Pritchett v. Wade, 7 Div. 134

• Decision Date: 17 June 1954
• Docket Number: 7 Div. 134
• Citation: 73 So.2d 533,261 Ala. 156
• Parties: PRITCHETT v. WADE et al.
• Court: Alabama Supreme Court

Page 533

73 So.2d 533

261 Ala. 156

PRITCHETT v. WADE et al.

7 Div. 134.

Supreme Court of Alabama.

June 17, 1954.

A. L. Crumpton, Ashland, for appellant.

Walter J. Merrill, Knox, Jones, Woolf & Merrill, Anniston, for appellees.

GOODWYN, Justice.

Appeal from final decree dismissing bill in equity.

Appellant, complainant below, seeks by his bill to enjoin appellees, respondents below, from (1) depositing on complainant's lands waste materials from an iron ore washing plant and (2) from erecting an additional 'muck pond' on complainant's lands. The bill also seeks damages for the injury already done.

In substance, the bill alleges the following: That complainant owns the NW 1/4 of Sect. 29 and the S 1/2 of SW 1/4 of Sect. 20, Tp. 17 S, R 9 E, in Cleburne County; that he owned that part of Section 20 on and prior to June 10, 1948; that he acquired the lands in Section 29 'about ten or twelve months prior to the filing [on April 25, 1951] of this his bill'; that on June 10, 1948, he joined with his brother, W. B. Pritchett, who then owned that part of the lands lying in Section 29, in executing, as parties of the first part, a contract granting to E. W. York and Republic Steel Corporation, as parties of the second part [being two of the respondents], certain rights with respect to the use of said lands, the said contract, insofar as here pertinent, providing as follows:

'* * *, we, the parties of the first part do hereby grant to the parties of the second part the right to construct and maintain roadways, pipe lines, pumping stations, ditches, telephone and/or light lines across the hereinafter described property [lands above referred to]. Also, the right to construct, maintain and operate a clear water pond upon the same described property. Also, the right to install, maintain and operate a muck pond over an area not to exceed ten (10) acres within the boundaries of the hereinafter described property [lands above referred to].

* * *

* * *

'It is known to both parties hereto that the parties of the second part have leased to others the right to construct, maintain and operate a brown ore washing plant on lands of the party of the second part adjacent to the within described lands, and it is the intention of the parties of the first part to grant the parties of the second part the full right to maintain and operate said washing plant and to cross the within described lands of the parties of the first part with the aforementioned roadways, pipe lines, telephone lines, power lines and to install and maintain pumping stations, muck pond, ditches and such other things as are necessary to freely operate said ore mines, and also to use the within described premises for the privileges in mining ore from lands of others than the parties of the second part.

'The within granted privileges to extend for such period of time is [sic] necessary to exhaust the ores from the lands of the parties of the second part, or other lands in the surrounding territory from which ores would normally be washed through a washing plant situated upon the lands of the parties of the second part, and at the end of which time the said rights herein granted shall cease and determine and shall revert to the parties of the second [sic] part.

'We, the parties of the first part, hereby certify that we are the legal and lawful owners of the privileges herein granted, and that we have a good right to sell and grant the same, except as to those reservations in the deed dated June 21, 1946, from the Anniston National Bank, as executor of the last will of William H. McKleroy and Robert B. Kyle and his wife Ruth P. Kyle, to W. B. Pritchett, which deed is recorded in the office of the Judge of Probate of Cleburne County, Alabama, at Deed Record Volume 80, pages 263-264.

'The herein rights and privileges are granted to the parties of the second part, their heirs, administrators, contractors, executors or assigns.'

The bill further alleges the following:

'6. Orator further shows that the grantees in said contract entered on the lands described therein, either in person or through their agents or servants, or through their lessee, or sub contractor, or contractor, and among other things, installed or constructed a muck pond which, when full, covered an area of approximately ten acres; that such muck pond consisted of a dam across a valley carrying running water and was used to dump the mud, slush, waste and other such materials from its ore washing machine; that the purpose of such muck pond was to hold the water containing such waste until such waste had settled and the water had become clear and then permit the discharge of such clear water and allot it to travel its normal and natural course.

'7. Orator further avers that these respondents herein named constructed maintained and operated an inefficient dam, a dam which would not and did not hold the aforesaid waste until it had settled, but that permitted such waste matter to flow into the regular and normal run of said stream, and that respondents did discharge, and continue to discharge such waste unto such muck pond knowing that the dam will not hold it and that such waste will pass out of such pond and onto lands situated below such pond.

'8. Orator further avers that a large portion of his land, including the southeast fourth of the southwest fourth of section 20, township 17, south, range 9, east, in Cleburne County, Alabama, which is not described in said above set out grant, lies below said dam aforesaid and is very valuable land; that by reason of the faulty construction, or the faulty maintenance of said muck pond dam, or for both reasons, a large amount of waste has been deposited on orator's said lands and said lands have had their value virtually destroyed thereby, and that respondents continue to permit such waste to be discharged on his said lands and to increase the damage thereto.

'9. Orator further shows that these respondents have started the construction of another muck pond on the above described lands; that they have partially built the dam, have cut and destroyed timber growing on said land, and that such pond, when completed will cover an area of about ten acres; that said respondents have no right or authority to construct such pond or build such dam; that their only authority to construct a muck pond was that given them by the contract above set forth and that such contract authorized them to construct only one such pond and did not authorize the construction of more than one such pond.

'10. Orator further shows that if such last described, or mentioned, muck pond is built the area of the combined ponds so built will exceed ten acres in area and will be illegal for that reason.

'11. Orator further shows that unless the respondents are enjoined, or restrained from so doing, they will continue to build and operate such illegal muck pond and that they will continue to deposit waste from the improperly maintained muck pond already in existence; and will continue to damage orator's property aforesaid.'

There was no demurrer to the bill. Respondents answered the bill, in substance, as follows: That they are the holders and owners of the mineral rights in the west half of Section 29, township 17, range 9, Cleburne County, which were reserved in the deed of such lands from Anniston National Bank, as executor, to W. B. Pritchett; that the deed under which they hold conveyed 'all minerals, mining rights and privileges, water, flood, overflow and pond rights, in, on and under the West Half of Section 29, Township 17, Range 9 of Cleburne County, Alabama'; that said deed originally conveying said rights was dated March 17, 1947; that two or three months after said date, respondents 'constructed an ore washing plant, a muck pond, a clear water pond, pipe lines and other installations, partially on land owned by Republic Steel Corporation and partially on the Northwest Quarter of the Northwest Quarter of Section 29, Township 17, Range 9 in Cleburne County; that after these respondents had operated for several months, W. B. Pritchett made some objection to the use of his land for the washing of ore, which was mined on other property, and complainant C. C. Pritchett made some claim that a small part of the clear water pond was on land owned by him in the Southwest Quarter of the Southwest Quarter of Section 20, Township 17, Range 9 in Cleburne County; that in order to meet these objections by the Pritchetts, forty acres of land were conveyed to W. B. Pritchett and he and complainant C. C. Pritchett then executed the agreement set out in Paragraph Four of the bill of complaint; that the muck pond referred to in said agreement of June 10, 1948, was not then in use and was not then needed; that as the muck pond which was in use at that time, became more and more filled with muck, the respondents began to consult with W. B. Pritchett about the location of the new muck...