59 So. 505 | Ala. | 1912
— The first count of the complaint is for the “creation of a nuisance, * * *” in this, to wit, that the defendants are in charge and control of and put in operation a permanent plant, etc. This averment was not proven, and the trial court did not err in giving the general charge for the defendants as to said count. Nor do we understand the case of Adler & Co. v. Pruitt, 169 Ala. 213, 32 L. R. A. (N. S.) 889, 53 South. 318, as holding that these defendants were liable as for a creation of the nuisance growing out of the erection, construction, or starting of the sewage system complained of as distinguished from their liability for the operation or maintenance of same.
There was no error in giving charge 7 at the request of the defendants. Every odor, or the occasional detection of same, is not, as matter of law, a nuisance. If the
There was no error in giving charge 9 at the request of the defendants. Count 1 was properly eliminated, and this charge merely hypothesized the plaintiff’s right to recover upon proof of the material averments of count 2. If the charge was misleading, it should have been explained by a counter charge.
There was no reversible error in giving charge 10, at the request of the defendants. It may single out and give undue prominence to a part of the evidence, and which might justify the refusal of same; but the giving of same was not reversible error.
Charge 5 refused, Avhether good or bad, was sufficiently duplicated by given charge 14.
There was no error in refusing charges 9, 16, and 21, requested by the plaintiff. If not otherwise bad, they invade the province of the jury by peremptorily instructing that the defendants were operating and maintaining the plant or tanks when, at best for the plaintiff, it was a question for the jury as to whether or not the defendants were in control of the same during the period covered by the second count. It is true they had a contract with the county; but the proof does not show that they were operating under the contract during the year preceding the bringing of the suit. The last act of dominion or control over same by these defendants, as disclosed by the evidence, was in letting or leasing the land to the Hueys in January, 1909. Nor does it appear that the conditions complained of were caused by the Hueys for themselves or the defendants, and, from aught that appears to the contrary, the county may have been operating' the plant and tanks, and the defendants may have abandoned their contract. True there may be inferences that the defendants were
Affirmed.