Iron City Mining Co. v. Hughes

| Ala. | May 30, 1905

ANDERSON, J.

While, under our system of pleading as Avell as under the common law, counts for distinct and independent torts, of the same nature, and upon all of AAdiich the same judgment Avas to be given, could be joined in separate counts in the same action, there is no law permitting the plaintiff to unite in one count several torts, constituting distinct and separate causes of action. — A. G. S. R. R. Co. v. Shahan, 116 Ala. 302" court="Ala." date_filed="1896-11-15" href="https://app.midpage.ai/document/alabama-great-southern-railroad-v-shahan-6517315?utm_source=webapp" opinion_id="6517315">116 Ala. 302; L. & N. R. R. Co. v. Cofer, 110 Ala. 491" court="Ala." date_filed="1895-11-15" href="https://app.midpage.ai/document/louisville--nashville-railroad-v-cofer-6516590?utm_source=webapp" opinion_id="6516590">110 Ala. 491; Dusenberry v. Railroad Co., 94 Ala. 413" court="Ala." date_filed="1891-11-15" href="https://app.midpage.ai/document/highland-avenue--belt-railroad-v-dusenberry-6514561?utm_source=webapp" opinion_id="6514561">94 Ala. 413; Offield v. Wabash R. R., 22 Mo. App. 607; S. A. & M. Ry. v. Buford, 106 Ala. 303" court="Ala." date_filed="1894-11-15" href="https://app.midpage.ai/document/savannah-americus--montgomery-railway-v-buford-6516039?utm_source=webapp" opinion_id="6516039">106 Ala. 303.

Count three charges; first- an overflow of water upon the plaintiff’s land by reason of the erection of a levee or embankment'by the defendant; second, injuries to the agricultural productive capacity of the land caused by digging a ditch along the side of the land, through which the water permeates and percolates the plaintiff’s lands; third, the operation by the defendant at various times of an iron ore washer on lands adjacent to plaintiff and to continue to operate said washer until there was an accumulation of mud, slush and other substance, which defendant at various times permitted and allowed to escape and flow upon and overspread twelve; or fifteen acres of the plaintiff’s land.

The 4th count is .also defective and the trial court erred in not sustaining demurrers 10 and 11, as numbered 54, 55, 56, 57 and 58 under the subdivision.

The case of Tenn. Coal & Iron Co. v. Hamilton, 100 Ala. 252" court="Ala." date_filed="1893-11-15" href="https://app.midpage.ai/document/tennessee-coal-iron--railroad-v-hamilton-6515357?utm_source=webapp" opinion_id="6515357">100 Ala. 252, is not in support of the correctness of these counts. There was but one count in that case and the injuries complained of were the result of the erection and use of the iron ore washer.

As the bill of exceptions was not signed within the time allowed by law, the motion to strike is sustained. Bass Furnace Co. v. Glasscock, 86 Ala. 244" court="Ala." date_filed="1888-12-15" href="https://app.midpage.ai/document/bass-furnace-co-v-glasscock-6513367?utm_source=webapp" opinion_id="6513367">86 Ala. 244.

Reversed and remanded.

McClellan, C. J., Tyson and Simpson, JJ., concurring.