Burnett v. Alabama Power Co.

ANDERSON, C. J. (1) While count B of the complaint charges that the defendant negligently caused logs, brush, etc., to be and remain upon the lands, and also caused the same to be negligently submerged by water, thus producing the injuries, etc., it is not a claim for two separate and distinct causes of action in the same count. The defendant owed the plaintiff no duty to keep its own land clear of brush, logs, and other vegetation, as having the same upon the land was but the lawful use of its own property, and the said count does not indicate that the conduct of the defendant in this respect would have produced the injury described but for the fact that the land upon which this matter existed was submerged by water by means of a dam across Coosa river. Therefore the negligent submerging of the land is the gravaman of the action, and was the proximate, intervening cause which produced the injuries. (2) Indeed, the count charges that the injuries resulted as the proximate consequence of the defendant’s causing said water to remain so near plaintiff’s residence as aforesaid. The gravamen of the action was negligently submerging the land, under the condition described, “by means of a dam.” The count does not attempt to set up the acts constituting negligence, but describes the conditions, and charges generally a negligent submerging of the land by means of a dam across the Coosa river, and this general averment of negligence seems to be sufficient under our system of pleading. Count B was not subject to the defendant’s demurrer. It, in effect, charges results to be due to the backing of the water by the negligent, or wrongful, construction of a dam across the Coosa river. (3) As above noted, the defendant'had the lawful right to have logs, brush, and other vegetation on its own land, and whether it did so negligently or not matters not, as its motive would produce no cause of action. “It is damnum absuque injuria also if through the lawful and proper exercise by one man of his own rights damage results to another, even though he might have anticipated the result and avoided it. That which it is right and lawful for one man to do cannot furnish the foundation for an action in favor of another. Nor can the absence of commendable motive on the part of the party exercising — 360 — his rights be the legal substitute or equivalent for the thing amiss which is one of the necessary elements of a wrong.” — Cooley on Torts, p. 142. Therefore the proximate cause of the injury, and the only theory upon which the count states a cause of action, was the negligent or wrongful backing of the water by means of the dam, and not in permitting the logs, etc., to be and remain upon the land. The vegetation on the land merely produced a condition, and the proximate intervening cause of the results was negligently backing the water. — Cooley on Torts, p. 99; Garrett v. L. & N. R. R., 196 Ala. 52, 71 South. 685; Huntsville Knitting Mill v. Butner, 198 Ala. 528, 73 South. 907. (4) There seems to be an exception to the rule, when the original act was wrongful and was naturally, according to the ordinary course of events, calculated to prove injurious to some other person or persons and does actually result in injury through the intervention of other causes which are not wrongful, the injury shall be referred to the wrongful cause passing by those which were innocent. — Cooley on Torts, p. 101. Here the original conduct was not wrongful and the plaintiff must rely, not only upon the conduct which was the proximate cause of the injuries, but the only' wrongful conduct charged, the negligent backing of the water by means of the dam. (5) Count H, as amended, seems to be an adroit attempt to avoid the principles of law governing counts B and L by an effort to put the cart before the horse. It charges the negligent permitting of the logs, etc., to be and remain upon the land, with a knowledge that injuries would arise by having'the same submerged by water, but avers that the defendant had the authority to back said water. The count shows that the'injuries would not have arisen but for the backing of the water, and concedes that the defendant had the authority to back the water. While the count avers that it became the duty of the defendant to remove the vegetation, as matter of law, it was not its duty to do so independently of backing the water, and if there is any cause of action against the defendant, it must be for doing the thing which proximately caused the injury, and as the count shows authority for this and does not charge that the water was negligently backed so as to submerge the logs, etc., it was defective and subject to the defendant’s demurrer. (6) Count L is quite similar to count B, as it charges that by means of the dam the defendant negligently caused the water to — 361 — back, thus producing the injuries set forth. This is a general averment of negligently doing the thing, by means of a dam, and the dam must, of course, have been negligently, or wrongfully constructed or maintained in order for the plaintiff to establish the negligence charged. (7, 8) The counts to which pleas 8 and 9 were held to be good involve no injury to property which is protected by section 235 of the Constitution because of injury resulting from the construction, etc., of the dam, but claim consequential damages caused subsequent to the construction of same and to the person instead of the property. — Hamilton v. Ala. Power Co., 195 Ala. 438, 70 South. 