SIMPSON, J.
— This was an action by the appellees against the appellant, claiming damages on account of the pumping of water by the defendant from certain springs on land claimed to be in the possession of -the plaintiffs. The first assignment of error insisted on is to the action of the court in overruling the defendant’s demurrer to the complaint for misjoinder of counts; it being claimed that the first count is in trespass, and the second in case, and that they do not relate to the same subject-matter. Under our statute trespass and case may be joined (Code 1896, § 3293), and the counts in this case relate to the same subject-matter. Consequently there was no error in overruling the demurrer on this . ground.
The second assignment is to the action of the court in -overruling the demurrer, to the first count of the com[341]*341plaint. Said first count is in trespass for the wrongful act of pumping tlie water from tlie land and filling the springs (Southern Bell Tel. Co. v. Francis, 109 Ala. 224, 233, 238, et seq., 19 South. 1, 31 L. R. A. 193, 55 Am. St Rep. 930), and the demurrer to the same was properly overruled. The demurrer to the second count was properly overruled. — L. & N. R. R. Co. v. Marlmry Lumber Co., 125 Ala. 237, 28 South. 438, 50 L. R. A. 620. :
The fourth assignment of error is to the giving, on the request of the plaintiff, of the following charge, towit: “Whether there was any dedication of a park or not, if the jury are reasonably satisfied, from the evidence, that plaintiff’s complaint is true, then plaintiff’s case is made out.” The appellant insists that this charge should not have been given, because, if the land in question had been dedicated as a park, the plaintiffs could not acquire such a possession as Avould entitle them to recover in this action. It is true that, in trespass, the plaintiff must prove possession, and it is also true that he can recover on possession, without proving title: — 28 Am. & Eng. Ency. Law (2d Ed.) p. 673 et seq.; Morris v. Robinson, 80 Ala. 291; Lankford v. Green, 62 Ala. 315. Iff the case last cited this court said: “Possession, Avhether founded on a good or bad title, will support the action against a stranger or Avrongdoer; or the possessions may be tortious, and a Avrongdoer cannot justify or excuse an invasion of and injury to it.” — 62 Ala. 318. In the earlier case, on which the above expression is based, a party in possession of government land, Avithout authority, was held to be entitled to recover in trespass against a wrongdoer. — Duncan v. Potts, 5 Stew. & P. 82, 24 Am. Dec. 766. This case AAras cited Avith approval by this court in L. & N. R. R. Co. et al. v. Hall, 131 Ala. 165, 32 South: 603. See, also, 1 Addison on Torts (Wood’s Ed.) p. 397, § 387. It is also stated to be “well settled that [342]*342actual possession, though without the consent or even adverse to the real owner, will be sufficient as against a wrongdoer, or one who can show no better title.” — Miller et al. v. Kirby, 74 Ill. 242, 245. See, also, Evertson v. Sutton, 5 Wend. (N. Y.) 281, 21 Am. Dec. 217. It cannot be said as a matter of law that the mere fact that the land had been dedicated to the public rendered it impossible for the plaintiff to acquire such possession as to entitle them to recover in trespass against a wrongdoer without any title. It may be said, farther ,that under the second count, which is in “case,” the plaintiff could recover for special injury to himself by reason of a public nuisance. — Crommelin v. Coxe & Co., 30 Ala. 318, 328, 68 Am. Dec. 120; Ala. Sipsey Riv. N. Co. v. Ga. Pao. Ry., 87 Ala. 154, 157, 6 South. 73; Whaley v.Wilson, 112 Ala. 627, 631, 20 South. 922. The special damage to the plaintiff is alleged in his being deprived of the use of the water in the springs, for himself and family. The court did not err in giving said charge.
While the bill of exceptions states that the evidence detailed is “all the evidence bearing upon the charges hereinafter set out,” yet there is added, after that statement, “It is agreed that the plaintiffs introduced evidence tending to support each allegation of the complaint, unless the facts as to the plaintiffs’ occupancy and use of the lands on which the springs were located, in connection with the filing and recording of the map attached as -Exhibit A’ to the bill of exceptions by their father, prevented their having such possession of the lands on which the springs were located as would authorize the maintenance of this suit by them. This agreement does not deprive the defendant of the benefit of presenting the question as to whther its special plea of justification is proved by the evidence.” The first clause admits the possession of the plaintiffs as alleged; [343]*343that during said occupancy the defendant pumped the water from the springs ,and filled or partially filled one or more of them, thus dejiriving the plaintiffs in possession of the use of the water and injuring the land; and that this was done without the consent and against the protests of plaintiffs. It also admits that the defendant’s servants, acting within the line and scope of their authority, wrongfully took and pumped the water. The gist of the action of trespass is the disturbance of the possession. — 28 Am. & Eng. Ency. Law, p. 552. A trespass may be committed by disturbing the possession of the occupant, though the party committing the trespass does not actually go on the premises, as by throwing Avater or missiles on the land, or removing a partition fence, though the trespasser does not place his foot on the land. — 28 Am. & Eng. Ency. Law, 552, 553; Garrett v. Sewell, 108 Ala. 521, 526, 18 South. 737. And Avhere the trespass is a continuing one, and not of that class of permanent appropriations, to he assessed for all time at once, there may he successive actions for each continuance of the trespass. — Uline v. N. Y. Cent., etc., R. R., 101 N. Y. 98, 4 N. E. 542, 54 Am. Rep. 661; Plate v. Neto York Central R. R., 37 N. Y. 472, 476; Williams v, N. Y. Cent.. R. R., 16 N. Y. 97, 111, 69 Am. Dec. 651; Carpenter v. Oswego, etc., R. R., 24 N. Y. 661, 665; Silsby Mfg. Co. v. State, 104 N. Y. 562, 11 N. E. 264, 267, 268.
