Atlanta & Birmingham Air Line Ry. v. Wood

MAYFIELD, J. The complaint, as amended, contained six counts. The affirmative charge was given as to the fourth count, at the request of the defendant, appellant here, and we need not pass on the rulings of the lower court as to the demurrers to it. The other five counts, properly interpreted, stated a substantial cause of action in case, and were not subject to any of the grounds of demurrer assigned. A demurrer goes to the whole count, and, except in suits on bonds, assigning special breaches, is not the proper mode of raising an objection to only a part of the count. — Pryor v. Beck, 21 Ala, 393; Hester v. Ballard, 96 Ala. 410, 11 South. 427; L. & N. R. R. Co. v. Hine, 121 Ala. 234, 25 South. 857; Kennon v. Telegraph Co., 92 Ala. 399, 9 South. 200. The first three counts, as amended, set out with particularity the plaintiff’s ownership, of a mill site and mill on Ohatchie creek, situated on certain described lands, and further alleges that said mill “and pond which supplies and supplied it with water have been situated and located at the point they now are for many years, and plaintiff at the time of the injuries complained of had the right to maintain said pond in the condition it was then in. Construing this language most — 663 — strongly against the pleader, as we must, and acting on the presumption that, if the pond had been entirely located on the landsi of plaintiff, he in suing for his alleged injuries would have so claimed, the presumption follows that these allegations mean and were intended to mean that plaintiff’s mill and mill site were on his lands, and that the place where the embankment was constructed and where the earth, sand, mud, and rock which were put into the pond or creek near said embankment was on the lands of defendant, or some person other than plaintiff. It is true that other allegations of these counts, such as “defendant put in or caused to be put in said pond near said embankment quantities of loose dirt, rock,” etc. ,would indicate that the counts were in trespass, but the allegations of such consequential damages as the washing of this loose material down to his mill so as to fill up and continue to fill up the mill race and water house of his mill are sufficient to make a complete claim for at least nominal damages. — Capital City Water Co. v. City Council, 92 Ala. 366, 9 South. 343. Defendant’s grounds of demurrer are all seemingly based on the theory that the counts were in trespass. None of them pointed out any defects, and the court below cannot be put in error for overruling them. Counts 5 and 6 are plainly actions on the case by a lower against an upper riparian owner or proprietor for damages resulting as a. consequence of a pollution of the waters of the stream. In the case of Tennessee Coal, Iron & R. R. Co. v. Hamilton, 100 Ala. 252, 14 South. 167, 46 Am. St. Rep. 48, we quote at length from the numerous authorities pertaining to the rights of parties so situated, and it is the settled law of this state that an action lies for “the casting upon one’s land of dirt and foul water, or substances which reach the stream by percolation; * * * the letting off of — 664 — water made noxious by precipitation of minerals, * * * or rendering tbe water unfit for domestic, culinary or mining purposes, or for cattle to drink of, or for fish to live in, or for manufacturing purposes.” — Tennessee, etc., Co. v. Hamilton, supra,; Drake v. Lady Ensley C. I. & R. R. Co., 102 Ala. 501, 14 South. 749, 24 L. R. A. 64, 48 Am. St. Rep. 77, and authorities cited. While the strict rule thus laid down is modified in all cases by a due consideration of the needs and wants of the age, and with due regard to all reasonable uses of the water flowing in the stream, and of the lands contiguous thereto, to put into the stream within 450 feet of plaintiff’s property such quantities of loose earth, sand, and rock as would by natural drifting or washing fill up plaintiff’s pond, mill race, and water house to such an extent as “to malee it frequently impossible for plaintiff to operate his mill at all,” sufficiently states a cause of action for damages. The testimony is quite lengthy, and very numerous objections were interposed and exceptions reserved. Many, if not the most, of these rulings, were free from error, and we will refer to only a few. The objection to the question to the witness Gray: “You say the more land cleared around the banks of a creek the muddier it becomes. I will ask you if it is not also true that the more land that is cleared in and around creeks and mills the more valuable the mill site becomes” — we first held should have been sustained. On further examination we find no valid objection to this question. The answer, to it might tend to show the value of the property and the extent of the damage, if any. The fact that the jury knew this as well as the witness would tend to show that no injury could result from it which is necessary to constitute reversible error. Plaintiff had a right to show .the general nature and character of the — 665 — mill and its surroundings, and any and all facts showing or tending to show its advantageous location and the proximity of the railroad may have had some bearing on the question of value; and it was competent to show that “the engineers or those in charge of the building the new line came over the east and west tracks” because tending to show that they had knowledge of the location of this mill and of the fact that the work they were doing would probably injure or damage it. It might tend to show punitive damages. — Windham’s Case, 126 Ala. 552, 28 South. 