North Alabama C. I. & Ry. Co. v. Jones , 156 Ala. 360 ( 1908 )

ANDERSON, J.

The complaint, before and after amendment, does not proceed under the statute for the penalty prescribed by section 3906 of the Code of 1907, or under section 6147 for diverting the stream from its natural channel, but seeks a recovery under the common law for the improper and unnecessary retention of the water, so as to cause it to spread out into a pond and evaporate, to the extent of depriving the plaintiff (a lower owner) of the benefit of water that would naturally flow to or beyond his mill, but for such interference on the part of the defendant. The law is well settled, here and in England, that every riparian proprietor has an equal right to have the stream flow through his lands in its natural state, without material diminution in quantity or alteration in quality. But this rule is qualified by. the limitation, now well recognized, that each of said proprietors are entitled to a reasonable use of the water for domestic, agricultural, and manufacturing purposes. — Ulbricht v. Enfaula Co., 86 Ala. 591, 6 South. 78, 4 L. R. A. 572, 11 Am. St. Rep. 72, and authorities there cited. “A riparian proprietor has a right to detain the water of a stream by his dam, so far as is reasonable and necessary for mill or other rightful purposes; but he cannot detain it unreasonably, or divert it, or spread out the water so that it is lost by absorption or evaporation.” 8 Am. & Eng. Ency. of Law (2d Ed.) p. 705. “The maintenance of a dam by an upper proprietor, which backs up the water over a large surface,’ causing a large amount of it to be lost by evaporation and absorption, and preventing any water from flowing down in its natural course to a lower proprietor, is not a reasonable use of such water by such upper proprietor.” Farnham on Water and Water Rights, vol. 2. p. 619, § 478; Barneich v. Mercy, 136 Cal. 205, 68 Pac. 589. “So it is not a reasonable use of water for a riparian proprietor, who desires to use the water for cattle, to build dams and spread the water .out in such manner that it is lost by evaporation and absorption, so as to injure the proprietor below him on the stream,” Ferrea v. Knipe, 28 Cal. 341, 87 Am. Dec. 128. The trial court did not err in overruling the demurrer to the complaint.

So much of the oral charge as Avas excepted to Avas incomplete in its definition of one’s liability. It made the defendant liable for the erection or maintaing of the dam, if it worked any injury to the plaintiff, and pretermitted an unreasonable or improper use or waste of the Avater. The defendant had the right, in this form of action, to maintain the dam, even to the injury of the plaintiff, if there was a reasonable and proper use of the water. The trial court evidently had in mind, however, the undisputed fact that the water was not, at the time of the injury complained of, being put to a reasonable use, but was retained above, and caused to spread out and evaporate. The charge when applied to the facts in the case, was not, therefore, improper.

There was evidence from which the jury could infer that the defendant caused the erection of the dam, and was maintaining it at the time of the alleged injury to the plaintiff. The trial court did not err in refusing-charges 1, 2, 3, and 4, -requested by the defendant.

The action of the court in refusing to strike certain claims of damages from the complaint is not reviewable, since the defendant could have objected to- proof of same, or charged it out, if not recovable. — Marx v. Miller, 134 Ala. 347, 32 South. 765; Woodstock Co. v. Stockdale, 143 Ala. 550, 39 South. 335. The amendment of the complaint was permissible, and was within the lis pendens.

In cases like the one at bar the plaintiff can recover nothing but nominal damages, unless he shows affirmatively, that he has suffered some special damage. Ulbright’s Case, supra. The complaint does not claim any damage to the farm, but that plaintiff has sustained a loss of profits therefrom. The deterioration in the rental value would be a fact that could doubtless be shown to establish depreciation in the value of the farm as well as its rental value; but the complaint seeks to- recover only for the loss of profits sustained as the result of the loss of his water supply. The fact that the rental value of the farm was more before than it was after September, 1904, did no-t tend to establish the averment that the plaintiff had lost any profit from his farm. So far as the record shows, the plaintiff got as much rent from his farm in 1904 as he did for previous years. He did not rent the farm for less, or reduce the rent, or fail to collect, owing to the reduction of the water supply. The trial court erred in permitting proof of the rental value of the farm, under the particular averment of the complaint, claiming only a loss of profit from the farm, and not damage to its actual or rental value. It is true that the jury did not regard this evidence to its full extent, as their verdict was for less than the amount given by the witness as to the diminution of the rental value, and there was proof of expense to the plaintiff procuring water for his gin, but we are not prepared to say that this evidence did not influence them in awarding damages.

The judgment of the city court is reversed, and the cause is remanded.

Reversed and remanded.

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