Tutwiler Coal, Coke & Iron Co. v. Nichols

• Decision Date: 21 December 1905
• Citation: 146 Ala. 364,145 Ala. 666,39 So. 762
• Court: Alabama Supreme Court
• Parties: TUTWILER COAL, COKE & IRON CO. v. NICHOLS.

39 So. 762

145 Ala. 666, 146 Ala. 364

TUTWILER COAL, COKE & IRON CO. v. NICHOLS.

Supreme Court of Alabama

December 21, 1905

Appeal from City Court of Birmingham; C. W. Ferguson, Judge.

"Not officially reported."

Action by R. B. Nichols against the Tutwiler Coal, Coke & Iron Company. From a judgment for plaintiff, defendant appeals. Reversed.

The following charges were refused to defendant: "(1) I charge you, gentlemen of the jury, that if you believe, from the evidence, that the plaintiff's fish trap is not so constructed as to permit fish to pass through or around same you can find no damages to plaintiff on account of injury to his fishery. (2) I charge you, gentlemen of the jury, that in this case there can be no recovery by the plaintiff in this case for any damages done to him or his lands by defendant for more than one year prior to the bringing of this suit. (3) I charge you, gentlemen of the jury, that if you believe from the evidence, that prior to August, 1901, the plaintiff's lands had been as greatly injured by deposits of refuse and deleterious matter, and the waters of the river had been rendered as impure as they were at the time this suit was brought, plaintiff cannot recover. (4) I charge you gentlemen of the jury, that if you believe, from the evidence, that the injury to plaintiff's land is permanent, there can be no recovery by plaintiff, so far as his lands are concerned, for the loss of crops, but only for the permanent injury to his lands."

Benners & Benners, for appellant.

Frank S. White & Sons, for appellee.

DENSON J.

Action on the case by R. B. Nichols, plaintiff, against the Tutwiler Coal, Coke & Iron Company, defendant, to recover damages for the pollution of a stream of water and alleged injuries to realty. Plaintiff owned a tract of land in Jefferson county through which, or by the side of which, flowed the Little Warrior river. Five Mile creek and Village creek are tributaries of Little Warrior river. Plaintiff's land was located down the river, between five and seven miles distant from the mouth of Five Mile creek, and two miles distant from the mouth of Village creek. Plaintiff owned the surface of the lands alleged in the complaint as belonging to him. The minerals underneath belonged to another party. On Prude Branch, which flowed into Five Mile creek, the defendant operated a coal washer of 400 tons capacity per day. The washer was near the defendant's coal mine. The coal was carried from defendant's mine and put into the washer after being ground up, and was subjected to the action of water, which separated the coal from the impurities in it and the water and impurities flowed from the washer back into Prude Branch. The washer was constructed on the branch in 1897. There are 10 other coal washers, belonging to other companies, located on Five Mile creek and its tributaries, and 5 on Village creek. All of them were constructed in a period ranging from 1893 to 1900. The capacity of all the washers on Five Mile creek and its tributaries, including defendant's washer, was 7,500 tons daily. The complaint does not refer to any washer except the defendant's. It is averred in the complaint that Little Warrior river naturally furnished a large supply of constantly flowing, pure, and wholesome water; that much of plaintiff's land is overflowed by the river. It further shows that the defendant placed or caused to be placed in the channel of the river, or the tributaries thereof, above plaintiff's land, large quantities of waste, refuse, and poisonous matter from its mines or other industries, and that said waste, refuse, and poisonous matter was carried by the water of the river down to and deposited on plaintiff's land, rendering the land less productive, more difficult to cultivate, polluting the stream, etc.

The demurrer filed to the amended complaint was overruled. The overruling of the demurrer is assigned as error, but the appellant in its brief only insists on the seventh ground of the demurrer to the third count. Construing the count as a whole, it is obvious that the demurrer was not well made. The principles of law which underlie and control the case in its main features have been so explicitly stated and elaborately discussed in the cases of Tennessee Coal, Iron & Ry. Co. v. Hamilton, 100 Ala. 252, 14 So. 167, 46 Am. St. Rep. 48, Drake v. Lady Ensley Coal, Iron & Ry. Co., 102 Ala. 501, 14 So. 749, 24 L. R. A. 64, 48 Am. St. Rep. 77, and in the cases referred to in those cases, that we deem it unnecessary to enter again upon a discussion of them.

The case was tried on the general issue and a plea of the statute of limitations of one year filed by the defendant. The evidence was in conflict upon the question as to whether the washer of the defendant caused any damage to the plaintiff and also upon the extent of the damage. The action is case, and with respect to the statute of limitations it falls under subdivision 6 of section 2801 of the Code of 1896. Damages which accrued more than a year prior to the commencement of the suit are not recoverable. "But much latitude and discretion are allowed to juries in the separation of damages accruing within the 12 months from those suffered before that time." Hughes v. Anderson, 68 Ala. 280, 44 Am. Rep. 147; Stein v. Burden, 24 Ala. 130, 60 Am. Dec. 453; Drake v. Lady Ensley Coal, Iron & Ry. Co., 102 Ala. 501, 14 So. 749, 24 L. R. A. 64, 48 Am. St. Rep. 77; Roundtree v. Brantley, 34 Ala. 544, 73 Am. Dec. 470; Polly v. McCall, 37 Ala. 20; Central of Georgia Ry. v. Windham, 126 Ala. 552, 28 So. 392.

The action was commenced August 7, 1902, and the plaintiff could recover for only such damages as he suffered within the 12 months prior to that...