Parsons v. Tenn. Coal, Iron & R. R.

SAYRE, J. — Plaintiff( appellant) brought this action to recover damages alleged to have resulted from the pollution of a stream which flowed through defendant’s property down upon and through plaintiff’s freehold. The averment of count 1 is substantially that defendant, maintaining a mining camp and operating a coal washer upon its superior estate, deposited coal washings and other debris in the stream there, whence they were carried by the stream down to plaintiff’s land, rendering the water unfit for any use, filling up the bed of the stream, overflowing his land, and greatly and permanently impairing its value by deposits thereon. These averments are repeated in count 2, where the further averment is made that plaintiff’s damages were caused by the negligence of defendant’s agents or servants in the premises. Having in view the statutes of limitation of one and six years, which answer actions upon the case and trespass respectively, appellant contends that count 1 is a count in trespass. Whether a complaint is in trespass or case depends, not so much upon the form of allegation adopted by the pleader, as upon the facts alleged, and the conclusion which the law draws from those facts.—Sheppard v. Furniss, 19 Ala. 764. Both those counts show an intervening agency — that is, the flow of the stream — between the wrongful act complained of and the damnifying consequence. They both show consequential injury, and are both counts in case.— [87] Drake v. Lady Ensley Co., 102 Ala. 501, 14 South. 749, 24 L. R. A. 64, 48 Am. St. Rep. 77; Tutwiler Co. v. Nichols, 146 Ala. 364, 39 South. 762, 119 Am. St. Rep. 34. The case of L. & N. R. R. v. Higginbotham, 153 Ala. 334, 44 South. 872, cited by appellant, holds nothing to the contrary. The count there held to state a cause of action in trespass will be found, upon inspection, to aver damage as the immediate consequence of a wrongful invasion of plaintiff’s close, an' original and inherent wrong in the structure and operation which caused plaintiff’s injury. From this view of the character of the complaint, it results that the statute of limitation of one year ran against both counts, and that the court properly limited the recoverable damages to ' such as plaintiff had suffered within that period. Charge 6, given at defendant’s request, correctly stated the nature of the wrongs for which plaintiff was entitled to recover.—T. C. I. Co. v. Hamilton, 100 Ala. 260, 14 South. 167, 46 Am. St. Rep. 48. Charge 4 was also properly given, for the reason that the evidence did not tend to show that plaintiff had been deprived of the use of the water for domestic purposes, or for the use of his live stock during the 12-month period before suit brought. We find no reversible error in the record. - Affirmed. Anderson, C. J., and Mayfield and Gardner, JJ., concur.