Shelby Iron Co. v. Greenlea

• Decision Date: 20 November 1913
• Citation: 184 Ala. 496,63 So. 470
• Parties: SHELBY IRON CO. v. GREENLEA.
• Court: Alabama Supreme Court

63 So. 470

184 Ala. 496

SHELBY IRON CO. v. GREENLEA.

Supreme Court of Alabama

November 20, 1913

Appeal from Circuit Court, Shelby County; Hugh D.Merrill, Judge.

Action by H.L. Greenlea against the Shelby Iron Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Knox Acker, Dixon & Sims, of Talladega, for appellant.

McQueen & Ellis, of Birmingham, and Riddle & Ellis, of Columbiana for appellee.

MAYFIELD J.

This is an action to recover damages on account of the maintaining of a nuisance, consisting of a pond, on the premises of the defendant. The pond was used for the purpose of washing iron ore, and in consequence of such use of it the earth washed out of the ore settled as a sediment or mud, known in mining parlance as a "slush pond." It was alleged that this pond became "infected and infested with numerous frogs, and plasmodium malariæae, and mosquitoes; that water and mud was made to flow and stand upon said property for the 12 months' time just preceding the filing of this suit by reason of the conduct of the defendant's agents as aforesaid, and as a consequence thereof the property of the plaintiff became undesirable, sickly, and unhealthful, and it was made less valuable; that the market value was greatly decreased; the selling and rental value of plaintiff's property was greatly impaired; that occupancy of his house was prevented; that he was caused to abandon and move away from his property, and caused plaintiff and his family to be sick with malaria fever, chills, and ague, and plaintiff was caused to expend large sums of money for medicine and medical care and attention for himself and his family; that plaintiff and his family were greatly annoyed with mosquitoes; that plaintiff has been unable to sell or dispose of said property to an advantage or to rent same; and plaintiff was caused to suffer great mental anguish and physical pain, and was himself thereby rendered for a long time unable to work and earn money, and plaintiff's minor children members of his family were for a long time rendered unable to work and earn money--all of which was proximately caused by the wrongs complained of."

This pond was about three-fourths of a mile from plaintiff's residence.

The trial resulted in a verdict and judgment in favor of the plaintiff in the sum of $72.50, from which judgment the defendant prosecutes this appeal.

The defendant moved to strike a great number of allegations from the complaint, on the ground that they were allegations as to damages not recoverable in this action. The court overruled the defendant's motion as to most of the allegations, and the ruling is made a separate assignment upon each ground of the motion.

We do not think there was any error in this ruling. The allegations complained of were proper to show the nature and character of the injury complained of, and their sole object was not, as supposed by appellant, to allege separate and distinct elements of damages.

The mental and physical pain suffered by the individual members of the plaintiff's family was not, of course, ground of recovery in this action, but might, under the decisions of this court, constitute ground for a separate action. But the allegations and proof of such facts were proper to show the damages that plaintiff's home may have suffered in consequence of the nuisance--that it was rendered less valuable as a home on account of such nuisance, or that it had to be abandoned as a home on account of the recited ills and injuries caused to the members of plaintiff's family. In other words, such allegations were proper as being descriptive of the particular injury plaintiff's home and his property suffered, though the sickness or suffering of the particular members of his family was not a recoverable element of damages. However, the loss which plaintiff suffered, in the nature of deprivation of the services of his minor children and of his wife, if properly alleged and shown; might be recovered as damages in this action. Any possible injury on account of such allegations and proof could be prevented or guarded against by special charges or instructions to the jury upon the proper elements of recoverable damages in this action.

The rule as to damages for personal inconvenience, recoverable in an action of case as for maintaining a nuisance, was well stated by the Supreme Court of Maryland. The rule as expounded by the Maryland court has been quoted by Mr Cooley, in his work on Torts, and has been practically adopted, if not literally, by this court in former cases:

" 'No principle is better settled than that, where a trade or business is carried on in such a manner as to interfere with the reasonable and comfortable enjoyment by another of his property, or which occasions material injury to the property itself, a wrong is done to the neighboring owner, for which an action will lie. And this, too, without regard to the locality where such business is carried on, and this, too, although the business may be a lawful business, and one useful to the public, and although the best and most approved appliances and methods may be used in the conduct and management of the business. *** We cannot agree with the appellant that the court ought to have directed the jury to find whether the place where this factory was located was a convenient and proper place for the carrying on of the appellant's business, and whether such a use of his property was a reasonable use, and, if they should so find, the verdict must be for the defendant. It may be convenient to the defendant, and it may be convenient to the public; but, in the eye of the law, no place can be convenient for carrying on a business which is a nuisance, and which causes substantial injury to the property of another. Nor can any use of one's own land be said to be a reasonable use which deprives an adjoining owner of the lawful use and enjoyment of his property.' In regard to the claim that the defendant's works were first in order of time, the court held that the defendant had no right to erect works which would be a nuisance to the adjoining land owned by the plaintiff, and thus measurably control the uses to which the plaintiff's land might in the future be subject, and that it could not, by the use of its own land, deprive the plaintiff of the lawful use of his property. Evidence of the large amount invested in such factories in the neighborhood was held

...