Tutwiler Coal, Coke & Iron Co. v. Nichols , 146 Ala. 364 ( 1905 )

DENSON, J.

Action on the case by R. B. Nichols, plaintiff, against the Tntwiler Coal, Coke & Iron Company, defendant, to recover damages for the pollution of a stream of water and alleged injuries to realty. Plaintiff owned a tract of land in Jefferson county through which, or by the side of which, flowed the Little Warrior river. Five Mile creek and Village creek are tributaries of Little Warrior riv.er. Plaintiff’s land ivas located down the river, between five and seven miles distant from the mouth of Five Mile creek, and two miles distant from the mouth of Village creek. Plaintiff owned .the surface of the lands alleged in the complaint as belonging to him. The minerals underneath belonged to another party. On Prude Branch, which flowed into Five Mile creek, the defendant operated a coal washer of 400 tons capacity per day. The washer was near the defendant’s coal mine. The coal was carried from defendant’s mine and put into the Avasher after being ground up, and Avas subjected to the action of Avater, which separated the coal from the impurities in it, and the water and impurities floAvcxl from the Avasher back into Prude Branch. The Avasher Avas constructed on the branch in 1897. There are 10 other coal Avashers belonging to other companies, located on Five Mile creek and its tributaries, and 5 on Village creek. All of them Avere constructed in a period ranging from 1893 to 1900. The capacity of all the Avashers on Five Mile creek and its tributaries, including defendant’s Avasher, Avas 7,500 tons daily. The complaint does not refer to any Avasher except the defendant’s. It is averred in the complaint that Little Warrior river naturally furnished a large supply of constantly floAA’ing. pure'and wholesome water; that much of plaintiff's land is overflowed by the river. It further shows that defendant placed or caused to be placed in the channel of the river, or the tributaries thereof, above plaintiff’s land, large quantities of waste, refuse, and poisonous matter from its mines or other industries, and that said waste, refuse and poisonous matter was carried by the water of the river down to and deposited on plaintiff’s land, rendering the land less productive, more difficult to cultivate, polluting the stream, etc.

The demurrer filed to the amended complaint was overruled. The overruling of the demurrer is assigned as error. but the appellant it its brief only insists on the seventh ground of the demurrer to the third count. Construing the count as a whole, it is obvious that the demurrer was not well made. The principles of law which underlie and control the case in its main features have been so explicitly stated and elaborately discussed in the cases of Tennessee Coal, Iron & Ry. Co. v. Hamilton, 100 Ala. 252, 14 South. 167, 46 Am. St. Rep. 48; Drake v. Lady Ensley Coal, Iron & Ry. Co., 102 Ala. 501, 14 South. 749, 24 L. R. A. 64, 48 Am. St. Rep. 77, and in the cases referred to in those cases, that we deem it unnecessary to enter again upon a discussion of them.

The case was tried on the general issue and a plea of the statute of limitations of one year filed by the defendant. The evidence was in conflict upon the question as to whether the washer of the defendant caused any damage to the plaintiff and also upon the extent of the damage. The action is case, and with respect to the statute of limitations it falls under subdivision 6 of section 2801 of the code of 1896. Damages which accrued more than a year prior to the commencement of the suit are not recoverable. “But much latitude and discretion are allowed to juries in the separation of damages accruing within the 12 months from those suffered before that time.” — Hughes v. Anderson, 68 Ala. 280, 44 Am. Rep. 147; Stein v. Burden, 24 Ala. 130, 60 Am. Dec. 453; Drake v. Lady Ensley Coal, Iron & Ry. Co., 102 Ala. 501 14 South. 749, 24 L. R. A. 64, 48 Am. St. Rep. 77; Rountree v. Brantley, 34 Ala. 544, 73 Am. Dec. 470; Polly v. McCall, 37 Ala. 20; Central of Georgia Ry. v. Windham, 126 Ala. 552, 28 South. 392.

