Sloss-Sheffield Steel & Iron Co. v. McCullough

59 So. 210 | Ala. | 1912

MAYFIELD, J.

This is an action on the case to recover damages to lands caused by overflowing them with water, and depositing thereon mud and other debris. The defendant maintained and used a “slush pond” on its premises for the purpose of catching and retaining the mud and refuse matter resulting rrom the washing of iron ore. The banks of this slush pond broke, allowing the water, mud, and debris to flow and to be deposited on the plaintiff’s land, to his damage, hence this suit.

The first error insisted upon is that the complaint is defective, in that it imposes too high a duty upon the defendant relative to the construction and maintenance of the dam around its slush pond. We cannot agree with appellant in its construction of the complaint. The complaint was sufficient, and was not subject to the demurrer.

There was no reversible error in the rulings of the trial court upon the evidence as to the damages. The measure of damages was the difference in value of the plaintiff’s land just before and just after the injury complained of.

It was proper, of course, in order to ascertain this difference, to prove the value of the land before, and the value after the injury. This evidence should be, as we think it ivas in this instance, limited to the time just prior to, and that just after, the injury. The objections which appellant interposed to the admission of •such evidence did not specify or mention any particular ground, and therefore did not call the attention of the court to the specific point of objection now urged to the evidence, that it did not limit the price or value of the premises to the times immediately before and after the injuries complained of, nor to the property actually flooded. If the attention of the court had been called to the fact that the evidence was not so restricted, no doubt it would have so limited it, as it subsequently did when its attention was so directed to it.

We are not prepared to say, however, that the trial court should have limited the damages to any particular number of acres of the 160-acre tract embraced in the complaint. While the entire tract was not flooded, the evidence was in dispute as to how much of it was, as it was likewise, touching both the amount of the damage and the acreage damaged. The plaintiff could, and did, correct any possible injury flowing from the generality of the evidence by a cross-examination of his witnesses on the points as to which general objections Avere interposed. The rulings sustaining objections to the evidence of the defendant, offered to prove damages, appear to involve no injury, if they could be said to be error; for the reason that the witness in each case was allowed to testify, and did testify, fully as to the matter inquired of by the defendant, when objections were sustained to the question propounded by it to the witness. In other, words, it fully appears that all of the witnesses who were shown to be competent as to the matter did ultimately testify fully as to the question of damages, which was the subject of inquiry.

It is insisted by appellant that plaintiff did not prove title to the land in question in such sort as to support the action. In this contention appellant is in error. The undisputed evidence showed that the plaintiff and his tenants had been in the undisputed possession of this land for more than 50 years. No other person was shown to have or to claim, nor did the defendant claim any right to flood such land. This was certainly sufficient proof of title to support the action, without any proof of paper title. The proof of possession was sufficient to create the presumption of title. There was likewise no reversible error in the court’s instructing the jury that, if the plaintiff had shown an adverse possession of land for more than ten years, he had made sufficient proof of title.

The bill of exceptions contains the following recital as to the exception to that part of the court’s charge relative to proof of title by possession: “The court in his oral charge to the jury, among other things, charged the jury as follows: ‘There are two ways by which title may be acquired, by paper or written title, and by adverse possession for 10 years or more. The plaintiff does not undertake to show title by written or paper title. He contends that he has been in adverse possession of the land for more than 50 years, and relies on ownership by adverse possession. This is a question for you to decide, and you must decide it from the evideuce. If you are reasonably satisfied from the evidence that the plaintiff has been in adverse possession of the land for more than 10 years, then you would be authorized to find for the plaintiff on the issue of the plaintiff’s ownership of the land that he contends was damaged by the overflow, if you find there was an overflow. The court was of the opinion that he defined what it took to constitute adverse possession, but the defendant’s attorneys insists that this was not done, and that this is the reason that they excepted to this part of the court’s oral charge. If the court did not define adverse possession and this was the reason the defendants excepted to this part of the court’s charge, if the court had been informed that was the exception the court would have gladly defined to the jury what it took to constitute adverse possession, or if the defend’ ant had asked a special written charge defining adverse possession, the court would have given it.’ To the action of the court in giving the above charge to ■ the jury the defendant then and there in open court duly excepted.” We are of the opinion that there was no reversible error in this part of the charge of the court. Any misleading tendencies in the charge could and would have been corrected by explanatory charges, as the bill of exceptions recites. Moreover, there was really no conflict or difference in the evidence as to the plaintiff’s title to the land.

There was certainly no legal ground upon which the defendant was entitled to the general affirmative charge. The evidence was without dispute that plaintiff’s land was flooded and that mud and debris was deposited thereon, and that it came from defendant’s slush pond. This certainly made it a question for the jury, whether or not the defendant was responsible therefor.

The law as to the liability of a defendant for depositing or placing such matter or other foreign substances upon the lands of the plaintiff was passed upon in a well-considered case (Alabama Western Railroad Co. v. Wilson, 1 Ala. App. 306, 55 South. 932), in which the rule laid down by Mr. Bishop is quoted with approval, which rule is as follows, and is apt, to support the ruling of the trial court in this case: “One may not, either voluntarily or negligently, cast earth or other substance from his own ground on a neighbor’s, or upon his own bring or erect anything, or change the natural position, of anything from which the air, the moving-water, or any other force of nature will bear to another-er, or other land, what is distinctly injurious to him; or, by any excavation, structure, or other change of his premises from their natural condition, render them unsafe to other persons and their property lawfully thereon; while yet these restraints will not be drawn so clos.ely as substantially to deprive him of the use of his lands, or to render him answerable for inevitable accidents injuring others.”—Bishop on Noncontract Law, § 829. There was not in this case evidence sufficient to show that the damages complained of were the result of inevitable accident or of an act of God, as being caused by an unprecedented flood or one not reasonably to be expected.

We find no error, and the judgment of the f r ial court is affirmed.

Affirmed.

All the Justices concur.