Sloss-Sheffield Steel & Iron Co. v. Mitchell

• Decision Date: 17 April 1913
• Citation: 61 So. 934,181 Ala. 576
• Parties: SLOSS-SHEFFIELD STEEL & IRON CO. v. MITCHELL.
• Court: Alabama Supreme Court

61 So. 934

181 Ala. 576

SLOSS-SHEFFIELD STEEL & IRON CO. v. MITCHELL.

Supreme Court of Alabama

April 17, 1913

Appeal from Circuit Court, Jefferson County; A.O. Lane, Judge.

Action by G.B. Mitchell against the Sloss-Sheffield Steel & Iron Company for damages for causing the waters of a branch to overflow and damage his land and buildings during the flood season. Judgment for plaintiff in the sum of $400, from which defendant appeals. Reversed and remanded.

See also, 52 So. 69.

The complaint is in four counts, the amended first and second counts of which declare upon an overflow that occurred on September 28, 1906, and are identical in form, except that the second count claims punitive damages. The third and fourth counts declare upon overflows which occurred respectively, January 31, 1907, and May 14, 1907, and the allegations are substantially the same as those of the first and second counts, with some additional specifications of damages. These allegations, as set out in the first count will be found in full in a former report of this case in 167 Ala. 226, 52 So. 69. The trial court gave the general charge for defendant as to count 2, but refused on defendant's request in writing to give it as to counts 1, 3, and 4. The following charge was also refused to defendant: "(6) If you believe the evidence in this case, the plaintiff is not entitled to recover for any depreciation in the rental value of the property mentioned in the complaint." The various rulings on the evidence are sufficiently shown in the opinion.

Tillman Bradley & Morrow and Charles E. Rice, all of Birmingham, for appellant.

Sam Will John and T.T. Jones, both of Birmingham, for appellee.

SOMERVILLE J.

The questions of primary importance presented on this appeal relate to the measure of plaintiff's damages, including the elements of damage and the proper mode of their proof.

Plaintiff's evidence tended to show that the waters of the branch overflowed upon his premises on the three occasions specified in the complaint; that the floors of some of the tenant houses were covered by the flood waters for a period of several days; that in consequence some of the floors, walls, foundations, and chimneys were injured; that in September, 1906, the receding flood left mud and trash in some of the houses, and dead animals and fowls on the premises generally, which produced offensive odors; that many of the tenants moved out during this flood, some of them not returning, and that some of the houses, from 4 to 12 in number, remained vacant for a year or more, all, about 25 in number, having been previously occupied at a rental of $5 a month each; and that the overflows in 1907 caused water to stand under about half of the houses for a day or two and got into some of them.

Where the channel of a stream is so obstructed by a permanent dam or fill as to cause a constant overflow upon another's lands, the damages are regarded as original and must be recovered in one action. But where the dam or fill is provided with a culvert sufficient to carry off the water of the stream in its usual volume, and causes only occasionally recurrent overflows, the damage is continuing, and each overflow constitutes a separate and distinct cause of action. Harvey v. Mason City, etc., R. Co., 129 Iowa, 465, 105 N.W. 958, 3 L.R.A. (N.S.) 973, 113 Am.St.Rep. 483, collecting the authorities. In this connection it is to be observed that the distinction between these two classes of cases lies not merely in the permanence of some special injury to the freehold, but rather in the permanence of the original cause and the completeness of its injurious results once and for all. St. Louis, etc., R.R. Co. v. Biggs, 52 Ark. 240, 12 S.W. 331, 6 L.R.A. 804, 20 Am.St.Rep. 174, and notes. The distinction is clearly stated also in Harvey v. Mason City, etc., R.R. Co., supra.

In the former class of cases the measure of the plaintiff's damages would be the reasonable value of the land permanently overflowed and the diminished value of the remainder of the tract not overflowed, if any. Hall v. City of Austin, 20 Tex.Civ.App. 59, 48 S.W. 53; Rourke v. Central Mass.Elec. Co., 177 Mass. 46, 58 N.E. 470; 2 Farnham on Waters, etc., p. 1869. In the latter class of cases the rule for the measure of his damages has been variously stated, and various modes of proof have been allowed by the American courts.

Where permanent (that is, irreparable) injury is done to the freehold, it would seem that the only proper measure of damages is the difference between the value of the premises with and without such injury at the time thereof. Drake v. Lady Ensley, etc., Co., 102 Ala. 501, 14 So. 749, 24 L.R.A. 64, 48 Am.St.Rep. 77; Graves v. K.C., etc., R.R. Co., 69 Mo.App. 574, 579.

But where the injury is not permanent, and the premises may be restored to their original condition, a different rule prevails in this state. In a former action between the present parties, founded upon the same nuisance here complained of, injuries of the character here shown were held to be not permanent but reparable, and it was said: "So far as these injuries are concerned, the true measure of plaintiff's damages was the reasonable expense of restoring the premises and the loss of income pending their restoration with reasonable effort, expenditure, and expedition." Sloss-Sheffield S. & I. Co. v. Mitchell, 161 Ala. 278, 49 So. 851. On the former appeal in this case it was said: "Of course plaintiff was not entitled to recover more than his actual damages on account of loss of rents. We think the difference between the reasonable rental value of the lots and houses with and without the overflow, during the period covered by the suit, is the correct measure of such damages." Sloss-Sheffield S. & I. Co. v. Mitchell, 167 Ala. 226, 52 So. 69.

As laid in the present complaint, the damage resulting from the several overflows was: (1) Permanent injury to the premises by rendering them less desirable for residence purposes; (2) reparable injuries to the buildings by the action of the water, and to the grounds by the deposit of mud and dead animals thereon; (3) the actual loss of rents due to the compulsory abandonment of some of the houses by their tenants at the time they were flooded, and their failure to return, and plaintiff's inability to procure other tenants; and (4) general impairment and depreciation of rental value. The evidence adduced furnishes no support for the charge of permanent injury to the premises or to their rental value.

There is ample evidence to support a finding that the buildings were injured by the overflow of 1906, but it devolved upon plaintiff to furnish such data as would enable the jury to estimate the money value of that injury, to be measured by the reasonable cost of restoring the buildings to the condition in which they were when so injured. To this end it was proper and necessary to show the nature and extent of the damage done to them, and to show by competent estimate the reasonable cost of its...