King Land & Improvement Co. v. Bowen

61 So. 22, 7 Ala. App. 462, 1913 Ala. App. LEXIS 88

• Court: Alabama Court of Appeals
• Decided: February 4, 1913
• Status: Published

Opinions

THOMAS, J.:

The complaint, as originally, filed and served, on the. defendant, was against the King Land Company, a corporation, At the trial, with the permission of the court, granted over the objection and exception of the defendant, the plaintiff: was allowed to amend his .complaint by correcting the name of the de: fendant corporation so as to make it read “King Land & ..Improvement Company,”, instead of “King Land Company.” This was not an entire change of party defendant, but, so far as the record shows, was a mere correction, of the name of the real corporation sued, and was entirely permissible under the authorities. — Singer Co. v. Greenleaf, 100 Ala. 272, 14 South. 109; Lewis Lumber. Co,, v. Camody, 137 Ala. 578, 35 South. 126; Smith v. Plank Road, 30 Ala. 650, and other authorities, cited, under-section 5367 of Code of 1907. The appellant’s coiinsel assert in brief that the amendment mentioned amounted to an entire change of party defend: ant, because, they, say, that .at the time of the service of the complaint, and at the. time of the amendment thereof, there was in fact then in existence a corporate entity by the name of the King Land Company.

; The record nowhere shows this to be a fact, and we certainly are not authorized to. take judicial knowledge of it, even if it be a fact. Assuming, however, that it is a fact, the situation is not altered. The King Land & Improvement Company, the real . defendant — the party-really intended to be sued — was the party actually; served, with the original process,, and the party actually brought into court as a result thereof, and the party who actually defended the case in court upon it’s merits, under the name “The King Land Company” as given in the complaint originally served. Beyond cavil then, this latter name was a- mere misnomer of the real defendant; and it was its duty to itself in the first instance — in order to have afforded record evidence for a plea of res judicata in the future, should it ever be thereafter sued by the right name for the same cause of action — to have filed in this case a plea in abatement, setting up that it was sued by the wrong name; that it is not known and called by that name, and stating what its real name was, so as to' have furnished plaintiff, in the language of the old books, a “better writ.” The proof of this plea, under the common law, would have put plaintiff to another suit; but under our liberal-statutes of amendments he would have been allowed to amend his complaint by correcting the name to meet the plea.- — Savannah, Americus & Montgomery Ry. Co. v. Buford, 106 Ala. 308, 17 South. 395. The same result in this case was accomplished by a different' method, and there is and can be no injury. The fact developed in the course of the trial that there was a mistake in the complaint as to defendant’s name, and plaintiff asked and obtained leave to amend his complaint so as to correct the mistake.

An inspection of the complaint and demurrers thereto, which will be set out in the report of the case, will, we think, in the light of the decisions of the Supreme Court of this state, upon a fair analysis of that complaint, show that the lower court did not err in overruling the demurrers.

The rule has been long established in this state, adopted from Chitty on Pleading, that: “When the gravamen of the action is the alleged nonfeasance or misfeasance of another, as a general rule, it is sufficient if the complaint avers facts out of-which the duty to act springs, and that the defendant negligently performed, or failed to perform, that duty, etc., and it is not necessary in the complaint to define the quo modo, or to specify the particular acts of diligence he should have employed in the performance of such duty. What the defendant did, and how he did it, and what he failed to do, are generally better known to the defendant than to the plaintiff; and hence it is that in such cases a general form of averment is sufficient.” — 1 Chit. Pl. 836; Leach, Harrison & Forwood v. Bush, et al., 57 Ala. 145, and numerous authorities cited in the report of this case in West Pub. Co.’s annotated edition of Alabama Reports, Book 38, page 68. Probably the most liberal application of the rule in this state is found in the case of L. & N. R. R. Co. v. Marbury Lumber Co., 125 Ala. 237, 28 South. 438, 50 L. R. A. 620. We can detect no substantial difference, in principle, between the complaint held good in that case and the one here under consideration. It is true that the opinion in the case was written by a member of the court who entertained the view, contrary to the majority, that the complaint there was not sufficient, and that we have, in that opinion, the benefit of his reasons in support of his contentions, and are without any expressed as to those which actuated the majority in the conclusion reached, upholding the complaint, yet some readily occur to us, which are equally applicable to the complaint at hand. In that case the complaint, held good, merely alleged, in substance, that on a certain date the defendant negligently set fire to and destroyed seventy bales of cotton, the property of plaintiff, to his damage, etc. This, it is observed,, alleges the ownership in plaintiff of the cotton, and being true, the law put upon all other persons.’ the duty not to negligently set fire to and destroy' it.; hence the allegations are sufficient to bring the. complaint, within the rule announced.

