Alabama Great Southern R. Co. v. McEniry

GARDNER, J. The only ruling of the court here insisted upon as error by counsel for appellant (defendant) is the action of the court in overruling the demurrer to plea 3. The complaint does not charge any negligence in the construction of said culverts, nor, indeed, does' it charge negligence at all. And from all that appears in said complaint the construction of said culverts was a,' proper exercise of a lawful right. It is charged that the culverts were, as subsequently maintained, insufficient or too small to carry off the water. Plea 3 merely sets up the construction of the culverts more than ten years prior to the injury complained of, and that they have been continuously maintained in the same condition, and further that water has overflowed to the same extent* at intervals during said time, of which plaintiff made no complaint. The plea does not allege that any injury was suffered by the plaintiff from the occasional overflow. In the situation thus presented by the pleadings the plaintiff’s cause of action arose when the injury occurred, and the statute of limitations then commenced to run. The plea attempted to set up a prescriptive right in bar of the action acquired by adverse user of ten years.. The action of the court in sustaining the demurrer to said plea is fully supported by the case of Sloss-Sheffield Steel & Iron Co. v. Dorman, Adm’r, 159 Ala. 321, 49 South. 242, as well also as the reasoning in the case of Polly v. McCall, 37 Ala. 20,b cited therein. See, also, in this connection, Savannah, A. & M. R. R. v. Buford, 106 Ala. 303, 17 South. 395; West Pratt Coal Co. v. Dorman, 161 Ala. 389, 49 South. 849, 23 L. R. A. (N. S.) 805, 135 Am. St. Rep. 127, 18 Ann. Cas. 750; Kelley v. Shropshire, 75 South. 291; 1 Stouts Mountain Co. v. Ballard, 195 Ala. 283, 70 South. 172. The judgment will be affirmed. Affirmed. ANDERSON, C.' J., and McCBELLAN and SAYRE, JJ., concur. Footnotes [1] 199 Ala. 602.