City of Montgomery v. Stephens

BROWN, J. Ordinarily negligence is not an essential element in an action to recover damages resulting from a nuisance. The reason upon which this rule rests is found in the maxim, “Sic utere tuo ut alienum non tedas,” and until injurious consequences result from the nuisance the cause of action does not arise.—Alabama Western Ry. Co. v. Wilson, 1 Ala. App. 306, 55 South. 932; Yolande Coal Co. v. Pierce, 12 Ala. App. 431, 68 South. 563. (2) Whether the general rule applies in suits against municipal corporations, and, if so, whether section 1273 of the Code wrought a change in the law as it existed previous to the adoption of the Code, is not here important, as the several counts of the complaint on which the case was submitted to the jury allege negligence on the part of the defendant in one form or another. The plaintiff having alleged negligence, the law imposes upon him the burden of proving the averment, although it may" not have been essential to the cause of action.—Rich v. McInerny, 103 Ala. 345, 15 South. 663, 49 Am. St. Rep. 32. (3) The negligence is not in terms imputed to an “agent,” “officer,” or “employee” of the defendant, but of necessity the corporation could only act or fail to act by some officer, agent, or employee.—Code, § 1273; Louisville & Nashville R. R. Co. v. Dawson, infra, 68 South. 674; Sullivan v. Sullivan Timber Co., 103 Ala. 372, 15 South. 941, 25 L. R. A. 543. And the averment that the “defendant” was guilty of negligence required proof that some officer, agent, or employee, while “engaged in work therefor and acting in the line of his duty,” was guilty of negligence. (4) Ample power to construct drains and sewers is conferred by statute on municipal corporations, outside, as well as within, the corporate limits of the city or town (Code, § 1303), and while it is well settled that as long as this power lies dormant the corporation is not liable for its failure to exercise the power, the question of whether it will exercise this power, or when, is a governmental, rather than a corporate, function. — 28 Cyc. 1312. Nor is it liable for a failure to exercise its governmental functions to abate a nuisance created within its border or under its jurisdiction by another, unless it expressly authorized the creation of the nuisance or participated in its maintenance.— Bieker v. City of Cullman, 178 Ala. 662, 59 South. 625; City of Florence v. Woodruff, 178 Ala. 142, 59 South. 435; City of Florence v. Woodruff, 186 Ala. 244, 65 South. 326. But when the cor [278] poration exercises the powers conferred by the statute in the construction and maintenance of a system of sewers and drains, a “coextensive [legal] duty must be inferred, and as well civil liability for the consequences of defaults therein.”—City of Bessemer v. Whaley, 187 Ala. 525, 65 South. 542. Therefore, if the appellant, in providing for an outlet for its system of drains and sewers constructed and maintained a ditch across plaintiff’s property, and as a result of negligence in the construction of the ditch, or in maintaining it, the ditch was insufficient to convey the water discharged therein, and overflowed with resultant injury, it is liable.—Bieker v. City of Cullman, supra; Arndt v. City of Cullman, 132 Ala. 540, 31 South. 478, 90 Am. St. Rep. 922; 28 Cyc. 1312; 28 Cyc. 1312-C; Adler & Co. v. Pruitt, 169 Alafl 213, 53 South. 315, 32 L. R. A. (N. S.) 889. None of the counts allowed to go to the jury were subject to the objections pointed out by the demurrer, and it was properly overruled.—Bieker v. City of Cullman, supra; Arndt v. City of Cullman, supra; City of Bessemer v. Whaley, supra; City of Florence v. Woodruff, supra. (5) The motion to strike the complaint was not the proper method of testing its sufficiency, and for this reason alone the court properly denied the motion. (6) It is not at all unlikely that if the demurrer had taken the point that the seventeenth count fails to show, except by averment of a legal conclusion, that it was the duty of the defendant to maintain the ditch or drain in proper condition, the trial court would have sustained this demurrer. However, the demurrer did not point out this defect, and was properly overruled.—Code, § 5340; Birmingham Ry., L. & P. Co. v. O’Brien, 185 Ala. 620, 64 South. 343; Weller & Sons v. Rensford, 185 Ala. 333, 64 South. 366. (7) The bill of exceptions does not purport to set out all the •evidence, but “substantially all,” and it appears that certain photographic views and temporary plans and surveys of the drain in question were used as evidence on the trial which are not set out in the record, nor certified here as provided by Supreme Court rule of practice 24, so that we can examine such •evidence in connection with the assignments of error predicated ■on the refusal by the trial court of the affirmative charge as to ■each of the several counts of the complaint, and therefore these .assignments cannot be sustained.—Southern Ry. Co. v. Kendall, [279] Infra, 69 South. 328; Warble v. Sulzberger, 185 Ala. 603, 64 South. 361; Alabama Terminal R. R. Co. v. Benns, 189 Ala. 590, 66 South. 589. And for like reasons the assignment predicated on refusing the motion fQr a new trial avails appellant nothing. (8-10) Charges 24 and 25 ignore some of the elements of recoverable damages, and limit a recovery for detriment to the lands and were properly refused.—Yolande Coal Co. v. Pierce, supra; Stouts Mountain Coal & Coke Co. v. Tedder, 189 Ala. 637, 66 South. 619. The principles discussed above justified tlie refusal of charges 27, 37, and 38. Furthermore, charges 37 and 37 are abstract, as the plaintiff only seeks a recovery for negligence in construction or maintenance of the drain. The assignments of error for refusal of charges other than those treated above are not insisted upon in brief, and therefore are waived. We find no reversible error in the record, and the judgment of the circuit court is affirmed. Affirmed.