Terrell v. Alabama Water Service Co., 6 Div. 87

CourtSupreme Court of Alabama
Citation245 Ala. 68,15 So.2d 727
Docket Number6 Div. 88.,6 Div. 87
PartiesTERRELL v. ALABAMA WATER SERVICE CO. (two cases).
Decision Date21 October 1943

15 So.2d 727

245 Ala. 68

TERRELL
v.
ALABAMA WATER SERVICE CO. (two cases).

6 Div. 87, 6 Div. 88.

Supreme Court of Alabama

October 21, 1943


Rehearing Denied Dec. 16, 1943.

[245 Ala. 69] Appeal from Circuit Court, Jefferson County; J. Edgar Bowron, Judge. [15 So.2d 728]

Walter S. Smith, of Birmingham, for appellants.

London & Yancey, Geo. W. Yancey, and Fred G. Koenig, Sr., all of Birmingham, for appellee.

[245 Ala. 70] FOSTER, Justice.

Many of the questions presented on this appeal relate to the contention that a defendant is liable for damages proximately resulting from an alleged nuisance in a public road or highway, which he did not actively create but had not remedied when he owed plaintiff a duty to do so, without regard to the inquiry of whether he was negligent in its creation or maintenance, and without regard to the question of whether plaintiff was also negligent proximately contributing to his own injury.

The contention is better understood by observing that defendant has and maintains a water pipe line along the outside edge of the public road in question. It is not alleged nor contended that this is without legal authority. At the point in question the pipe had sprung a leak, resulting in water flowing across the paved roadway, as did rain and seep water. This water froze and made the road slick and dangerous for passage by automobile, at the time in question. It is claimed that as a consequence plaintiff was injured.

The case was tried on counts 1, 2, 6 and 7. Counts 1 and 2 allege that defendant negligently permitted such condition. Counts 6 and 7 allege that defendant permitted or allowed that condition to exist and thereby created and maintained a nuisance with knowledge or notice of such dangerous condition, without alleging that he negligently or intentionally did so.

The question here is not on the sufficiency of those counts of the complaint. The court overruled demurrer to them, and there was a verdict for defendant. The court in various rulings held that negligence of defendant is a necessary element in all the counts. Also that plaintiff's contributory negligence, if it occurred, would be a good defense, as in other cases when negligence is the foundation of an action.

This controversy relates more particularly to counts 6 and 7, since counts 1 and 2 are based on an allegation of negligence (City of Montgomery v. Stephens, 14 Ala.App. 274, 69 So. 970), whereas counts 6 and 7 do not use that term. The court drew no distinction between them in this respect, ruling that negligence of defendant is an element of the claim. So that the question more specifically is whether the cause of action described in counts 6 and 7 is dependent upon negligence by defendant.

If negligence is a necessary element of the cause of action, it was not erroneous thus to charge the jury, though it was not alleged. If he was not negligent in fact and the cause of action so set up is dependent upon negligence as a necessary element, plaintiff cannot complain that the court so ruled.

He insists that negligence was not an element of the cause of action set up in counts 6 or 7; nor in counts 1 and 2, though so alleged in them.

In this connection, we find the following principles well settled:

Negligence and nuisance are distinct torts. They may be different in their nature and consequences. But in either event there must be a breach of duty owing by defendant to plaintiff. Upp v. Darner, 150 Iowa 403, 130 N.W. 409, 32 L.R.A., N.S., 743, Ann.Cas. 1912D, 574.

The liability for negligence is based on a want of proper care. And as a general rule liability for nuisance does not depend upon the question of negligence, and may exist although there is no negligence. Yolande Coal & Coke Co. v. Pierce, 12 Ala.App. 431, 68 So. 563, certiorari denied 193 Ala. 687, 69 So. 1021; Beam v. Birmingham Slag Co., 243 Ala. 313, 10 So.2d 162. However a nuisance may be and frequently is the consequence of negligence, or the same acts or omissions which constitute negligence may give rise to a nuisance. 39 Am.Jur. 304-306, sec. 24. One of the most illuminating authorities on the subject is the case of McFarlane v. Niagara Falls, 247 N.Y. 340, 160 N.E. 391, 57 A.L.R. 1. We quote as follows from the opinion: "If danger there was, then also there was nuisance, though nuisance growing out of negligence. Nuisance as a concept of the law has more meanings than one. The primary meaning does not involve the element of negligence as one of its essential factors. Heeg v. Licht, 80 N.Y. 579, 36 Am.Rep. 654, 11 Mor.Min.Rep. 74. One acts sometimes at one's peril. In such circumstances, the duty to desist is absolute whenever conduct, if persisted in, brings [245 Ala. 71] damage to another. 21 Laws of England (Halsbury) p. 507, § 845. Illustrations are abundant. One who emits noxious fumes or gases day by day in the running of his factory may be liable to his neighbor though he has taken all available precautions. McCarty v. Natural Carbonic Gas Co. 189 N.Y. [15 So.2d 730] 40, 81 N.E. 549, 13 L.R.A., N.S., 465, 12 Ann.Cas. 840. He is not to do such things at all, whether he is negligent or careful. One who digs a hole in the highway will not be heard to say, if he dug it without license, that the guards placed about it were destroyed without his fault. Congreve v. Smith, 18 N.Y. 79; Wolf v. Kilpatrick, 101 N.Y. 146, 4 N.E. 188, 54 Am.Rep. 672. He was a wrongdoer in digging, and diligence in guarding does not eradicate his fault. Other situations there are, however, where what was lawful in its origin may be turned into a nuisance by negligence in maintenance. The coalhole, built under a license, may involve a liability for nuisance, if there is negligence in covering it. Village of Canandaigua v. Foster, 156 N.Y. 354, 50 N.E. 971, 41 L.R.A. 554, 66 Am.St.Rep. 575. The tumble-down...

