158 So. 753 | Ala. | 1935
This bill against the city sought to "remove the obstruction of the natural watercourse on the land of the complainants and to restore said watercourse to its original dimensions in width and depth" and to enjoin the respondent from obstructing the natural flow of water.
The demurrer of the city to the bill as amended being overruled, the appeal is prosecuted from that decree.
The respective rights of riparian owners of land as to the natural flow of water and use thereof, the discharge of water falling upon or flowing through or from lands, and the rights of owners of upper and lower estates with respect to the water course thereof, have often been declared by this court, and need not be repeated. McCary v. McLendon et al.,
This action is against the city, for injunction and for damages alleged to be recurring by reason of its construction and maintenance of an artificial sewer, drain, or line, constructed after and maintained under a contract with the appellees for the right of way across their lands. The statute gave the city the right of condemnation for such use and purpose of a right of way. Section 2296, Code; City of Birmingham v. McConnell,
The municipality, for its own convenience, acquired that right of way by purchase on the terms indicated by the deed exhibited, which will be taken and considered with the bill. Grimsley v. First Ave. Coal Lumber Co.,
This court, in Clifton Iron Co. v. Dye,
The text in 1 High on Injunctions (4th Ed.) pp. 762, 763, § 797, is to the effect, that "while a court of equity may interfere for the protection of the legal right to the use of water in a stream which is being fouled, and whose value is being impaired for manufacturing purposes, by defendant's works farther up the stream, yet if complainants have not used due diligence in the assertion of their rights, and have for a long period allowed defendants to erect and operate their works without objection, an injunction will be refused, especially when the injury complained of can be compensated in damages at law, and when the granting of the relief would inflict serious injury upon defendants, without doing any practical good to complainants."
This text is rested upon the English case of Wood v. Sutcliffe, 2 Sim. (N.S.) 163, 168, 170, 42 Eng. Ch. Rep. 163-170, in which the Vice Chancellor weighed the respective rights and inconveniences of the parties, observing:
"* * * To grant the injunction would have the effect of seriously injuring, if not ruining the defendants. Weighing, then, the injury that may accrue, to the one party or the other, by granting or refusing the injunction, I think that if my decision were to turn on this point alone, I should be bound to refuse it.
"Another condition which, as I have said, is necessary in order to induce a court of equity to interfere by injunction, in a case similar to that now before me, is that the mischief complained of is such that it cannot be properly *544 and adequately compensated by pecuniary damages. * * *"
"I incline to think also that the injunction ought to be refused on the ground that the injury complained of is capable of being compensated by money; and, in my opinion, it ought also to be refused on the ground that the granting of it would inflict serious damage upon the defendants, without doing any real practical good to the plaintiffs." 42 Eng. Ch. Rep. 167, 168, 169, 2 Sim. (N.S.) 163, 167, 168, 169.
The case of Clifton Iron Co. v. Dye,
This doctrine was recognized in Arizona Copper Co. v. Gillespie,
The case of Clifton Iron Co. v. Dye,
"The reference in Clifton Iron Co. v. Dye, 87 Ala. at pages 470, 471, 6 So. 192, Stone, C. J., writing, to the weighing of the injury that might accrue to the public if the injunction there sought was granted had no sort of relation to cases where injunction to abate a public nuisance, caused by obstruction of or encroachment upon a public street, entailing peculiar injury to a property owner, was the relief sought. * * * The court decided that the upper proprietor had a right to use the street to 'wash' its ores, in the stream flowing through its domain. How radically different where the act done creates a permanent public nuisance, positively offensive to the law and the public right, and peculiarly, specially, injuring the complaining property owner!
"In McBryde v. Sayre,
In Martin Bldg. Co. v. Imperial Laundry Co.,
In discussing the general cases of concurrent jurisdiction, in which the remedy is mainly that of the recovery of damages or money, Mr. Pomeroy observes: "Where the primary right of the plaintiff is purely legal, arising either from the non-performance of a contract or from a tort, and the money is sought to be recovered as a debt or as damages, and the right of action is not dependent upon or connected with any equitable feature or incident, such as fraud, mistake, accident, trust, accounting, or contribution, and the like, full and certain remedies are afforded by actions at law, and equity has no jurisdiction; these are cases especially within the sole cognizance of the law. (Askew v. Myrick,
The authorities are abundant in this jurisdiction that, where the wrong can be compensated in money and the action at law affords adequate remedy, equity will not have jurisdiction without independent matter of equitable cognizance. Merchants' Nat. Bank of Mobile v. Roche,
We have indicated that, rather than condemn the right of way being considered, the city acquired it by purchasing for a valuable consideration. The contract is evidenced by the several specific conditions, as to the rights and duties of the respective parties, contained in the deed of date of October 5, 1931, from the Williams to the city of Tuscaloosa, which were: (1) That the city, as grantee, had the right of way for, and the right to lay, construct, maintain, and operate a "main sanitary sewer of a size and character it may elect, on, over, across, and through" the lands in question; (2) that the grantors had the right and privilege to overflow the pipe line (or sewer) to be laid by the city; (3) that the grantors were permitted to build and operate a golf course "over said pipe line and included in said right of way, and to make any other use of said land over said pipe line and included in said right of way that the grantors may so desire"; (4) that the grantors, or their privies in estate, had the right to "tap said pipe line * * * for the purpose of connecting any sanitary sewer or sewers to said pipe line of the purchaser (city) * * * without cost to them or special assessment being made against them for this special privilege"; and (5) that the grantors reserved the right of egress and ingress.
It was further expressly agreed, among other things, that "If the city, its successors or assigns, should permanently abandon the use of said right of way for all of the purposes herein stated, then the easements herein granted and all rights incident thereto shall terminate. The city, its successors or assigns, shall pay all damages which may be suffered by reason of the construction, maintenance, operation, or alteration of said sewer."
It is apparent from this solemn method of contract — covenants running with the land, Patterson v. Atlantic Coast Line R. Co.,
We are of the opinion, and so hold, that the trial court was in error in overruling the demurrer to the bill as amended.
Reversed and remanded.
ANDERSON, C. J., and BROWN and KNIGHT, JJ., concur. *546