Shahan v. Alabama Great Southern Railroad

COLEMAN, J. The plaintiff, Shahan, instituted this action to recover damages sustained in consequence of an overflow of water into his store-house in Attalla, in which he was engaged in merchandising. The overflow was caused by rainfall the 15th of February, 1893, — 189 — The cause of action contained in the abstract is not very clearly stated, but as we construe the first count, though it charges negligence of the defendant in constructing its embankments and culverts, &c., the gist of the complaint is the averred negligence of the defendant “in failing to construct and maintain sufficient openings for the passage of water which fell on that day.” We are not certain whether the second count avers two separate and independent causes of action, or that the two causes stated combined and co-operated to cause the damage. We are inclined to the latter view. These features of the complaint were not objected to by defendant, and as both counts present a sufficient cause of action, we will review the questions without further consideration of the form of the complaint. The defendant pleaded the general issue and special pleas four, five, six, eight, nine and ten. The plaintiff demurred to the special pleas, and the ruling of the court overruling the demurrer is assigned as error. The fourth, fifth and sixth pleas were intended to set up a prescriptive right, in bar of the action, acquired by adverse user of ten years. A right by adverse user does not begin to accrue, until there is an adverse user. The adverse claim of a right and its exercise uninterruptedly and without objection, for a period of ten years raises the presumption that the right was rightfully acquired, and bars redress for its rightful exercise. A plea, therefore, which merely avers that defendant constructed its embankments and culverts more than ten years prior to the injury, and has maintained them in the same condition ever since, without more is not an answer to a complaint claiming damages for an injury resulting from an overflow of water from rainfall caused by the embankments and defective culverts, which obstructed its natural flow. The plea should go farther and show that like effects resulted by reason of the embankments and culverts, to-wit, the overflow of water to the same extent had occurred at intervals during the ten years, of which the plaintiff made no complaint, but acquisced therein. The fourth plea avers “a throwing back of the water as complained of in plaintiff’s complaint.” Although not clear, it may be that this plea is sufficient. The fifth and sixth pleas are faulty, and the demurrer should have been — 190 — sustained.—Savannah, Americus & Montgomery Railway v. Buford, 106 Ala. 303 ; Nininger v. Norwood, 72 Ala. 277. The demurrer to the ninth and tenth pleas was general. We would not be understood as holding that these pleas presented a valid answer to the complaint, but our rulings are, that the statute requires that the demurrer shall distinctly state or specify in what the objection or defect consists. — Code of 1886, § 2690, and authorities. Issue being joined upon the pleas, the case was tried by the court without a jury. The appellee, contends, that this being true, the judgment of the court for the defendant being general must be affirmed, if the plea of the general issue or any good plea upon which issue was properly joined was sustained by the evidence. It is evident from the proceedings of the trial and from the opinion of the trial judge which is before us, that the case was tried upon its merits under the plea of the general issue, and without any reference to the special pleas of the defendant. Under these circumstances, if the judgment was authorized by the facts under the plea of the general issue, the judgment must be referred to this plea, and be affirmed, notwithstanding the error in overruling the demurrer to the fifth and sixth pleas.—Morion v. Bradley, 30 Ala. 681; Raney v. Raney, 80 Ala. 157 ; Foster v. Johnson, 70 Ala. 249. We will examine the evidence as it is shown in the abstract. Plaintiff’s store-house was on lot five, north from defendant’s embankment, fronting towards 3d street and between second and third avenue. The rear end of the store abutted on defendant’s right of way, some fifty feet from the embankment, and was located about four hundred feet south from defendant’s culvert. Precision as to distances is not material. The embankment was constructed not later than 1873, and the culvert not later than 1881. The natural flow of the water was from north-west to-, wards defendant’s culvert, and the weight of the evidence shows that if undisturbed, it would pass through the culvert and southward, north of plaintiff’s store and without overflowing it. That plaintiff’s store was in part submerged with rain-water and his goods damaged on the night of 15th February, 1893, is not controverted. The evidence shows that the opening of defendant’s culvert was four feel by four feet; furnishing a carrying capacity of sixteen square feet. The evidence also — 191 — shows that on the night of the rainfall the culvert was filled with sand and gravel and debris to a depth of about two and a half feet, leaving only one and a half feet at the top for the escape of water. Evidently the water would accumulate at the mouth or entrance of the culvert to a depth of two and a half feet before any of it could pass through the culvert. Although no witness seems to have been directly interrogated as to the relative grades of the floor of the store to that of the bottom of the culvert, the testimony of two civil engineers and of Dr. Dozier shows with reasonable satisfaction that the floor of the store was from two and a half to