' Upon this principle, if, in the present case, the complaint had alleged that' the plaintiff was the Owner, instead':of. merely alleging that he was “in possession,” of the lands described in' the complaint, it would be equally "clear that the complaint sufficiently alleged facts'out of which would spring the duty upon others not .to wrongfully or negligently cause water to flow upofi such lands to the damage of plaintiff. The fact that the.- complaint alleges merely the. possession, and not the ownership, of the lands does not alter the case. “Possession,” in this connection means more than mere occupancy, and its established import is inconsistent with the idea of a mere holding as a trespasser. The legal idea of possession, though varying according to circumstances, yet, as used in the complaint, embraces the conception, not alone of a physical occupancy and control of the lands described, but also of a’right to so occupy and control. It implies a present right to deal with the property at pleasure, and to exclude other persons from meddling with it.-Sullivan v. Sullivan, 66 N. Y. 37; Fuller v. Fuller, 84 Me. 475, 24 Atl. 946. Black’s Law Dictionary defines “possession” as “the detention and control of the manual or ideal custody of anything which may be the subject of property, for one’s use or enjoyment, either as owner or as the proprietor of a qualified right in it, and either held personally or by another who exercises it in one’s place or name.” ' We have examined the second volume of Chitty on Pleading, containing the forms and precedents, and we find that in actions of the character here, the complaints, in every instance, allege “possession,” and not “.ownership,” in. plaintiff of the lands injured or damaged.

b In Rathbone v. McConnell, 20 Barb. (N. Y.) 315 — a case'of 'tbe same class as that here — tbe1 court says': “It was obviously' not necessary for tbe plaintiff to prove, in regard- to' bis right or interest, anything further than that be was in possession of tbe premises at tbe time of tbe injury. In Chitty’s Pleading it is stated, in regard to injuries to real property, corporeal: or' incorporeal, that it-.is. now fully settled that in a personal action against a wrongdoer, for the recovery of damages', and not for tbe land itself, it is sufficient to state in tbe declaration that' tbe plaintiff, at the time tbe injury was committed, was possessed of tbe premises.” In tbe Encyc. PL & Pr., vol. 22, p. 1149, in speaking- of these specific actions, it says: “As a general rule tbe declaration need not set . forth tbe plaintiff’s' title to tbe premises injured; an averment of possession being sufficient” — citing Hoare v. Dickinson, 2 Ld. Raym. Eng. Reps. 1568. Further on in tbe same volume (page 1160), continuing to deal with the same-subject, it says: “In an action of this nature a complaint which shows.a right in tbe plaintiff, a violation of this right by tbe defendant, and a loss resulting to plaintiff from such violation, is sufficient” — citing in' notes authorities to support. Tbe complaint in tbe present case, in our opinion, meets all these requirements of good pleading. It alleges a right, included in the' very term “possession” as there ■ used, in tbe plaintiff to tbe lands therein specifically described (whether qualified or absolute is immaterial) a violation of this right by defendant, and resultant injury. We think -it, therefore, sufficient.

