Yolande Coal & Coke Co. v. Pierce

Decision Date13 April 1915
Docket Number661
Citation12 Ala.App. 431,68 So. 563
CourtAlabama Court of Appeals
PartiesYOLANDE COAL & COKE CO. v. PIERCE.

Rehearing Denied May 11, 1915

Appeal from Circuit Court, Tuscaloosa County; Bernard Harwood Judge.

Action by R.P. Pierce against the Yolande Coal & Coke Company for pollution of a stream. From a judgment for plaintiff defendant appeals. Affirmed.

The substance of complaint sufficiently appears from the opinion as do sufficient facts for a proper understanding of same. The amendment made was as follows: By adding a claim for damages because of sickness of plaintiff and because of the sickness of his family. The following charges were refused defendant:

(A) Plaintiff is not entitled to recover in this suit any substantial damages because of injury to the water for domestic purposes. He has shown no actual damages on that account, and, if the jury should be reasonably satisfied from the evidence that defendant has polluted the water of Davis creek, they cannot award plaintiff on account of the water being rendered unfit for domestic purposes any damages beyond nominal damages; that is, one cent, one dollar, or some other nominal amount.
(B) If you believe the evidence, you cannot give plaintiff any damages on account of the loss of fish or fishing privileges.
(D) Under the evidence in this case, plaintiff is entitled to recover only nominal damages, and, if you are reasonably satisfied from the evidence that plaintiff is entitled to recover damages, then you are not authorized under the evidence to award him more than nominal damages.
(G) If the jury believe the evidence and find for plaintiff in assessing damages the jury can only award such damages as they believe from the evidence his lands which are described in the complaint suffered during the year preceding the commencement of this suit because of the mining operation of this defendant.
(J) If you believe the evidence, you cannot give plaintiff any damages for loss of use of the water for domestic purposes.
(E) Affirmative charge to find for defendant.
(H) There is no evidence in this case of the deposit on the land of plaintiff of any refuse, waste, or poisonous matter, and the jury cannot award plaintiff any special damages on that account.

Henry A. Jones, of Tuscaloosa, and J.L. Davidson, of Birmingham, for appellant.

Wright & Fite, of Tuscaloosa, for appellee.

BROWN, J.

The case was tried on the sixth and seventh counts of the complaint as amended, all other counts being withdrawn before the trial was entered upon. The sixth count imputes the maintenance of the nuisance to the operation of the defendant's coal and ore washers, while the averments of the seventh count are broad enough to embrace every act done by the defendant or its servants in its mining operations that conduced to the pollution of the waters in Davis creek. It avers:

"And plaintiff avers that the defendant, its agents servants, or employés acting within the scope of their employment for the defendant, has placed or caused to be placed in said Davis creek or the tributaries thereof above said land, large quantities of waste, refuse, débris, tailings, culm, and other deleterious or poisonous matters and substances from its mines and other industries, which have been carried by the waters of said stream," etc.

In cases of damages by nuisance, the injurious consequences resulting from the nuisance, rather than acts which produce the nuisance, constitute the cause of action, and hence the cause of action does not arise until harmful consequences occur, and negligence of the defendant is not ordinarily an essential element. Alabama Western Ry. Co. v. Wilson, 1 Ala.App. 306, 55 So. 932; Sloss-Sheffield Steel & Iron Co. v. Mitchell, 161 Ala. 278, 49 South 851; Sloss-Sheffield Steel & Iron Co. v. McCullough, 177 Ala. 448, 59 So. 210; Adler & Co. v. Pruitt, 169 Ala. 213, 53 So. 315, 32 L.R.A. (N.S.) 889; Hosmer v. Republic Steel & Iron Co., 179 Ala. 415, 60 So. 801, 43 L.R.A. (N.S.) 871; Stout's Mountain Coal & Coke Co. v. Tedder (Sup.) 66 So. 619. The facts are so stated in each of these counts that the conclusion arises as a logical sequence that the harmful consequences complained of proximately resulted from the acts of the defendant in the operation of its mines, and the maintenance and use of its washers, and the demurrers to these counts were properly overruled.