three feet lower than the opening of the culvert when filled with, sand and debris as it was at the time, and all the evidence shows that the water ran from the culvert on the north side along the embankment, opposite and beyond the store, covering the space between the store and the embankment. The evidence also shows that defendant had constructed a ditch along the embankment between it and the store, and that the flow of the water along this ditch after it failed to pass through the culvert was obstructed to some extent by a bridge over this ditch and a spur track, and caused the water to flow back towards the store of the plaintiff. There is no evidence to show that defendant was under any duty to construct or maintain this ditch, other than such as arose from defendant’s general duty not to obstruct the natural flow of the water to the detriment of the upper easements. • There is evidence also for the defendant, which showed that on account of the excessive rainfall', the water overflowed a city bridge over a ditch or drain on third street, and ran down third street to third avenue, into a pond opposite plaintiff’s store, and from thence ran across to plaintiff’s store. We have examined the evidence very carefully on this point, and we are not satisfied that the overflow of plaintiff’s store can be attributed to this cause. The evidence shows that plaintiff’s store was between the pond and embankment, and the water that ran from the culvert down along the embankment could not escape, and that it covered the entire space between the embankment and the pond. Our conclusion furthermore is, that if the water had not been obstructed at the culvert, it is probable that there would have been but little, if any overflow at the bridge on third street. The evidence — 192 — tendsto^tliis conclusion, and it is uncontroyerted that the esiffiequent rain in April, after the culvert had been cleaned out, exceeded in quantity that of February, and that there was no overflow at that time from the bridge on third street. A fair consideration of all the evidence leads to the conclusion, that the overflow of plaintiff’s store was caused by obstructions which prevented the escape of the water through and beyond the culvert under defendant’s embankmeiflR^^&wkey;^ This brings us to the coiicTusuai of defendant’s other ground of defense. The evidence shows that about four hundred feet from defendant’s embankment on the south side, there are two other railroad embankments, the first that of the Tennessee & Coosa Railroad, and the second that of the Anniston & Cincinnati Railroad, that the culverts under these embankments are much higher than the culvert of defendant, and are too small and insufficient to furnish outlet for the water and sand, which pass through the culvert of defendant, and in consequence the land between the defendant’s embankment and these two embankments, over which defendant has no control, has been filled and raised, until it is two feet higher than the bottom of defendant’s culvert. The effect of this, it is contended, is to cause the water and sand to accumulate and fill up the drain between the culvert of defendant and the culverts under the other embankments, so that it became impossible in this condition to keep ■ the defendant’s culvert at all times open. The Tenn. & Coosa Railroad embankment and that of defendant come together, according to the map in evidence, about six hundred feet south of a line running between the culverts of the two roads. How much' of this entire triangle formed by the two embankments and a line running between the culverts has been raised or whether the defendant has permitted the sand and water to accumulate on its own right of way does not satisfactorily appear from the evidence. As the land is lower between these embankments by eighteen inches or two feet than on the north side of defendant’s embankment, where the plaintiff’s store is situated, we are unable to see why defendant could not have provided an escape for the water over its own right of way, at least to the ravine between the hotel and depot. The plaintiff having introduced evidence which made out a prima facie case, the burden — 193 — was cast upon the defendant to overcome it. This the defendant undertakes to do, by showing that the negligence of the Tenn. & Coosa Railroad was the proximate cause of the injury, and not its own. To relieve itself, it must show that its own negligence did not contribute proximately to the injury. The other railroads may have cooperated in degree in causing the injury, but as we view the evidence in the record, their negligence was not the sole cause. There was no error in permitting the defendant on cross-examination to prove that the spur track was built at plaintiff’s request, and if it be shown that there would have been no overflow, but for the spur track, constructed for the convenience of the plaintiff and at his request, he would not be entitled to recover.—Mayor of Troy v. Coleman, 58 Ala. 570. If, however, the overflow-resulted from the obstruction caused by the little bridge placed by defendant over its own ditch, which ran between plaintiff’s store and the embankment of the defendant, we are of the opinion the defendant would be held guilty of proximate negligence whether the water came from the culvert alongside defendant’s embankment, or across from the pond. If the embankment obstructed the natural flow of the water and caused the overflow of the store, the defendant would be liable, although other causes may have also contributed to the result.. Under all the circumstances, it seems to us the ends of justice would be better promoted by remanding the cause than by rendering a final judgment here. Reversed and remanded.