60 So. 891 | Ala. | 1913
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
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
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.
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
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.