56 So. 834 | Ala. Ct. App. | 1911
This suit was brought by appellee against appellant for damages which appellee alleges in her complaint she suffered because of the maintenance by appellant of a nuisance near her premises.
The complaint alleges, in substance, that the appellant is engaged in the business of manufacturing fertilizers, and that it owns and operates a fertilizer plant situated about one-sixth of a mile from 37 acres of land, the property of the plaintiff; that in the operation of its said fertilizer plant the appellant. generated flourine gas, and. permitted the same to escape through its pipes and become mixed with the atmosphere; that appellee had a, peach orchard on said lands, and used the balance of - the property, except certain portions, upon
1. Several grounds of demurrer were interposed to the complaint. The court- held the complaint not subject to the demurrer, and the action of the court in overruling two of the grounds of demurrer which were interposed to the complaint is here insisted upon as error. It is insisted that the complaint was demurrable because it failed to show that appellee was in possession of said lands during the period covered by the injury complained of.- The complaint certainly, as a whole, was not subject to that ground of demurrer, because it alleges that the fruit trees of appellee, which were a part of her freehold, Were destroyed. - It is familiar that the owner of the title, even though the lands may be in the possession of a tenant, may sue, under the circumstances set out in the complaint, for any injury to the reversion. While the nuisance was itself temporary in its nature, nevertheless, under the allegations of the complaint, while it existed, an injury was
2. The second ground of demurrer insisted upon here is that the complaint does not show with reasonable certainty when the injuries complained' of occurred. The complaint does show that the injuries occurred subsequent to some day in the year 1907, and it does show that the appellee was injured by reason of such nuisance within less than 12 months before the filing of the complaint, because the complaint concludes, as above shown, in the following, words: “And that on account of said fumes and gases the plaintiff was unable to cultivate profitably, or rent, or lease, or truck-farm advantageously for the current year.” For the above reason, we do not think that the reasoning of the court -in the case of Sloss-Sheffield Co. v. Sampson, 158 Ala. 590, 48 South. 493, in which, so far as the allegations of the complaint were concerned, the injuries might have occurred at any time within 10 years prior to the filing •of the complaint, applies in any way to the complaint in this case. The present action was for maintaining a continuous nuisance from 1907 to the day the suit was filed; and while appellee was only entitled to recover for damages which had thereby been caused during the 12 months prior to the filing of the complaint, the complaint does show a. cause of action, so far as that period is concerned.—Huss v. C. R. & B. Co., 66 Ala. 472.
3. The evidence tended to show that the 37 acres, the subject of the inquiry, had been in cultivation for many years, and had been used as a garden, and that the appellee did not know of any continuing damage to her
During the progress of the trial, appellee’s husband was examined as a witness, and was asked by her counsel the following questions: “Did you have any perma,nent improvements on the land by Avay of increasing the value of the cultivation, such as refrigerating plants and the like?“ Appellant objected to this question,, upon tbe ground that it called for irrelevant and incompetent testimony, but the court overruled the objection and permitted the witness to answer the ques
4. While the witness Scott was on the stand, he was permitted to testify, without objection, as follows: “When the corn was about waist high, or a little less, it ■began to burn, and when it came time for it to ear it was so badly burnt that it failed to produce any corn. The corn was wired so as to support it, and if it had not been damaged by the fumes would have made 200 bushels to the .acre.” That he had been a farmer for a good many years, and was familiar with last year’s seasons, and -knew how rains-came, etc. The witness was .then asked by appellee’s counsel the following question: “How much would that corn have been worth on the market — 200 bushels?” The appellant -objected to the question, “upon the ground that the facts should be
5. The principal subject of contention between the parties to this litigation is as to the correct rule for the .measurement of appellee’s damages. In the case of Gresham v. Taylor, 51 Ala. 505, reaffirmed in Atlanta & Birmingham A. L. Ry. Co. v. Brown, 158 Ala. 607, 48 South. 73, our Supreme Court says that the correct rule for ascertaining the damages for the destruction of a
In the case of GreshaAn v. Taylor, supra, our Supreme Court was dealing with the question as to what was the correct method of ascertaining the damages suffered by the owner of growing crops destroyed or injured at a fixed period of their growth, and only that question. The facts of the present case are entirely different from those which were under consideration in the cases of Gresham v. Taylor and Railway Co. v. Brown, supra, and present an entirely different question for our determination. In this case there was a constant application of a deleterious substance upon appellee’s crops from the time they were planted, stunting them in their growth, retarding their maturity, and materially decreasing the quantity and value of their yield. The appellee, without objection, was permitted to prove what other crops in the neighborhood, not affected by the fumes from appellant’s mill, yielded, the time of their maturity, and their value when they matured, in order that the jury might compare appellee’s crops with crops raided under similar conditions and in the same neighborhood, but not subject to the effects of flourine gas.
