Parsons v. Tennessee Coal, Iron & R. Co.

• Decision Date: 12 February 1914
• Citation: 64 So. 591,186 Ala. 84
• Court: Alabama Supreme Court
• Parties: PARSONS v. TENNESSEE COAL, IRON & R. CO.

64 So. 591

186 Ala. 84

PARSONS v. TENNESSEE COAL, IRON & R. CO.

Supreme Court of Alabama

February 12, 1914

Appeal from City Court of Bessemer; J.C.B. Gwin, Judge.

Action by Pinkney R. Parsons against the Tennessee Coal, Iron &amp Railroad Company for damages to land. Judgment for defendant and plaintiff appeals. Affirmed.

The following charges were given for defendant: "(4) The court charges the jury that you cannot find any damages for the plaintiff on account of being deprived of the use of the water for domestic purposes, or for the use of the stock." "(6) Plaintiff, before he can recover anything, must reasonably satisfy you from the evidence that he has received some substantial injury, and you could not give any damages for slight inconveniences or annoyances, or the mere fact that the water was colored, or some deposits of coal or other débris were deposited, but did not substantially injure the plaintiff."

Scott &amp Aldridge, of Bessemer, for appellant.

Percy Benners & Burr, of Birmingham, for appellee.

SAYRE J.

Plaintiff (appellant) brought this action to recover damages alleged to have resulted from the pollution of a stream which flowed through defendant's property down upon and through plaintiff's freehold. The averment of count 1 is substantially that defendant, maintaining a mining camp and operating a coal washer upon its superior estate, deposited coal washings and other débris in the stream there, whence they were carried by the stream down upon plaintiff's land, rendering the water unfit for any use, filling up the bed of the stream, overflowing his land, and greatly and permanently impairing its value by deposits thereon. These averments are repeated in count 2, where the further averment is made that plaintiff's damages were caused by the negligence of defendant's agents or servants in the premises. Having in view the statutes of limitation of one and six years, which answer actions upon the case and trespass respectively, appellant contends that count 1 is a count in trespass. Whether a complaint is in trespass or case depends, not so much upon the form of allegation adopted by the pleader, as upon the facts alleged, and the conclusion which the law draws from those facts. Sheppard v Furniss, 19 Ala. 764. Both those counts show an intervening agency--that is, the flow of the stream--between the wrongful act complained of and the damnifying consequence. They both show...