Some of the foregoing cases, while not in line Avith our decisions on the subject of permanent appropriations of lands by railroads, yet are authority on the general subject of continuing trespasses. As has been shoAvn before, the mere fact of the filing of the map (even if it be admitted that the appearance of the words “Spring Park” thereon, shoAved a dedication of the land with any particular boundaries) did not preclude the possibility [344]*344of the plaintiffs afterwards acquiring such a possession as Avould give a right of action. The gravamen of the trespass, in this case, was the pumping of the Avater from the springs and the filling or partial filling of one or more of them, and each pumping and filling constituted a trespass — particularly after the party in possession protested against it.
Free access — add to your briefcase to read the full text and ask questions with AI
SIMPSON, J.
— This was an action by the appellees against the appellant, claiming damages on account of the pumping of water by the defendant from certain springs on land claimed to be in the possession of -the plaintiffs. The first assignment of error insisted on is to the action of the court in overruling the defendant’s demurrer to the complaint for misjoinder of counts; it being claimed that the first count is in trespass, and the second in case, and that they do not relate to the same subject-matter. Under our statute trespass and case may be joined (Code 1896, § 3293), and the counts in this case relate to the same subject-matter. Consequently there was no error in overruling the demurrer on this . ground.
The second assignment is to the action of the court in -overruling the demurrer, to the first count of the com[341]*341plaint. Said first count is in trespass for the wrongful act of pumping tlie water from tlie land and filling the springs (Southern Bell Tel. Co. v. Francis, 109 Ala. 224, 233, 238, et seq., 19 South. 1, 31 L. R. A. 193, 55 Am. St Rep. 930), and the demurrer to the same was properly overruled. The demurrer to the second count was properly overruled. — L. & N. R. R. Co. v. Marlmry Lumber Co., 125 Ala. 237, 28 South. 438, 50 L. R. A. 620. :
The fourth assignment of error is to the giving, on the request of the plaintiff, of the following charge, towit: “Whether there was any dedication of a park or not, if the jury are reasonably satisfied, from the evidence, that plaintiff’s complaint is true, then plaintiff’s case is made out.” The appellant insists that this charge should not have been given, because, if the land in question had been dedicated as a park, the plaintiffs could not acquire such a possession as Avould entitle them to recover in this action. It is true that, in trespass, the plaintiff must prove possession, and it is also true that he can recover on possession, without proving title: — 28 Am. & Eng. Ency. Law (2d Ed.) p. 673 et seq.; Morris v. Robinson, 80 Ala. 291; Lankford v. Green, 62 Ala. 315. Iff the case last cited this court said: “Possession, Avhether founded on a good or bad title, will support the action against a stranger or Avrongdoer; or the possessions may be tortious, and a Avrongdoer cannot justify or excuse an invasion of and injury to it.” — 62 Ala. 318. In the earlier case, on which the above expression is based, a party in possession of government land, Avithout authority, was held to be entitled to recover in trespass against a wrongdoer. — Duncan v. Potts, 5 Stew. & P. 82, 24 Am. Dec. 766. This case AAras cited Avith approval by this court in L. & N. R. R. Co. et al. v. Hall, 131 Ala. 165, 32 South: 603. See, also, 1 Addison on Torts (Wood’s Ed.) p. 397, § 387. It is also stated to be “well settled that [342]*342actual possession, though without the consent or even adverse to the real owner, will be sufficient as against a wrongdoer, or one who can show no better title.” — Miller et al. v. Kirby, 74 Ill. 242, 245. See, also, Evertson v. Sutton, 5 Wend. (N. Y.) 281, 21 Am. Dec. 217. It cannot be said as a matter of law that the mere fact that the land had been dedicated to the public rendered it impossible for the plaintiff to acquire such possession as to entitle them to recover in trespass against a wrongdoer without any title. It may be said, farther ,that under the second count, which is in “case,” the plaintiff could recover for special injury to himself by reason of a public nuisance. — Crommelin v. Coxe & Co., 30 Ala. 318, 328, 68 Am. Dec. 120; Ala. Sipsey Riv. N. Co. v. Ga. Pao. Ry., 87 Ala. 154, 157, 6 South. 73; Whaley v.Wilson, 112 Ala. 627, 631, 20 South. 922. The special damage to the plaintiff is alleged in his being deprived of the use of the water in the springs, for himself and family. The court did not err in giving said charge.
