Appeal
from City Court of Gadsden; John H. Disque, Judge.
Action
by W. P. Shanan against A. Brown and others for damages for
changing the flow of waters. From a judgment for defendants
plaintiff appeals. Affirmed.
The
complaint was as follows:
"(1)
Plaintiff claims of defendant the sum of $2,500 damages for
that on and prior to the grievances hereto complained of
plaintiff was the owner of certain property in the city of
Attalla, Etowah county, Ala., in lots 3 and 4, in block 9
according to the original plat of said city, on which said
property plaintiff had two residence houses, and plaintiff
avers that the natural drainage and flow of water from said
property in times of rainfall was over and along a lot
adjoining the south and southwest sides of plaintiff's
property, that the defendants built a wall several feet
high on said lot adjoining plaintiff's property, which
prevents the natural flow of water in times of rainfall
from plaintiff's property. And plaintiff avers that
said wall at various times during the summer of 1908, and
the fall and winter following of 1908, and up to this time
during the year, prevented the water in times of rainfall
during said seasons from flowing from plaintiff's
property, and caused it to accumulate, overflow, and stand
on said property, and in consequence of which the house and
tenements on said property have been greatly damaged, and
the value of said property greatly diminished, and said
houses rendered unfit for use as residences.
"(2)
Plaintiff, by leave of the court, here adopts as part of this
count all of count 1, from the beginning thereof down to and
including the words, 'which prevented the natural flow of
water in times of rainfall from plaintiff's
property.' And plaintiff avers that during the months of
April, May, June, and July, 1908, there were constant
rainfalls, and that, by reason of said wall, the waters were
prevented from flowing from plaintiff's property, and in
consequence thereof accumulated and overflowed most of
plaintiff's property, thereby injuring the residences
thereof, and rendering them uninhabitable and greatly
damaging the value of said property.
"(3)
Plaintiff by leave of the court here adopts as a part of this
count all of count 1 from the beginning thereof down to and
including the words 'which prevented the natural flow of
waters in times of rainfall from plaintiff's
property.' And plaintiff avers that during the months of
December, 1908, January, February, and March, 1909, there
were constant rainfalls, and that, by reason of said wall
the waters were prevented from flowing from plaintiff's
property, and in consequence thereof they accumulated upon
and overflowed most of plaintiff's property, thereby
injuring the residences thereon, and rendering them
uninhabitable, and causing the plaintiff to lose the rents
thereof, and greatly damaging the value of said property.
Wherefore plaintiff says he has been damaged as shown by the
several counts of this complaint; hence this suit."
Count 3
was amended by adding the following count: "That at the
time of the commission of the wrongs complained of there was
no artificial means provided by law for the drainage of his
said lot; that the waters falling upon said lot or flowing
over and across the same passed off of his said lot on and
upon the said lands inclosed by said wall, and through a
well-defined channel over and across his said lands and onto
the said lands inclosed by said wall; that there was no means
of artificial drainage provided by law, or by defendants, for
the drainage of plaintiff's said lot after the
construction of said lake; and plaintiff avers that it was
necessary after the construction of said lake that his said
lot be artificially drained, and no adequate provision
therefor was made by defendants."
"Count
4. Plaintiff by leave of the court here adopts as a part of
this count all of count 1 from the beginning thereof down to
and including the words, 'which prevented the natural
flow of water in times of rainfall from plaintiff's
property.' And plaintiff avers that the rainfall upon
this said lot and upon the adjacent lots and which
accumulated upon the streets and avenues of Attalla, and
flowed upon plaintiff's lot, flowed upon defendants'
property or reached defendant's property, and entered
thereon by percolation through the soil, and accumulated on
defendants' said property and against said wall thereon
either on the surface or by percolations through the soil
upon or under the surface of plaintiff's said lot, and
caused it to be wet and soggy, and rendered it of much less
value, and rendered plaintiff's residence and tenements
thereon of much less value, to plaintiff's said damage.
"Count
5. Comes the plaintiff, and by leave of the court first had
and obtained amends his complaint in said cause as follows:
He adopts as part of this count all of count 1 from the
beginning thereof down to and including the words, 'had
two residences thereon.' And plaintiff avers that his
said lot was several feet more elevated than lots 1, 8, 7,
and 2 of said block 9, and that there was situated upon 1, 8,
7, and 2 of said block 9, several springs of water, all of
said lots, together with said lot lying at or near the base
of elevated lands from which said springs had this source,
that defendants constructed a lake, covering the greater
parts of said lots 1, 8, 7, and 2, surrounded by a cement
wall two feet or more higher than plaintiff's lot, and
raised the surface of said lake to near the top of said wall
and higher than plaintiff's property; that, in and by the
construction of said lake, the streams originally supplying
and flowing out through said springs located on said lands
now covered by said lake, or waters from said lake, were
caused to break out on plaintiff's property, rendering
his lots wet, soggy, and marshy, and the houses thereon unfit
for habitation, all to plaintiff's great damage as herein
claimed.
"Count
6. Plaintiff adopts all that part of count 1 from the
beginning thereof down to and including the words, 'which
prevented the natural flow of water in times of rainfall from
plaintiff's property.' And plaintiff avers that
defendants in the year 1907 or 1908 constructed an artificial
lake in said city of Attalla of some 1 1/2 acres in area on
lands adjoining plaintiff's said lot, said lake
comprising lands surveyed and platted some 30 years ago as
city property and the greater part of four several lots,
viz., 1, 8, 7, and 2 of said city, each as platted being 100
feet by 192 1/2 feet; that in constructing said lake
defendants erected a cement wall of some 10 to 12 feet in
height around the property, and parts of said lots, inclosed
in said lake; that prior to the construction of said lake
there were several springs on the lands inclosed in said
walls; that the head of said springs where they flowed out
from the ground was several feet lower than plaintiff's
lot; that the head of said springs in making said lake, and
in supplying water for said lake, was raised several feet;
that the water originally supplying said springs and flowing
out therefrom reached them by subterranean streams or seepage
from the higher grounds around, and flowed off from said
springs without interference with plaintiff's said lot.
And plaintiff avers that, in constructing said lake and in
raising the water therein as herein averred, the subterranean
waters or streams which originally found an outlet through
springs on the property inclosed in said lake, or waters from
said lake, were caused to break out in springs or seep on and
into plaintiff's said lot, rendering said lot constantly
wet, soggy, and marshy, and the said houses thereon unfit for
habitation, all to plaintiff's great damage as herein
averred."
The
demurrers to counts 1, 2, and 3 as originally filed were that
they contained...
