Sloss-Sheffield Steel & Iron Co. v. Webb

ANDERSON, J.- — The gravamen of plaintiff’s action was the causing of damages to his leasehold by an overflow of a pond maintained by the defendant, and which said overflow Avas caused by the breaking of a dam Avhich had been insecurely built. If the creation of the pond so changed the natural flow of the water as to injure the plaintiff because of the insecurity of the dam, it matters not whether it was or was not negligently constructed, or whether or not the water course was negligently changed. The defendant owed the plaintiff the duty to not change the course of nature so as to interfere with the enjoyment of the subservient premises, and the failure of the complainant to charge a negligent act or omission in this respect was not fatal to the complainant. — Ala. R. R. Co. v. Wilson, 1 Ala. App. 306, 55 South. 932; Sloss-Sheffield Co. v. McCullough, 177 Ala. 448, 59 South. 210. “A dam must be so constructed and maintained as to cause no damage to adjoining lands in times of such freshets and seasons of high water as might be reasonably anticipated from past experience and the meteorologic conditions of the region; but the owner of the dam is not liable for such injuries as result only from [456] extraordinary and unprecedented storms and floods.” — 40 Cyc. 682, and cases cited in notes 29, 30; Sloss-Sheffield Co. v. McCullough, supra. The defendant’s special plea 2 set up an unprecedented rainfall as the cause of the breaking of the dam and the overflow, and this was but a conclusion of the pleader, as there is no averment in' said plea that the dam was so constructed and maintained as to withstand all waters as might be reasonably expected in times of freshets and high waters, which ordinarily occurred, or such storms and freshets as were not unusual or unprecedented. This omission rendered said plea subject to an appropriate ground of demurrer but did not justify the trial court in striking same. This plea was not prolix, irrelevant, or frivolous so as to authorize the striking of same under section 5322 of the Code of 1907. — Powell v. Crawford, 110 Ala. 300, 18 South. 302; Lindsay v. Morris, 100 Ala. 550, 13 South. 619. It is true that this court has held in several recent cases that the trial court will not be reversed for striking a plea, whether properly so or not, if it is bad and cannot be amended so as to state a good defense without a departure from the defense therein attempted.— Central of Ca. R. R. v. Sims, 169 Ala. 295, 53 South. 826. The plea in question, however, was subject to an amendment by properly stating the defense attempted •and without a departure therefrom, and the plaintiff should have been put to a demurrer to same and not have resorted to a motion to strike. The trial court erred in permitting the plaintiff to testify as to the quantum of damages to his crop.- — -Central of Ga. R. R. v. Barnett, 151 Ala. 407, 44 South. 392. It may be that this error was cured by subsequent charges eliminating the right to recover for loss or damages to the crop. Upon the next trial, it will be safer [457] to let tlie witness testily to facts and let the jury determine the amount of damages. The defendant should have been permitted to prove what rent plaintiff was paying for the land the year of the damage. This was not conclusive as to the rental value or the best way to prove same, hut, after the plaintiff had proved a rental value, it was proper for the defendant to bring out this fact upon cross-examination. Charges 6 and 7, refused the defendant, were fully covered by the given charge. The judgment of the circuit court is reversed, and the cause is remanded. Reversed and remanded. Dowdell, C. J., and Mayfield and de Graffenried, JJ., concur.