Savannah, Americus & Montgomery Railway v. Buford, 106 Ala. 303

Savannah, Americus & Montgomery Railway v. Buford

106 Ala. 303 | Ala. | 1894

BRICKELL, C. J.

— A corporation must sue and be sued by its proper corporate name ; the name by which it is styled in the law of its creation, or the name which it may have acquired by user. In this respect, the same rules of pleading are applied, which would apply if the suit was by or against a natural person. If the corporation sues or is sued by a wrong name, the only mode of taking advantage of the misnomer, is by a plea in abatement, and if that mode is not resorted to, the error is waived. — 1 Morawetz Corp., § 355 ; Ang. & Ames Corp., *309§ 650 etseq; Smith v. Plank-Road Co., 30 Ala. 650. It is merely elementary to say that the plea must negative the fact that the corporation was known and .called by the name by which it sues or is sued, and must aver its true, real name, the name by which it may rightfully sue or be sued. This is of the essence of all such pleas, otherwise the plaintiff -would not be furnished with the means of correcting the .error — in the language of the old books a better writ would not be given him, and there might be repetition of such pleas, to the delay of justice and the multiplication of costs.

The plea is formally and accurately drawn. It negatives the fact that the defendant was ever known and called by the name of'the “Savannah, Americus & Montgomery Railroad Company,” the name by which it was sued, and avers that its true and real corporate name, is the “Savannah, Americus & Montgomery Railway.” The causes of demurrer to the plea which were assigned, if any were assigned, are not shown by the record. It is probable, the demurrer was sustained upon the theory that there was not a substantia] variance between the name by which the defendant was sued, and that which was averred in the plea as to the true name. Whether this is true or not, is not now a matter of importance. The complaint was amended by the insertion of the true corporate name, as it was expressed in the plea, and if there was error in sustaining the demurrer to the plea, the amendment rendered it harmless. If the demurrer had been overruled, the result would have been to put the plaintiff to the necessity of an , amendment. — Ala. Conference v. Price, 42 Ala. 39 ; Smith v. Plank-Road Co., 30 Ala. 650, supra; Caldwell v. Bank, 11 Ala. 549.

The statutes of amendment are very broad; they are remedial, and have received a liberal construction. — Code, §§ 2691, 2833. The purpose of the statutes is to promote speedy trials on the merits, and to save the delay and injury incident to the common law rules of procedure, by which errors in pleading were often fatal, compelling the institution of a new suit. The right of amendment is now co-extensive with the errors in pleading which may be committed. There are, however, certain rules which must be observed, and certain limita which can not be transcended. The form of action may not be changed; there can not be an entire change of *310the cause of action, nor an entire change of parties plaintiff or defendant. Either of these things, would be the equivalent of the institution of a new suit, rather than the correction of defects or errors of pleading in the suit which was pending. It seems to us, it is quite an error to suppose that the mere change of the name of a party, natural or artificial, though such party may be a sole plaintiff or defendant, can be an entire change of parties. It was very properly observed in Smith v. Plank-Road Co., 30 Ala. 650, supra, in which there was by amendment a correction of a misnomer of a corporation, the sole party plaintiff, ‘ ‘that there is a well marked distinction between a misnomer, which incorrectly names a corporation, but correctly describes it, and the statement in the pleading of an entirely different party.” And it is upon this distinction, rests the cáse of Western Railway v. McCall, 89 Ala. 375, to which we are referred. There was in that case more than a mere misnomer; there was an incorrect description of the corporation. To the misnomer there was added the descriptive averment that the corporation sued was “a foreign corporation, incorporated under the law of the State of Georgia, and doing business by its agents in said county of Lowndes, State of Alabama.” The amendment of the complaint proposed was. the striking out the original name, and the descriptive averment, inserting in lieu a new name, and describing the defendant as a domestic corporation; a corporation incorporated under the law of this State. The court observed : “The departure in this case is so radical — a substitution of an Alabama corporation, having an expressed name, for a Georgia corporation, having another and distinctly different name — that we feel bound to hold that it is a change of the sole party defendant.” The later case of Singer Manufacturing Co. v. Greenleaf, 100 Ala. 272, is of more analogy to the present case. The corporation was sued by a wrong name ; by the name of the “Singer Machine Company,” the true name being the “Singer Manufacturing Company.” The correction of the misnomer by amendment of the complaint was decided to be proper. The court said: “There was not an entire change of party, but only a correction of a part of the corporate name, which had been misconceived. We do not think the change was calculated to deceive or mislead.” In the case of *311Caldwell v Branch Bank of Mobile, 11 Ala. 549, a case occurring before our present statute, when the right of amendment was more circumscribed, the original writ described the plaintiff as the “Branch Bank at Mobile,” the true corporate name being the “Branch of the Bank of the State of Alabama at Mobile.” The declaration was filed in the true corporate name, but the variance between the writ and the declaration was pleaded in abatement, and to the plea a demurrer was sustained. The court said: “The name of the plaintiff, it is believed, is substantially the same both in the writ and the declaration, and this is considered sufficient. But if the variance is material, we think the.fair inference is, that the name of the plaintiff in the writ was intended to be the same as that stated in the declaration according to the act of incorporation; that the writ may be amended on motion, and the mistake is no ground for abatement.” We cannot doubt the amendment of the complaint was properly allowed.