The principles above announced also justify the ruling of the trial court on the demurrers to defendant's pleas 5 and 6.

The damages claimed are permanent injury to plaintiff's land, from impairment of water supply, impoverishment of the soil, resulting in depreciated value; depreciation of rental value; impairment of the right of comfortable enjoyment; damages to crop; sickness from noxious odors and poisonous gases--all of which are within the class of recoverable damages. Hosmer v. Republic Iron & Steel Co., supra; Birmingham Waterworks Co. v. Martini, 2 Ala.App. 652, 56 South 830; North Alabama Ry. Co. v. Jones, 156 Ala. 360, 47 So. 144; Stout's Mountain Coal & Coke Co. v. Tedder, supra; Alabama Consolidated Coal Co. v. Vines, 151 Ala. 398, 44 So. 377; Atlanta & Birmingham Air Line R. Co. v. Wood, 160 Ala. 657, 49 So. 426; Adler v. Pruitt, 169 Ala. 213, 53 So. 315, 32 L.R.A. (N.S.) 889; Sloss-Sheffield Steel & Iron Co. v. Mitchell, 161 Ala. 278, 49 So. 851; Id., 167 Ala. 226, 52 So. 69; Central of Georgia Ry. Co. v. Champion, 169 Ala. 622, 53 So. 996; Town of Vernon v. Wedgeworth, 148 Ala. 493, 42 So. 749; Hughes v. Anderson, 68 Ala. 280, 44 Am.Rep. 147; Tutwiler Coal & Iron Co. v. Nicholas, 146 Ala. 364, 39 So. 762, 119 Am.St.Rep. 34; Drake v. Lady Ensley Coal & Iron Co., 102 Ala. 504, 14 So. 749, 24 L.R.A. 64, 48 Am.St.Rep. 77.

It is a matter of common knowledge that pure and wholesome water for domestic uses, and in farming operations, is a valuable asset, and its presence or absence materially affects the value of residence and farm properties, and it is the settled law in this state that such rights cannot be destroyed by a superior riparian proprietor by the pollution of the water in a stream to such extent as to render the water in the stream unfit for domestic use, and to so pollute a stream by mining operations that the waters are impure and unfit for domestic use, and from which noxious gases and disagreeable odors arise rendering property used as a residence less comfortable, gives a right of action for damages, and this is true regardless of the methods of operation, negligence in such cases not being a necessary predicate to the cause of action. Ala. Western Ry. Co. v. Wilson, supra; Sloss-Sheffield Steel & Iron Co. v. Mitchell, supra; Mayor & Aldermen of Birmingham v. Land, 137 Ala. 545, 34 So. 613; Ogletree v. McQuaggs, 67 Ala. 580, 42 Am.Rep. 112.

Fish in the streams are recognized as a valuable asset, and it is the declared policy of the state to protect them, and regulate and control their disposition after they are taken therefrom, and for this purpose the general property in all fish, not included in the exceptions contained in section 6902 of the Code, is in the state, but the owner of the land on which the stream is situated has a special property in the fish on his property, and he is vested with certain rights for their protection, and may take them from the stream for his own use in the manner provided by law, and it is made a misdemeanor to pollute streams with poison that results in the death of the fish therein, Code, §§ 6901-6905; Tutwiler Coal & Iron Co. v. Nicholas, 146 Ala. 864, 39 So. 762, 119 Am.St.Rep. 34.

It was permissible to show the condition of the water in the stream, and that fish inhabited it before the defendant began to operate, and it was also competent to show the condition of the stream and the water therein an plaintiff's property up to the time of filing the suit, and also below and above his premises. This evidence was pertinent to the main issue as to whether the stream was polluted by the acts of the defendant.

Gosdin v. Williams, 151 Ala. 592, 44 So. 611; Tutwiler Coal & Coke Co. v. Nicholas, 146 Ala. 364, Brinkmeyer v. Bethea,

139 Ala. 376, 35 So. 996.

By application of these principles the rulings of the trial court in the admission and...

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