At common law surface water was regarded as a common enemy, and every landed proprietor bad tbe right, as a general proposition, to take any measures necessary for tbe protection of bis own property against its ravages; and the damages resulting in such cases to adjoining owners were regarded , as damnum absque injuria, affording no cause of action. — Walker v. New Mexico, 165 U. S. 593, 17 Sup. Ct. 421, 41 L. Ed. 837; Chadeayne v, Robinson, 55 Conn. 345, 11 Atl. 592, 3 Ara. St. Rep. 55. This common-law rule yet obtains in many jurisdictions of this country. But not so in this state. — 30 Am. & Eng. Ency. Law (2d Ed.) p. 330 et seq . Here: our Supreme Court long ago adopted, and has ever since continuously followed, the rule of the civil law. This rule is founded in general on a principle of natural right, as embodied in . the maxim: “Aqua currit. et- debet currere, ut solebat,” “Water flows, and as it flows, so it ought to flow,” as modified and restrained, under the necessities of advancing civilization, by that other principle that “the rough outline of natural right- must submit to the chisel of the mason that it may enter symmetrically into the social structure.” — Hughes v. Anderson, 68 Ala. 280, 44 Am. Rep. 147. Under this rule, while a person’s land is subservient to the adjacent lands of a naturally higher altitude, so far as water is concerned, yet it is subservient only to the extent that nature made it subservient; that is, it is required to receive from such higher- lands all and only such water as would naturally flow from them upon it by reason of its natural depression. — Nininger v. Norwood, 72 Ala. 277, 47 Am. Rep. 412; Crabtree v. Baker, 75 Ala. 92, 51 Am. Rep. 424; Farris v. Dudley, 78 Ala. 124, 56 Am. Rep. 24. The law, however, in the interest of progress and development, under some circumstances does permit the owner of the higher lands, to which the lower land is thus naturally subservient, to control and direct, for purposes of proper drainage, by ditches or other artificial means on his own land, the surface water that naturally flows thereon and from it to the lower land, provided be does not thereby cause more or other water to flow on such lower land than it would naturally receive otherwise, and provided, also, that in so doing, he acts always with a “prudent regard for the welfare of his neighbor.” Under no circumstances is he permitted to increase, but under some circumstances he is permitted to distribute, differently from nature, the total quantity of the water flowing naturally from his own to. the lower subservient land, by even “concentrating it and causing it to flow more rapidly and in greater volume upon the lower land.” — ' Hughes v. Anderson, 68 Ala. 280, 44 Am. Rep. 147.

In the case cited, Judge Stone, speaking for' the court, said: “Defendant had no right, by ditches or otherwise, to cause water to flow on the lands of plaintiff, which, in the absence of such ditches, would have flowed in a different direction. As to the water theretofore accustomed to flow on the lands of the plaintiff, defendant was not bound to remain inactive. He was permitted to so ditch his own lands as to drain them, provided he did so with a prudent regard for the welfare of his neighbors, and provided he did no more than concentrate the water, and cause it to flow more rapidly, and in greater volume on the inferior heritage. This, however, must be weighed and decided with a proper' reference to the value and necessity of the improvement to the superior heritage, contrasted with the injury to the inferior, and even this license must be conceded with great caution and prudence. It is a question for the jury to determine in each particular case, under proper instructions from the court.” The brilliant and learned author appreciates that he is asserting a dangerous doctrine, yet one that is essential to promote progress and development. He seeks to prevent its abuse by throwing around it every possible safeguard,” aid 'leaves its ápplication to each case to be determined by. whether, or not- such conditions and cir-cumstancés are shown as will justify it under the prin: cipl.es :he declraes. He justified the application, and wé think properly' so,' in the particular case he had under consideration, ■ doing so in the interest of agricultural dévelopment, and on account' of the impelling conditions to that end. there shown by the evidence to exist, and the .great benefit to the upper and the little detriment sustained :to the lower estate thereby. In no other case, however, in this state have we been able to find another announcement or application • of the particular doctrine; but the tendency of the other cases, while not dealing with it and not expressly repudiating it, is, at least, to limit and narrow, rather than to enlarge, the right there first conceded in the law of this state. — 1 Crabtree v. Baker, 75 Ala. 92, 51 Am. Rep. 424; Nininger v. Norwood, 72 Ala. 277, 47 Am. Rep. 412; Savannah, Am. & M. Ry. Co. v. Buford, 106 Ala. 312, 17 South. 395; Drake, Ex., etc., v. Lady Ensley Coal & Iron Co., 102 Ala. 506, 14 South. 749, 24 L. R. A. 64, 48 Am. St. Rep. 77; Farris v. Dudley, 78 Ala. 124, 56 Am. Rep. 24; C. of Ca. Ry. Co. v. Windham, 126 Ala. 552, 28 South. 392; Council v. Maddox, 89 Ala. 181, 7 South. 433; Mayor, etc., v. Jones, 58 Ala. 654; Mayor, etc., v. Coleman, 58 Ala. 570; Hall v. Rising, 141 Ala. 433, 37 South. 586; Ala. Wes. R. R. Co. v. Wilson, 1 Ala. App. 306, 55 South. 932; So. Ry. Co. v. Lewis, 165 Ala. 555, 51 South. 746, 138 Am. St. Rep. 77; Cen. of Ga. Ry. Co. v. Keyton, 148 Ala. 675, 41 South. 918; Sloss-Sheffield S. & I. Co. v. Mitchell, 167 Ala. 226, 52 South. 69; Ala. Con. Coal & I. Co. v. Vines, 151 Ala. 398, 44 South. 377.

