Appeal
from City Court of Birmingham; Charles A. Senn, Judge.
Action
by Auguste Roussell against the Tennessee Coal, Iron &
Railroad Company for damages to real estate, due to refuse
matter thrown into a stream from defendant's coal washer
and coal mine, and carried by the stream and deposited on
plaintiff's land. Judgment for plaintiff for $275, and
defendant appeals. Reversed and remanded.
The
action is for damages to real estate caused by a deposit on
the land of refuse and deleterious matter, thrown into a
stream from defendant's coal washer and coal mine, and
carried by the stream and deposited on plaintiff's land.
Defendant interposed the plea of not guilty and the statute
of limitations of one year. The third, fourth, and fifth
pleas are in the following language:
"(3)
For further answer to plaintiff's complaint, defendant
says that on, to wit, the 2d day of May, 1901, plaintiff
and defendant entered into an agreement of arbitration in
words and figures substantially as follows: 'State of
Alabama, Jefferson County. This agreement of submission to
arbitration, entered into this the 2d day of May, 1901, by
and between the Tennessee Coal, Iron & Railroad Company
party of the first part, and Auguste Roussell, party of the
second part, witnesseth: That whereas, the said parties
have a controversy between them relating to the amount of
damages, if any, suffered, and which will hereafter be
suffered, by the party of the second part in his ownership
of certain lands on Five Mile creek, described as follows
A half acre lot in N.E. 1/4 of S.W. 1/4 of section 22
township 16, range 4 W., in Jefferson county, Ala.--from
the present and future operation of coal washers of the
party of the first part now or hereafter to be located on
said creek or its tributaries; and whereas, the said
parties are desirous of settling said controversy by
arbitration in accordance with the statutes of Alabama
Now, therefore, it is agreed by the parties hereto and they
do hereby submit to the arbitration of Martin Henderson, R.
O. Studdins, and Ed Phillips the settlement of the amount
of damages, if any, to be paid by the party of the first
part to the party of the second part in full settlement and
compromise of all damage which has been suffered in the
past or may be suffered in the future to said
above-described land and its owners, both present and
future, both from overflow, deposit, and pollution of the
water of said creek, or its tributaries, and all other
kinds of damage which have been or may be hereafter
suffered from said coal-washing operations of the party of
the first part as now or hereafter conducted on said Five
Mile creek or any of its tributaries; and each party hereby
agrees to accept the award of said arbitrators as final
between them as to said controversy. The said party of the
first part agrees to pay to the said party of the second
part the amount so awarded to him by said arbitrators, and
the said party of the second part agrees to execute jointly
with his wife such release as the party of the first part
tenders to it with the amount so awarded, covering the
damage as herein set out. Given under our hands this 2d day
of May, 1901. For Tennessee Coal, Iron & R. R. Co.: James
F. Echols, Agent. August Russell.' And defendant states
that in and by the terms of said arbitration agreement
plaintiff and defendant agreed to arbitrate the controversy
between them relating to the amount of damage, if any,
which had been suffered and would thereafter be suffered by
plaintiff in the ownership of certain land on Five Mile
creek described in said arbitration agreement from the
present and future operation of coal washers of defendant
then or thereafter to be located on said Five Mile creek or
its tributaries. And defendant states that pursuant to and
in accordance with said arbitration agreement the
arbitrators named in said agreement pursuant to law
rendered an award substantially in words and figures as
follows: 'State of Alabama, Jefferson County. We, the
undersigned, arbitrators in said cause, hereby assess the
damages in whole in the sum of $100. Of this amount we
assess damages which have been sustained or which may be
done in the future by the Tennessee Coal, Iron & Railroad
Company in the sum of $50. Witness our hands this 2d day of
May, 1901. R. O. Studdins. Martin Henderson. E. J.
Phillips.' And defendant states that pursuant to said
award it forthwith offered to pay plaintiff the sum of $50
as named in said award, but that plaintiff refused to
receive said sum or to abide by said award. And defendant
states that it always has been and is still willing to pay
said sum of $50, together with the interest thereon from
the 2d day of May, 1901, pursuant to said award, but that
plaintiff has refused to abide by said award, and has
refused to receive the sum of $50 awarded against
defendant, and has refused to execute the release of
damages stipulated in said award after same was by
defendant prepared and tendered to him; and defendant
states the land mentioned in said arbitration agreement is
the same land for damages to which this suit is brought,
and that the cause of action sued upon was embraced in the
terms of said arbitration, and the damages herein sued for
were covered by said arbitration agreement.
"(4)
For further answer to plaintiff's complaint, defendant
says that on, to wit, the 2d day of May, 1901, plaintiff and
defendant entered into an agreement of arbitration in words
and figures substantially as follows: [Here follows the same
submission and award as is set out in plea 3.] And defendant
states that other persons or corporations besides defendant
were, at and prior to the said arbitration, engaged in
conducting coal-washing operations on Five Mile creek, or the
waters tributary thereto, above the lands of plaintiff, and
that such other persons or corporations had caused plaintiff
damages from overflow, deposit, and pollution of the water of
said creek and otherwise by their coal-washing operations,
and defendant states that the portion of said award assessing
said damages in whole at $100 referred to the entire damage
sustained by plaintiff as a result of all coal-washing
operations on Five Mile creek, including those carried on by
other persons or corporations, as well as plaintiff. And
defendant states that pursuant to said award it forthwith
offered to pay plaintiff the sum of $50 as named in said
award, but that plaintiff refused to receive said sum or to
abide by said award. And defendant states that it always has
been and is still willing to pay said sum of $50, together
with the interest thereon from the 2d day of May, 1901,
pursuant to said award, but that plaintiff has refused to
abide by said award and has refused to receive the sum of $50
awarded against defendant, and has refused to execute the
release of damages stipulated in said award, although same
was by defendant prepared and tendered to him; and defendant
states the land mentioned in said arbitration agreement is
the same land for damages to which this suit is brought, and
that the cause of action sued upon was embraced in the terms
of said arbitration, and the damages herein sued for were
covered by said arbitration agreement.
"(5)
For further answer to plaintiff's complaint, defendant
says that on, to wit, the 2d day of May, 1901, plaintiff and
defendant entered into an agreement of arbitration in words
and figures substantially as follows: [Here follows the
agreement of submission to arbitration as is set out in plea
3.] That whereas, said parties have a controversy between
them relating to the amount of damage, if any, suffered and
which will hereafter be suffered by the party of the second
part in his ownership of certain land on Five Mile creek
described as follows: A half acre lot in N.E. 1/4 of S.W. 1/4
of section 22,...
