Hughes v. Anderson

68 Ala. 280 | Ala. | 1880

STONE, J.

That exemplary damages, or smart money, can be recovered in such an action as this, is settled in this State.—S. & N. Railroad v. McLendon, 63 Ala. 266; Phil., Wil. & Balto. R. R. Co. v. Quigley, 21 How. (U. S.) 202.

The limitation of actions of this kind is one year, and there can be no recovery for injury sustained after the commencement of the suit.—Roundtree v. Brantley, 414 Ala. 544; Polly v. McCall, 37 Ala. 20.

The bill of exceptions states that it contains all the evidence, and nothing is said in it of any permanent or lasting injury to the freehold. No proof that the injury complained of caused any deposit on plaintiffs’ land, or that the increased flow of the water caused any of the soil of the lands to be washed away. Hence, we are not able to perceive on what ground any question could have arisen on the subject of permanent injury. From dll that appears before'us, if the ditches on defendant’s lands were filled up, and the earth Restored to the condition it was in before the excavation, the injury the plaintiffs complain of would cease. Our rulings hereafter announced will rest on the absence of proof of permanent injury.

The surface of the earth is everywhere uneven, producing inequality of elevation. Water seeks its level, and flows naturally from a higher to a lower plane. These differences of elevation are sometimes characterized as superior and inferior heritages. The inferior heritage, or lower surface, is .doomed by nature to bear a servitude to the superior in this, that it must receive the water that falls on, and flows from the latter. The inferior ean not complain of this, for aqua currit et debet eurrere, ut solebat. The proprietor of the superior heritage can not, by artificial means, cause water to flow on the inferior, whieh had theretofore flowed in a different direction; neither can the owner of the inferior heritage, by dam or levee, obstruct the natural flow of the water, and •cause it to flow back, or stand on the lands of the superior. Sic utere tuo, ut alienum non Icedas, is the maxim, the rule in .such case.—See Stein v. Burden, 29 Ala. 127. So, as a rule, every one must so enjoy his own property, as not to offend his neighbor’s equal right to enjoy his own unmolested. But this.rule ean not be enforced in its strict letter, without impeding rightful progress, and without hindering industrial enterprise.. Hence, minor individual interest is sometimes made to yield to a larger and paramount good. To deny this principle would be to withhold from the world the inestimable benefits of discovery and progress in all the great enterprises of life. The rough outline of natural right, or natural liberty, must submit to the chisel of the mason, that it may enter symetrically into the social structure.

