Walshe v. Dwight Mfg. Co.

• Decision Date: 25 April 1912
• Citation: 178 Ala. 310,59 So. 630
• Parties: WALSHE v. DWIGHT MFG. CO.
• Court: Alabama Supreme Court

59 So. 630

178 Ala. 310

WALSHE v. DWIGHT MFG. CO.

Supreme Court of Alabama

April 25, 1912

Rehearing Denied June 29, 1912.

Appeal from City Court of Gadsden; John H. Disque, Judge.

Bill by B. T. Walshe against the Dwight Manufacturing Company. From a decree sustaining a demurrer to the bill, complainant appeals. Reversed and remanded.

Goodhue & Blackwood, of Gadsden, for appellant.

Dortch Martin & Allen, of Gadsden, for appellee.

SAYRE J.

Prior to April, 1899, complainant in this cause, who takes this appeal, owned an undivided one-third interest in a tract of land lying immediately south of the track of the Alabama City, Gadsden & Attalla Railway. Until July, 1901, defendant owned the remaining two-thirds interest in the property. On July 1, 1901, defendant conveyed its two-thirds to one Frank Walshe, son of the complainant, who in 1903 conveyed to complainant, who, since that date, has owned the entire interest. All the while defendant has owned in severalty the tract lying to the north of the railway and complainant's tract. In 1899 defendant caused a ditch to be dug upon and through its tract north of the railway and collected into it the surface water from that tract so as to discharge the same upon the tract owned by complainant and defendant as tenants in common. At the same time defendant dug a ditch over and through the last-named tract so as to receive and carry away the water discharged upon it by the ditch from the north. The bill was filed in 1908, and as amended in 1909 it avers that the ditch over and through the north tract "was not the accustomed channel for said water, but was a new channel created by the said respondent for the water falling or originating upon the lands of respondent; that by means of said ditch the said surface water has been, and is, conducted by a new channel in unusual quantities to the said land lying south of the center of the track of said railway to the great injury of said land; * * * that at every rainfall since the month of April, 1899, the said Dwight Manufacturing Company has continuously caused said surface waters by artificial means to be collected in said ditches, so dug by it, in a mass and in undue and unnatural quantities, and precipitated in undue and unnatural quantities upon the said lands which lie south of the center of the track of the said railway," making the ditch through complainant's land wider and deeper, washing away and destroying great portions of the soil, until the value of complainant's land has been greatly impaired thereby. The prayer is for an injunction requiring defendant to cease concentrating the water in the ditch and discharging same upon the land of complainant. The bill also asks generally that complainant be compensated in damages for the injury done to his land. The chancellor sustained a demurrer to the bill, and, no amendment having been offered within the time limited by the decree, at a later date the bill was dismissed.

The prayer of the bill claims damages in a general way for the injury done to complainant's property by the alleged nuisance. Demurrer, assigning grounds to be considered hereafter, was interposed to the bill as a whole, and specifically to that part of it which claimed damages "suffered prior to one year before the bill was filed because all such claims are barred by the statute of limitations of one year." In the conclusion of its brief defendant suggests that at least the last-named ground of demurrer was properly sustained, and that a general decree sustaining a demurrer will be affirmed if any one ground was well taken. McDonald v. Pearson, 114 Ala. 630, 21 So. 534. If there be a single ground of demurrer which could be properly sustained, complainant must amend to cure the defect thus pointed out before he can successfully review an erroneous opinion the chancellor may entertain in respect to other questions raised by the demurrer. Steiner v Parker, 108 Ala. 357, 19 So. 386. Pretermitting inquiry as to the correctness of the decree if it should be referred to that ground of demurrer which set up the statute of limitations, we think the rule of the cases invoked cannot be applied in the peculiar circumstances of this case. The demurrer sought to effectuate two different purposes, viz.: To strike the bill as a whole for alleged defects; to strike a part of the prayer as asking for relief appearing in part to have been barred by the statute of limitations. The last purpose of the demurrer might have been accomplished without affecting the equity of the bill as a whole. The special prayer objected to sought a relief ordinarily administered in the law courts. It neither added to nor detracted from the equity of the bill. Such relief in equity is permitted only that the entire controversy between the parties may be settled. Complainant's claim to relief in equity could not, therefore, be made to turn or depend upon a supplemental claim for damages awardable at law. A bill, stating equities which entitle the complainant to relief and praying for proper relief, is not demurrable for the reason that a prayer for further, but unwarranted, relief is conjoined. Rosenau v. Powell, 55 So. 789, and authorities there cited. If the chancellor thought the bill properly stated a case for equitable cognizance, but that the prayer for damages needed amendment, and saw fit to express his opinion as to the last, a proper decree would nevertheless have overruled the demurrer to the bill as a whole. The decree dismissing the bill was final, of course, and it is well settled that when no appeal is taken from an interlocutory ruling on demurrer error therein may be assigned on appeal from the final decree. Nelms v. McGraw, 93 Ala. 245, 9 So. 719. We think, therefore, that those questions which go to the equity of the bill must have consideration on this appeal.

We think, further, that the inquiry into the equity of the bill is not seriously embarrassed by consideration of the fact that the parties formerly owned in common the tract alleged to have been injured by defendant's arrangements. Damages claimed will be properly limited by the statute of limitations, if pleaded, as no doubt it will be. This will eliminate all consideration of pecuniary compensation for any original injury done to complainant's land by the digging of the ditch thereon, and as well damages claimed for any further impairment of its value prior to one year before the filing of the bill. As for the injury done before that date to the interest formerly owned by the defendant, that must also be held to have been considered and merged in the price paid therefor by complainant. We cannot, however, assume, as defendant seems in its argument to assume, that the ditch dug by defendant over and through the property now owned in severalty by complainant, because it was dug by a cotenant who may be presumed to have had in mind its own interest in...