Mayor of Huntsville v. Ewing , 116 Ala. 576 ( 1897 )

HEAD, J.

Action against municipal corporation for damages, in some of the counts, for cutting a ditch along lands now owned by plaintiff, and in another, as the pleader intended, for negligently failing to keep the ditch in proper condition, resulting in injury to plaintiff’s lands by overflows, etc.

It is enough to say in reference to those counts which count upon the cutting of the ditch, (except the two original), that they show that the act complained of was done long before the plaintiff acquired the land, and he has no right of action for it, under the circumstances of this case,, so far as disclosed. It will be presumed against the plaintiff, in the absence of averment to the contrary, that the defendant cut the ditch' (which was a a permanent structure), in the exercise of its legitimate governmental powers, for the public purpose of draining the city, and that the erection was, consequently, not a nuisance; so that, the measure of recovery by any owner of land entitled, under the constitution, to recover damages to his lands caused by the erection (see Avondale v. McFarland, 101 Ala. 381), was the difference in the value of the land before and after the erection, as affected by it; hence, the damage recoverable is entire, and all comprehended in one action. This right of action accrues to the.owner of the land at the time of erection, and does not pass to his vendee, on a subsequent sale. — Evans v. S. & W. R'y Co., 90 Ala. 54; H. A. & B. R. R. Co. v. Matthews, 99 Ala. 24. Presumably, plaintiff purchased with reference to the injury, and reckoned his price accordingly.

The demurrers to those counts, upon this, and some of the other grounds assigned, ought to have been sustained.

The two original counts do not sufficiently describe the cause of action. In the first place, they do not show that the mayor and aldermen, in cutting the ditch, were acting in the line or scope of their authority or functions. It does not appear that the act had any reference to, or connection with, or was done in the interest or behalf of the municipality. The ditch, so far as these counts show, may have been fifty miles from the corporation of Huntsville, and cut by the mayor and aldermen without any pretense of municipal, or other lawful authority. The people do not pay taxes in order to answer in damages for acts done by municipal authorities which are entirely outside of their functions, and done without show or pretense of municipal power. The authorities must, at least, be in line of municipal duty or authority, in order to create a charge on the public for their misdoings. The demurrers, however, are too general to raise the objections.

Again, these counts do not at all describe or point out the land injured, nor sufficiently locate the ditch, nor state any time when the wrong was committed. These were matters that the defendant was entitled to be informed about before being called on to defend.

The demurrers to these counts, raising these questions, ought to have been sustained. ■

This leaves for consideration only the second amended count. The wrongs it charges are, conjunctively, defendant’s failure to keep the ditch cleaned out, to keep it in proper repair, and to erect any embankment or other work to confine the water within the ditch; or defendant’s total failure to enlarge the ditch, or dig the same deeper, after the increase of said flow of surface water, which increase is alleged.

Here, we see, are alternative charges. Under the first, the cause of action combines the three several omissions, conj unctively alleged, as above stated, proof of all which is essential to a recovery under that alternative ; under the second, the omission to enlarge the ditch or dig it deeper constitutes the cause of action. If either alternative is insufficient, the whole count is bad.

Assuming that the count sufficiently shows, by allegation of facts, that it was the duty of the defendant to take care of this ditch (as to which, to say the least, there is some doubt, and in respect to which the count ought to have been made more certain), there are yet no facts alleged which show that it was its special legal duty to erect an embankment or other work to confine the water within the ditch. That may have been the most practical method of keeping the ditch in proper condition, and it may have been the defendant’s duty to pursue that course, but the count does not show it. For aught we know from the count, there may have been some more practicable, efficient and less expensive method of doing the work, which it was in the discretion of the defendant, and its duty, to adopt. We can not know, simply because the plaintiff says that the 'defendant failed to erect an embankment or other work, that the.conditions were such as that it was its duty to make such an erection. The conditions which made it a duty, if it was a duty, ought to have been stated. This alternative was, therefore, bad.

These remarks are applicable, also, to the omissions of defendant, charged in the second alternative, to enlarge the ditch or dig it deeper. We can not, without allegation of the conditions and circumstances, say, as matter of law, that it was the defendant’s duty to enlarge the ditch or dig it deeper. This alternative was bad.

So, the demurrers' to this count ought, also, to have been sustained.

In an action at law, the defense of the statute of limitations can not be made by demurrer. It must be made by special plea. — Huss v. C. R. & B. Co., 66 Ala. 472; Bolling v. Jones, 67 Ala. 508. The rule is different in equity. The intimation otherwise, in McCreary v. Jones, 96 Ala. 592, was, no doubt, made in oversight of this established rule.

Anticipating amendment of the complaint so as to sufficiently state a cause of action against the defendant, we remark, as a guide, that, as before stated, the complaint should show, by appropriate averments, a duty upon the municipality to keep the ditch in proper condition ; an omission of that duty; wherein the omission consisted, and resultant special injury to the plaintiff, describing the injury. As we have said, plaintiff, not being the owner of the land, has no cause of action for the cutting of the ditch, if it was cut by defendant in the lawful exercise of its governmental power, which would,deny it the character of a continuing nuisance. That was an injury which his vendor suffered in the way óf diminution of the value of land; and this includes, not only the diminution of the value which the ditch caused, in the condition it was when plaintiff purchased, but, likewise, such diminution as was a natural result of the erection, growing out of changes in the erection which would be reasonably expected to occur, in the future, from natural causes, and which the defendant could not prevent by the exercise of such reasonable care as it’s duty of supervision required it to exercise. In other words, when the plaintiff purchased the land, it is presumed he and the vendor considered, in determining the value, not only the injuries which the ditch, in its then condition, was capable of doing to the land, but the injuries which the then condition of the ditch, and its surroundings, indicated to a practical mind would be caused, in the future, by changes in it, brought about by natural causes, assuming that the defendant would exercise reasonable care, skill and diligence ,in keeping the ditch in proper condition. So, we see, the only grievance the plaintiff can have, assuming the ditch to have been cut in the exercise of the power aforesaid, is the special injury he suffered, if any, by reason of the failure of the defendant to exercise reasonable care, skill and diligence in keeping the ditch in proper condition, and which he would not have suffered if the defendant had used that degree of care, skill and diligence. For injuries suffered, despite any reasonable discharge of duty which the defendant might have exercised, in keeping the ditch in proper condition, the plaintiff cannot recover.

The statute of limitations of one year applies to actions of this kind, counting from the date -of the occurrence of the injury. If causal relation between the defendant’s negligence and the special injury, for which damages are claimed, be established, it matters not when the negligence occurred, so the injury caused' by it occurred within a year before the suit. There is no completed cause of action until the'injury happens, and the period of limitation begins at that time.

"What we have said renders it unnecessary to pass specially on the errors assigned.

Reversed and remanded.