Mayor of Union Springs v. Jones

58 Ala. 654 | Ala. | 1877

STONE, J.

1. The case of Mayor and Councilmen of Troy v. Coleman, 58 Ala. 570, is decisive of many questions raised by this record. In that case we said, adopting the language of Judge UilloN in his work on Municipal Corporations, § 799, “we are unable to assent to the doctrine that by reason of their control over streets, and the power to grade and improve them, the corporate authorities have the legal right intentionally to divert the water therefrom, as a mode of protecting the streets, and discharge it, by artificial means, in increased quantities, and with collected force and destructiveness, upon the property, perhaps improved and occupied, of the adjoining owner.” This disposes, adversely to appellants, of one line of the defense relied on.

2. In that case we also said, “appellant proposed to prove that one of the sewers complained of by plaintiff, . was put there at the request of Joel I). Murphree, who owned said lot at that time — that is, the lot now belonging to plaintiff — to which the damage was done. But the circuit judge ruled that this could not be done. It seems to us that in this there was error. If the former owner, who had power to charge the lot with any servitude in favor of the public, expressly authorized the building of one of the striic-tures complained of, in such situation and manner, as that it would naturally turn upon the lot a large portion of the water which they decided to divert from the streets, he thereby deprived himself of any right of action against the corporation for that which he, with a knowledge of the consequences to his property, induced the authorities to do. And he could not, by a transfer of the lot to another, invest his alienee with larger rights than he himself had. The purchaser would take the property cum onere.” Under this principle, if Mrs. McBae, the former owner of the lots, and while she was the owner, gave to the town council, or its employes, authority to erect the conduit, or water escape, and the same was erected, and remained there when Jones purchased, and there was no change in the structure which caused an increased flow of water, and increased damage to plaintiff’s property, this would be a complete defense to the present action. Many of the rulings of the criminal court were in conflict with this view, and the result is that the judgment must be reversed.

3. The criminal court also erred in receiving evidence of the difference of value .of the lots between the time when the conduit or aqueduct was erected, and the commencement of this suit. This did not and could not furnish a criterion of damages, to which the plaintiff was entitled. He could only recover for the injury done his property after he became the owner. Nor, in the absence of an averment of the fact as special damages, should the plaintiff have been allowed to prove the loss of a tenant of his property, caused by the water-flow. — Donnel v. Jones, 13 Ala. 490.

The exceptions in this record are very numerous, but we think what is said above will furnish a sufficient guide on another trial.

Reversed and remanded.