From all' the cases in this state just cited on the subject, when .considered together, we judge the-rule to be that the upper landowner has the right to ditch and drain bis own land as be pleases, provided be deos not thereby increase tbe burden on tbe lower estate or oth-érwise injure it. All of them bold that under no circumstances is be permitted to increase that burden to tbe extent of causing, by such artificial means, more water to flow on such lower land than it would otherwise naturally receive; but Hughes v. Anderson, supra, bolds that under some exceptional circumstances be is permitted to increase tbe burden at a particular point by concentrating into one channel and depositing, at that point, in greater volume and with greater rapidity and more injury than nature, water which bad theretofore naturally flowed by divers natural channels over a wider area on tbe same lower estate.

This exceptional right or “license” in tbe upper proprietor to thus increase tbe burden of tbe lower estate, in this particular, must in-all cases be exercised, as said, “with a prudent regard for tbe welfare of bis neighbor,” and itself arises only under exceptional circumstances and conditions; and as to whether they in fact exist and as to whether, if they do exist, they are sufficient to warrant tbe exercise of tbe right or “license,” is to be determined by tbe jury, in each case, under proper instructions from tbe court, wherein they would be charged with tbe duty of determining whether tbe particular drain or ditch, which caused the drainage, was necessary to tbe improvement of tbe upper land, whether one elsewhere or in some other method would not have reasonably accomplished the same benefit to the upper estate and resulted in no, or less, damage to the lower, and whether the value of the improvement to the upper land, as a result, so outweighed the detriment to the lower in particular and general good as to authorize it, and whether the upper owner- in digging and locating and directing on his own land, the drain (first, so shown to be necessary) acted with proper care and regard for the rights of the lower owner, such care and regard as would prevent, if he could do so reasonably and consistently with the purposes in view, and if he could not, as would minimize, as far as he reasonably could consistent with such purposes, the damage and injury to the lower estate. All of such matters, if we properly understand the decision in Hughes v. Anderson, supra, when the facts are in dispute, as in this case, should be submitted to the jury that they may determine in the first instance whether or not the circumstances and conditions upon which defendant predicates his right or license to act really exist; and, if they find that these circumstances and conditions, as claimed by defendant, do in fact exist, then they must determine, in the second instance, whether they are such as are sufficient to give rise to the right or license claimed weighing, as the jury must, the considerations suggested in Hughes v. Anderson; and if they find that they , are sufficient, then they must determine, in the third instance, ivhether in the exercise of such right or license the defendant acted with a prudent regard for the welfare of plaintiff and caused no more damage or injury than was reasonably necessary to the end in view.

Charges Nos. 2, 3, 4, 6, 7, 8, 9, and 10, refused to defendant, were in our opinion properly refused, for each ignored some of the principles declared in Hughes v. Anderson, supra, as we understand that case. See, also, Savannah, Am. & M. Ry. Co. v. Buford, 106 Ala. 312, 17 South. 395, and cases cited.

The only other charges refused were charges Nos. 1 and 5, and each was also properly refused. Said charge No 5 reads as follows:. “If the plaintiff in this case by the exercise of ordinary care and diligence could have presented any damages tc> Ms property by' the said overflow of water,- then yonr verdict must-be for defendant.” It is not a correct exposition of the law. While the law is that he- cannot recover snch damages as he could have prevented by‘the exercise of ordinary care and diligence, yet the law does not deny-him the right to recover such as he could not have prevented by ordinary care' and diligence, because he failed to prevent those that he could have prevented by the exercise of such care and diligence. His failure, in such case, visits upon him only the loss of those damages which he could have so prevented, and not the loss of all damages. The charge was, therefore, clearly an incorrect statement of the law, as it sought to deprive him of all damages if he could have so prevented any.

