61 So. 283 | Ala. | 1913
Plaintiff (appellee) sued to recover damages, alleging that defendant company in the operation of its coal washer and coke ovens on Horse Creek, above his property, had made deposits of dirt, mud, slate, slag, ashes, and other debris in the bed of the stream, thereby causing the stream to overflow, and deposit said debris of various kinds upon his land, greatly impairing its value for agricultural purposes, rendering the water wholly unfit for his cattle or other domestic uses; poisoning the fish, and otherwise impairing the use and value of plaintiff’s premises. The theory of plea 6 is that, since the washer and coke ovens have been maintained under claim of right for more than 10 years with the same constantly recurring results, defendant had acquired the right to operate them in the manner and with the results indicated — -had acquired an indefeasible easement. Public concern about the
Defendant was not entitled to the general charge as it contends. This contention appears to be based upon plaintiffs failure to produce his muniments of title. But, with an intermission at one time of several years, he had lived upon the land for fifty years claiming to own it, and during the last 15 or 20 years he had continually lived there, exercising acts of ownership over the entire tract. This possession with claim of ownership was evidence of title, and in an action of thiis character was sufficient to establish plaintiff’s interest, in the absence of proof of ownership in another. — A. G. S. R. R. v. Johnston, 128 Ala. 283, 29 South. 771.
In view of plaintiff’s acquaintance with the land, it was competent for him as a witness for the proof of his measure of damages to state the value of the land immediately affected both before and after the deposits of which he complained. At least, this was so as against a mere general objection. If it seemed necessary, and defendant desired to limit the inquiry to damage done within the period of limitation pleaded, his objection should have taken the point specifically. And, further, to answer the specific objection now taken for the first
We have considered the errors assigned without finding cause for reversal.
Affirmed.