Alabama Consolidated C. &. I. Co. v. Vines

44 So. 377 | Ala. | 1907

HARALSON, J.

The evidence of the plaintiff tended to establish the averments of the complaint— that as a result of the deposits of coal dust and other foreign matter on the land, coming from above, where defendants’ washers Avere located, the land Avas rendered less productive and the yield of the crops on that account had fallen off. That for defendants tended to show, that there was- no appreciable coal dust left on plaintiff’s lands, and that there were no deposits of muck thereon, which were not of a character found on other branches of the Little Warrior river, on which no coal washers were located.

The original suits were instituted separately against several defendants, either on the 12th of November, 1903, or on June 7th 1904; and on the 1st of November, 1905, an amendment by way of substitution of the same for the original complaint was filed. On that day, an agreement ivas entered into by the -plaintiff’s counsel, and the counsel for the other defendants, that said suits be consolidated, and tried on October 30th, at which time tlm case against the Tennessee Coal, Iron & Railroad Company was set for trial, and the other cases were continued till that date. The case against the Republic Iron & Steel Company Avas discontinued. The. case against the said Tennessee Coal, Iron & Railroad Company was tried, and judgments Avere rendered against defendants for $400, from which judgments all of said defendants appeal.

The plaintiff had testified to the deposits on the overflowed lands, consisting of coal dust, muck, etc., and the effect of the same on the lands in cultivation, rendering them unproductive; the amount of land he liad in cultivation, and the crops grown thereon; Avhat they Avould make before they were affected by such deposits, and that, in the year 1902, and in 1903, he made only a half of crop on them, etc.

We consider only such errors as are assigned, and such as are insisted on in argument by defendant’s counsel.

When the plaintiff Avas being examined, his counsel asked him, “What kind of a crop did you make in the year, 1905?” which was objected to, as calling for incompetent and ' immaterial evidence, which objection was overruled, and he answered, that he made the half of a crop in that year — making in all 125 bushels of corn, besides some oats:

Thele ivas no error in allowing" the question and its answer. In Tutwiler C., C. & I. Co. v. Nichols, (Ala.) 39 South. 763 — a case similar to the one'in handy and decisive of the main features of this one — it was said: “The plaintiff could recover for only such damages as he suffered within 12 months prior (to the date of the commencement of the suit) ; but evidence of.the condition'of the streams prior to the 12 months period, and subsequent to the commencement of the suit, was relevant and competent, for the purpose of showing the effect of the deposits, if any, on the land and in the river.”

Again it was said, in Central of Ga. Ry. Co. v. Windham, 126 Ala. 560, 28 South. 395: “Actual damages were allowable only-for injuries sustained before the commencement of the suit, but it was not error to allow evidence of continuing consequences by way of informing the jury of the original extent and character of the overflow.” To the same effect are Polly v. McCall, 37 Ala. 21, and S. & N. A. R. Co. v. McLendon, 63 Ala. 273.

It is insisted that charge 10 for defendants was improperly refused. It is argued that this charge is substantially the same as charge 4 in the Nichols Case, 39 South. 762. The charge there, numbered 4, was: “I charge you, gentlemen of the jury, that if you believe from the evidence, that the injury to plaintiff’s lands is permanent, there can be no recovery by plaintiff, so far as his lands are concerned, for the loss of crops, but only for the permanent injury to his lands.” That charge does not assert that damages for injury to or loss of crops already sustained and proximately resulting from a continuing nuisance cannot be recovered, but asserts, that damages to or loss of crops cannot be added to permanent damages as sucli. The right to recover for loss and destruction of crops resulting from the maintenance of a continuing nuisance, has not been denied. — 4 Suth. on Dam. § 1049. Conceding the correctness of said charge 4, as applied to the facts of that case, it is not the same as charge 10 in this case.

In this case damages for injuries to and destruction of crops were claimed as such in the complaint, independent^' of any claim for permanent damages to the land.

In the case referred to it was .said: “The evidence did not tend to show that the plaintiff lost any crop or crops by the deposits or overflow, but its tendency ivas, to show that by the deposits and overflow, the land was rendered less fertile and productive, so that the yield was diminished.” In this case the proof showed that there was a loss of at least one-half of the crops for two years caused by the deposits cast on plaintiff’s lands by defendant.

Mr. Sutherland says (section 1042) : “When a wrongful act is done which produces an injury which is not only immediate, but from its nature must necessarily continue to produce loss independently of any subsequent wrongful act, then all the damages resulting, both before and after the commencement of the suit, may be recovered in one action. * * * Compensation for the diminished enjoyment of the property is not compensation for the diminished value of the property itself. The profits of the land must not be confounded with the land itself.”

In section 1047, the author adds: “Damages may be recoA’ered in the same action for injury of a temporary character, and for that of a permanent character.”

As is well said, in brief for appellee: “The result of appellant’s contention is, that if plaintiff is allowed to recover for damages to his crop, he must be denied the right to recover the much greater damage, namely, the damage to the market-value, or for permanent injury to the land. • This would deny to plaintiff the right to recover for the greater injury because he recovered for a smaller one.”

Charge 19 is argumentative and misleading. What is meant by the words, “has not greatly impaired the quality of the water,” is not apparent or easily understood. How “greatly,” or less so, the quality of the water had to be impaired, to render the defendants guilty, is not stated but uncertain and left open by the charge.

Charges 25 and 30 were also misleading and confusing, without further explanation of their meaning. They both limit plaintiff’s compensation for damages for the diminished enjoyment of the occupancy of his lands, which he has suffered, “during the year preceding the commencement of the suit.” Two of the suits — the one against the Alabama Consolidated Coal & Iron Company, and the one against the Sloss-Sheffield Steel & Iron Company — were instituted on the 12th of November, 1903; and two — the ones against the. Tutwiler Coal, Coke & Iron Company and the Tennessee. Coal, Iron & Railroad Company — were instituted on the 7th of June, 1904. These, companies were not jointly sued, nor were they jointly liable. Each was charged with its own separate wrongs and their acts were separate and distinct, though by consent the suits were consolidated and tried together. The plaintiff had the right to recover, if any one of the defendants were guilty of wrongs charged in the complaint; but they were limited in the charges to the assessment of damages for the year preceding the commencement of tbe suit. It is not stated whicli one of the suits is referred to. It did not embrace all of them, and could not do so, since plaintiff could recover for damages accruing one year prior to the 7th of June, 1904, in two of them, and for a year prior to the 12th of November, 1903, in the other two. The charges were properly refused.

We have been unable to discover any vice in the two charges given for the plaintiff, and defendants fail to point out any.

Affirmed.

Tyson, C. J., and Dowdell and Denson, JJ., concur.