Charge No. 1 reads as follows: “If the jury can reasonably see from the evidence that the plaintiff by the exercise of ordinary care and diligence could have prevented and avoided the damages for which he now sues in this case, then your verdict must be for defendant.” The charge was clearly improper. It seems to us to assume that the plaintiff by the exercise of ordinary care and diligence could have prevented the damage for which he now sues, and then to charge only that if the jury can reasonably see this fact from the evidence, they must find for defendant. In other words, the jury’s verdict for defendant is to be predicated, not upon their finding from the evidence that the plaintiff by the exercise of ordinary care and diligence could have prevented the damages now sued for, but upon their ability to see from the evidence something, which, in fact, seems to be assumed by the charge to be true, and that is, that the plaintiff by the exercise of ordinary care and diligence could have prevented the damages sued for. It was. at least likely to mislead the jury, and calculated to create the impression stated.

It is elementary that recoverable damages are of two classes, general and special. General damages are such as naturally, and necessarily flow from the wrong act; while special damages are such as naturally, but do not necessarily, flow from it. The former do not have to be pleaded ip order to give defendant notice that they will be proved at the,trial; for they a.re implied by law, and he is supposed to know, and can prepare to defend as to, all damages that necessarily result from the wrong done. Special damages, however, do have to be set out and claimed in the complaint to the end that the defendant, who could not possibly in all cases anticipate them, may have proper notice of them, and thereby have opportunity to prepare to meet at the trial the proof as to them. — Lewis v. Pauli, et al., 42 Ala. 136.

In this case the defendant objected at the trial to the proof by plaintiff of the value of the manure or fertilizer that had been distributed by plaintiff over, preparatory to pitching a crop on, the land submerged by the overflows complained of, and which as a result of the overflowed condition of said land, were lost and rendered valueless to the plaintiff, who was lessee for that year of the lands. The objection was based upon the theory that these were special damages, and had not been claimed in the complaint. They are, of course, special damages,- but we do not think the objection to the proof well taken; for they are sufficiently claimed, Ave think, in the complaint. It alleges, among other things, that plaintiff was in .possession of certain lands for the purpose of raising crops, etc., “and that plaintiff was put to great trouble, inconvenience, and expense in or about using, and his efforts to use, said place for the purposes aforesaid.” An alie-.gation,.as this was, that.the plaintiff was put to great .expense in or about raising, crops, or attempting to do so, is certainly sufficient, we think, to convey to the ordinary mind that this expense came about by and consisted in doing those things which were ordinarily, customarily, and reasonably required by the ends of good husbandry. It is common knowledge that among the practically essential requisites to raising good crops, or to a proper attempt to do so, is the preparation of the soil by, among other things, distributing over the land manures or fertilizers for the purpose of supplying in plant food those elements of it wherein the natural soil is deficient. The allegation, we think, was therefore sufficient to authorize proof of the value of the fertil-lizers distributed. — B. R. L. & P. Co. v. Brown, 150 Ala. 330, 43 South. 342; Boston, etc., v. Shanty, 107 Mass. 568; Ives v. Williams, 50 Mich. 100, 15 N. W. 33; B’ham So. R. R. Co. v. Guszart, 133 Ala. 268, 31 South. 979.

■ The question propounded by defendant’s counsel to plaintiff, when on the stand as a witness in his own behalf, to wit, “If he [plaintiff] did not leave the place because he was delinquent in his rents and forfeited his contract by reason thereof,” was properly not allowed over objection of plaintiff’s counsel. Whatever motives or reasons may have prompted plaintiff to leave the place could not have- deprived him of the right to recover the damages, if any, he sustained, before leaving the place, from defendant’s wrongful act, if such it was, in causing the place to be overflowed with water.

The two questions propounded by defendant to the defendant’s witness Randolph, and not permitted over objection of plaintiff’s counsel, are made the basis here of only one assignment of error. The rule-is that if either of- the questions was properly disallowed, then the ■ assignment of ■ error must • fail, though the other question was improperly disallowed. To say the leasjt, the questions were each leading, and the lower court cannot be put in error lor not permitting them over the objection of plaintiff’s counsel.

We find no error in the record, and the case is affirmed.

Affirmed.