Sloss-Sheffield Steel & Iron Co. v. Morgan

• Decision Date: 06 February 1913
• Citation: 181 Ala. 587,61 So. 283
• Parties: SLOSS-SHEFFIELD STEEL & IRON CO. v. MORGAN.
• Court: Alabama Supreme Court

61 So. 283

181 Ala. 587

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

Supreme Court of Alabama

February 6, 1913

Appeal from Circuit Court, Walker County; J.J. Curtis, Judge.

Action by R.M. Morgan against the Sloss-Sheffield Steel & Iron Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Bankhead & Bankhead, of Jasper, for appellant.

W.C Davis and R.A. Cooner, both of Jasper, for appellee.

SAYRE J.

Plaintiff (appellee) sued to recover damages, alleging that defendant company in the operation of its coal washer and coke ovens on Horse Creek, above his property, had made deposits of dirt mud, slate, slag, ashes, and other débris in the bed of the stream, thereby causing the stream to overflow, and deposit said débris of various kinds upon his land, greatly impairing its value for agricultural purposes, rendering the water wholly unfit for his cattle or other domestic uses, poisoning the fish, and otherwise impairing the use and value of plaintiff's premises. The theory of plea 6 is that, since the washer and coke ovens have been maintained under claim of right for more than 10 years with the same constantly recurring results, defendant had acquired the right to operate them in the manner and with the results indicated--had acquired an indefeasible easement. Public concern about the reasonable exigencies of agriculture and manufacturing enterprise must be allowed to abate somewhat of the right of riparian proprietors to have a stream flow as it has been accustomed to flow, to receive and discharge it without appreciable impairment of its original volume or purity. This court said in T.C.I. Co. v. Hamilton, 100 Ala. 261, 14 So. 167, 46 Am.St.Rep. 48, that it was difficult, if not impossible, to declare the extent of this necessary concession in any precise rule applicable to all cases. It was said, however, that a stream must not be so corrupted or polluted as practically to destroy or greatly impair its value to the lower riparian owner. The courts hold, also, to the rule that, where the pollution of a water course does not constitute a public nuisance, the right to so pollute may be acquired as against a riparian owner by prescription. Alabama Consol. Coal Co. v. Turner, 145 Ala. 639, 39 So. 603, 117 Am.St.Rep. 61. But the right which may be so secured is limited by the character and extent of that exercised on the one hand and endured on the other for the period of prescription, and for any increase causing material additional injury an action may be maintained. Mississippi Mills v. Smith, 69 Miss 299, 11 So. 26, 30 Am.St.Rep. 546, and note. It results that whatever may be said in respect of defendant's acquirement by continuous adverse user of the right to pollute the stream in question so as to distroy pla...