102 Ala. 501 | Ala. | 1893
This(action was instituted to recover damages for an alleged injury to realty. The complaint consists of several counts, some of which were framed in trespass and others in case. The important questions for consideration, and the decision of which will deter
The trial court held that the action should be in case, that the statute of limitations for one year applied, and that the proper measure of damages, was the diminution of the rental value, for one year preceding the bringing of the action. The undisputed facts show that for many years prior and up to the time of his death, which occurred in the year 1890, plaintiff’s testator had owned and been in possession of the lands claimed to have been damaged, cultivating them as a farm, and since his death, the plaintiff as executor had been in possession of the lands. That through the lands there flowed a creek of clear, healthy water, useful for, aud used for watering stock, and at times for drinking purposes; that defendant owned a tract of land above the land of plaintiff on the same creek, from which, for five or six years previous to the bringing of the suit, defendant had been engaged in mining iron ore, and washing its ore with the waters of the creek. That for this purpose, the water was pumped into large reservoirs, and, after utilizing the water in washing the iron ore, it was allowed to escape in a way so as to return to its natural channel, above plaintiff’s land. There was evidence also tending to show that when the water reached plaintiff’s farm, it was ladened with red clay, refuse ore, and debris, rendering it unfit for stock and drinking purposes, and that in some places a thick sediment or “slush” was deposited upon portions of the farm impairing its fertility, and in some places, it was so deep as to destroy its usefulness for cultivation. The evidence conflicted as to the extent of the damage sustained. The evidence also conflicted as to whether by the construction of proper basins to receive and hold the water, after having been used by defendant it could not have been retained, until all the objectional matter or substance contained in it had settled in the basins, so as to restore the water to its natural purity.
Appellee contends, that if there are errors in the record, they are errors without injury, in as much as plaintiff was not entitled to recover in any event, and in support
The principle of law declared in 87 Ala., supra, does not sustain the proposition to which it was cited. That was a bill for an injunction to restrain the use of the washers. Considerations arise in applications for injunctions, which do not exert a controlling influence upon a right of action for damages, and in that very case, it is said, “the plaintiff should have been remitted to a court of law for the recovery of his damages. ’ ’
The case of Pennsylvania Coal Co. v. Sanderson, in 113 Pa. St. p. 126, cited by counsel, goes far to sustain the contention of appellee. In this case it is held that “the use and enjoyment of a stream of pure water for domestic purposes by the lower riparian owners * * * must ex necessitate give way to the interest of the community, in order to permit the development of the natural resources of the country and to make possible the prosecution of the lawful business of mining coal. ” The conclusion reached is not in harmony with the prior decisions of the same court. The same principle announced in 113 Pa. St. supra, to some extent has been applied in cases of irrigation. — Schilling v. Rominger, 4 Col. 100; Yunker v. Nichols, 1 Col. 551.
The case from 113 Pa. St., supra, is an authority we think very much weakened by the subsequent cases in the same State of Robb v. Carnegie Bros., 145 Pa. St. 324, and Lentz v. Same, Ib. 612; 27 Amer. St. Rep. 717 and 694. In the latter cases it was held that “a manufacturer of coke from coal not mined on his own land is liable in actual damages to a lower proprietor for the pollution of a stream as a necessary incident to his business, and also for actual damages done to crops and the soil.” The case in 113 Pa. St. is not overruled, but is commented on, and the distinction is drawn, that in the latter case (113 Pa. St.) the ore was being mined by the owner of the soil, and in the two later cases, the coke was not mined on the land upon which it was manufactured. It seems to us, that if, in the case where the
Under the provisions of the constitution, private property can not be taken for public uses, or for corporations, without just compensation being first made to the owner, except by his consent. The courts, and it was never intended to be understood otherwise, are not the "masons” to "chisel” away vested rights of property of private individuals, however humble and obscure the owner, for the benefit of the public, or great corporations. It is the pride of this Republic, that no man can be deprived of his property without due process of law, and that the poorest citizen can find redress for an unlawful injury caused by his wealthy neighbor, by appealing to the courts of his country.
We are satisfied that plaintiff's complaint showed a good cause of action, and there was evidence tending to sustain it. — Tenn. Coal, Iron & R. R. Co. v. Hamilton, 100 Ala. 252; Anderson v. Hughes, supra; Clifton Co. v. Dye, supra; Boynton v. Longley, 3 Amer. St. Rep., supra; Robb v. Carnegie, 145 Pa. St. 314; Lentz v. Carnegie, Ib. 612; 27 Amer. St. Rep. 717, and 694; Crabtree v. Baker, 75 Ala. 91; Farris & McCurdy v. Dudley, 78 Ala. 124; Stein v. Burden, 29 Ala. 127; Pettigrew v. Evansville, 3 Amer. Rep. 50; 6 Amer. & Eng. Encyc. of Law, 149.
We are of opinion the trial court ruled properly, in holding that, under the facts of the case, the plaintiff could recover only on the counts incase. The boundary
We are of opinion the court erred in restricting the damages recoverable to the diminution of the rental value for one year. The lands had belonged to plaintiff’s testator, and plaintiff was the executor. The legal title was not in him, but the record states that plaintiff had held posession as executor of the land “since the death of testator.” Lands of a decedent are subject to admistration and liable for the payment of his debts. For purposes of administration and for the payment of debts, the executor had authority to take possession of the land, and he had asserted his authority. There was some evidence tending to show permanent injury to some portions of the land. Under the facts, no one could sue for permanent injury sustained, except the executor, at the time of the institution of this suit. — Calhoun v. Fleteher, 63 Ala. 574; Nelson v. Murfee, 69 Ala. 603. The heirs may never succeed to legal xDossession and ownership of the land. It was proper to consider the diminution of the rental value, but it was not the exclusive rule for measuring the damages. The difference between the value of the land with and without the permanent injury is recoverable.
Reversed and remanded.