Richards v. Daugherty , 133 Ala. 569 ( 1901 )

TYSON, J.

The bill in this cause seeks to have abated an alleged nuisance, it is shown by its averments that the respondent by the erection of a dam, for a grist mill, across flowing streams formed the mill ponds sought to have removed. On the borders or shores of these ponds there is a growth of trees that produce annually a heavy foliage, consisting of leaves and moss, which when killed by the Avinter’s cold, fall into the ponds; also there are a large number of logs, stumps, and trees in these ponds which are continuously undergoing a state of decomposition. During the rainy seasons the respondent by means of the dam collects a large body of Avater Avhich covers up this decaying vegetable matter, and AAdiile in this condition a thick slimy scum accumulates upon the surface of the water in these ponds. During the dry seasons the respondent in operating his mill uses a large amount of Avater from the ponds, thus reducing their area. By thus turning the water off and on, the decaying vegetable matter in the ponds is exposed to the rays of the sun, AAhich, it is averred, produces malaria. The malaria thus generated causes diseases in tlie neighborhood and vicinity contiguous to the ponds, and especially in the family of the complainant, who resides upon his own lands within a short distance of them, and Avhose residence Avas Avhere it noAV is, before the ponds were constructed. Before the construction of this dam the health of the community and especially that of complainant and his family was good, but since its erection there has been a great deal of sickness in the neighborhood and also in the family of complainant, caused by malaria produced by the ponds.

It is averred that the mill and dam Avere erected, without an order of the probate court of the county in Avhich they are situate.

A demurrer assigning several grounds Avas interposed to the bill, Avhich Avas overruled. Only two of these grounds are insisted upon: 1st, that the nuisance sought to be abated is public in its nature, and that complainant fails to shoAV any special injury to himself ; and, 2d, the bill seeks to have the court determine the question of nuisance vel non — an issue which should be submitted to the jury. Both of these insistences are decided adversely to the appellant in the case of Ogletree v. McQuaggs, 67 Ala. 580. It is there said: “When the nuisance operates to destroy health, or to diminish seriously the comfortable' enjoyment of a dAvelling house, it is in its nature and consequences productive of irreparable mischief for Avhich the law can furnish no adequate remedy. * * * The erection of dams or other obstructions, in such manner as to affect materially the natural Aoav of the water to the manifest injury of the lands of other riparian proprietors, or to injure materially the health of those residing in the vicinity, the court has enjoined without awaiting the trial of an issue at laAV, or until there was a trial of the issue. * Every man has a right to the undisturbed enjoyment of his property, especially to dwell in his homestead freed from the peril of disease and death, caused by artificial constructions erected by his neighbor on his oAvn lands, Avhatever may be the purpose of such constructions. The right is imbedded in the common law maxim of such frequent use — sio utere tuo ut alienum non laedas.”

The deleterious consequences, stated in the bill, alleged to have resulted in consequence of the erection of the dam certainly make these ponds a public nuisance. But they are also, as to the complainant, a private nuisance — of special injury to him, since they materially affect the comfortable enjoyment of his home and are a constant and continuing menace to the health of himself and family. The fact that the malaria produced by these ponds also affects the health of others who reside in the vicinity of them, does not lessen the injury done to complainant, nor merge it in that of which the public may complain. — Ogletree v. McQuaggs, supra. See also Grady v. Wolsner, 46 Ala. 381; Hundley v. Harrison, 123 Ala. 292, and cited therein and quoted from, Neal v. Henry, 33 Am. Dec. 125.

The demurrer was properly overruled.

While respondent made a motion to strike the exceptions filed by complainant to paragraphs 7 and 8 of his answer, the point is not made that under the rule (34 of Chancery Practice, p. 1209 of Code), it is not such an answer to which an exception could be taken for insufficiency. By written agreement of the attorneys of record, the exceptions to these paragraphs were submitted to the chancellor for decision, instead of to the register as required bj^ the rules of practico in a proper case. — Rules 35-38 of Chancery Practice, p. 1209 of Code. Treating this matter as the attorneys have treated it, the single question presented is, whether the matters and things set up in these paragraphs are a defense to the bill. A mere cursory examination of them will show that they are not. While an estoppel in round terms is alleged, the facts constituting it, if it be conceded that such a defense could under any circumstances be invoked to a bill of this nature and character, are clearly not sufficiently stated or averred.

There can be little doubt, under the evidence, that the ponds sought to be removed produced malaria, and caused disease in the community of people who reside near them, and that the complainant’s family have suffered in consequence of having contracted malarial troubles. It is insisted by respondent that the malaria which caused the members of the family of the complainant to have had chills and fevers, was in part, if not entirely, generated by other natural ponds in that vicinity and the decay of pine trees, boxed for producing turpentine. Conceding for the purpose of this discussion that respondent has shown that the ill health of the community was in part the result of other causes than the malaria arising from these ponds, this does not relieve him of the duty imposed upon him by law of using his own land in such manner as not to injure his neighbor. And if these ponds materially contribute to the condition naturally existing productive of malarial diseases and intensify or make more poisonous the malaria generated by the other causes, the respondent has no right to maintain them. — Frost v. Berkeley Phos. Co., 46 Am. St. Rep. 736. That they do, is admitted by the respondent in his own testimony.

We are clear to the opinion, upon the whole evidence, that the complainant is entitled to the relief sought by his bill.

Affirmed.