Watts v. Atlanta, B. & A.R. Co.

• Decision Date: 17 December 1912
• Citation: 179 Ala. 436,60 So. 861
• Parties: WATTS v. ATLANTA, B. & A. R. CO. ET AL.
• Court: Alabama Supreme Court

60 So. 861

179 Ala. 436

WATTS v. ATLANTA, B. & A. R. CO. ET AL.

Supreme Court of Alabama

December 17, 1912

Appeal from Clay County Court; E. J. Garrison, Judge.

Action by J. H. Watts against the Atlanta, Birmingham & Atlantic Railroad Company and others for damages for the improper construction of a culvert. Judgment for defendants, and plaintiff appeals. Reversed and remanded.

The original count does not appear in the record. Count 1, as it appears in the record, is as follows: He amends count 1 as follows: "The plaintiff claims of the defendants the sum of $500 damages for that, to wit, plaintiff is, and has been for several years, the owner and in possession of the following described real estate, to wit, W. 1/2 of N.W. 1/4 of section 23, township 19, range 7, Clay county, Ala containing 80 acres, and that about the year 1905 a railroad was constructed along and through said lands, and that during the year 1908, while said railroad was owned by the Atlanta Birmingham & Atlantic Railroad Company, one of the defendants, and in their possession, and operated by it, the said defendants were engaged in improving and repairing said railroad, and building culverts under same at the place where said railroad passed through the lands of plaintiff, and that said culvert was so constructed that it raised the bed of said branch, which flowed under said culvert, and caused the water to gather and stand on the lands of plaintiff, backing far enough on plaintiff's land, which are level bottoms to overflow said bottoms, and remain thereon, and rendered said land useless for the purpose of farming, for which it was being used, and for which it had been used for several years prior thereto, and that said culvert was so constructed that it is impossible for plaintiff to ditch and drain said land; and plaintiff further avers that said culvert was constructed in the manner it was, without the permission or consent of the plaintiff, and that it made said land worthless for said farming purposes, to plaintiff's damage aforesaid."

Riddle Ellis, Riddle & Pruett, of Goodwater, for appellant.

Tillman Bradley & Morrow, of Birmingham, for appellees.

DE GRAFFENRIED, J.

The record in this case, through no fault of the counsel on either side, is in such an unsatisfactory condition that we find much difficulty in attempting to pass upon even a few of the many questions which were presented to the trial court, and which this court is asked to review. The original complaint is not in the record.

There were many pleas to which demurrers were interposed. To some of the pleas, demurrers were sustained; but none of the demurrers to any of the pleas are set out in the record, and for that reason we do not know, and cannot say, whether the demurrers were well taken or not. Of course, in this condition of the record, we presume that the demurrers pointed out the defects in the pleas. The same situation prevails with reference to the pleas to which demurrers were overruled. In the absence of the demurrers, we presume that the trial court properly overruled them.

1. The case seems to have been tried upon certain counts, which were added by amendment to the original complaint and upon certain pleas, which were filed to those counts. For the purposes of this opinion, we confine our attention to count 1 of the complaint, as amended (which the reporter will set out), and to the issues as made by the pleas filed to said count.

2. The pleas upon which the case appears to have been tried are numbered in the record as pleas 1, 2, 5, 7, 10, 18, and amended plea 6. The appellee contends that amended plea 5 1/2 was also one of the pleas upon which the case was tried and the appellant's counsel also argues the case upon that hypothesis. The record, we think, affirmatively shows that a demurrer was sustained to amended plea 5 1/2, and that therefore no issue was presented to the jury under said plea. The only plea in the record which is numbered 5 1/2 is a plea which is spoken of in the record in some places as "amended plea 5 1/2," and in other places simply as "plea 5 1/2." We copy the following from the minutes of the court: "The defendant then filed amended pleas, by leave of the court, 3, 5 1/2, 6, and 8, and new plea 19, and plaintiff refiles demurrers to amended pleas 5 1/2 and 6; and, the demurrers being duly considered by the court, it is considered that the demurrers be and are overruled as to 5 1/2 and 6, and sustained as to others. The plaintiff then filed his demurrers to pleas 5 1/2 and 6, and the defendant objects; and the defendant's objections, being considered and understood by the court, are overruled, and the pleas are filed and being considered by the court that the pleas be sustained as to 5 1/2 and overruled as to 6." The above italicised words are ours. The word "pleas," italicised by us, evidently means "demurrers." So treating the word "pleas" in the two places where we have used...