Perry v. McCraw

• Decision Date: 16 March 1933
• Docket Number: 7 Div. 169.
• Parties: PERRY v. McCRAW et al.
• Court: Alabama Supreme Court

147 So. 178

226 Ala. 400

PERRY v. McCRAW et al.

7 Div. 169.

Supreme Court of Alabama

March 16, 1933

Rehearing Denied April 13, 1933.

Appeal from Circuit Court, Calhoun County; R. B. Carr, Judge.

Action for damages to land by overflow of surface water by Lucile Perry against Frank M. McCraw, the City of Anniston, and the Highland Cemetery, Inc. From a judgment for defendants plaintiff appeals.

Reversed and remanded.

Young &amp Longshore and Rutherford Lapsley, all of Anniston, for appellant.

Bibb &amp Woolf, of Anniston, for appellees McCraw and Highland Cemetery.

ANDERSON Chief Justice.

The plaintiff is the owner of a certain lot in the city of Anniston which was lower and subservient to a lot or subdivision of McCraw, and the proof tends to show that the property of McCraw was not only higher than the lot of the plaintiff, but contained a hill or ridge which in its natural condition divided the flow of the surface water, that on one side going towards and over the plaintiff's lot and on the other side going in another direction. The McCraw lot was cleared of trees and stumpage and graded for cemetery purposes, and the ridge or hill was cut down and changed so as to divert surface water that went in another direction towards the plaintiff's lot, thus increasing the natural flow over her said lot. It also appears that in the development of the McCraw property certain roadways were made and paved which operated as drains of some surface water which would not have previously gone over plaintiff's property. We think the facts as disclosed, and which the plaintiff attempted to prove, established a question for the jury as to whether or not the natural flow of surface water over plaintiff's land had been increased to her damage, and the extent of same, and that this case falls within the influence of the cases of Central of Georgia Railway Co. v. Windham, 126 Ala. 552, 28 So. 392; Southern Railway Co. v. Lewis, 165 Ala. 555, 51 So. 746, 138 Am. St. Rep. 77; Atlantic Coast Line Railroad Co. v. Woolfolk, 178 Ala. 190, 59 So. 633; Tennessee Coal, Iron & R. Co. v. Perolio, 206 Ala. 403, 90 So. 876, 877. All of these cases involved lots in a city or town, and, in the last case cited, the opinion, in speaking of the Lewis Case, said: "The Lewis Case, supra, was well decided. The railway company had, according to the complaint, so changed its property as to precipitate on Lewis' property water that otherwise would not have flowed on Lewis' property. This act was a positive wrong, regardless of whether the land was urban property or not, and for the damnifying consequences of this act the company was properly held liable."

The cases of Hall v. Rising, 141 Ala. 431, 37 So. 586 and Shanan v. Brown, 179 Ala. 425, 60 So. 891, 43 L. R. A. (N. S.) 792, did not involve, as here, the changing of the defendant's property so as to precipitate water on the lower owner which would not have gone there otherwise. They simply hold that the owners of the lower or subservient lots had the right to protect themselves against the flow of water over their lots. True, the case of Phillips v. Waterhouse, 69 Iowa, 199, 28 N.W. 539, 58 Am. Rep. 220, is...