Ross v. Luton
| Decision Date | 20 July 1984 |
| Citation | 456 So.2d 249 |
| Parties | F.M. ROSS v. Norman S. LUTON, Sr., et al. Ex parte F.M. ROSS. 83-101, 82-1282. |
| Court | Alabama Supreme Court |
Kenneth L. Funderburk and Robert P. Lane of Phillips & Funderburk, Phenix City, for appellant and petitioner.
Sam E. Loftin, Phenix City, for appellees.
F.M. Ross petitioned this Court for a writ of mandamus directed to the Honorable George R. Green, District Judge acting as a Circuit Judge of Russell County, to review certain orders issued by that court that restrict the amount of water that can be pumped from wells operated on his property in Russell County. An appeal questioning the validity of the latest orders was also filed by Ross pursuant to Rule 4(a)(1)(A), Alabama Rules of Appellate Procedure, 1 and that appeal was consolidated with his previously filed mandamus petition.
In April of 1982, Ross purchased some property in Russell County known as the "Tillery Estate." He purchased the property with the intention of developing a well located thereon so he could sell water commercially to Smiths Water Authority. Pursuant to this goal, Mr. Ross ran a test on the well to see how much it would produce. The test involved the pumping of a considerable amount of water from the well over an 18- or 19-day period.
During the pumping test, Mr. Ross became aware of the fact that some of the wells in the surrounding neighborhood had gone dry, and he stopped the test a few days short of the scheduled test period. After the pumping was stopped, water returned to two of the wells that had gone dry during the pumping test.
A few weeks after Ross stopped his testing of the well, Norman S. Luton, Sr., Arthur A. Harris, Bernice Bailey, and Margaret Reynolds filed a complaint in the Circuit Court of Russell County seeking a permanent injunction against Ross's alleged unreasonable withdrawal of water and seeking damages incurred as a result of his previous pumping. Each plaintiff owned and occupied property near the Ross property and obtained water for domestic and household use from wells located on his or her property. Ross filed a motion to dismiss the complaint on the ground that it failed to state a claim upon which relief could be granted. The trial court overruled his motion, and Ross then filed his answer to the complaint.
While the case was being prepared for trial, Ross continued with his preparations to sell water commercially, and on December 22, 1982, he entered into a contract to provide water for Smiths Water Authority (hereinafter "Smiths"). Shortly after entering into the contract, Ross began withdrawing large quantities of water from his well, as he had done during the test period, and selling it to Smiths. The owners of wells in the surrounding area, including some of the plaintiffs, again experienced trouble with their wells going dry and losing the water flow or percolation.
Plaintiffs, with the trial court's approval, amended their complaint to ask for additional compensatory damages resulting from Ross's resumed pumping and for punitive damages. Plaintiffs also filed a request for a temporary restraining order, which the trial court granted after plaintiffs posted a bond for $5,000. This order temporarily restrained Ross from withdrawing water from his well in excess of his domestic or household needs and set a time for a hearing to determine if the injunction should become permanent. The trial judge conducted the hearing and granted a motion for permissive joinder of Jimmy H. Hardin, Wyman T. Kelly, and E.A. Spivey as parties plaintiff. The court in an order issued on February 11, 1983, found that Ross's withdrawal of large quantities of water from his well constituted a private nuisance and enjoined Ross and his agents "from removing water from his wells in any amount in excess of that amount which is actually required for [his] household or domestic use."
Ross filed a motion for new trial or, in the alternative, judgment notwithstanding the verdict and a motion to suspend the injunction pending appeal; both were denied. No appeal was taken from the order of February 11, 1983. On April 12, 1983, the parties, in an attempt to end the litigation and to allow Ross to be able to sell some water from his well, filed with the court a stipulation and agreement dated March 11, 1983. The stipulation was signed by all the parties and provided to the effect that: defendant admitted that he was maintaining a private nuisance by withdrawing an amount of water from his wells which substantially depleted the water in plaintiffs' wells; defendant would be allowed to pump a reasonable amount of water from his wells so long as he exercised due diligence to insure that the water table was not again depleted to the extent that plaintiffs' wells would be adversely affected by the loss of the flow of water therein; the permanent injunction entered by the court on February 11, 1983, would remain in full force and effect, except that plaintiffs agreed not to bring any action for contempt so long as defendant used due diligence and caution in withdrawing water from his wells so as to insure that the water table remained stable and sufficient in quantity to supply water to plaintiffs' wells; defendant would inspect the water level in an observation well in a manner provided for in the agreement and keep a written record of the measurements, which would be sworn to by the person making the measurements; plaintiffs would have the right to come onto defendant's property and inspect the observation well and make their own measurements of the water table; defendant agreed to voluntarily cease all pumping activities if the water table as determined by the method provided in the agreement dropped to 280 feet; plaintiffs would notify Ross within a reasonable time if they experienced problems getting sufficient water for their household and domestic use; Ross would pay plaintiffs' damages and attorney's fee as set out in the agreement; plaintiffs would release and discharge Ross from all damages to which they might be entitled as of the date of the agreement, but would retain the right to recover for future wrongs; and Susie Wells was added as a party plaintiff and would recover such damages as were provided for in the agreement. The court on April 12, 1983, adopted the agreement of the parties as part of its order.
After the stipulation and agreement were entered into by the parties and approved by the court, personnel of Smiths Water Authority resumed operation of the Ross well, as provided for in the agreement. A short time after the operation was resumed, Ross was notified that some of the surrounding landowners were again having problems with the water level in their wells. Ross tried to help those landowners to obtain water, but he did not stop the operation of his well.
Plaintiffs filed a petition for rule nisi against Ross to enforce the injunction granted on February 11, 1983. Ross answered the petition by alleging that: the proceeding should be transferred to another county or an outside circuit judge should be appointed to the case; the petition should be dismissed because there were no matters contained in the petition which could be the subject matter of a rule nisi proceeding; plaintiffs had failed to satisfy the terms of the agreement by failing to notify him within a reasonable time if they experienced any problems getting sufficient water for their household and domestic uses and by failing to prove the necessity and the causal relationship for the costs of deepening some of their wells; he had abided by the agreement and had the right to continue pumping as long as the water table in the observation well was not dropped below 280 feet; plaintiffs had failed to mitigate their damages; and the water system was a necessary and "mandatory" party and should be joined. Ross also counterclaimed for damages resulting from plaintiffs' failure to abide by the agreement and from an alleged conspiracy to interfere with his property right to sell water under the contract with Smiths.
Ross next filed a motion to join Smiths and the City of Phenix City as additional defendants, claiming that both were necessary parties to the proceedings. Judge Paul J. Miller, who had presided over this case from the date of its original filing, issued an order recusing himself from the case and appointing the Honorable George Green, District Court Judge for Russell County, to serve as acting circuit judge over all further matters in this case. After a hearing on the petition and motions, Judge Green issued an order on September 8, 1983, which read in part:
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