Roundtree v. Brantley

A. J. WALKER, C. J. The gravamen of the complaint is, that the defendant caused a sand-bank to be formed in a creek, by digging a ditch, in which the sand was washed down into the creek, and that the sand-bank thus formed clammed up the water, and caused the inundation of contiguous lands ot the plaintiff, a super-riparian proprietor. The subject of complaint is the formation of the sand-bank, and consequential overflow. The second and third pleas interpose as a defense the length of time which had elapsed since the cutting of the ditch, and that if any dam was created, it resulted from the accustomed flow of water and sand down the ditch into the creek during thaf time. The defense of these two pleas is the continued use of the ditch for the periods specified, and not the overflow of the plaintiff’s lands during those periods. It is a prescriptive right to the ditch, and not an easement to overflow the plaintiff’s land by an obstruction of the natural and accustomed flow of the stream. It is altogether consistent with the averments of the pleas, that although the ditch had been cut and used from a time sufficiently remote to precede the commencement of the period of prescription, yet the formation of the sand-bank had been gradually progressing, and did not attain such magnitude as to cause an overflow of the plaintiff’s lands until within a very recent period. Thus [552] tbe pleas place beyou cl tbe period of prescription tbe act of tbe defendant, putting in operation tbe agency which, by a gradual accumulation of its effects, ultimately produced an interference with tbe plaintiff’s rights ; but do not show any disturbance of tbe plaintiff’s right, or detriment to him, at a time beyond tbe period of prescription.. We entertain no doubt that, under tbe law as now recognized, a right to an easement upon another’s land may be acquired by adverse enjoyment for a time corresponding with that which is prescribed in the statute of limitations in reference to the right of entry upon land. Angell on Water-Courses, §§ 208, 209, 223, and note 2, containing extracts from Starkie on Evidence; McArthur v. Carrie’s Adm’r, 32 Ala.; Ricard v. Williams, 7 Wheat. Rep. 59. But the doctrine of prescription, which the defendant invokes, is founded upon the idea of long enjoyment, and continued possession adverse to the plaintiff, which challenges the plaintiff’s right, and in which the plaintiff acquiesces, or 'is presumed to acquiesce; and the right presumed is never allowed an extent beyond the adverse user. — Angell on Water-Courses, §§ 200, 210, 215, 221, 224, 379 ; Cockrell v. Brown, 33 Ala. 38. Until the obstruction had been formed in the creek, there was no interference with any right of the plaintiff; there was no enjoyment or possession of bis land, and there could be no acquiescence by him in any hostile claim to any thing which was of right his ; and to allow the long user of a ditch, to drain the defendant’s lanct, to create a presumption of a right to overflow the plaintiff’s lands, would give to the prescription an effect far beyond the user. The case of Flight v. Thomas, 10 Ad. & El. 590, is, in principle, analogous to this, and seems to decide the very point which the 2d and 3d pleas present. The plaintiff' and defendant were occupants of adjoining premises; and the plaintiff alleged, that the defendant on Ms premises caused noxious smells, which rendered the plaintiff’s “ uncomfortable, unhealthy, unwholesome, and unfit for [553] habitation.” The defendant pleaded the use of a mixen on his land for twenty years, which produced noxious smells, and that the smells complained of were necessarily pro-, duced by it. This plea being traversed, there was a verdict for the defendant. The plea was afterwards held bad, and the plaintiff was allowed to take judgment non obstanleveredicto. The decision was placed upon the ground, that the plea did not allege a right to make the smell on the plaintiff’s premises; that there could be no claim of an easement, unless it was made to appear that the offensive smells had been used for twenty years to go over to the plaintiff’s land; and that the plea might be proved, without establishing the right to produce smells upon the plaintiff’s land. Now here is a case, where the nuisance was alleged to have been a production of that which was possessed and used for more than twenty ’years ; and yet the plea was held faulty, in not showing that the interference with the plaintiff’s right had existed during the period of prescription. It seems to cover the precise question now in hand. — Sedgwick on the Measure of Damages, 107. There is a class of cases, in which parties ar.e allowed to institute suit before any actual injury is done; but it is only when some right of the plaintiff has been infringed. For instance, suit may be brought for the obstruction or diversion of water-courses, in Infringement of the rights of the plaintiff, even before any actual damage is done; and two reasons are given for the doctrine — that wherever there is a wrong, there must be a remedy, and the plaintiff must at least be entitled to nominal damages; and that otherwise the adverse enjoyment might ripen into a title by lapse of time before there was any actual damage. Angell on Lim. § 300; Whipple v. Cumberland Manf. Co., 2 Story, 664; Bolivar Man. Co. v. Neponset Man. Co., 16 Pick. 241. This does not fall within the class above mentioned. mfcS^&gging of the ditch did not, of itself/interfere with any right of the plaintiff, and gave rise to no cause of action in his favor. It did not at first obstruct the natural and accustomed flow of the stream. There [554] was no infringement of any right of the plaintiff, until the ditch had caused' the formation of an obstruction; and consequently the computation of the period of prescription could not commence until that occurred. Our investigations have not enabled us to find any ground, upon which the sufficiency of the second and third pleas can be sustained; and we must, therefore, decide that the court erred in overruling the demurrer to them. [2.] The fifth plea simply relies upon the statute of limitations of one year. — Code, § 2481. The plaintiff’s cause of action is clearly in trespass on the case. It is a consequential injury done to the plaintiff’s right to have a stream, of which he was a riparian proprietor, flow in its natural and accustomed manner, whereby damage was' done to his land and crops. It falls within subdivision 6 of section 2481 of the Code, which includes “civil actions for any injury to the person or rights of another, notarising from contract, and not (therein) specifically enumerated.” In the article of which that section is a part, there is no other provision, which can include this cause of action. We have been referred to the first subdivision of section 2477, which makes sis years the period of limitation to “ actions for a trespass to real or personal property.” It is argued that trespass is a comprehensive term, which includes trespass on the case ; and that this cause of action, is a trespass on the caseto real or personal property, which is embraced in the section under the term “trespass.” It is true that trespass, in one sense, means an injury or wrong; and, in that sense, it would include every cause of action, at least in tort. But trespass has, in the law, a well ascertained and fixed meaning. It refers to injuries which are immediate, and not consequential. It is clear that the word is used in that sense in section 2477. It would be a perversion of language to denominate an act, which produced a consequential injury to real or personal property, a trespass. It would be a perversion alike of the legal aud common acceptation of the words. Besides, we are not sure that, the construction sought to be placed upon sec [555] tion 2477 would leave any field for the operation of the 6th subdivision of section 2481. The judgment of the court below is reversed, the non-suit set aside, and the cause remanded.