Alabama Fuel & Iron Co. v. Vaughan

SOMERVILLE, X [1,2] We think the complaint states a good cause of action, and, if it is subject to any of the grounds of demurrer assigned, the ruling on the demurrer is not available to appellant because no judgment thereon is shown by the record. A mere recital in the minute entry that the demurrer was overruled is not sufficient. Ala. Nat. Bk. v. Hunt, 125 Ala. 512, 28 South. 488. [3] The gravamen of the action is some negligent act of the defendant company, which caused large quantities of water to flow over and upon the plaintiff’s land. The undisputed evidence showed that the waters which flowed over plaintiff’s land were waters from a creek, and that their overflow was due entirely to natural causes, viz. the flooding of the creek by extraordinarily heavy rains, causing its waters to rise above its channel, and to overrun its banks upon plaintiff’s lands immediately adjoining. With that flooding, so far as appears, no act or agency of the defendant had anything whatever to do, and plaintiff’s case failed for want of evidence to- support it. It results that the trial judge erred in refusing to give for defendant the general affirmative charge as requested. We reached the same conclusion as to this count on a former appeal. Ala. Fuel & Iron Co. v. Vaughan, 203 Ala. 461, 83 South. 323. It may be that plaintiff has a cause of action against defendant for the pollution of the stream, in violation of plaintiff’s right as a lower riparian proprietor; but the complaint does not present such a case. We deem it unnecessary to pass upon other questions raised by the assignments of error. Reversed and remanded. ANDERSON, C. X, and McCLELLAN and THOMAS, JX, concur.