55 So. 932 | Ala. Ct. App. | 1911
The defendant pleaded in abatement of the snit that it is a corporation organized under the laws of the state of Alabama, doing business by agent in Jefferson county, the place of the service of the summons and complaint in the cause, and that at the time of the institution of the suit it was not doing business by agent in Marion county. This plea was demurred to, upon the ground, among others, that it did not show that the act or omission complained of in the complaint did not occur in Marion county. The action of the trial court in sustaining this demurrer is assigned as error. While the predecessor of section 6112 of the Code contained the single provision that “a- foreign or domestic corporation may be sued in any county in which it does business by agent,” it was decided that, as to an action not on contract, that provision did not have the effect of exempting a corporation from liability to suit in a county in which it was not doing business by agent, and that the statute which now is section 6110 of the Code authorized an action ex delicto against
Unless the fact of the purchase of the land from the plaintiff would have changed this result, there would be no room to claim that the proposition advanced by the counsel for the appellant (defendant below) could be successfully maintained, without a repudiation of a number of well-considered rulings in this state, if the alleged injury to the plaintiff’s land had been attributable, either to a diversion by the defendant of the natural flow of water, whereby a stream or surface rain water which otherwise would have run in a different direction was conveyed to and allowed to overflow plaintiff’s lands, to his damage, or to an act or omission of the defend
In the opinion in the case of Central of Georgia Railway Co. v. Windham, supra, which was an action against a railway company to recover damages claimed to have been suffered by reason of the construction by the defendant of its roadway and depot, and the digging of ditches and culverts necessary thereto; causing the surface or rain water to flow over the premises of the plaintiff, causing injuries thereto, it was said: “The foundation of the suit being the active creation of a nuisance, and not merely a wrong arising from negligence, the degree of care used by the defendant in constructing waterways is immaterial in determining the right to recover actual damages.”
In the case of Lindsey v. Southern Ry. Co., supra, also an action to recover damages for flooding lands, it was said: “It is not necessary in such cases that there be an averment that the excavations, though made by the defendant on his own lands, were negligently constructed. The flow of water is governed hv well-known natural laws. The comparative levels of the,hanks of a
Speaking of averments of negligence, etc., this court declared, in Savannah, Americus & Montgomery Ry. v. Buford, supra: “This verbiage may be rejected as surplusage, for it is obvious the gravamen of the complaint is that the roadbed and embankment, at a particular time after their construction, caused the surface water to flow from the right of way of the defendant, in and upon the lands of the plaintiff, where it did not flow naturally, to her injury.”
In the case of Sloss-Sheffield Steel & Iron Co. v. Mitchel, supra, it was said: “In cases of damage by nuisance, it is considered that the injurous consequences resulting from the nuisance, rather than the act which produces the nuisance, is the cause of action, and hence it is held that the cause of action does not arise until harmful consequences occur,” etc. The expressions are all in harmony with the rule on the subject generally prevailing in other jurisdictions. “Negligence of the defendant is not ordinarily an essential element in an action for damages sustained by reason of a nuisance. The action is founded on the wrongful act in creating or maintaining it, and the negligence of the defendant, unless in exceptional cases, is not material.”—Joyce on Nuisances, § 44.
In behalf of the appellant (defendant below), it is claimed that, because of some of its features, this case is not within the influence of the rulings above referred to. It is pointed out that the fill or embankment from which was washed the sand, etc., which was deposited
It is contended that the conveyance by the defendant of the strip 100 feet in width operated as a release of all damages to his remaining lands, resulting from the construction in a proper manner of the railroad over and along the strip granted. It is true that all damages incident to the authorized construction of the road in a careful and lawful manner are to be deemed as having been taken into consideration in determining the amount agreed on for the conveyance of the strip, for use for railroad purposes; but, unless the terms of the instrument are such as to require such construction, it is not to be given effect as a release of damages resulting from improper encroachments upon other lands of the grantor, or as relieving the grantee from liability for damages which cannot be presumed to have been in contemplation of the parties at the time of the sale.—Alabama Midland Railway Co. v. Williams, 92 Ala. 277, 9 South. 208; 33 Cyc. 162. The mere fact of a sale by the owner to a railroad company of a strip 100 feet in width through one part of his farm could not properly be construed by the court as an authorization by the landowner to the railroad company to cause sand, dirt, gravel, and other debris to be deposited on another part of his farm a quarter of a mile distant from the strip conveyed. In the absence of anything in the instrument that such was the fact, it would involve quite