While the bill of exceptions states that the evidence detailed is “all the evidence bearing upon the charges hereinafter set out,” yet there is added, after that statement, “It is agreed that the plaintiffs introduced evidence tending to support each allegation of the complaint, unless the facts as to the plaintiffs’ occupancy and use of the lands on which the springs were located, in connection with the filing and recording of the map attached as -Exhibit A’ to the bill of exceptions by their father, prevented their having such possession of the lands on which the springs were located as would authorize the maintenance of this suit by them. This agreement does not deprive the defendant of the benefit of presenting the question as to whther its special plea of justification is proved by the evidence.” The first clause admits the possession of the plaintiffs as alleged; [343]*343that during said occupancy the defendant pumped the water from the springs ,and filled or partially filled one or more of them, thus dejiriving the plaintiffs in possession of the use of the water and injuring the land; and that this was done without the consent and against the protests of plaintiffs. It also admits that the defendant’s servants, acting within the line and scope of their authority, wrongfully took and pumped the water. The gist of the action of trespass is the disturbance of the possession. — 28 Am. & Eng. Ency. Law, p. 552. A trespass may be committed by disturbing the possession of the occupant, though the party committing the trespass does not actually go on the premises, as by throwing Avater or missiles on the land, or removing a partition fence, though the trespasser does not place his foot on the land. — 28 Am. & Eng. Ency. Law, 552, 553; Garrett v. Sewell, 108 Ala. 521, 526, 18 South. 737. And Avhere the trespass is a continuing one, and not of that class of permanent appropriations, to he assessed for all time at once, there may he successive actions for each continuance of the trespass. — Uline v. N. Y. Cent., etc., R. R., 101 N. Y. 98, 4 N. E. 542, 54 Am. Rep. 661; Plate v. Neto York Central R. R., 37 N. Y. 472, 476; Williams v, N. Y. Cent.. R. R., 16 N. Y. 97, 111, 69 Am. Dec. 651; Carpenter v. Oswego, etc., R. R., 24 N. Y. 661, 665; Silsby Mfg. Co. v. State, 104 N. Y. 562, 11 N. E. 264, 267, 268.
Some of the foregoing cases, while not in line Avith our decisions on the subject of permanent appropriations of lands by railroads, yet are authority on the general subject of continuing trespasses. As has been shoAvn before, the mere fact of the filing of the map (even if it be admitted that the appearance of the words “Spring Park” thereon, shoAved a dedication of the land with any particular boundaries) did not preclude the possibility [344]*344of the plaintiffs afterwards acquiring such a possession as Avould give a right of action. The gravamen of the trespass, in this case, was the pumping of the Avater from the springs and the filling or partial filling of one or more of them, and each pumping and filling constituted a trespass — particularly after the party in possession protested against it.
As to the last clause of the agreed statement, it reserves to the defendant the benefit only “of presenting, the question as to Avhether its special plea of justification is proved by the evidence.” Said plea of justification rested alone on the deed, and not on any agreement or authority thereafter.’ The deed granted “the right tó use water out of one of the said springs near the right' of Avay, and to lay a pipe to connect the spring with the Avater tank, to be covered with earth, so as it Avould not be in the way on the grantor’s land.” This certainly did not authorize the drawing of the water from all of the springs and placing obstructions which caused them to be filled up.
The subsequent conversation between the plaintiff’s father and defendant could not be a construction of the deed, as the deed was expressed in clear terms and needed no construction. If it amounted to anything, it would be a chauge in the terms of the deed; and even in that light it Avas only an agreement for temporary use until the spring could be walled up. After a reasonable time had elapsed for the Availing up of the spring, the defendant, continuing the interference with the possession, Avould become a trespasser (1 Addison on Torts [Wood’s Ed.] p. 387, § 376; Snedecor v. Pope, 143 Ala. 275, 287, 39 South. 318); but, if it had been presented by the pleading, the defendant could probably have justified by acquiescence up to the time Avlien plaintiffs .objected to the renewing of the box, but not thereafter, though mere [345]*345silence would not amount to an acquiescence. — 28 Am. & Eng. Ency. Law, p. 54, and cases cited. The possession being permissive, without any claim of right, could not ripen into a title by lapse of time.
From what has been said it is evident that there was no error in the refusal to give the general charge in favor of the defendant, either as to the entire complaint or as to either count. All of the other charges requested by the defendant, except the seventh, present questions in regard to the effect of the dedication of the park, which have been disposed of, and there was no error in refusing to give them. ■
Referring to charge 7, there was no error in refusing to give it, for the reason that, under all the evidence, it yvas for the jury to determine ivhether the particular land in question was dedicated, and as to whether it was dedicated “during the time of the grievances,” even if originally dedicated, would depend upon whether it had been vacated, under section 3903 of the Code of 1896, as to which there was no evidence.
The judgment is affirmed.
Tyson, C. J., and Anderson and Denson, JJ., concur.