City of Eufaula v. Simmons , 86 Ala. 515 ( 1888 )

SOMERVILLE, J.

1. If the municipal authorities of the city of Eufaula, the defendant in this action, in the construction of sewers and digging of ditches, in the improvement of its streets, caused a large quantity of rain water, which naturally flowed in another direction, to be diverted so as to flow on the plaintiff’s premises in destructive quantities, resulting in the injury of her adjoining property, the defendant corporation would be liable to her in damages, whether the work was done negligently or not. And for such injury, the defendant would be compelled to make just compensation.—O'Brien v. City of St. Paul, 25 Minn. 333; s. c., 33 Amer. Rep. 470; Pettigrew v. Evansville, 25 Wis. 223; s. c., 3 Amer. Rep. 50; Noonan v. City of Albany, 79 N. Y. 470; s. c.,35 Amer. Rep. 540, and cases cited in note on pp. 542-543; City of Aurora v. Reed, 57 Ill. 29; s. c., 11 Amer. Rep. 1; City Council of Montgomery v. Townsend, 80 Ala. 489; s. c., 84 Ala. 478. And a fortiori is the defendant liable, when such sewers and ditches have been constructed in a negligent manner. The charges of the court, when tested by this principle, were free from error.

2. If the overflow of the premises created sickness, and rendered them more unhealthy than otherwise, this was an element of damage, and proof of facts tending to show this result was competent evidence.—Nevins v. City of Peoria, 41 Ill. 502; City of Aurora v. Gillett, 56 Ib. 132. There was no error in admitting the testimony of the witness Copeland, on this. point, he being a practicing physician, and competent as such to state the tendency of such overflow to create sickness.

3. The damage suffered by the plaintiff was properly measured by the diminished rental value of the premises during the year through the continuance of which the nuisance continued, if the plaintiff elected to claim for this period, waiving the question of permanent injury. It might be more, but could not be less than this sum.

4. It is obvious that there was no recovery for exemplary damages, but only for such as were actually sustained by the injury. Hence the charges as to the recovery of exemplary damages become immaterial to be reviewed. Thomason v. Gray, 82 Ala. 291.

The rulings of the court are free from error, and the judgment is affirmed.