Shanan v. Brown, 60 So. 891

60 So. 891 | Ala. | 1913

McCLELLAN, J.

Action by appellant against appellees for damages in consequence of alleged wrongful injury to plaintiff’s property (lots) attending interference with the floAV of waters. In brief for appellant it is said that the solution of a single question Avill determine the controversy. The court gave the general affirmative charge for the appellees upon their request.

Since it has been long settled in this state that town or city lots are, because of artificial conditions created or to be created, excepted from the general rule that makes land legally servient to the natural floAvage of unclianneled waters, the question mentioned, arises out of the plaintiff’s insistence that the structural changes from natural conditions wrought by the defendants upon their lots were not such improvements of urban property as enjoy the protection or sanction of the before-stated exception in favor of the improvement of urban property whereby the natural flowage of unchanneled surface, or unchanneled subsurface, waters may be deflected or prevented without legal wrong to other proprietors. — Nininger v. Norwood, 72 Ala. 277, 47 Am. Rep. 412; Crabtree v. Baker, 75 Ala. 94, 51 Am. Rep. 424; Farris v. Dudley, 78 Ala. 124, 56 Am. Rep. 24; Hall v. Rising, 141 Ala. 431, 37 South. 586; Sou. Ry. Co. v. Lewis, 165 Ala. 555, 51 South. 746, 138 Am. St. Rep. 77. Block 9, in Attalla, Ala., was in the early 70’s subdivided into eight lots, consecutively numbered, and a public alley separating the tier of lots numbered 1 to 4 from that numbered 5 to 8. The plaintiff’s lots are those numbered 3 and 4. The defendants own lots 1, 2, 7, and 8. All of their lots are lower than lots 3 and 4, and the natural flow of surface, and percolating waters, from lots 3 and 4 was originally on or into the defendants’ lots. All of the block is a low area. Defendants’ lots had springs upon them, and the natural channel or drain of the spring or springs was through defendants’ lots to a manhole on Third street. Defendants constructed a wall, making a lake or pool upon their lots 1, 2, 7, and 8 — crossing the alley therewith. The pool does not cover all of lots 2 and 7. On the map the wall of the lake on lot 2 is several feet from the line between lot 2, belonging to defendants, and lot 3, belonging to plaintiff. The effect of the construction of the wall around the pool is, as we understand it, to impound the water from the springs and their low surroundings on defendant’s lots, and to prevent the flowage of surface and percolating waters from the land above, a part of which plaintiff’s lots are; the result being, as plaintiff alleges, to render his lots marshy and wet, less desirable than theretofore for tenancy, and to depreciate their value.

In the absence of averment or proof, as the case may be, that subsurface waters are supplied by a defined, channeled, flowing streams, the presumption is that such waters come' from ordinary percolations. — 3 Farnam on Waters, § 947; Tampa, Water Co. v. Cline, 37 Fla. 586, 20 South. 780, 33 L. R. A. 376, 53 Am. St. Rep. 262, 272. The rules of law applicable to such waters are substantially the same as those applicable to unchanneled surface Avaters. — 3 Farnam, supra, and notes thereto; Tampa Water Co. v. Cline, supra. Aside from counts 3, 5, and 6, added to the complaint by amendment and to be later considered, each of the other counts of the complaint rested the allegation of wrong, and claim of right to compensation for the damage averred, upon conduct affecting the floAvage of unchanneled surface or subsurface waters.

As indicated, the lower proprietor of urban lots OAves no duty to the upper proprietor of urban lots to afford drainage for unchanneled surface or subsurface waters in or on the upper lots, nor to refrain from the improvement of his lots because that change will interfere with or prevent the natural flowage of such waters from the upper lots upon or into such loAver lots, ■ to the end that the upper lots may be drained. — 3 Farnam, § 935, pp. 2712, 2713. Hence counts 1, 2, 3 (original), and 4 were wholly deficient, stating no cause of action. Amended count 3, made by the addition of aArerments thereto, did not cure the infirmity of original count 3. The allegation in the added averment that the waters floAved “through a Avell-defined channel over and across” plaintiff’s lots must, in the light of the whole count as amended, he referred to rainfall only — a character of flow that does not at all rise to the dignity of a defined, distinct stream, to which the law attaches rights and rules not applicable to waters caused by rainfall.

