60 So. 441 | Ala. Ct. App. | 1912
This is an action of case brought by the appellee, Hankins, against the appellant, Black, for the recovery of damages claimed to have resulted from an alleged obstruction by Black of a water course flowing through certain adjoining lands of Black and Han-kins; Hankins being the upper and Black the lower riparian owner of the said lands lying along the course of said stream, and it affording a natural drainage for each.
The complaint, consisting of seven counts, ivas filed July 24, 1911, and alleged, in substance, that the obstruction was placed in said water course by Black on his own lands on or about January 1, 1909, and that as a result thereof the surface water from plaintiff’s land, Avhich had theretofore flowed off through ditches drained into said stream, as its natural drainage, was, since said obstruction, Avhich had caused the bed of said stream to fill in, forced back upon plaintiff’s land, causing it to be overflowed and covered with sand and water, etc., during heavy rains, to the injury of the land and crops during the years 1910 and 1911. The defendant (appellant here) filed four pleas to the action — the general issue, the statute of limitations of one year, following substantially the Code form, and two special pleas, numbered 3 and 4, respectively, which, as they are brief, are here set out, to wit:
“(3) That more than one year elapsed after the alleged filling in of the creek or stream before suit Avas filed; wherefore the cause of action is barred by the statute of limitations of one year.
“(4) That more than one year elapsed after the wrongs and injuries complained of as having been committed by the defendant before the suit was brought.”
These pleas were therefore clearly demurrable, and it appears from the judgment that they Avere demurred to — whether or not on the grounds above stated, Ave do not know, since the record does not contain the demurrers. It will not be necessary, however, to order a writ of certiorari to bring them up for inspection, for the reason that, for the purposes of this appeal, we shalL indulge the presumption, most favorable to the appellee,, that the demurrers properly took the point. This the' brief of appellant’s counsel practically concedes.
At this point the record presents something of an anomaly. It shows that the trial court overruled the demurrer to these immaterial pleas, Avhich should have' been sustained, as above pointed out; and yet, after-issue was joined upon them and they were proved without conflict in the evidence (even the complaint, filed
This action of the court in refusing said charge is now assigned as error by the defendant. It was clearly error; but if this were an original proposition with us we would consider the question as to whether or not it was not a case of “error without injury,” since the court, in the first instance, should have sustained the demurrer filed by plaintiff to these pleas, and thereby disposed of them. However, we need not concern ourselves with even a consideration of the matter, since the Supreme Court, whose decisions are binding on us, say, in a case where the record discloses a condition substantially the same as that here, as follows: “We think the issue presented by this plea was wholly immaterial, and the plea should have been stricken on the plaintiff’s motion. The plaintiff, however, instead of suffering a nonsuit and reviewing the action of the court on appeal, elected to take issue on the plea and proceed with the trial. This election by the plaintiff presents the case here to be considered as though he had voluntarily joined in an immaterial issue, thereby making it a material one. The evidence, Avithout conflict, sustained this plea, and on this issue the defendant was entitled to the affrmative charge as requested.” — Wellman v. Jones, 124 Ala. 590, 27 South. 416. See, also, as exactly in point,. Pratt Consolidated Coal Co. v. Davidson, 173 Ala. 667, 55 South. 887.
The error pointed out is sufficient to reverse the cause; but as there are other questions presented by the record, which are likely to arise on another trial, we will .dispose of them. • .
The court did not err in refusing the written charge requested by the defendant, to the effect that the jury could not assess any punitive damages in the case. There was evidence introduced by the plaintiff from which, if believed by the jury, they would be justified in awarding punitive damages; for, according to this evidence and the inferences fairly dedueible therefrom, the obstruction was willfully placed and suffered to remain in said stream for the purpose of vexing or harassing the plaintiff. — C. of Ga. R. R. Co. v. Windham, 126 Ala. 552, 28 South. 392; Hughes v. Anderson, 68 Ala.
This disposes of all the assignments of error. For the errors pointed out the cause is reversed and remanded.
Reversed and remanded.