Town of York v. McAlpin

• Decision Date: 16 April 1936
• Docket Number: 2 Div. 70
• Parties: TOWN OF YORK v. McALPIN.
• Court: Alabama Supreme Court

167 So. 539

232 Ala. 158

TOWN OF YORK v. McALPIN.

2 Div. 70

Supreme Court of Alabama

April 16, 1936

Appeal from Circuit Court, Sumter County; Benj. F. Elmore, Judge.

Suit in equity by Ernest McAlpin against the town of York to abate a nuisance, consisting of pipes or culverts so constructed as to cause surface water to overflow the property of complainant. From a decree for complainant, respondent appeals.

Affirmed.

Jno. A Altman, of York, for appellant.

W.W Patton, of Livingston, for appellee.

THOMAS Justice.

The suit in equity was for an injunction to require the abatement of a nuisance, and for damages as the result of said nuisance.

The trial was by the court on testimony given ore tenus. The presumption must be indulged in favor of the findings made by the court and carried into the decree. Andrews et al. v Grey, 199 Ala. 152, 74 So. 62; Grayson v. George et al., 226 Ala. 106, 145 So. 427; Rogers v McLeskey, 225 Ala. 148, 142 So. 526.

The authorities are to the effect that a nuisance such as is here complained of may be abated in a proper case, and damages ascertained and allowed by a court of equity. 14 Ency.Pl. & Pr. p. 1116. In Bowling v. Crook, 104 Ala. 130, 137, 138, 16 So. 131, 132, the rule is thus stated:

"The law is settled in this state that courts of equity have jurisdiction to enjoin trespasses upon land, but this jurisdiction is not exercised as a matter of course when a trespass has been committed by one person upon the land of another, or such a trespass is apprehended. If it appears that the rights involved are wholly legal, it must be shown that the remedy at law is inadequate. Equity will interfere when the trespass is recurrent, continuous, and to avoid a multiplicity of suits, and the title to the land is admitted, or is clearly in the plaintiff. 1 Pom.Eq.Jur. §§ 252, 255; East & West R. Co. v. East Tennessee, V. & G.R. Co., 75 Ala. 275; Nininger v. Norwood, 72 Ala. 277 ; Boulo v. New Orleans, M. & T.R. Co., 55 Ala. 480; Sullivan v. Rabb, 86 Ala. 433, 5 So. 746; Ashurst v. McKenzie, 92 Ala. 484, 9 So. 262."

And in Cobia et al. v. Ellis, 149 Ala. 108, 111, 42 So. 751, 752, the court, in treating this subject, said:

"To protect a landowner against constant or frequently recurring injuries from the wrongful diversion of water, equity has jurisdiction concurrent with courts of law, and will enjoin the wrongdoer without regard to his ability to respond in damages, since a single action at law will not furnish an adequate remedy, and a multiplicity of suits can be avoided by proceedings in chancery. Roberts v. Vest, 126 Ala. 355, 28 So. 412; Farris v. Dudley, 78 Ala. 124, 56 Am.Rep. 24; Nininger v. Norwood, 72 Ala. 277, 47 Am.Rep. 412." The many authorities from this and other jurisdictions are collected in 32 A.L.R. 465, to the effect that there being no question of disputed title, or at least that equitable relief is not barred on that ground, injunction is a proper remedy to restrain repeated or continuing trespasses where the

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