The rulings above referred to, which recognized and enforced the liability of one landowner to another owner of land situated on a lower level for damages to the lower land, resulting from the diversion by the upper proprietor of the natural flow of a stream or of surface water, or from the act of the upper proprietor in allowing refuse or waste from the material worked or used on his land to be cast into a stream, whereby it was carried and deposited on another’s land below, were not based upon a line of reasoning or a rule of law which would have to be deemed inapplicable where .a change made by one proprietor in the surface conditions of his land enabled the natural flow of water therefrom to carry off so much of the soil as to make a ruinous deposit on the lower land of another. Those rulings were but applications of the restrictions imposed by law upon the right of the owner of land to put it to a use lawful in itself. However lawful may be the use, it is subject to a restriction when injury to the property of another is involved. Mr. Bishop states the general doctrine in such terms as to make it plain that it is not inapplicable to such a state of facts as that presented in the case at bar: “One may not, either voluntarily or negligently, cast earth or other substance from his own ground on a neighbor’s; or upon his own bring or erect anything, or change the natural position of anything from which the air, the moving water, or any other
The law recognizes both the right of the upper proprietor to put his land to a lawful use and the fact that nature itself has subjected much low land to a kind of servitude, in exposing it to the drift and washings from land above it. But the law also restricts the lawful use of his land by the owner, when undue injury to the land of another ensues, and does not permit the owner of one tract of land, by the erection of artificial structures thereon, or other changes in his premises from their natural conditions, so to add to the burden of the natural servitude to which land below it may be subjected as to destroy the usefulness of such land to its owner. When complaint is made because of an injury to lower land resulting from changes made in premises above it from their natural condition, the right to relief may depend upon the extent of the interference thereby caused with the beneficial use of his property by the lower proprietor ; for the law does not take notice of every inconvenience to which one proprietor may be subjected by the lawful use by another of his property. However, when it is made to appear that the injury so caused to the lower land amounts to a destruction of its usefulness for the purposes to which it was adapted, it is not to be questioned that a case for the interference of the law is presented. The law does not say that there may not be any enlargement at all of the natural easement
This consideration suffices to shoAV that some of the rulings in other states, which are principally relied upon to support the proposition advanced in behalf of the appellant — namely, that whatever destruction of appellee’s property may subsequently have resulted from the erection of the fill or embankment in question, the appellee cannot be heard to complain of such results, if there Avas no negligence or unskillfulness in the original construction — do not in fact lend support to such a contention, as it will be seen, upon an examination of those rulings, that they did not involve any such proposition. For instance, the case of Middlesex Co. v. McCue, 149 Mass. 103, 21 N. E. 230, 14 Am. St. Rep. 402, was much relied upon in argument as an authority supporting the proposition advanced in behalf of the appellant. The decision in that case Avas that the owner of land on the slope of a hill running doAvn to a millpond on the land
In a later ruling by the same court, in the case of Miles v. Worcester, 154 Mass. 515, 28 N. E. 676, 13 L. R. A. 841, 26 Am. St. Rep. 264, it was made plain that the court did not intend by its former ruling to open the way for any such result. That was a case of an encroachment upon the plaintiff’s land of a wall which had been built upon defendant’s land, and which subsequently was pressed out of position by the weight of the filling behind it. It was held that the wall, in its position upon plaintiff’s land at the time the suit was brought, constituted an actionable nuisance, and that the question of negligence in the original building of the wall was not material. Evidently the ruling in the case of Middlesex Co. v. McCue, supra, was invoked by the defendant, as the court in the later case said: “The case is distinguishable from Middlesex Co. v. McCue, 149 Mass. (21 N. E. 230, 14 Am. St. Rep. 402), where soil from defendant’s land upon a hillside was washed into the plaintiff’s millpond by the rains, when the defendant had built no artificial structure, and had done nothing more than to cultivate his land in the ordinary way.” The statement just quoted is enough to show that such rulings as that made in the case of Middlesex Co. v. McCue, supra, lend no support to the claim made in behalf of the defendant in .this case that it is entitled to exemption from liability for ruinous consequences to the plaintiff’s land resulting from the presence of the fill or embankment on defendant’s land, if there was no negligence or unskillfulness in the original erection of that structure.
Enough, perhaps more than enough, has been said to indicate the conclusion of the court that, with whatever care or skill the embankment or fill in question
It is but a recognition of the principles which underlie the Alabama rulings above cited, which are abundantly illustrated by decisions in other jurisdictions on states of fact not dissimilar to that in the case at bar, to declare a ruinous deposit of sand, dirt, gravel, and other debris upon plaintiff’s land, which naturally resulted from the presence on the higher land of the defendant of the embankment or fill mentioned in the pleadings and in the evidence, constituted an actionable nuisance, regardless of whether the defendant was negligent or unskillful in the original erection of that structure.—2 Cooley on Torts (2d Ed.) pp. 1181, 1182; Abrey v. Detroit, 127 Mich. 374, 86 N. W. 785; Dunsbach v. Hollister, 49 Hun. 352, 2 N. Y. Supp. 94. Such a case hardly could be regarded as one “near the line,” within the meaning of that expression as used in the Massachusetts ruling above quoted from.
The result is that neither of the propositions put forward in behalf of the appellant to support its appeal can be sustained.
Affirmed.