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14 practice notes
  • Morgan v. High Penn Oil Co., No. 667
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • September 23, 1953
    ...192] 139 F.2d 38; Actiesselskabet Ingrid v. Central R. Co., 2 Cir., 216 F. 72, L.R.A.1916B, 716; Terrell v. Alabama Water Service Co., 245 Ala. 68, 15 So.2d 727; Beam v. Birmingham Slag Co., 243 Ala. 313, 10 So.2d 162; Gus Blass Dry Goods Co. v. Reinman & Wolfort, 102 Ark. 287, 143 S.W. 108......
  • Timmons v. Reed, No. 4681
    • United States
    • United States State Supreme Court of Wyoming
    • September 13, 1977
    ...negligence is no defense which is not the case where the claim is inherently based on negligence. Terrell v. Alabama Water Service Co., 245 Ala. 68, 15 So.2d 727, 730-731 The general rule applicable to the type of case now before us is stated in Restatement, Torts 2d, § 371, as follows: Pag......
  • Lucero v. Trosch, No. 95-6326
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • September 8, 1997
    ...440 (Ala.1989) (a nuisance "may consist of conduct that is intentional, unintentional, or negligent"); Terrell v. Alabama Water Serv. Co., 245 Ala. 68, 15 So.2d 727 (1943); Chambers v. Summerville United Methodist Church, Inc., 675 So.2d 1315 (Ala.Civ.App.1996). A private nuisance is one th......
  • Goodyear Tire & Rubber Co. of Ala. v. Gadsden Sand & Gravel Co., 7 Div. 846.
    • United States
    • Supreme Court of Alabama
    • October 10, 1946
    ...v. City of Bedford, 108 Mass. 261, 11 Am.Rep. 352; 38 A.L.R. 1244; 39 Am.Jur. p. 343. See also Terrell v. Alabama Water Service Co., 245 Ala. 68, 15 So.2d 727. We think it is further clear that the erection of the dam under the circumstances constituted a permanent nuisance as distinguished......
  • Request a trial to view additional results
14 cases
  • Morgan v. High Penn Oil Co., No. 667
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • September 23, 1953
    ...192] 139 F.2d 38; Actiesselskabet Ingrid v. Central R. Co., 2 Cir., 216 F. 72, L.R.A.1916B, 716; Terrell v. Alabama Water Service Co., 245 Ala. 68, 15 So.2d 727; Beam v. Birmingham Slag Co., 243 Ala. 313, 10 So.2d 162; Gus Blass Dry Goods Co. v. Reinman & Wolfort, 102 Ark. 287, 143 S.W. 108......
  • Timmons v. Reed, No. 4681
    • United States
    • United States State Supreme Court of Wyoming
    • September 13, 1977
    ...negligence is no defense which is not the case where the claim is inherently based on negligence. Terrell v. Alabama Water Service Co., 245 Ala. 68, 15 So.2d 727, 730-731 The general rule applicable to the type of case now before us is stated in Restatement, Torts 2d, § 371, as follows: Pag......
  • Lucero v. Trosch, No. 95-6326
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • September 8, 1997
    ...440 (Ala.1989) (a nuisance "may consist of conduct that is intentional, unintentional, or negligent"); Terrell v. Alabama Water Serv. Co., 245 Ala. 68, 15 So.2d 727 (1943); Chambers v. Summerville United Methodist Church, Inc., 675 So.2d 1315 (Ala.Civ.App.1996). A private nuisance is one th......
  • Goodyear Tire & Rubber Co. of Ala. v. Gadsden Sand & Gravel Co., 7 Div. 846.
    • United States
    • Supreme Court of Alabama
    • October 10, 1946
    ...v. City of Bedford, 108 Mass. 261, 11 Am.Rep. 352; 38 A.L.R. 1244; 39 Am.Jur. p. 343. See also Terrell v. Alabama Water Service Co., 245 Ala. 68, 15 So.2d 727. We think it is further clear that the erection of the dam under the circumstances constituted a permanent nuisance as distinguished......
  • Request a trial to view additional results

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