Prouty v. Alabama Great Southern R. Co.

• Decision Date: 19 December 1911
• Citation: 174 Ala. 404,56 So. 980
• Parties: PROUTY v. ALABAMA GREAT SOUTHERN R. CO. ET AL.
• Court: Alabama Supreme Court

56 So. 980

174 Ala. 404

PROUTY v. ALABAMA GREAT SOUTHERN R. CO. ET AL.

Supreme Court of Alabama

December 19, 1911

Appeal from Chancery Court, Etowah County; W. W. Whiteside Chancellor.

Action by Fannie A. Prouty against the Alabama Great Southern Railroad Company and others. From a judgment for defendants plaintiff appeals. Affirmed.

Sam Will John, for appellant.

Goodhue & Blackwood, for appellees.

SOMERVILLE J.

Appellant filed her bill for injunctive relief against an alleged nuisance created by respondents as a result of the manner in which certain railroad embankments were constructed and maintained by them, and for compensation for the damage suffered. The nuisance complained of consisted in the periodic overflow of complainant's lands by the waters of a creek, by which valuable springs were choked up, fouled and rendered unfit for use. This is the second appeal to this court; the first being reported in A. G. S. R. R. Co. et al. v. Prouty, 149 Ala. 71, 43 So. 352, where a summary of the facts will be found.

Only two questions are now presented for consideration, both of which relate to the amount of damages which complainant was entitled to recover.

1. The register, upon a reference for the purpose, reported that a sulphur spring on one of the overflowed tracts was practically destroyed so far as its valuable use was concerned, and fixed the resulting permanent injury to the land at $1,500. The complainant excepted to this finding, insisting that the actual damage, as shown by the evidence, was not less than $6,000. Numerous witnesses were examined, and a large mass of testimony taken, before the register upon this issue. We have considered the evidence with much care, but it would avail nothing to present a detailed review of it in this opinion. The decision of the register upon such an inquiry, material facts being in dispute and the evidence being in substantial conflict, has the force and effect of the verdict of a jury; and a decree confirming it will not be reversed unless the facts would require a trial court to grant a motion to set aside a verdict of a jury and order a new trial. Pollard v. Am. Mort. Co., 139 Ala. 183, 35 So. 767; McQueen v. Whetstone, 127 Ala. 418, 30 So. 548. Hence, however the evidence might preponderate in the present case, this finding of the register is amply supported by the evidence within the operation of the rule stated, and its confirmation by the decree of the trial court will not be disturbed on appeal.

2. The chancellor, in his final decree, limited complainant's recovery to one-fifth of the damages assessed by the register; his theory being that when complainant filed her bill she owned only an undivided one-fifth interest in the damaged property, and that the recovery should be limited accordingly, regardless of her subsequent acquisition of the entire title.

The bill as amended alleges, as to complainant's ownership of the overflowed premises, that she "has and owns all except one undivided fifth interest, which undivided interest she had contracted for, and been put in possession thereof, under said contract, and has ever since held said possession."

This sulphur springs property originally belonged to complainant's father who died intestate, leaving five children, including complainant, who inherited in equal part.

In her first deposition the complainant says: "I have no regular deeds to the (other) four-fifths interest in the sulphur spring. My brothers gave me their interest some five years ago. * * * I never had any deed at all to any of the interests except the Casey interest, which was made since the commencement of this suit." A year or two later she testified again: "At the time this bill was filed, and for some time before it, I had sole control and possession of that sulphur spring. This was under an agreement with my brothers and sisters. This was afterwards carried out by their conveying to me their interest in the sulphur spring lot, except my brother Thomas Edwards died before making his deed."

It thus appears that complainant was in exclusive possession of the spring property by the consent of her cotenants, who had verbally agreed to give her their interests...