Stouts Mountain Coal & Coke Co. v. Ballard

Citation70 So. 172,195 Ala. 283
Decision Date04 November 1915
Docket Number6 Div. 15
CourtSupreme Court of Alabama
PartiesSTOUTS MOUNTAIN COAL & COKE CO. v. BALLARD.

Appeal from Circuit Court, Cullman County; D.W. Speake, Judge.

Action by J.J. Ballard against the Stouts Mountain Coal & Coke Company. Judgment for plaintiff, and defendant appeals. Transferred from the Court of Appeals under section 6, p 449, Acts 1911. Affirmed.

In action for pollution of water course, evidence that witness' cattle drank freely at one point held properly excluded, where conditions were not shown to be identical with those at point where plaintiff's cattle refused to drink.

There were four counts in the complaint, to which defendant filed the plea of the general issue, and the special pleas 2, 3, 4 and A and B. Demurrers were sustained to pleas 3, 4, A, and B, and pleas 3 and 4 were then amended, and on motion were stricken as to the amendment, and issue was joined on pleas 1 and 2. In its complaint plaintiff alleges that for many years he has been lawfully possessed of certain real estate therein described, and with his family resides upon said land as his home, and farms said land for a livelihood, and maintains from 20 to 30 acres in pasture for the keeping of his cows and other stock; but there is a certain spring branch that flows along and through the said land described above, and that prior to the unlawful and wrongful acts of defendant hereinafter complained of said branch afforded abundant, pure water, good for stock and domestic purposes; that defendant is engaged in operating mines and mining coal from lands above and adjoining plaintiff's land, and that, in operating its said mine defendant permitted volumes of water to overflow over and upon the lands of plaintiff and into the spring branch as aforesaid, which waters were charged with filth, iron rust alum, dynamite, and powder, and in consequence it polluted and contaminated the water in said spring branch until the same is wholly unfit for use, either for stock or for general domestic purposes, and as a proximate consequence thereof the lands of plaintiff have been rendered greatly less in value, the rental value thereof has decreased, and other injuries not necessary to be here set out. The other counts follow in varying phraseology the one above set out. The demurrers were that it was uncertain whether the damages complained of are the result of one or a succession of overflows, and it is uncertain whether the complaint contains more than one cause of action. It does not appear that the act of the water flowing from defendant's land over plaintiff's land was due to any act of negligence upon the part of defendant, or that it was an unlawful use of defendant's land or the water on the land. It does not appear that defendant made unreasonable use of any streams running through its lands and plaintiff's lands in such a way as to damage plaintiff, nor does it show that plaintiff's damage or injury is due to other than the natural drainage from defendant's land, nor does it show any unlawful use of defendant's land. It does not appear that defendant used said water in the operation of its mine, nor is it shown that the said water flowing upon plaintiff's land was occasioned by any other than lawful acts upon the part of defendant; and it does not appear whether said water was caused to flow on the land of plaintiff by one act of defendant, or whether the flowing was continuous or whether there was separate and independent overflows.

The following are the pleas:

(1) General issue.
(2) Statute of limitations for one year.
(3) That defendant has acquired an easement in the use of said stream of water for the purpose for which it is alleged it is being used by this defendant in the complaint by so using the same for a period of 10 years.
(4) Defendant says that it has for a period of 13 years been maintaining and operating a mine on the headwaters of Thacker's creek; that in maintaining and operating said mine it had constructed near the mine about 110 houses for use to miners, the nearest house being within about 40 feet from the creek, and the farthest house a mile and a quarter therefrom; that for years, in the operation of said mine, fire clay had been dumped out of the mine on the hillside, over which the water from the mines flowed in the direction of the creek, and at times into the creek; that it maintained a barn and from 20 to 25 head of stock on the premises near the mine, and within some 400 yards of the creek; that the mines of defendant lay in such shape that the fire clay and dump from the mine and the water issuing therefrom naturally flows towards the creek, and that said dump could not be disposed of in any other way than by long hauls to remove same away from the territory, at great and ruinous expense to the operation of the mine; that the mine is operated in a proper and well-regulated manner, and such as is usual in well-regulated mines, and that it was necessary for the maintenance and operation of said mine to keep and maintain houses in close proximity to the mine for the use of miners and stock, and a place to house the same in order to properly operate said mine, and that such is reasonable and is the custom of well-regulated mines; that, where said mining houses are located and said barn is located, the natural drainage of the same is toward the creek.

The amendment to plea 3 was as follows, and was stricken:

(3) That it has been owning and operating the mine described in the complaint and manufacturing coal for a period of more than 10 years consecutively next prior to the filing of this suit; that during all this time it has dumped fire clay and refuse matter from its mines upon the slope of the hill and discharging water from the mine over said dump and over the fire clay into Thacker's creek, and by reason of said use has acquired an easement in said stream for the purposes therein alleged.

Amendment to plea 4 by adding thereto the following:

The mining of said coal necessitates the placing of fire clay and sediment where it may flow into said creek, which constitutes the natural and only drainage of the section and territory where the said coal and coal mine is situated; that said coal was manufactured for the use of the public; that the mines during all this time have been operated with expense and care, and the means
...

To continue reading

Request your trial
13 cases
  • Evans v. Walter Industries, Inc.
    • United States
    • U.S. District Court — Northern District of Alabama
    • September 23, 2008
    ...Class 4 Plaintiffs' nuisance claim. The right to maintain a private nuisance may be acquired by prescription. Stouts Mountain Coal & Coke Co. v. Ballard, 70 So. 172, 174 (Ala.1915). To establish a prescriptive right, "the use must not only be open, adverse, and continuous, etc., but with th......
  • Jones v. Tennessee Coal, Iron & R. Co.
    • United States
    • Alabama Supreme Court
    • November 28, 1918
    ... ... C. & I. Co. v. Vines, 151 Ala. 398, 44 ... So. 377; Yolande Coal & Coke Co. v. Pierce, 12 ... Ala.App. 431, 68 So. 563 ... It is ... v. Turner, 145 Ala. 559, 649, 39 So. 603, 117 ... Am.St.Rep. 61; Stouts Mountain Coal & Coke Co. v ... Ballard, 195 Ala. 283, 70 So. 172; ... ...
  • Koch v. Eastern Gas and Fuel Associates
    • United States
    • West Virginia Supreme Court
    • December 22, 1956
    ...which the prescription is based shall have been adverse to the person against whom the right is asserted. Stouts Mountain Coal & Coke Co. v. Ballard (1915) 195 Ala. 283, 70 So. 172; Lehigh Portland Cement Co. v. Campbell (1936) 27 Ala.App. 130, 166 So. 727; Smith v. [City of] Sedalia (1899)......
  • Folmar Mercantile Co. v. Town of Luverne
    • United States
    • Alabama Supreme Court
    • June 30, 1919
    ... ... 339, 348, 349, 9 So. 961; ... Stouts Mountain Co. v. Ballard, 195 Ala. 283, 287, ... 70 So ... ...
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT