Powell v. Edwards
| Decision Date | 16 March 1939 |
| Docket Number | 6 Div. 455. |
| Citation | 237 Ala. 572,187 So. 716 |
| Parties | POWELL ET AL. v. EDWARDS. |
| Court | Alabama Supreme Court |
Rehearing Denied April 13, 1939.
Appeal from Circuit Court, Jefferson County; C. B. Smith, Judge.
Action by W. T. Edwards against L. R. Powell, Jr., and Henry W Anderson, as receivers of Seaboard Air Line Railway, for damages to land. From a judgment for plaintiff, defendants appeal. Transferred from Court of Appeals under Code 1923, § 7326.
Affirmed.
Cabaniss & Johnston and Gerry Cabaniss, all of Birmingham, for appellants.
Erle Pettus, of Birmingham, for appellee.
Action for damages for injuries to lands by the diversion of surface waters.
The railroad line operated by appellants was constructed about 1903. It runs east and west. The lands lying north of the railroad slope toward the south. Appellee's lands lie south, slope off into level lands, and are subject to a natural servitude for the drainage of surface waters from the lands to the north.
The railroad, adjacent to appellee's lands, is upon a fill or embankment. Surface waters coming down from the north were until recently, intercepted by this embankment and diverted through a ditch on the north side of the railroad to a natural channel or branch. In 1935 and 1936, appellants, in the operation of the railroad, opened two culverts through this embankment. A road-crossing was also maintained by appellants. The fill or ramp of this roadway crossing the ditch on the north side of the railroad had an opening or culvert to allow a free flow of these waters down the ditch on the north side of the railroad. A smaller culvert was put in at this road-crossing. The occasion for this, as evidence for defendant tended to show, was that the surface waters pouring in from the north, increased by clearing up of lands tended to wash away the embankment, and at times break over and wash away the ballast from the railroad track, thus increasing the cost of maintenance, etc.
To relieve this situation the culverts were cut under the railroad to carry a portion of this water and the other culvert so altered as to lessen the flow down the ditch on the north side. Plaintiff's evidence is the water is thus impounded and forced through the culverts onto plaintiff's land with greater force and volume.
The cause was tried on count 5 alleging the constructions of these culverts and an unlawful diversion of surface water through them, washing away the soil near such openings, depositing debris on the lower lands and flooding them with surface water, standing in ponds, etc., to the injury of plaintiff's property.
The theory of appellants is that all this water flowed by nature down upon plaintiff's lands; that these culverts merely restored the natural flow which the railroad embankment had intercepted; that plaintiff has no cause of action for discontinuance of artificial barriers relieving his lands of their servitude.
The questions raised on this appeal relate to the refusal of the affirmative charge for defendant, or a charge limiting recovery to nominal damages. We see no conflict in the evidence to the effect that all this surface water would flow upon plaintiff's lands if the...
To continue reading
Request your trial
-
Bradley & McWhirter, Inc. v. Conklan
...the statute of limitations had run from the time of the construction of the alleged nuisance. We held to the contrary in Powell v. Edwards, 237 Ala. 572, 187 So. 716, decided in 1939. That was an action for damages for injuries to lands by the diversion of surface waters caused by the insta......
-
City of Mobile v. Jackson
...the statute of limitations had run from the time of the construction of the alleged nuisance. "We held to the contrary in Powell v. Edwards, 237 Ala. 572, 187 So. 716, decided in 1939. That was an action for damages for injuries to lands by the diversion of surface waters caused by the inst......
- Lary v. Jones, 8 Div. 905.
-
King v. Adams
...the precise question raised by King has never been litigated in this state. The decision most directly on point is Powell v. Edwards, 237 Ala. 572, 187 So. 716 (1939). There a railroad embankment had for more than thirty years diverted the drainage of surface water flowing naturally down th......