62 So. 802 | Ala. | 1913
— Appellant's demurrer to- the complaint on the ground substantially that plaintiffs’ (appellees’) injury was not laid to negligence in the construction or maintenance of the dam should have been sustained. Appellees have cited a number of cases in all which there was an original wrong in the structure or operation which caused injury, as, for example, defendant dammed up water so causing it to overflow plaintiff’s land, or defendant caused water to flow upon plaintiff’s land which was accustomed to flow elsewhere, or there was an original encroachment of some character upon plaintiff’s land, all which acts were wrongful of course, were nuisances for the consequences of which the defendants in those cases were liable without regard to whether or not there was negligence, for no degree of care would excuse a wrong of that character. But the owner of ]and may for his own lawful purposes dam up the water of a stream on his own land, and doing so, he does no wrong. He is not an insurer of .the safety of such structure, but he must exercise due care and skill in construction and maintenance to the end that his lower neighbors may not be injured by accidental bursting. In estimating the hazard to his neighbors, the proprietor must take into consideration climatic history and geographical situation so as to be able to care for conditions that may be reasonably expected, whether of frequent or infrequent occurrence. • If, after he has -taken these precautions, his dam is washed away by unprecedented flood, without the proximate concurrence of negligence on his part, he is not liable for resulting damages. — 40 Cyc. 683; Gulf Red Cedar Co. v. Walker, 132 Ala. 553, 31 South. 375; Ala. Consol Co. v. Turner, 145 Ala. 639, 39 South. 603, 117 Am. St. Rep. 61. In other words, if defendant was liable for the damages suffered by plaintiffs, it was liable, not on
Reversed and remanded.