As we understand the facts of this ease, the plaintiffs and the defendant were coterminous landholders, each engaged in agriculture; the former owning the inferior, and the latter the superior heritage. Through the lands of the plaintiffs, and near the dividing line, flowed a natural stream or branch, whieh was the natural outlet for a part, at least, of the water which fell on defendant’s land. The water flowed naturally from the defendant’s land upon the lands of plaintiffs, and across a portion of it into the running stream. It flowed slowly, not in a collected body, but scattered over the surface. In its natural state, part of this water was absorbed, and part evaporated before it reached the lands of plaintiffs. By means of ditches, defendant collected all this surface water into one channel, thereby draining his own lands, and causing the water to flow much more rapidly, and in one body, into the branch on plaintiff’s land. This emptied the water off defendant’s land much sooner, and, as a consequence, precipitated it much more rapidly, and in increased volume, on the lands of plaintiffs, thereby flooding a portion of bis lands and rendering them uncultivable. We have, then, the case where plaintiffs must submit to an inconvenience and injury, or defendant must forego a beneficial improvement. What is the rule 7 Much has been said and written on this subject, and there is a want of harmony in the decisions on' this, as on many other questions which have come before the courts. Among the many discussions; of this question, w’e approve and adopt as our own the language of Woodward, J., in Kauffman v. Griesemer, 26 Penn. St. 407. He said: “Almost the whole law of watercourses is founded on the maxim of the common law, aqua currit et débet currere. Because water is descendible by nature, the owner of a dominant or superior heritage has an easement in the servient or inferior tenement for the discharge of all waters which by nature rise in or flow or fall upon the superior. ... This easement is called a servitude in the Homan law, and consists in the subjection of the inferior heritage towards those whose lands are more elevated to receive the waters which flow from them naturally. • • • This obligation applies only to waters which flow naturally, without any act of man. Those which come either from springs, or from rain falling directly on the heritage, or even by the effect of the natural disposition of the places, are the only ones to which this expression of the law can be applied. It is not, however, to be understood, that because the flow of water must not be caused by the act of man, that therefore the proprietor who transmits water to the inferior heritage, is not permitted to do anything on his own land — that he is condemned to abandon it to perpetual sterility, or never vary the course of cultivation, simply because such acts would produce some change in the manner of discharging the water. The law intends not this. It prohibits only the immission into the inferior heritage of the waters which would never have fallen there by the disposition of the places alone. It never would nor could refuse to the superior proprietor the right to aid and direct the natural flow. Hence, for the sake of agriculture — agrico-le-ndi causa — a man may drain his ground which is too moist, and discharging the water according to its natural channel, may cover up and conceal the drains through his lands— may use running streams to irrigate his fields, though he thereby diminishes, not unreasonably, the supply of his neighbor below — and may clear out impediments in the natural channel of his streams, though the flow of water upon his neighbor be thereby increased. • • It is not more agreeable to the laws of nature that water should descend, than it is that lands should be farmed and mined; but in many cases they can not be, if an increased volume of water may not be discharged through natural channels and outlets. The principle, therefore, is to be maintained ; but it should be prudently applied. . • • • The plaintiffs had no right to insist upon his receiving waters which nature never appointed to flow there.”—Martin v. Riddle, 26 Penn. St. 415; Ang. on Water Courses (7th ed.), sections 108a to 108s; Waffle v. N. Y. Central R. R. Co., 53 N. Y. 11; Williams v. Gale, 3 H. & Johns. 234; Prescott v. Williams, 5 Metc. (Mass.) 429.

Under these rules, defendant had no right, by ditches or otherwise, to'cause water to flow on the lauds of plaintiffs, which, in the absence of such ditches, would have flowed in a different direction. As to the water theretofore accustomed to flow on the lands of the plaintiffs, defendant was not bound to remain inactive. He was permitted to so ditch his own lands as to drain them, provided he did so with a prudent regard to the welfare of his neighbor, and provided he did no more than concentrate the water, and cause it to flow more rapidly, and in greater volume on the inferior heritage. This, however, must be weighed and decided with a proper refer-ence to the value and necessity of the improvement to the superior heritage, contrasted with the injury to the inferior; and even this license must be conceded with great caution and prudence. It is a question for the jury to determine, on the facts of each particular case, under proper instructions from the court.

Applying these principles to the charges asked by defendant and refused, the first charge was calculated to mislead, because its tendency was and is to deny to plaintiffs the right to recover exemplary damages. If malice, vexation, or wantonness on the part of defendant was shown, the jury would be authorized to go beyond the actual injury to the land. The second charge should have been given. The third charge was rightfuly refused, for two reasons. Its tendency was to require a too strict and severe rule for the separation of the damages accruing within the twelve months, from those suffered before that timé. Much latitude and discretion are allowed to juries in such inquiries. And, in any event, on the hypothesis of this charge, the jury would be authorized to award nominal damages.—Stein v. Burden, 24 Ala. 130. The fourth and fifth charges assert the same legal proposition as the third, and were rightly refused. The sixth charge is an argument, and not in proper form for instructions to a jury. Charges to juries should be made up of clear and distinct legal principles, without involvement, and free from redundant verbiage, or other confusing elements. The introductory part of the seventh charge is an argument, and it was rightly refused on that account, The principle of the charge is objectionable, in this, that it does not limit and qualify the right to precipitate the flow of water on the serv-ient or inferior heritage, as declared above in this opinion. The eighth charge was rightly refused.

Reversed and remanded.