Tennessee Coal, Iron & R. Co. v. Hamilton

• Decision Date: 28 November 1893
• Citation: 14 So. 167,100 Ala. 252
• Court: Alabama Supreme Court
• Parties: TENNESSEE COAL, IRON & R. CO. v. HAMILTON.

14 So. 167

100 Ala. 252

TENNESSEE COAL, IRON & R. CO. v. HAMILTON.

Supreme Court of Alabama

November 28, 1893

Appeal from circuit court, Bibb county; W. D. Denson, Judge.

Action on the case by Alice Hamilton against the Tennessee Coal Iron & Railroad Company, to recover damages suffered by plaintiff, as a riparian proprietor, by reason of the pollution of a stream of water, caused by the washing of iron ore therein by defendant. Plaintiff had verdict and judgment for $475, and defendant appeals. Reversed and remanded.

The complaint contained but one count. In said count the plaintiff claimed $1,250 damages, in this: That she was, and had been for many years, lawfully possessed of certain lands (describing the same,) and that through said lands a certain creek, named "Caffee's Creek," ran, and that "the defendant did, in to wit, the year 1890, and about the month of April in said year, and against the objection and earnest protest of the plaintiff, construct and put into operation on said creek, an extensive iron-ore washer, near the town of Woodstock, in said county and state, and very near to and above the lands of plaintiff, which said iron-ore washer the defendant has been constantly running and operating for a long time hitherto, to wit, since about the month of April, 1890, for the raising and washing of iron ore, using therefor the water of the said creek, thereby causing to be discharged into said creek, from its said washer, large quantities of red mud, filth, and other debris in consequence of which the water flowing in said creek has been constantly so poisoned, corrupted, and polluted that it is wholly unfit for use for the watering of cattle or other live stock, or for any other domestic purposes whatever. And plaintiff says that, in consequence of said unlawful and wrongful use of said water by the defendant in the raising and washing and cleaning its said iron ore, the water in said creek has been so poisoned and corrupted as to kill all the fish in said creek, and to cause the emission from said creek of unwholesome and noxious vapors and odors, such as to render the home of the plaintiff uncomfortable and unhealthy and to cause her family to be sick. And the plaintiff says that the mud and debris from said ore washer has been so deposited in the bed of said stream, and along the banks thereof, as to cause the said stream to fill up, and overflow her lands, and deposit said mud and other debris thereon, and thereby injure the crops grown on said lands, and diminish the value of her home and farm, and injure and diminish the value of her live stock, of all sorts, by increasing the trouble and cost of keeping and caring for the same. And the plaintiff avers that before the erection and operation of said ore washer by defendant the said stream was a beautiful clear stream, furnishing excellent, pure water, which was used by the plaintiff for watering her live stock, and for other domestic purposes; that said stream furnishes the only constantly running water on or near the plaintiff's said farm and home, and that said stream is now, in consequence of said ore washing as aforesaid, so polluted, fouled, and poisoned that no domestic animal of any kind can be induced to drink it. And plaintiff says that said use of the water of said creek by the defendant, in the wetting of dry sand and dirt, and in the washing of said iron ore, diminishes and reduces the volume of water which would otherwise run in said creek one half, at least. Wherefore, the said plaintiff says that, by the said wrongful and unlawful acts and doings of the defendant as aforesaid, she has been and is greatly wronged, injured, and prejudiced, and has thereby, up to this time, sustained great damage."