In counts 5 and 6, the effect of the changes, from natural conditions, wrought by the walling-in of the spring area and of the raising of the water level by impounding the waters thus coming up from the springs, was, it is alleged, to interfere with the flow or outlet of “subterranean waters or streams,” or with the flow or outlet of “streams or seepage,” from plaintiff’s more elevated (under natural conditions) lots. The alternatives averred (quoted) are obviously of relatively different conceptions. The strength of the counts in this particular is commensurate only with the weaker of them.' — Jordan v. Ala. City G. & A. Ry. Co. infra, 60 South. 309; Osborne v. Ala. S. & W. Co., 135 Ala. 571, 577, 33 South. 687. The weaker averments describe waters flowing without a distinctly defined channel— not streams. The stronger averment, viz., streams, describes water flowing in a distinctly defined channel. —Tampa Water Co. v. Cline, 37 Fla. 586, 20 South. 780, 33 L. R. A. 376, 53 Am. St. Rep. 262, 268, 269; Ashley v. Wolcott, 11 Cush. (Miss.) 192; Chamberlain v. Hemingway, 63 Conn. 1, 27 Atl. 239, 22 L. R. A. 45, 38 Am. St. Rep. 330, and note; Gould on Waters, § 281. The character and measurement of rights of and applicable rules of law to proprietors whose lands attinge upon or contain streams (water courses) are radically different from those relating to unchanneled surface or subsurface waters. — Ulbricht v. Eufaula Water Co., 86 Ala. 587, 6 South. 78, 4 L. R. A. 572, 11 Am. St. Rep. 72; T. C. I. & R. R. Co. v. Hamilton, 100 Ala. 252, 14 South. 167, 46 Am. St. Rep. 48; Southern Railway Co. v. Lewis, 165 Ala. 555, 563, 51 South. 746, 138 Am. St. Rep. 77. Accordingly, the demurrers to these counts were properly sustained.

Recurring to the major question stated before, the opinion prevails that the creation of the lake or pool was in its complained-of consequences not a wrongful improvement of the defendant’s urban property. The improvement made was and is within the exception applicable to the creation of artificial conditions in or about urban property. There could be no question of a proprietor’s right to wall in one spring on his town or city lot, and thereby impound the waters thereof for his advantage or convenience. The existence of a number of springs on urban lots and their inclosure within walls and the impounding of their waters cannot make a condition so different as to alter the right from that to be enjoyed with respect to one spring. It is a matter of common knowledge, of this state, that a number of its prominent towns were laid off with reference to water supplies afforded, or to be afforded, by springs within their plotted areas. Before the time of the water system as we have it today, the necessary concern for a sufficient and certain water supply for. the personal and business uses of the people naturally exerted an inflence upon the location or creation of villages and towns. The need in populous communities for such supplies exists today, as always formerly. The presence of the source of such supplies in or upon urban lots can and should be availed of. To do so is clearly, we think, natural and reasonable; and to effect this contemplated, anticipated, and authorized .purpose structures may be erected to impound such waters, and to facilitate the enjoyment of the privilege nature has provided. So the construction of the pool or lake, as before described, was not an improvement foreign to the reason and letter of the exception in favor of the creation of artificial conditions upon urban lots. The relation of the subject of this improvement, as well as its method, to the ordinary, usual needs and conveniences of urban communities, is intimate and natural; and, in so altering and facilitating nature’s arrangement the contemplated, anticipated, general purpose and result must be deemed to have been conserved. Plea 2 properly invoked this principle, and was not subject to the demurrer.

The action of the court in sustaining the motion to strike certain replications cannot be considered, since the motion and ruling are not shown in the bill of exceptions. — St. Louis & S. F. R. R. Co. v. Phillips, 165 Ala. 512, 513, 51 South. 638. The affirmative charge was due the defendants.

The judgment is affirmed.

Affirmed.

Dowdell, C. J., and Sayre and Somerville, JJ., concur.