Summary
In Alabama Fuel Iron Co. v. Vaughan, 205 Ala. 589, 88 So. 857 (1921), we held that a defendant was not liable to plaintiff for an overflow of his lands from waters of a creek caused, not by defendant's negligence, but entirely by natural causes in the form of extraordinarily heavy rains.
Summary of this case from Bradford v. StanleyOpinion
7 Div. 188.
April 21, 1921.
Appeal from Circuit Court, St. Clair County; O. A. Steele, Judge.
Percy, Benners Burr and J. R. Forman, all of Birmingham, for appellant.
Lack of proof of any material averment authorizes the giving of the general charge. 203 Ala. 461, 83 So. 323; 198 Ala. 469, 73 So. 648; 194 Ala. 278, 69 So. 952. Charges should be based on the testimony actually before the jury and should not relate to outside or supposed facts. 97 Ala. 732, 12 So. 72; 15 Ala. App. 266, 73 So. 148; 78 Ala. 196. Special damages cannot be recovered, unless they are claimed. 99 Ala. 331, 13 So. 51; 150 Ala. 402, 43 So. 574; 153 Ala. 393, 44 So. 1017. As to damages for permanent injuries to land, see 161 Ala. 278, 49 So. 851; 181 Ala. 576, 61 So. 934; 3 Ala. App. 385, 58 So. 86. Complaint did not charge actionable negligence. 171 Ala. 251, 55 So. 170.
Andress Hewitt, of Birmingham, for appellee.
No brief reached the Reporter.
We think the complaint states a good cause of action, and, if it is subject to any of the grounds of demurrer assigned, the ruling on the demurrer is not available to appellant because no judgment thereon is shown by the record. A mere recital in the minute entry that the demurrer was overruled is not sufficient. Ala. Nat. Bk. v. Hunt, 125 Ala. 512, 28 So. 488.
The gravamen of the action is some negligent act of the defendant company, which caused large quantities of water to flow over and upon the plaintiff's land. The undisputed evidence showed that the waters which flowed over plaintiff's land were waters from a creek, and that their overflow was due entirely to natural causes, viz. the flooding of the creek by extraordinarily heavy rains, causing its waters to rise above its channel, and to overrun its banks upon plaintiff's lands immediately adjoining.
With that flooding, so far as appears, no act or agency of the defendant had anything whatever to do, and plaintiff's case failed for want of evidence to support it. It results that the trial judge erred in refusing to give for defendant the general affirmative charge as requested. We reached the same conclusion as to this count on a former appeal. Ala. Fuel Iron Co. v. Vaughan, 203 Ala. 461, 83 So. 323.
It may be that plaintiff has a cause of action against defendant for the pollution of the stream, in violation of plaintiff's right as a lower riparian proprietor; but the complaint does not present such a case.
We deem it unnecessary to pass upon other questions raised by the assignments of error.
Reversed and remanded.
ANDERSON, C. J., and McCLELLAN and THOMAS, JJ., concur.