Roberts v. Vest

• Decision Date: 10 May 1900
• Parties: ROBERTS v. VEST.
• Court: Alabama Supreme Court

28 So. 412

126 Ala. 355

ROBERTS v. VEST.

Supreme Court of Alabama

May 10, 1900

Appeal from chancery court, Morgan county; William H. Simpson Chancellor.

Action by Hiram N. Vest against Joseph M. Roberts for injunction and damages for maintaining a nuisance. From a decree in favor of plaintiff, defendant appeals. Affirmed.

The bill was filed for the purpose of having abated an alleged nuisance, consisting in the maintaining by the defendant of a ditch in such a manner as to cause the waters of a creek to overflow the lands of the plaintiff to his injury. The bill averred the following facts: During the year 1897 the complainant became seised and possessed, as the lawful owner of a certain tract of land in Morgan county, which is specifically described in the complaint. Said land is well adapted for agricultural purposes, and at the time of the filing of the bill the complainant was cultivating a crop on said lands. The land described in the bill is bounded on the west by a tract of land of about 40 acres owned and in the control of the defendant. Neal's creek, a body of running water, flowed by each of the tracts of land. Said stream has a well-defined bed and boundaries, and during the winter and fall seasons is the natural outlet of a large body of water. The respondent had cut a ditch from Neal's creek at the place where said creek enters the land occupied by the respondent, which ditch ran in a southeasterly direction to the land owned and occupied by the complainant. By reason of the existence of said ditch, and by means thereof, a large quantity of the waters of Neal's creek is diverted from its natural channel in and along said ditch and upon the lands of the complainant. During the years 1897 and 1898 the lands of the complainant were overflowed, and by reason of being constantly overflowed from the waters of said creek being conducted thereon through said ditch, said lands have been irreparably injured and damaged; the soil of said land being washed away, and large gullies being washed in many places on the land, rendering it unfit for cultivation. The complainant then averred, on information and belief, that the respondent intended and was threatening to dam up the natural channel of Neal's creek, so that all the waters of the creek, instead of flowing into the natural channel, would be diverted into said ditch, and thus onto complainant's lands; that the defendant had, at the time of the filing of the bill, placed obstructions in Neal's creek for the purpose of diverting the waters therefrom onto complainant's land, which would cause irreparable injury and damage to the complainant. The prayer of the bill was that a writ of injunction be issued, restraining the defendant from obstructing the natural channel of the creek and diverting the waters onto the lands of the complainant that the defendant be required to instantly remove the obstructions placed in said creek; that the defendant be required to immediately dam up said ditch so as to prevent the waters of Neal's creek from entering therein and doing further damage to the lands of the complainant; and that on final hearing the chancellor will adjudge and decree "that respondent shall respond in damages for the injury already done to the lands of the complainant, as under the facts of this case" shall seem right. There was also a prayer for general relief. The defendant filed an answer to the bill, in which he admitted the ownership of the lands by the complainant at the time of the filing of the bill, and that he (the defendant) owned the lands adjacent thereto, and that Neal's creek flowed by each of said tracts of land and that at certain seasons of the year said creek overflowed. In his answer the defendant also admitted having cut a small ditch upon his land to within five or six steps of the creek, and then averred that said ditch was cut many years prior to the purchase of the lands by the complainant and with the consent and concurrence of the then owner of the land; that said ditch had been upon his land, in its present condition, for at least 10 years, except as it was widened by the natural wash caused by the overflow of the creek. The defendant denied in his answer that he had cut the ditch so as to connect it with the creek, and further averred that no water was diverted from the natural channel of Neal's creek by reason of said ditch, but that said ditch only carried off the water escaping from the creek in cases of overflow. The defendant denied that the lands of the complainant had been injured by water being diverted from the natural channel of the creek over the complainant's property. He further denied in his answer that he intended to dam up the natural channel of the creek so as to divert the water therefrom into the ditch and onto the complainant's land, or that he had placed obstructions in said creek. It was then averred in said answer that the ditch existed in the same condition at the time the complainant purchased the land, in full view of the complainant, and that he (the complainant) knew full well of the condition of said land, the relation it bore to the creek, and the ditch when he purchased the lands. The defendant also demurred to the bill upon the following grounds: "(1) Said bill shows upon its face a statement of...