Lindsey v. Southern Ry. Co. , 149 Ala. 349 ( 1907 )

HARALSON, J. —

The original complaint alleges in substance that the defendant cut and maintained a. ditch on and along its right of way leading into a certain creek, that because of same, the Avaters from the creek in times of high water flow west along the ditch in great torrents and,, making its way through openings under defendant’s track, overflows plaintiff’s lands; that such Avaters did not overflow the lands before the digging of the ditch, and that the waters so thrown back on plaintiff’s land caused the injury complained of to her damage, etc.

The action is in case for damages caused by thus diverting waters from the channel of a running stream. No question is involved of the right to collect and discharge in great volume surface waters which by nature already Aoav over the- lands of the party complaining. This latter question was considered in Hughes v. Anderson, 68 Ala. 286, 44 Am. Rep. 147, wliere the court dreAV a distinction between the two classes of cases. Touching the issue here involved it was said: “Under these rules, defendant had no right, by ditches or otherwise, to cause water to flow on the lands of plaintiffs, which in the absence of such ditches, .would have flowed in a different direction.” In Central of Ga. Ry. Co. v. Windham, 126 Ala. 559, 28 South. 395, it was said: “The gravamen of the complaint lies in averments * * * that the defendant, * * * made excavations, ditches and culverts whereby surface rain water which otherwise would have run in a different direction, was conveyed to and allowed to overflow plaintiff’s lands to his damage.” Again in S. A.. & M. Ry. v. Buford, 106 Ala. 312, 17 South. 398: “The Avrong intended to be guarded against is the diversion of water, causing it to flow upon the lands of another, Avithout his will, which did not naturally flow there, and it is not deemed material, whether the water is diverted from a running stream, or is surface water caused to flow where it did not flow before.” Citing authorities.

It is not necessary in such cases that there be an averment that.the excavation, though made by defendant on his OAvn lands, were negligently constructed. The flow of Avaters is governed by well knoAvn natural laws. The comparative levels of the banks of a stream and of neighboring lands are of easy ascertainment. It is not an unjust application of the maxim, “sic utere tuo,” etc., to require a party in cutting ditches on his own .lands to ascertain at his peril whether he will thereby divert the water from a stream and cause it to overflow the lands of his neighbor. Speaking of averments of negligence, etc., this court declared in S. A. & M. Ry. v. Buford, supra: “This verbiage may be rejected as surplusage, for it is obvious the gravamen of the complaint is that the roadbed and embankment, at a particular time after their construction, caused the surface water to floAV from the right of way of the defendant, in and upon the lands of the plaintiff, where it did not flow naturally, to her injury.”

Nor is it objectionable that it is averred the injury occurred during times of high water. It is of common knoAvledge that frequently at certain seasons of the year, and occasionally at all seasons, heavy rainfall occurs in this state, producing high waters or floods in the streams, often filling their channels to the top of the banks, and even overflowing them. At such times the owners of adjacent lands have the right to drainage to the full capacity of the chanel of the stream. One who diverts such high water from the stream over the lands of another is answerable for the' consequent injury, the same as if diverting it at ordinary stages of water. Only unprecedented floods, such as with the aid of past experience could not have been reasonably anticipated, constitute the act of God, for which man is not answerable. Such act of God is defensive matter and need not be negatived in the complaint. — Gulf Red Cedar Co. v. Walker, 132 Ala. 556, 31 South. 374; Nininger v. Norwood, 72 Ala. 281, 47 Am. Rep. 412.

Applying the foregoing principles to the rulings of the court below, it follows that there was error in sustaining the demurrers to the original complaint. The same must be said as to the other added counts to which demurrers were sustained.

It seems to be unnecessary to consider other matters assigned as error.

Reversed and remanded.

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