Sloss-Sheffield Steel & Iron Co. v. Mitchell

• Decision Date: 30 June 1909
• Citation: 167 Ala. 226,52 So. 69
• Parties: SLOSS-SHEFFIELD STEEL & IRON CO. v. MITCHELL.
• Court: Alabama Supreme Court

52 So. 69

167 Ala. 226

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

Supreme Court of Alabama

June 30, 1909

In Response to Application for Rehearing Feb. 26, 1910.

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 flooding land. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

See also, 49 So. 851.

The complaint was as follows:

Count 1: "Plaintiff claims of the defendant the sum of $10,000 damages in this: That on and prior to the 23d day of August 1907, plaintiff was the owner and in possession of the following described real estate in Jefferson county, Alabama to wit: [Here follows a description by blocks and lots.] That all of said property is adjoining and contiguous, and constitutes one tract or body of land. That on and prior to said date the defendant's servants or agents, acting within the line and scope of their authority, caused to be filled or partially filled or obstructed the channel of a branch or stream which ran near said property, which said branch or stream was a tributary of Village creek, and which empties into Village creek at a point between Third and Fourth streets in the town of North Birmingham, and because thereof said streams were made to overflow said plaintiff's real estate above described. That water was made to flow over and stand upon said above-described real estate, which but for the conduct of the defendant's servants or agents as aforesaid would not have flowed upon or stood on said property. That water was made to flow upon or stand on said property by reason of the conduct of the defendant's servants or agents as aforesaid at various and divers times, and that because thereof plaintiff's property became inaccessible, large quantities of mud, slime filth, and débris were cast upon said land from time to time, greatly injuring and damaging same. That said property was suitable for residences, and that the same had been laid off in lots with a view to building residences thereon, or of selling the same. That a great many residences had been built thereon, which were occupied by plaintiff's tenants, for which he received large sums of money as rent. That by reason of the overflow and the standing of said water on said premises as aforesaid said property became undesirable and unhealthful. That it was made less valuable, and the market value was greatly decreased. The rent thereon was greatly impaired or reduced. The occupancy of his houses by tenants was prevented. That he was unable, because thereof, to obtain persons or tenants to occupy said premises, or to sell the same, or that the value of the rentals was greatly reduced. That the houses on said premises were made undesirable for occupancy because of the flowing of said water through and under said houses, and of the standing of the water in and under said houses, caused as aforesaid. That said water caused to be deposited on and in said houses large quantities of mud, slime, and filth, and that said houses were thereby made to decay, and the foundations thereof weakened and caused to give way. The chimneys on said houses were damaged and caused to sink and careen. That on account thereof plaintiff has been unable to sell or dispose of said property to an advantage, or to rent the same, and that said premises have been rendered unhealthy, and sickness has resulted from the said overflows and standing of said water. That said property was otherwise rendered undesirable and untenantable. That the public highway on which said property abuts, namely, Stout's or Cheel's Road, which said public highway is also overflowed, and water was caused to stand upon the same, rendering travel upon the same dangerous, inconvenient, and impossible, thereby greatly damaging said property. That by the conduct of defendant's servants or agents as aforesaid large quantities of water were caused to stand for days at a time on said property. That property adjacent and adjoining said property was caused to be overflowed by the conduct of the defendant's servants or agents as aforesaid, and water was caused to stand upon the same, rendering his said property inaccessible, undesirable, and unhealthful. That the wells on said property from which his said tenant obtained water for domestic purposes were filled with said overflow, and that the said water was filthy and unclean, and that the said wells were filled up and rendered less useful and valuable, and some were destroyed by said overflow. That the drinking water in said wells was rendered unwholesome and undesirable. That the poultry and live stock of the said tenant were drowned and damaged by reason of the said overflow, and the water standing on said premises as aforesaid. That a large number of dead animals were by said overflow cast and carried through and left upon said property, and on the property adjacent thereto, causing great stench, rendering said premises unwholesome, undesirable, and unhealthful."

Count 2 is very similar to count 1, except that the averments are changed somewhat in respect to damages, although all the damages alleged in the first count are alleged in the second and third counts.

The demurrers take the point that each count joins separate causes of action in one count, in that it claims for damages done by separate and distinct overflows, and also joins causes of action for separate and distinct lots in one count.

Tillman, Grubb, Bradley & Morrow and L. C. Leadbeater, for appellant.

Frank S. White & Sons, for appellee.

MAYFIELD J.

This action is one for damages, brought by one riparian owner, the appellant, against another, the appellee, for wrongfully obstructing one or both of two streams of water, one known as "Jackson's Branch," the other as "Village Creek," the former being a tributary of the latter, and the lands flooded being near the junction of the two streams. It is alleged that in consequence of the obstructions complained of the waters of these two streams, in times of high water, were caused to flood or overflow the plaintiff's lands, to his great damage, in that slime and filth were cast thereon, impairing the healthfulness, desirability, and value of the lands for residences, the use to which they were put; that the rental value was greatly diminished thereby; that the houses thereon, 24 in number, were thereby greatly damaged, and a great number of other damages were particularly alleged. The complaint contained three counts, all of which were practically alike so far as need be considered on this appeal. Each was amended, and demurrers were overruled to each as amended. To the complaint as amended the defendant filed several pleas, the general issue, and some special pleas, unnecessary to here notice particularly. The trial resulted in a verdict and judgment for plaintiff, from which the defendant appeals.

The first error insisted upon is that the trial court erred in overruling defendant's demurrers to complaint. The particular defect insisted upon is, first, that each count joins therein several distinct causes of action; second, that each count claims damages for separate and distinct overflows. If any count does, or attempts to do, either of the two things set forth above and pointed out by the demurrers, it is bad, and the demurrer should have been sustained. Shahan's Case, 116 Ala. 302, 22 So. 509; Cofer's Case, 110 Ala. 491, 18 So. 110; Dusenberry's Case, 94 Ala. 413, 10 So. 274. We do not think any one of the counts was subject to this defect, but the allegation was rather of a continuing injury by flooding plaintiff's lands for several days, and so that the injury done on one particular day is not distinguished from that done on another day except as to amount and extent. Sloss-Sheffield Co. v. G. B. Mitchell, 49 So. 851.

The next error insisted upon is the refusal of the court to give each of the charges 3, 11, 12, 13, and 14, requested by defendant. Each of these charges was confessedly intended to raise the question, Is the defendant liable under all the circumstances of this case for damages suffered by plaintiff on account of flooding his lands,...