Richards v. Daugherty

• Decision Date: 23 April 1902
• Citation: 31 So. 934,133 Ala. 569
• Parties: RICHARDS v. DAUGHERTY.
• Court: Alabama Supreme Court

31 So. 934

133 Ala. 569

RICHARDS v. DAUGHERTY.

Supreme Court of Alabama

April 23, 1902

Appeal from chancery court, Henry county; W. L. Parks, Chancellor.

Bill by Alex Daugherty against Henry Richards to have a mill dam and pond abated as a nuisance. Decree for complainant, and defendant appeals. Affirmed.

The averments of the bill and the grounds of demurrer reviewed and the ruling of the chancellor upon the demurrer, are sufficiently shown in the opinion. Respondent's answer to the bill, after setting out the facts in denial of the mill and dam constituting a nuisance, contained the following paragraphs:

"(7) Respondent avers that said mill pond was made for the purpose of operating a gristmill for the public by water power, and that the same is largely patronized by the public; that it has been in active operation for 9 or 10 years in its present capacity and condition, and on the site now occupied by the same; that, when it was in process of construction, complainant was present, and knew of its erection, and made no objections thereto; that he advised with respondent about the plans of construction and erection of the dam, and operation of the mill, and counseled, and suffered large expenditures to be made in the improvement of the said mill and dam, without protest or objection, and is now estopped to deny the right of this respondent to continue the existence and operation of said water mill, and the maintenance of the mill pond connected therewith.

"(8) That respondent's mill pond is fed exclusively by a spring or springs of natural lime water flowing from the side of the hill, about 80 yards from the dam constructed by him; that the water from the spring empties into the pond within ten feet from the boil; that the mill pond is composed of three small ponds, covering, collectively about one and one-half acres, and that the entire mill pond and stream above the pond and springs are all on this respondent's lands, and at no point either above or below the dam are any of complainant's riparian rights affected; that the banks of said pond are nearly precipitate, and that at no time does the amount of water in the pond vary more than one and one-half feet in depth; that the mill is operated every day by the consumption of the water; that a day's grinding lowers the water to the extent above set out, and that at night, when the mill is shut down, the water from the spring raises the pond to its normal height, so that the amount of the water varies with the day and night, and not with the wet and dry seasons of the year; that the pond is free from green and growing vegetation; and that the water in said pond is never so lowered that any appreciable portion of the bottom, and whatever of decayed vegetation there might have accumulated, is exposed to the sun."

The complainant filed separate exceptions to each of the paragraphs numbered 7 and 8 upon the grounds (1) that said paragraphs constituted an insufficient answer to the bill; (2) because said paragraphs did not deny the allegations which gave complainant's bill equity, neither did they set forth any facts to avoid the legal effect of the allegations of said bill. The respondent moved the court to strike the complainant's exceptions to paragraphs 7 and 8 of respondent's answer. Upon the submission of the cause on the motion of the respondent to strike plaintiff's exceptions to paragraphs 7 and 8, the court overruled said motions, and ordered that the plaintiff's said exceptions should be sustained. The other facts of the case necessary to an understanding of the decision on the present appeal are sufficiently stated in the opinion.

On the final submission of the cause on the pleadings and proof, the chancellor decreed that the complainant was entitled to the relief prayed for, and ordered accordingly. The defendant appeals, and assigns as error the several decrees rendered by the chancellor.

R. D. Crawford, for appellant.

Espy Farmer & Espy, for appellee.

TYSON J.

The bill in this cause seeks to have abated an alleged nuisance. It is shown by its averments that the respondent, by the erection of a dam for a gristmill across flowing streams formed the mill ponds sought to have removed. On the borders or shores of these ponds there is a growth of trees that produce annually a heavy foliage, consisting of leaves and moss, which, when killed by the winter's cold, fall into the ponds; also there are a large number of logs, stumps, and trees in these ponds, which are continuously undergoing a state of decomposition. During the rainy seasons the respondent, by means of the dam, collects a...