In the case of Bell v. Reynolds & Lee, 78 Ala. 511, 56 Am. Rep. 52, Mr. Justice Somerville, speaking for the Sfipreme Court, said: “We would not be willing to say
In the case last above cited, Reynolds & Lee had •agreed to ship to Bell 20 tons of fertilizer, knowing the ■purposes for which it was desired. Bell only received 9% tons, with which he fertilized a part of his field. The balance of the field remained unfertilized, because Reynolds & Lee failed to deliver the other 10% tons. The Supreme Court permitted Bell to showr how much cotton was produced per acre on the fertilized land, and how much was produced per acre on that which was not fertilized, and permitted him to recover as his damages .the difference in value between what he did make on the
In actions ex contractu, only such damages as are the natural and proximate result- of the breach of the contract, and which could reasonably have been contemplated by the parties as a probable result of the breach,, are recoverable; but in tort all damages naturally and. proximately resulting from the tort are recoverable,, whether contemplated or not.—Birmingham Waterworks Co. v. Martini, 2 Ala. App. 652, 56 South. 830;. Wallace v. Penn. Ry. Co., 52 L. R. A. 33, note 2.
The present case was tried after the end of the year-in which the crops were planted, and the character of' the season at the time of the trial was absolutely known. While there was not that identical certainty about the difference in the yield of the various crops near the-lands of appellee which were and which were not subjected to the influences complained of as existed in the-case of Bell v. Reynolds & Lee, swpra, nevertheless, if' appellee’s evidence is to be believed, her damages at the-hands of appellant were actual and measurable, and not merely speculative. Some of her evidence tended to> show that she suffered greater damage than some of her-other evidence; but all of her evidence tended to show that her damages were not only substantial, but were-susceptible of estimation with reasonable certainty. To' illustrate, suppose appellee had permitted the appellant to run a pipe upon her land from its mill to- the Ala.bama river, for the purpose of piping its flourine gas into the river, instead of permitting it to escape into the
As the facts in this case were such that the rule declared in Gresham v. Taylor, supra, could not be applied to them, we are of the opinion that the court committed no error in permitting the jury, under the evidence in the case to consider, in estimating appellee’s damages, Avhat the crops on her land would have made but for the existence of the nuisance complained of. This is substantially the rule which has been adopted by many of the courts of last resort in all such cases; and in many of the states where the rule, as declared in Gresham v. Taylor, supra, is the law it is held that it is proper and
6. It is true, as contended by appellant, that appellee was only entitled to recover damages suffered by her within the 12 months next preceding the bringing of her suit. It is contended by appellant that, as certain charges which were given to the jury by the court at the written request of the appellee, and which as applied to the facts of this case, in our opinion, state correct propositions of law, did not limit appellant’s recovery to the damages suffered by her within one year before the filing of the suit, the court committed reversible error in giving them to the jury on that account. In other words, appellant contends that the charges asked by appellee and given by the court to the jury should have contained a statement that appellee was only entitled to recover for the damages suffered by her within the 12 months next preceding the bringing of the suit. It is sufficient for us to say that if appellant believed that the charges referred to had a tendency to mislead
It is contended by appellant that the evidence in this case shows conclusively that the title to the crops was in the husband of appellee, and not in appellee, and that for that reason appellee was not entitled to recover for any injury done them. The evidence shows, without controversy, that appellee’s husband farmed the land and furnished the money necessary to do so. In a part of his testimony, he states that he harvested and gathered the crop, and spent the money, but in another part of his testimony he stated that it was understood between him and his wife that he worked the land for her. It is not for us, as a matter of law, to say that appellee’s husband was, as between himself and his wife, the owner of the crop. In our opinion, that question was one for the jury.—B. R. L. & P. Co. v. Murphy, supra.
We have carefully considered all of the questions presented by this record, and, in our opinion, there was no reversible error committed by the court below in the trial of this cause, and for this reason the judgment of the court below is affirmed.
Affirmed.