The defendant demurred to this complaint on the grounds that there is no allegation therein that the defendant was guilty of any negligence in washing its ore, or that it caused any unnecessary amount of pollution to flow through said creek; that it failed to aver any facts which showed that the defendant did not have the right to maintain and operate a washer in the careful manner, that caused no unnecessary damage to the plaintiff or any other lower riparian proprietor, and that the facts set out in the complaint do not show that the defendant was making an unreasonable use of the water of the creek; that they failed to show that the defendant could have availed itself of the natural use of its land, for mining the ore on it, without washing its ores on the land, and using the water of the creek therefor. These demurrers to the complaint were overruled, and the defendant then pleaded several pleas. By the first three pleas the defendant pleaded the general issue, and denied the allegations of the complaint. By the fourth plea the defendant set up as a defense that it was engaged in mining iron ore, and converting it into pig iron, on a large scale, and that it was the owner of the lands upon which the washer in question was erected, and that said Caffee's creek ran through the lands so owned by it; that, in washing and converting said iron ore into pig iron, there was an absolute necessity to wash the ore in the manner in which the defendant was doing at the time of the alleged contract; that the defendant, in washing said ore, used due care not to injure the land of the plaintiff, or to pollute the water of said creek, and this was absolutely necessary in order to wash said ore; that there was no other water available for washing said ore, except with the water through the creek, and that the ore on the land of the defendant would be useless unless the defendant would be permitted to wash the same in substantially the way in which it was doing it at the time of the alleged agreement; that the defendant could not, with a reasonable expenditure, prevent the deposits from being carried through plaintiff's lands; and that the waters of said creek were not polluted by the washing of said ore to any greater extent than was necessary in order to prepare the ore, in converting it into pig iron. The fifth plea was in the following language: "Defendant, for further answer to the complaint, says that the plaintiff herself was guilty of negligence which proximately contributed to her alleged injury, in this: that she failed to take due precautions to prevent the alleged grievances complained of by her in her complaint." Plaintiff demurred to the fourth plea, setting out various grounds therefor, which demurrers were overruled. To the fifth plea of the defendant, the plaintiff demurred on the following grounds: (1) That the said plea is too indefinite and uncertain in its averments; (2) that it states no facts which constitute contributory negligence on the part of the plaintiff; and (3) that it states a mere legal conclusion, without any facts to support the conclusion. These demurrers were sustained. Issue was joined on the remaining pleas.

It was shown by the evidence that the land of the plaintiff lay adjacent to the creek, and that about 30 or 40 acres were affected by the overflow of the creek in high water, and that the water, after it came out of the washer, was muddy, and was thick with the mud washed from the ore, and was thus rendered unfit for domestic uses, such as washing, cooking, and for watering stock. The sediment which flowed down the creek with the water from the washer was deposited along the banks of the creek, and filled up the bed of it to about one-half of the creek, and this sediment caused the creek to overflow more than it had previously done. There was also testimony tending to show that there was a deposit of the sediment on the land adjacent to the creek, in some places. The testimony also tended to show that fish had been driven from the creek by reason of its pollution. The creek, at the point where it ran through plaintiff's lands, was from two to three feet deep, and from four to six feet wide. The plaintiff also claimed damages by reason of having been compelled to water her stock during the time the washer was running at another place than in the creek, as was her custom. There was a great deal of testimony introduced on behalf of the plaintiff and the defendant to show how much the plaintiff had been damaged by the pollution of the stream, but, in view of the opinion of the court, it is not deemed necessary to set this testimony out in detail.

Upon the introduction of all the evidence, the court, in its oral charge, instructed the jury, among other things, as follows "That the burden of proof was on the defendant to show that it made a reasonable use of the water of Caffee's creek during the time it operated its ore washer, and that it exercised due care,-such care as a reasonably prudent man would exercise in and about his own affairs,-and was guilty of no negligence in washing its ore, and that it constructed its washer properly, and used proper precautions to prevent unnecessary injury to plaintiff's land." The defendant excepted to this portion of the oral charge, and also excepted to the following portion of said charge: "The defendant, in order to make out the defense set up by it under its special plea, must show that it made a reasonable use of the water of Caffee's creek, in the washing of its ore, during the time its washer was operated." At the request of the plaintiff the court gave the following written charge to the jury: "The burden of proof is on the defendant to show that its use of the creek was reasonable, and the reasonableness of its use must determine the defendant's rights, which must, in a great degree, depend upon the extent of the detriment of the riparian proprietors below." The defendant duly excepted to the giving of this charge, and also separately excepted to the court's refusal to give each...