Tennessee Coal, Iron R. Co. v. Perolio

Appellee sued appellant for damages caused to his property on account of certain improvements made upon its property by appellant, causing water to flow or stand upon the property of appellee, which adjoined that of appellant.

There are numerous assignments of error, which question the rulings of the court in overruling the demurrers to the complaint as amended, the refusal to give special written charges requested by appellant, excerpts from the oral charge of the court, rulings of the court upon the testimony, and also the action of the court in overruling defendant's motion for a new trial. We have carefully examined the record, and are of the opinion that the complaint as amended was not subject to any ground of demurrer assigned thereto.

As stated, there are numerous assignments of error, but the principal contention of appellant appears to be that the trial court should have given the general charge requested by defendant, on the idea that its property was excepted from the general rule applying to surface water drainage, contending it was within that class of cases excepted from the general rule, where the property in question is town or city lots and used for town and city purposes.

Without elaboration, it may be stated that the general rule of law with reference to adjoining properties is that the lower — or, as sometimes called, servient — estate is subject to an easement in favor of the upper or dominant estate, with reference to the drainage of water. The rule is that one must so use his property as not to injure the rights of another, and hence that he must receive the natural flow of surface water from the upper proprietor. "Because water is descendible by nature, the owner of a dominant or superior heritage has an easement in the servient o inferior tenement, for the discharge of all waters which by nature rise in, or flow or fall upon the superior." Nininger v. Norwood, 72 Ala. 277, 47 Am. Rep. 412; Sloss-Sheffield Steel Iron Co. v. Mitchell, 167 Ala. 226,232, 52 So. 69; Southern Rwy. Co. v. Lewis, 165 Ala. 555,51 So. 746, 138 Am. St. Rep. 77.

The exception to the rule is said to be in the case of buildings erected upon city or village lots. Sloss-Shef. S. I. Co. v. Mitchell, supra. In So. Ry. Co. v. Lewis, supra, the exception is stated as follows:

"There is an exception or a limitation to the rule above announced, and that is: It does not apply to city or village lots, property for which artificial drainage has been obtained, or which, from necessity, must be so drained. This may be necessary under the laws of hygiene. The question of drainage involves not only the private property rights of the owner, but it sometimes involves the rights, health, and well-being of the public, in which case the individual rights of the owner yield to the common right of all. But if there be no artificial drainage provided by law, and no necessity therefor, and the land be not the usual city lots for ordinary building purposes, then the reason for the rule ceases, and the rule with it."

Appellant relies principally on the case of Shanan v. Brown,179 Ala. 425, 60 So. 891, 43 L.R.A. (N.S.) 792, but upon examination of the facts in that case it is clearly seen that there is but slight analogy to the facts in the instant case. After a careful examination of the entire record we are of the opinion that the exception to the general rule, relied upon by defendant, does not apply to the case at bar. So. Ry. Co. v. Lewis, supra. The lower court in effect so held. We regard the court's oral charge as a clear presentation of the law, and are of the opinion that the several exceptions reserved thereto are without merit.

We are of the opinion that appellant suffered no injury by reason of the refusal to give the several charges requested in writing. There was a conflict in the evidence, and the affirmative charge for defendant was properly refused. The other charges were fully covered by the oral charge of the court.

Many exceptions were reserved to the rulings of he court upon the admission of testimony. It would serve no good purpose to review each of these rulings separately, as a careful examination of each of these rulings convinces us that there was no error prejudicial to the substantial rights of the defendant in this connection, and in our opinion the court did not err in overruling the motion for a new trial.

No error of a reversible nature appearing, the judgment of the lower court is affirmed.

Affirmed.