392. It was competent to prove the depth of the mud above as well as below the fill, as the difference in them might tend to show that the increased depth of the mud below the fill was occasioned by dirt from it. The condition .of the mill at the time plaintiff bought the property, the amount of repairs made by him all had a tendency to prove its condition and value, and these matters were admissible. The difference in the market value of the property before and after the alleged injury thereto is not the only measure of damages. Evidence showing loss of custom, expense of remedying the injury, increased cost of machinery to operate, and expense of operation caused by the wrongful act were proper subjects of consideration by the jury. The right of a lower riparian owner to receive upon his land in its natural condition the water from above is what is termed a “natural easement,” and this natural right of property inheres in the estate entitled to the benefits of such rights ex jure naturse independently of grant or prescription. The right to overflow or back up water on the lands of another is of an entirely different character: Such easements “lie in grant,” and can be acquired only by grant, express or implied, or by prescription, which presupposes a grant to have existed. While plaintiff’s deed did not convey — 666 — to him in terms any right to overflow the lands of Gray, yet the exercise of that right by him and by those under whom he claims for more than 20 years continuously gave, by prescription, a perfect easement or right to use the land covered by the millpond — no matter whose land it was — and the plaintiff is therefore entitled to damages on account of the pond’s having been cut off and the part of his reservoir taken from him. — Stein v. Burden, 24 Ala. 130, 60 Am. Dec. 453. Gray’s sale of the right of way to the defendant did not and could not operate as a revocation of plaintiff’s right to overflow the lands in his pond acquired by adverse possession or prescription. The defendant could not acquire from Gray the right to fill up plaintiff’s pond in constructing its railroad, and it wa,s its duty to avoid injuring plaintiff’s property by filling up his pond, and to erect a bridge instead of a fill, if necessary to avoid such filling up of the pond and the changing of the bed of the creek to his damage. If the defendant filled up plaintiff’s pond and changed the course of the stream, and that resulted in damage to the plaintiff, he, of course, could recover those damages in this action. — Windham's Case, 126 Ala. 560, 28 South. 392; Hick’s Case, 133 Ala. 425, 31 South. 947, 57 L. R. A. 720, 91 Am. St. Rep. 38; Nolan's Case, 134 Ala. 332, 32 South. 715; Hughes v. Anderson, 68 Ala. 280, 44 Am. Rep. 147; 5 Mayfield’s Dig. 233; Bruley v. Garvin, 105 Wis. 625, 81 N. W. 1038, 48 L. R. A. 839; Roffey v. Henderson, 17 Q. B. 574. Under the evidence, plaintiff could recover damages for the decrease of his storage or reseiwoir facilities on the lands of Gray, he having acquired the right to flood — 667 — such lands by prescription. There was testimony from which the jury might infer a willful disregard of the rights of the plaintiff, and which might support a judgment for punitive damages. The court did not err in its charges to the jury instructing them that they might assess punitive damages. The court did not err in its charges in reference to the right of plaintiff to recover damages for the lessening of the storage capacity of the pond. Its charges in reference to the statute of limitations were correct. It was error to allow the plaintiff to prove by the witness Lacy, over the objection of the defendant, “what it would cost to remove the dirt and mud out of Wood’s millpond in Calhoun County, Ala.” This proof should have been limited to the cost of removing that part only which was wrongfully placed therein by the defendant. The evidence in this case showed that there was other dirt and mud in this pond than that placed therein by the defendant, and, if the evidence had not shown it, surely courts and juries know that mud in great quantities accumulates in millponds which have been used for BO years or more. The fact that it would have cost more to remove all this mud from the pond than would be the depreciated value of the property in consequence of defendant’s wrong was not the test to determine the amount or proper, measure of damages. It was, no doubt, not offered by counsel for this purpose, nor did the court allow it for this purpose; but it was irrelevant and immaterial and directly calculated to mislead and confuse the jury, and we cannot say that it was without injury, though the court seems to have stated the law correctly as to the measure of damages. We think it was also error to allow the witness Lacy to testify as to the terms of the contract under which he did the work for the defendant, which work occasioned the damages, the sub — 668 — ject of this suit. The liability of the defendant might and did depend upon this contract. It was conceded that Lacy did the work for defendant. Whether he did it as an independent contractor or as a mere agent of the defendant would in a large measure determine the liability of the defendant: that is, the defendant’s liability would depend upon an entirely different state of facts in the two cases (unnecessary here to discuss). Consequently it cannot be said that this contract between Lacy and the defendant was entirely collateral, so as to allow secondary proof of its contents without any attempt to demand or obtain it, or to account for its absence. It was clearly error to allow this witness to state his theory or contention as to that, as he did. His company was a party to it, and through his company was liable to plaintiff, too, if the defendant was, yet, if the defendant was made to pay it, his company would escape liability as to plaintiff, and, if his version of it was true, would not be liable to defendant, because done under and in accordance with defendant’s instructions. This, of course, may have been true, but the contract was the best evidence of it, and not the parties’ construction or recollection of it. The contract should have been produced, or its absence accounted for, before allowing this party to testify as to its contents and provisions. It was not collateral to the issues on trial in such sense as to dispense with the necessity for the best proof thereof. It was likewise error to allow the witness Pearce to give his opinion as to how much it would depreciate the property to have the millpond half filled up, and how much if entirely filled up. This was a purely speculative and gratuitous guessing on the part of the witness, and could only serve to mislead and confuse the jury; and there was no evidence that the pond was half filled — 669 — up or entirely filled up by the defendant. If tbe witness had been shown to have knowledge of the facts or was an expert upon the subject in hand he could have estimated, or given his opinion upon, the depreciation in the value of the property on account of the filling of the pond, to the extent for which defendant was or might be liable. For the errors above pointed out, the judgment of the lower court must be reversed and the cause remanded. ■Reversed and remanded. All the Justices concur.