Cobia v. Ellis , 149 Ala. 108 ( 1906 )

HARALSON, J. —

The bill in this case was filed to abate a nuisance, alleged to have been caused by an increase in the height of a dam erected by the defendant across the Chattooga river, resulting, “at high tide,” in an overflow of the lands of complainant, and of the public road between them; and for damages caused by said overflow'.

The defendant demurred to the bill, and moved to dismiss it for want of equity, and from a decree overruling the demurrers and motion to dismiss, this appeal is taken.

The hill avers “that at high tide of said river said waters are thrown back over the lands of orator much higher than they were before said dam was raised, and. have been caused to overflow other lands not overflowed before the raising of the dam.”

To protect a landowner against constant or frequent ly recurring injuries from the wrongful diversion of water, equity has jurisdiction concurrent with courts of law, and will enjoin the wrongdoer without regard to liis ability to respond in damages, since ia single action at law will not furnish an adequate remedy, and a multiplicity of suits can be avoided by proceedings in chancery. — Roberts v. Vest, 126 Ala. 355, 28 South. 412: Farris v. Dudley, 78 Ala. 124, 56 Am. Rep. 24; Nininger v. Norwood, 72 Ala. 277, 47 Am. Rep. 412.

When, for such puipose, jurisdiction lias been assumed by equity, “the court, to settle the whole controversy, will ascertain and-award damages to the injured party.” Authorities, supra. And, if the right of complainant, is clear, it is not essential that it should be first established by verdict and judgment-' at law.

The injury complained of in the bill is constantly recurring at each high tide of the river; a single action of law would not, therefore, furnish an adequate remedy, and the right to preventive relief in a court of equity, upon such facts, is clear. .

It is contended, however, that the right of complainant is barred by laches to such relief, the bill averring that the dam had been raised three or four years before the filing of the bill. When the right of complainant is clear, and the injury is of a character which would entitle him to call upon a court of equity to interfere, without first resorting to law, he is not deprived of his remedy by mere laches short of the period prescribed by the statute of limitations. — Burden v. Stein, 27 Ala. 112, 116, 117, 68 Am. Dec. 758. In the case of Western Union Tel. Co. v. Judkins, 75 Ala. 428, the right to preventive relief, because of the character of the injury, did not exist, it being held that the entry and possession by the. telegraph company, however long it might, exist, furnished but one grievance, a single cause of -action capable of full redress by legal remedy, and laches was applied to the aspect of the bill involving the right to prevent the talcing of property by a corporation in the exercise of eminent domain, without compensation being first made, which right, as there stated, existed only when the complainant “applies seasonably.” It does not appear in this case that the mill is to be operated for the benefit of the public or that it is stamped with the characteristics of a public utility.

While the right to injunction is not barred by laches short of the period prescribed by the statute of limitations, where the right of complainant is clear, and the injury is of such a character as would entitle the complainant to call upon a court of equity to interfere, without first resorting to law, it may be lost if complainant has, by this conduct, induced the other party to alter his situation under such circumstances as would render it inequitable for him to complain. — Burden v. Stein, supra; Clifton Iron Co. v. Dye, 87 Ala. 468, 471, 6 South. 192. Such defense, however, does npt appear from the averments of the bill.

The fact that the dam had been maintained at the height of four feet for several years does not give the right to raise it to the height of seven feet. That does not give prescriptive right nor does the bar of tire statute of limitations apply as. against the increased height, unless the increase has existed for more than ten years. Wright v. Moore, 38 Ala. 593, 82 Am. Dec. 731.

Affirmed.

Tyson, C. J., and Dowdell and Simpson, JJ., concur.