Profile Cotton Mills v. Calhoun Water Co.

• Decision Date: 29 November 1917
• Docket Number: 7 Div. 882
• Citation: 201 Ala. 483,78 So. 389
• Parties: PROFILE COTTON MILLS v. CALHOUN WATER CO.
• Court: Alabama Supreme Court

78 So. 389

201 Ala. 483

PROFILE COTTON MILLS v. CALHOUN WATER CO.

7 Div. 882

Supreme Court of Alabama

November 29, 1917

Rehearing Denied April 4, 1918

Appeal from Circuit Court, Calhoun County; Hugh D. Merrill, Judge.

Original bill in equity by the Profile Cotton Mills against the Calhoun Water Company. Decree for defendant dismissing the suit and complainant appeals. Affirmed.

This controversy concerns the use of certain portions of a 10-acre tract of land in the city of Jacksonville, Ala., known as the Jack Fish alley tract, the legal title to which stood in George P. Ide until it was sold by his trustee in bankruptcy to one Wellborn who subsequently conveyed the same to the Calhoun Water Company, respondent in this case. The respondent removed the pipes of the appellant from its lands and appellant obtained a temporary restraining order forbidding interference by respondent of the use of these pipes which said order was granted without notice to the appellee. Upon the hearing of the motion to dissolve the temporary restraining order, and the appellant's motion to grant an injunction pendente lite, the judge of the city court dissolved the temporary restraining order and denied the temporary injunction. From this decree the appellant prosecuted an appeal to this court. The decree of the court below was affirmed, both on the original submission and application for rehearing. Profile Cotton Mills Co. v Calhoun Water Co., 189 Ala. 181, 66 So. 50. Appellant then proceeded to bring the cause on for final hearing.

The pleadings, as originally appeared on former appeal, are fully set forth in the statement of the case reported in 189 Ala 181, 66 So. 50, supra.

Before submission of the cause for final decree, the original bill was amended by the addition of three paragraphs, viz. 24, 25, and 26. The amendment emphasizes the former allegations of the bill as to said Ide being the confidential agent and manager of the company, intrusted with full power and authority to locate, erect, and put in operation the mill and arrange for a proper water supply, that Ide without notice to the complainant installed the waterworks on and through said 10-acre lot, to which he held the legal title, and that complainant was not aware of that situation until the year 1911, except such constructive notice as it acquired by the titles to the property on record in the probate office. The complainant supposed and acted on the idea that Ide had acquired the water rights in a permanent and proper way; while, in fact, Ide, acting as its agent and also for himself in the transaction, induced the complainant to go upon said land and erect said waterworks improvements at its expense, upon the just expectation on complainant's part, raised by said Ide, that complainant would never be disturbed by Ide or his legal title, or any one claiming under him, and that Ide by his acts and conduct knowingly raised this expectation on complainant's part; that, in fact, Ide himself intended at the time that complainant should never be disturbed in the use and possession of said property; and that if he reserved any right in the future to revoke complainant's right to use said property, he kept the intention a secret in his own mind. Complainant's entry upon the land and improvements of and use of the same was upon the assumption, basis, and just expectation--all raised knowingly by Ide--that the occupation was for an indefinite period, and never to be disturbed, and, further, that the said Ide and those claiming through him are estopped in equity to claim any adverse interest against complainant's right to use said water supply in perpetuity.

The twenty-fifth paragraph reiterates the averments, by reference to them, as contained in the twenty-fourth paragraph, and avers that by virtue of his confidential relation Ide had extended to the complainant the right to retain the property at its actual cost to him, which cost the complainant is willing and offers to pay, if it is held that the complainant is not entitled thereto without such tender and offer.

In the twenty-sixth paragraph it is averred that the said Ide, owning the said 10-acre lot and being complainant's agent to secure a water supply, in the discharge of his said duties, installed the complainant in the possession and use of said property, under the understanding and agreement, between himself as owner and himself as complainant's agent, that he would convey said property to complainant at most at the cost to him, or the value at that date, and in part performance of such agreement delivered possession to complainant, and induced it to erect its waterworks thereon; that complainant had no notice that Ide had not paid himself out of its money which he controlled, and complainant avers that he did pay himself out of said money, but, if mistaken in this, offer is made to pay the same.

The prayer of the bill, as amended, is that the court decree that complainant is entitled, and has the right in perpetuity to the possession, use, and ownership of said 10-acre tract and the water privileges thereon, or, if not entitled to the fee-simple title to said property, that it be decreed that it is entitled to an easement in perpetuity to the water privileges on said property for its said mills and factory, village, etc.; that respondent and those claiming under it be perpetually enjoined from in any manner interfering with the possession and use of said property; and, further, that respondent be required to execute and deliver to the register of this court for complainant a proper deed, conveying by quitclaim all right and interest in the property and easement decreed to complainant. The prayer also contains an offer to do equity.

The respondent in answer to the amendment refiled and adopted the answer to the bill already on file, and set out in substance in the statement of the case in 189 Ala. 181, 66 So. 50. The answer further specifically answers paragraphs 24, 25, and 26, denying that said Ide was intrusted with full power and authority to locate, erect, and put in operation complainant's mills, but that he was simply one of a number of directors or officers intrusted with that duty, and that as a matter of fact the location of said mill was not determined by said Ide, but by joint action of the board of directors of the Alabama Investment Company and the board of directors of the Ide Cotton Mills. The Alabama Investment Company having donated 40 acres of land for this purpose, the said two boards met and conferred together and selected the present site. The answer further denies that said site selected was selected with reference to any use to be made of the lands belonging to Ide, but, on the contrary, there was at that time no expectation on the part of any one that any use would be made of the lands of said Ide by said cotton mill. That the two streams known as Big Spring branch and Williams branch united below the lands of said Ide, and totally independent thereof, watered the tract so donated by the said investment company; the said combined branches constituting an ample and sufficient source of supply for the boilers and other manufacturing uses of said cotton mills. That, as a matter of fact, the first mill was built and its boiler and manufacturing water taken altogether from the stream below the lands of Ide, and without making the slightest use of Ide's lands. At the time said tract of land was donated, it was the intention of the directors of the Ide Cotton Mills to erect only 20 cottages for employés, which was done. The public water company supplying the inhabitants of the city of Jacksonville was anxious to supply drinking water for these 20 operatives' houses, and such was the original intention of the directors. However, after the first mill was built, the superintendent conceived the idea of laying a pipe in the Big Spring owned by the city, and bringing said pipe over the lands of Ide on the lands of the mill, and thereby supplying cool water for drinking purposes to the houses of the operatives, at an inconsiderable expense, by means of building a brick shanty on the lands of said Ide and placing a small pump thereon. The said superintendent, Robbins, and Vice President Hawke, who were men of practical...