on the part of defendant to plaintiff. (3) From aught that appears in said complaint, defendant had a right to use said dam and to form a pond as therein described, and the allegation that the same was detained in an unreasonable manner and for an unreasonable time is a mere conclusion of the pleader. (4) It is not shown when said dam was erected, or when said water was detained in said dam, or whether the same has been detained and dammed within the last 12 months or not. (5) The allegation that the plaintiff has been made uncomfortable in his home is a mere conclusion of the pleader, without setting up any facts to show why he was made uncomfortable and in what manner he was made uncomfortable in his home by virtue of the act of defendant as set forth in said complaint. (6) It is not shown in what manner the act of defendant caused the plaintiff to lose profit from his gin, sawmill gristmill, and farm. (7) The loss of profit claimed from the gin, sawmill, gristmill, and farm is not the proper measure of damages under the wrong set forth in the complaint. (8) The allegation that the plaintiff was damaged by the act of the defendant is a mere conclusion of the pleader, and no facts are set forth in such complaint to justify such conclusion." These demurrers were overruled, and after the evidence had been introduced the plaintiff was permitted to insert, just after the words "defendant had erected," and just before the words "a dam across said creek," where they first occur in said complaint the following words in interlineation: "Or caused to be erected or maintained, or caused to mitted to strike from his complaint the words be maintained." Plaintiff was also per-"and occupied as a homestead."

The oral charge of the court objected to was in the following language: "If the injuries complained of were the proximate result of damming up and obstructing the flow of the water in the creek, then did the defendant have notice of or have cause to know that the injuries complained of were being committed? If defendant was in possession of the dam and water, such possession and control would put it on notice of a proximate result of such damming or obstruction or diversion of the water, if there were any. During the time the injuries are alleged to have been committed did the defendant maintain or cause to be maintained the dam complained of, and did the maintaining or causing to be maintained of the said dam work any injury to the plaintiff as complained of in his complaint? If it did, it...