Timmons v. City of Prichard

445 So. 2d 895, 1984 Ala. LEXIS 3854
CourtSupreme Court of Alabama
DecidedJanuary 27, 1984
Docket82-810
StatusPublished
Cited by1 cases

This text of 445 So. 2d 895 (Timmons v. City of Prichard) is published on Counsel Stack Legal Research, covering Supreme Court of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Timmons v. City of Prichard, 445 So. 2d 895, 1984 Ala. LEXIS 3854 (Ala. 1984).

Opinion

EMBRY, Justice.

This appeal by George W. Timmons, and wife Mary L. Timmons, is from a summary judgment entered in behalf of the City of Prichard in the Timmonses’ action seeking abatement of a nuisance. We affirm. The Timmonses’ complaint:

“Come now Plaintiffs in this action and state their complaint for abatement of a nuisance as follows:
“1. Plaintiffs have owned and resided on residential property located at 419 Hill Avenue, in the City of Prichard, County of Mobile, State of Alabama since on or about February 1, 1971.
“2. On or about May, 1979, defendants or their agents and employees constructed and thereafter maintained and operated a sewer line, known as the Zie-man Street Drainage Project, along the Southern line of plaintiffs’ property.
“3. In operating said drainage project defendants have unlawfully permitted and still unlawfully permit sewer waters and raw sewage from said sewer line to overflow onto plaintiffs’ property.
“4. As a result of said overflowing of sewage onto plaintiffs’ property, said property has been caused to be flooded with sewage several times each year since the construction of the drainage [896]*896project. The most recent flooding occurred on January 13, 1982.
“5. As a result of said overflowing of sewage, plaintiffs’ property is virtually unsanitary several weeks of every year because of offensive and noxious odors filling the air and unclean and unhealthy materials covering their lawn.
“6. Plaintiffs have frequently requested defendants to correct the overflow problem, but defendants have failed or refused to take any action.
“7. Said overflow is continuing and recurrent and has reduced the value of plaintiffs’ property, is making it difficult for plaintiffs to enjoy their home.
“8. Unless enjoined and abated this condition will cause further damage to plaintiffs' property and result in a multiplicity of actions.
“WHEREFORE, Plaintiffs pray:
“1. That defendants be perpetually enjoined and restrained from maintaining or permitting the maintenance of said sewage system in such manner as to permit it to overflow onto plaintiffs’ home;
“2. For judgment against defendants in the amount of $50,000.00;
“3. For costs of this action; and
“4. For such other and further relief as the Court deems proper.
“JURY TRIAL DEMANDED.”

The City and the Board filed a joint motion for summary judgment supported by three affidavits. Plaintiffs filed nothing in rebuttal. Those affidavits demonstrate that the Board had no control or supervision over the construction, maintenance, or operation of the drainage project, a project administered by the City. The affidavit of Huggins:

“KENNETH HUGGINS, first being duly sworn, deposes and says as follows:
. “My name is Kenneth Huggins and I reside at 2101 Knollwood Dr., Mobile, Alabama 36609. I am the Superintendent of The Water Works and Sewer Board of the City of Prichard. I have held this position from March, 1978 until the present time. My qualifications are as follows:
“I graduated from Louisiana State University in 1965 with a B.S.C.E. (Civil Engineering) Degree.
“I worked for national contractors from 1965 to 1970 on various elevated highway and marine projects in Louisiana and Mississippi.
“In 1970, I came to Mobile to assist in the construction of the George C. Wallace Tunnel. Subsequently, my family and I chose to remain in Mobile as opposed to the vagabond life inherent in working with national contractors on large projects.
“I worked as an engineer/superintendent for two (2) local contractors prior to coming to The Water Works and Sewer Board five (5) years ago as the superintendent.
“I am making this affidavit in the case of George Timmons, et al. v. Prichard Water & Sewer Board and The City of Prichard.
“The Prichard Water & Sewer Board is a corporation existing under the laws of Alabama and supplies water to the residents of Prichard, Chickasaw and also provides sewer service for a portion of the residents of the City of Prichard, a copy of said articles of incorporation is attached hereto and made a part hereof [omitted from this opinion].
“I have been shown, by the Board’s attorney on this date, a contract dated the 14th day of March, 1977, between the City of Prichard and Polyengineering for the design and engineering of work to be done on what is commonly known as “The Zieman Street Drainage Project.” From the documents that have been shown to me, a portion of the contract that applies to the Plaintiff in this case is under EDA Grant No. 04-11-01633.
“I have also been shown a copy of a contract entered into by the City of Prichard and J.E. Harris Co., Inc., dated August 2, 1979, for the construction of the Zieman Street Drainage Project, under the EDA Grant No. 04-11-01633.
[897]*897“The Water Works and Sewer Board of the City of Prichard is a separate corporation from the City of Prichard and had no part in the engineering, design or construction of the Zieman Street Drainage Project, which is the substance of the Plaintiff’s lawsuit.
“The staff of The Water Works and Sewer Board of the City of Prichard at no time exercised any supervision over the preparation of the plans or the construction of this project.
“Since the conception of this project in 1977, which was entered into between the City of Prichard and Polyengineering through the awarding of a contract on August 2, 1979, and through the construction of the total project, the staff of The Water Works and Sewer Board had no knowledge of the plans for nor the construction contract to relocate any water or sewer lines that were owned by The Water Works and Sewer Board.
“The Water Works and Sewer Board did not enter into and [was] not a part of these contracts or any other contracts relating to the Zieman Street Drainage Project. The Water Works and Sewer Board of the City of Prichard has not accepted any work done on the Zieman Street Drainage Project nor has the said Board maintained any lines that may have been a part of this contract.”

The affidavit of Wood:

“OWEN WOOD, first being duly sworn, deposes and says as follows:
“My name is Owen Wood and I reside at 4423 Westchester Court, Eight Mile, Alabama 36613. I have been a member of the Board of Directors of The Water Works and Sewer Board of the City of Prichard since October 16, 1972. Presently, I am Chairman of the said Board of Directors.
“I am making this affidavit in the case of George Timmons, et al. v. Prichard Water & Sewer Board and The City of Prichard.

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Related

City of Mobile v. Jackson
474 So. 2d 644 (Supreme Court of Alabama, 1985)

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Bluebook (online)
445 So. 2d 895, 1984 Ala. LEXIS 3854, Counsel Stack Legal Research, https://law.counselstack.com/opinion/timmons-v-city-of-prichard-ala-1984.