Alabama Consolidated Coal & Iron Co. v. Turner , 145 Ala. 639 ( 1906 )

HARALSON, J.

The principles of law involved in the decision of this case have been the subject of repeated decisions in this and other courts.. We may refer to these, especially from our own court, as furnishing a guide for the determination of questions- presented.

In the old case of Stein v. Burden, 29 Ala. 127, 65 Am. Dec. 394, it was held, that a riparian proprietor has no property in the water itself which flows through his land, but a. simple usufruct while it passes along; that he may use the water passing through his land as he pleases, subject among other things to the condition, that after using it, he return the water to its ancient channel; that where a proprietor has diverted water from its accustomed channel, to the injury of a land owner on the stream below him the water should be returned into the-ancient channel, at the cost of the defendant. Many authorities are referred to as sustaining these principles. It was again said: “Diversion of the water of the stream is an act continuous in its character, and each effluence of Avater, resulting from the unauthorized act of another, is a wrong done to the proprietor below, if thereby the flow of the stream is materially diminished. It is a continuing nuisance, and an action lies for the damages, to-ties quo-ties. Each successive flow being a new wrong, a nuisance continued, imposes a corresponding contemporaneous obligation to return such water to the stream.”

In the later case of Tenn. Coal I & R. R. Co. v. Ham-ilton, 100 Ala. 252, 14 South. 167, 46 Am. St. Rep. 48, the same principles are declared and emphasized. It was said: “The -old maxim, ‘aqua- currit, et debet currere, u-t currere solebat/ is familiar to all. It means in practical application that water is the common and equal property of everyone through whose domain it flows, and that the right to each to its use and consumption, while passing over his possession is the same. He must so use it as not to destroy, or unreasonably impair the equity rights of others.”

"The general rule is often stated to be that “every riparian proprietor has an equal right to have the stream flow through his land in its natural state, without material diminution in quantity, or alteration in quality. * * * Any diversion or obstruction of the water which substantially diminishes the volume of the stream, so that it does not flow u-t currere solebat, or which defiles and corrupts it to such a degree as essentially to impair its purity and prevent the use of it for any of the reasonable and proper* purposes to which running water is usually applied, such as irrigation, the propulsion of machinery, or consumption for domestic use, is an infringement of the lights of the owner of land through which a water course inns, and creates a nuisance for Avhich those thereby injured are entitled to a recovery.”

In Gould on Waters it is declared, that actions may be maintained for the following causes: “The casting upon one’s own land of dirt and foul Avater, or substances Avhich reach the stream by percolation; * * * the letting of water made noxious by precipitation of minerals, * * * or rendering the water unfit for domestic, culinary or mining purposes, or for cattle to- drink of, or fish to live in, or for manufacturing purposes.” In one aspect of the case, still another authority is pertinent: “Where one avIio OAA?ns land on a stream, uses the water to wash ore taken from his land, and then allows the water to return' to the stream so polluted as to be unfit for watering stock or for domestic uses, for which it Avas formerly used, by a loAver riparian owner, and from which there is a deposit of mud or refuse ore on the land of the loAver riparian OAvner impairing its fertility, he is liable to an action for damages to the. loA\rer riparian owner.” — Drake v. L. E. C. I. & R. Co., 102 Ala. 501,14 South, 749, 23 L. R .A. 64, 48 Am. St. Rep. 77.

Prom the foregoing principles, it appears to be manifest, that the demurrers to the different counts in the complaint Avere properly overruled.

The first and second pleas Avere the general issue — the third Avas the” statute of limitations for one year. On these issue Avas joined.

The fourth and fifth set up the statute of limitations of ten .years, that defendant commenced the use of the Avater in Cheaha, creek in the manner complained of in plaintiff’s complaint, more than ton’years before plaintiff’s suit was commenced, and defendant has used the water in substantially the same manner continuously since that time, Avith the knoAvledge of the plaintiff, and for this reason has acquired the right, as against the plaintiff, tó use the Avater, the use of Avhich is the basis of plaintiff’s action.

A demurrer to these pleas was sustained, and in this, we apprehend the court, erred. The question seems to have been definitely settled in Stein v. Burden, 24 Ala. 148, 60 Am. Dec. 453, and approval by other adjudications of the court. As was then said: “It is the established doctrine, that the exclusive enjoyment of water, or any other easement, in a particular way, for the length of time which is the period of the statute of limitations, enjoyed without interruption, is sufficient to raise a presumption of title, as against a right in any other person, which might have been, bnt ivas not asserted.” — Ulbricht v. E. W. Co., 86 Ala. 592, 6 South. 78, 4 L. R. A. 572, 11 Am. St. Rep. 72 ; Crabtree v. Baker, 75 Ala. 91, 51 Am. Rep. 424 ; Nininger v. Norwood, 72 Ala. 285, 47 Am. Dec. 412 ; Wright v. Moore, 38 Ala. 593, 82 Am. Dec. 731.

Angelí on the Law of Water Courses, § 205. holding to the doctrine that any man has the right to have the advantage of a flow of water on his own land, without diminution or alteration, lays down the doctrine, that an adverse right may exist founded on the occupation of another, stating: “And although the stream be either diminished in quantity, or even corrupted in quality, as by means of the exercise of certain trades, yet if the occupation of the party so taking and using it, has existed for so long a time as may raise the presumption of a grant, the other party, whose land is below, must take the stream subject to such adverse right.” — 1 Am. & Eng. Ency. Law (2d Ed.) 875; 22 Am. & Eng. Ency. Law (2d Ed.) 1187.

The sixth plea was erroneous and subject to demurrer. The foundation of the suit being the active creation of a private nuisance, and not merely a wrong arising from negligence, the degree of care used by defendant in the construction of waterways is immaterial in determining the right of plaintiff to* recover actual damages from it. — C. of G. R. R. Co. v. Windham, 126 Ala. 560, 28 South. 392.

The eighth plea to the first and fourth counts was good, and not open to the grounds of demurrer interposed to them. But it affirmatively appears from the hill of exceptions, that the defendant had the benefit of the defense made by said plea under the general issue, and at most it was error without injury. — L. & N. R. R Co. v. Hall, 131 Ala. 161, 32 South. 603 ; Tutwiler v. McCarty, 121 Ala. 356, 25 South. 828.

Charge 12, requested'by defendant, should have beeu given. If the facts hypothesized in said charge were shown to be true, under the decisions of this court, the conditions referred to in said charge, exempted defendant .from liability on account of the breaking of said dams. — Columbus & W. R. Co. v. Bridges, 86 Ala. 449, 5 South. 864, 11 Am. St. Rep. 58 ; Arndt v. City of Cullmann, 132 Ala. 551, 31 South. 478, 90 Am. St. Rep. 922 ; 24 Am. & Eng. Ency. Law (1st Ed.) 948 ; 10 Am. & Eng Ency Law, 245 ; 10 Am. & Eng. Ency Law, (2d Ed.) 695.

There was no error in allowing the witness, Lackey, to state what in his opinion was the market value of this mill property June, 1902. The market price of property being a conclusion which is largely made up of presumptions, may always be proved by the opinions of witnesses based, of necessity even in fact on hearsay.— Burks v. Hubbard, 69 Ala. 380 ; E. T. V. & G. R. R. Co. v. Watson, 90 Ala. 44, 7 South. 813.

Beversed and remanded.

Dowdell, Simpson, and Denson, JJ., concur.