There was no error in the rejection as evidence of the value of the lands of the plaintiff, the assessments of the lands for taxation. The plaintiff did not participate in the assessments, each assessment was the act of the assessor. — Birmingham Mineral R. R. Co. v. Smith, 89 Ala. 305 ; Ala. Mineral Land Co. v. County Commissioners, 95 Ala. 105. The subsequent payment of the taxes as assessed, was a ratification of the act of the assessor so far as all the matter of'taxation was involved ; beyond that the ratification did not extend, and it cannot be extended so as to convert it into an admission by the plaintiff that it equalled or exceeded the value of the lauds, when the fact of value is involved . in a controversy with a stranger.

Whatever may be the diversity of opinion and decision elsewhere, in this State it is the settled doctrine, that where two parcels of land belonging to different owners lie adjacent to each other, and one parcel lies lower than the other, the lower one owes a servitude to the upper, to receive the water which naturally runs from it, provided that the industry of man has not been used to create the servitude ; or in other words, the owner of the upper parcel of land has a natural easement in the lower parcel ,to the extent of the natural flow of water from the upper parcel to and upon the lower. The distinction else*312where observed, as to the waters of a running stream, having a channel more or less defined, and the flowage of surface water — water spread over the face of the earth, inconsequence of rains or snows, or formulating in the surface beneath the earth — has not prevailed here. The wrong intended to be guarded against, is the diversion of water, causing it to flow upon the lands of another, without his will, which did not naturally flow there ; and it is not deemed material, whether the water is diverted from a running stream, or is surface water caused to flow, where if did not flow before.— Farris v. Dudley, 78 Ala. 124; Crabtree v. Baker, 75 Ala. 91; Ninninger v. Norwood, 72 Ala. 277; Hughes v. Anderson, 68 Ala. 280 ; Mayor v. Jones, 58 Ala. 654; Mayor v. Coleman, Ib. 570 ; City Council v. Gilmer, 38 Ala. 116.

In Hughes v. Anderson, 68 Ala. 280, supra, it was said by Stone,!., after a statement of the general doctrine, as we have expressed it that it could not be “enforced in the strict letter, without impeding agricultural progress, and without hindering industrial enterprises. Hence, minor individual interest is sometimes made to yield to a large and paramount good.” But in this connection he further observed : “This, however, must be weighed and decided with a proper reference 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.” This case does not involve a discussion or consideration of this limitation of the general doctrine. For, it is settled by the current and weight of authority, that a railroad company, has not more right to obstruct the natural flow of water by an embankment, or other artificial means, or by the collection of it into an artificial channel, forcing, or conducting it to a discharge upon the lands of another, than it has in the same way to dispose of water from water courses; and it is as liable for the resulting damage in the one case, as in the other.— Waterman v. Conn. & Pass. R. Co., 30 Vt. 610 ; Toledo, W. & W. R. Co. v. Morrison, 71 Ill. 616; J. N. & S. E. R. Co. v. Cox, 91 Ill. 500; L. & N. R R. Co.v. Hays, 11 Lea (Tenn.) 382, s. c. 47 Am. Rep. 291; P. W. & R. Co. v. Davis, 68 Md. 281, s. c. 6 Am. St. Rep. 440; A. & N. W. R. Co. v. Anderson, 79 Texas, 427: Railway Co. v. Mossman, 90 Tenn. 157, s. c. 25 Am. St. *313Rep. 670. There was of consequence, no error in the refusal of the first instruction requested by the defendant.

The statute of limitations to which the action is subject, is subdivision 6, of section 2619 of the Code, which reads : “Actions for any injury to the persons or rights of another, not arising from contract, .andnot being specifically enumerated, ” must be commenced within one year after the cause of action accrued. If the action, as was true in a number of our own decisions to which we are referred, was founded upon the injuries resulting from the negligence or unskillfullness of the defendant in the construction of the embankment and road bed, it may be the statute would commence to run from the construction, as is now insisted, though the full extent of the damage was not then ascertainable. There is much of verbiage in the single count of which the complaint counts, imputing wrong, unskillfulness, and negligence to the defendant, in the construction of its road bed and of the embankment. This verbiage may be rejected as mere surplusage, for it is obvious the gravamen of the complaint, is, that the road bed and embankment, at a particular time after their construction, caused the surface water to flow from the right-of-way of the defendant, in and upon the lands of the plaintiff, where it did not flow naturally, to her injury. The principle governing the operation of the statute in cases of this character, is well settled. The roadbed and embankment are permanent and continuous structures : and if their erection had given the plaintiff a cause of action, and then, all the damage which could have resulted, had resulted, the statute of limitations would have commenced to run from the time of their completion. But if the thing complained of is not necessarily injurious, or is notan invasion of the rights of another, of itself affording no cause of action, then whatever of legal injury may result from it, furnishes a cause of action accruing when the injury occurs, and then the statute of limitations commences to run ; and there may be as many successive suits and recoveries, as there are successive injuries. St. Louis &c. Railway v. Biggs, 52 Ark. 210, (20 Am. St. Rep. 174, elaborate note by Mr. Freeman) ; Austin & N. W. R’y Co. v. Anderson, 79 Texas, 427, s. c. 23 Am. St. Rep. 350; Polly v. McCall, 37 Ala. 20. The *314error of tlie instructions by the defendant as to the statute of limitations lies in the hypothesis that the construction of the embankment and road bed gave the plaintiff a cause of action, and that such was the cause of action averred in the complaint. The embankment and road bed were lawful structures, lawfully erected, and their construction was not an invasion of any right of the plaintiff, and furnished her no cause of action. The legal injury to her, which gave her a cause of action, was coincident with the overflow of her lands, caused by the embankment and roadbed, and it is from the happening of the injury, the statute of limitations commenced to run.

We find no error in the record, and the judgment must be affirmed.