Stouts Mountain Coal & Coke Co. v. Ballard

70 So. 172 | Ala. | 1915

ANDERSON, C. J.,

(1) There was no error in overruling the defendant’s demurrer to the complaint. It showed but one continuous wrong, as distinguished from separate and distinct overflows.

“It is the established doctrine that the exclusive enjoyment of water, or any other easement, in a particular way, for a length of time which is the period of the statute of limitation, enjoyed without interruption, is sufficient to raise a presumption of title as against the right of any other person which might have been, but was not, asserted.” — Ala. Consolidated Co. v. Turner, 145 Ala. 639, 39 South. 603, 117 Am. St. Rep. 61, and cases there cited.

This rule seems to apply to a pollution of the water by means of the exercise of certain trades, as well as to the diversion, taking, or diminution of the quantity of same. — Angelí on the Law of Water Courses, § 205; 1 Amer. Enc. of Law, 875; Turner’s Case, supra.

(2) It is, no doubt, true that a party suffering injury from a nuisance is not compelled to sue as for the creation of same, but can recover for injury caused by the maintenance of same, but this does not alter the doctrine that, if he sits supinely by and permits another to use his water or divert or pollute- same without taking action for ten consecutive years, he is precluded from recovering damages .growing out of the creation or maintenance of what is termed a private nuisance, as contradistinguished from a public nuisance.

(3-6) The law is well settled that the right to maintain a public nuisance cannot be acquired by prescription. — Mayor of Birmingham v. Land, 137 Ala. 546, 34 South. 613; Reed v. Birmingham, 92 Ala. 348, 9 South. 161. On the other hand, a person may acquire by prescription the right to maintain a private nuisance. — 29 Cyc. 1206; Turner’s Case, supra; Crumbaugh v. M. & O. R. R., 105 Miss. 485, 62 South. 283. In order to establish a prescriptive right, the user must not only be open, adverse, and continuous, .etc., but with the knowledge and acquiescence1 of the person whose right is invaded. — 29 Cyc. 1206. And the1 use must be such as to produce a uniform result during the period of adverse claim or holding; that is, the mere use by one; of another’s land or water, by a diversion of the water or a pollution of same or by overflowing the land for the period necessary to bar a recovery, in such a way, a portion of the time, as not to be injurious or destructive to the owner, will not authorize the tacking to that period succeeding years in which the burdens upon the owner were increased or enlarged to the extent of producing injury or destruction, although the method of user by the adverse claimant of the cause producing the result may be the same. The mere fact that this defendant used its mine and the plaintiff’s branch in the manner alleged in the complaint adversely for ten years as it was being used at the time the suit was brought as set out in pleas A and B does not show that the results to the plaintiff were uniform, or the same, during said period. From aught that appears, the use may have been the same, and yet the results may have been very different after a certain length of time. The branch may have been used all the time and in the same manner, but the pollution of the water may have gradually grown so as to render it unfit for use during the last period, but which was not the case during the first part of the time, and the deposits may have been harmless at first, but gradually increased to the extent of injuring or destroying the value of the land upon which it was permitted to accumulate.— Sloss Co. v. Morgan, 181 Ala. 587, 61 South. 283, and authorities there cited. We therefore hold that the trial court did not err in sustaining the plaintiff’s demurrer to these pleas. It is true that pleas A and B are similar, though not identical, to pleas 4 and 5, which were held good in the Turner Case, swpra, but a careful examination of the opinion in said case will disclose that these pleas were held good upon the theory that plaintiff’s action was solely for the use of his water. If the defendant had been using the water in the same manner for ten years, and inflicted no other injury upon the plaintiff, it might be that the plaintiff could not complain of the same continuous use of the water by the defendant after ten years. It may be that the court did not properly construe the complaint in the Turner Case, supra (if it is correctly set out by the reporter), but the opinion is based upon the idea that the gravamen of the action was for using the water, and thereby depriving the plaintiff of the use of same for a continuous period of ten years, and, such being the case, it is no authority against this holding that pleas A and B are bad. These pleas attempt to answer a complaint not only for a pollution of the water, but also for depositing debris upon the plaintiff’s land, and which said pleas do not set up that the result of the use of its mine and the branch produced this same result during the entire period of ten years. While we can differentiate this case from the Turner Case, supra, when looking to the reasoning of the opinion in said case, we do not wish to be understood as indorsing the soundness of same as applied to the complaint as it appears in the report of the case. The pleas may have been good to the complaint as the court seems to have construed it, but the court seems to have overlooked the fact that the complaint not only charged the defendant with the diversion and pollution of the water in the creek by operating a pumping station and ore washers, but also claimed damages for injuries resulting from the negligence of the defendant in permitting his dam to break, whereby the plaintiff was thereby damaged within 12 months prior to bringing the suit.

(7) We cannot agree with counsel for the appellant in the insistence that the trial court excluded all of the evidence of the witness McMurray, as set out in the bill of exceptions, but are of the opinion that only the statement immediately preceding the objection was excluded, to wit, “that his stock drank regularly water from Thacker’s creek below the mines, where they were located in his pasture, and had been doing so for two years.” We may concede that this would have been competent had the evidence shown that conditions were identical where cattle of the witness drank and in the branch from which plaintiff’s cattle would not drink, but the evidence does not show that conditions were the same. The flow of water may have been so great in the creek that the deposits, though greater than those going into the plaintiff’s branch, may not have so polluted the water as to keep cattle from drinking it; yet the small branch of the plaintiff may have been so polluted by a smaller escape or deposit from the defendant’s mine.

Assignment of error 22 refers to the refusal of charge 21 requested by the “plaintiff,” and not the defendant, the appellant. We find no such charge requested by the “plaintiff,” but, if the plaintiff had requested such a charge, and the court refused to give it, the defendant cannot complain of such refusal.

There is no merit in the other insistence of error.

The judgment of the circuit court is affirmed.

Affirmed.

McClellan, Sayre, and Thomas, JJ., concur.