737. Therefore said pleas are a complete defense to said counts. They, in effect, set up that the things complained of resulted from backing the water, by the construction of a dam across a navigable river, which was constructed by it, as a governmental agency, in the aid of navigation, under the law, federal and state, and in strict compliance with the plans and specifictions required by the government. This not only relieved the defendant from the creation or maintenance of a nuisance, but the act being lawful in itself, and having been performed in strict compliance with scientific government specifications and requirements, there could be no negligence in doing the thing so sanctioned and which was the proximate cause of the damages claimed. This being true, the defendant could only be liable for injuries to property, as protected by the federal and state Constitutions, and which has been correctly discussed and declared in the Hamilton Case, supra. It is settled in England and Canada, as well as by the weight of authority in the United States, that there can be no recovery for damages, or relief from consequences, incidentally resulting from acts or things performed or conducted in a proper manner under legal authority, and which but for such legislation would constitute a nuisance. —Rainey v. Red River R. R. Co., 99 Tex. 276, 89 S. W. 768, 90 S. W. 1096, 3 L. R. A. (N. S.) 590, 122 Am. St. Rep. 622, 13 Ann. Cas. 580, and note; Fisher v. Seaboard R. R. Co., 102 Va. 363, 36 S. E. 381, 1 Ann. Cas. 622, and note. The sovereign controls navigable streams, and the riparian owner as well as subjects generally acquire rights subject to the right, of the sovereign to control said streams and' to make and authorize all reasonable improvements, from time to time, to facilitate the use of the river by the public, even though the landowner thereby — 362 — suffers inconvenience or loss, so long as none of his property is taken or injured in violation of his constitutional rights. As the manner in which improvements may be made, in aid of navigation, is a question within the discretion of the government, unless some constitutional rights is invaded, there can be no liability for consequential damages to the citizens as an incident to said improvement, and such injury is damnum absque injuria. — Brooks v. Cedar Brook Co., 82 Me. 17, 19 Atl. 87, 7 L. R. A. 460, 17 Am. St. Rep. 459; Bedford v. United States, 192 U. S. 217, 24 Sup. Ct. 238, 48 L. Ed. 414; Gibson v. U. S., 166 U. S. 275, 17 Sup. Ct. 578, 41 L. Ed. 996. It might be that prudence would have suggested the removal of logs, brush, etc., from the -land before the submerging of same by water, but the government, having at all times the welfare, comfort, health, and happiness of its subjects in mind, may not have deemed it necessary or prudent to have it done, and it was supreme, as to the location of the dam and as to all plans and specifications as well as other things in connection with the construction of the same, so long as no constitutional right was invaded. As the government had the authority to construct the dam, it could delegate this river improvement to another, and if its requirements as to construction were complied with by the,agent, there could be no liability against the said agent. — Brooks’ Case, supra; Nor. Trans. Co. v. Chicago, 99 U. S. 635, 25 L. Ed; 336. Had the act of Congress or the government plans and specifications required clearing the land of the matter in question, as a condition precedent to the constructing of the dam and raising the water, this defendant might not only be guilty of negligence, but also liable as for the creation or maintenance of a nuisance, for the reason that it did not comply with the requirements of the legal authority under which it acted; but as these pleas set up the acts of Congress, the Alabama statute and the government plans and specifications, and aver a strict compliance therewith, as the proximate cause of the things complained of by the plaintiff, they make out a complete defense to the action. Indeed this question was practically settled in the Hamilton Case, supra, where it was said: “In the discussion of the general principles involved -in this case and in reaching the conclusion that the bill does not contain equity, we did not intend to hold or intimate that this complainant could be liable in an action at law as for consequential damages, other than to property, which resulted — 363 — from the erection or extension of its words, the bill negatives a nuisance, and also sets up that the dam was constructed- under the authority of Congress and in strict compliance with the federal law, and for the benefit of navigation, and that to all intents and purposes this complainant was a governmental agency in the construction and maintenance of the dam. This being true, there could be no liability upon the part of the government as. for consequential damages, except to property, resulting from conditions caused by the construction and maintenance of the dam, and this complainant would be equally protected, and if it constructed the dam in compliance with the law it could not be guilty of negligence in causing the backing of the water. If it did what.the law authorized, and proceeded under the rules prescribed, it could not be guilty of negligence-so as to render it liable for resulting consequential damages. — Bedford v. United States, 192 U. S. 217, 24 Sup. Ct. 238, 48 L. Ed. 414; United States v. Lynah, 188 U. S. 445, 23 Sup. Ct. 349, 47 L. Ed. 539. On the other hand, the legal authority for the construction and maintenance of the dam, by the government or by this complainant, does not afford an exemption from damages for taking property as protected under the federal Constitution, or for taking property, or consequential damages thereto,, under the state Constitution.- — Chicago v. Taylor, 125 U. S. 161, 8 Sup. Ct. 820, 31 L. Ed. 638.” Much of the appellant’s argument attacks the soundness of the principles announced in the Hamilton Case, supra, but we think that said case is sound, and are not inclined to depart therefrom. While this case must be reversed because of the error in sustaining the demurrer to counts B and L, it is not improper to suggest as a guide upon the next trial that pleas 8 and 9 set up a good defense to said counts B and L. The judgment of the circuit court is reversed, and the cause is remanded. Reversed and remanded. Mayfield, Sayre, Somerville, and Thomas, JJ., concur.