Mayor of Birmingham v. Land , 137 Ala. 538 ( 1902 )

McOLELLAN, C. J.

The pollution of Valley Creek by emptying therein of the sewage of the city of Birmingham so' as to contaminate and poison its waters certainly for more than a mile extending to and through plaintiff’s lands, and probably for a much greater distance, there being a public road in its immediate vicinity and, indeed, crossing it within that part of its course affirmatively alleged to be polluted, in the manner, to the extent and with, the effect upon the water itself and upon the atmosphere thereabouts averred in the complaint, is a public nuisance. — Nolan v. City of New Britain, 38 Atl. Rep. 703, 706, and authorities there cited.

The proposition of law that a right to maintain a public nuisance cannot be acquired by prescription is thoroughly established, and is not questioned by the appellant in this case. — Reed v. Birmingham, 92 Ala. 348; Wright v. Moore, 38 Ala. 593; Olive v. State, 86 Ala. 88. The special pleas of defendant which set up that the nuisance complained of had been maintained by it for more than ten years before the institution of this suit, presented, therefore, no defense to the action, and demurrers to them werei properly sustained.

The fact that the city of Birmingham had statutory authorization to construct a sewer emptying into Valley Creek upon the condemnation of lands taken or injured in its construction and use, is not of importance since the lands here injured have not been condemned. The nuisance is none the less a nuisance because of the statutory power referred to, the right to exercise, the power in résped: of this land not having; been acquired. — City of Mansfield v. Balliot, 65 Ohio St. 457; s. c. 58 L. R. A. 628 and note.

The maintenance' of this nuisance being without right against anybody, the plaintiff took, upon bis purchase of lands affected by it, the same right of action in renvot to it as bis vendor bad. Among these was the right to recover all damages that may have resulted to him from its maintenance within a year before the institution of his suit. Thei claim presented hv his complaint and the evidence wasi for damages resulting within less than one year before suit brought. The several pleas of statutes of limitations were, therefore; had.

The case of City of Huntsville v. Ewing, 116 Ala. 576, is not pertinent'here. In that case the city had the right to maintain a ditch on the land of A., a right which was not affected by A.’s sale and conveyance to Ewing’, and the whole deliverance proceeds on that theory. Here the city of Birmingham had no right to maintain this nuisance on this land either in' the ownership and possession of the plaintiff’s vendor, or of the: plaintiff himself.

We are not prepared to say that on the motion for a new trial the circuit court should have found the damages awarded to be excessive.

Affirmed.