The action was commenced August 7, 1902, and the plaintiff could recover for only such damages as he suffered within the 12 months prior to that date; but evidence of the condition of the streams prior to the 12 month period and subsequent to the commencement of the suit was relevant and competent, for the purpose of showing the effect of the deposits, if any, on the land and in the river. — Stein v. Burden, supra; Polly v. McCall, supra; C. of G. Ry. v. Windham, supra.

The evidence of the plaintiff with reference to the kind of crops that he raised on the lands and their value was competent, as tending to show the nature and character of the land and wliat it was adapted to, as shedding light on the question of its value.

In estimating plaintiff’s damages, comfort of occupation of the lands was proper to he considered by the jury; hence, if the stream was polluted by the defendant’s act, it was competent to show whether the health of plaintiff’s family had been affected. This was within the allegations of the complaint. — Tenn. Coal, Iron & Ry. Co. v. Hamilton, supra. It was also competent in this respect to show the odor of the river, if any.

Notwithstanding the fact that the plaintiff had no title in fish in the stream until they were caught, it was competent and relevant evidence that the fish liad decreased in the .stream and that plaintiff’s catch had not been as great since the operation of the washer; also that dead fish were discovered in the stream. This result, of course, must have been traced to the pollution of the stream, or it -would not benefit plaintiff’s case; but this was not within the objection made by the defendant.

If the brief of counsel makes it sufficiently clear that the eleventh assignment of error is insisted upon, it is sufficient answer to it that, the motion to exclude the evidence rested in the discretion of the court. Where objection is not made to the evidence or to the question calling for it,¡it )is not a. matter of right in ithie party against whom it is given to have the evidence excluded on motion. —Payne v. Long, 121 Ala. 385, 25 South. 780; Billingslea's Case, 96 Ala. 126, 11 South. 409; McCalman Case, 96 Ala. 98, 11 South. 408. Moreover, the evidence of the plaintiff shoved that, while the river did not touch the 20 acres purchased of Elizabeth Nichols, yet this 20 acres adjoined the other lands and the whole formed one farm, and the river did run through a part of each of the other tracts. This, we think, rendered the deed from Elizabeth Nichols conveying 20 acres of land to plaintiff competent.

This brings us to the consideration of the charges refused to the defendant. It cannot be affirmed as a matter of lav that the defendant did not place or cause to be placed in the river or the tributaries thereof debris and refuse matter thrown off from washing the coal by the washer, and on all other questions the evidence was in conflict; hence the affirmative charge was properly refused.

Charge 3, refused to the defendant, was formulated with respect to section 5587 of the code of 1896, which makes it a misdemeanor for any person by means of. dams, traps, or other obstruction to prevent the passage of fish up the waters of any river‘or creek in this state. The statute provider that it shall not be so construed as to prevent the introduction of traps, or other means of catching fish in such -rivers or creeks. There is no evidence in the case tending to show that the plaintiff’s trap was constructed in violation of the law. The charge was abstract, and for this reason, if for no other, was properly refused.

Charge 2, refused to the defendant, invoked the statute of limitations of one year. We see no obejction to the verbal construction of the charge, nor was it abstract. One year is the limitation to recoverable damages in the action. The court erred in refusing the charge. — Stein v. Burden, 24 Ala. 130, 60 Am. Dec. 453; Polly v. McCall, 37 Ala. 20; C. of G. R.y. Co. v. Windham, supra.

Charge 3 of the defendant’s series was obviously bad and there was no error in the refusal of it. The evidence did not tend to show that plaintiff lost a crop or crops by the deposits or overflow; but its tendency was to show that by the deposits and overflow' the land Avas rendered less fertile and productive, so that, the yield Avas diminished. This tended to show permanent injury to the land, and if the land was permanently injured in that way, plaintiff’s damages should have been based on such permanent injury. In this view of the case charge 4, refused to defendant, should have been given.

We have considered all the errors, assigned that have been insisted upon in the brief of counsel for appellant except the overruling of the motion for a new trial. As the judgment must he reversed for the error in refusing charges 2 and 4, we deem it unnecessary to consider that assignment of error.

Reversed and remanded.

Tyson, Simpson, and Anderson, JJ., concur.