Opinion
8 Div. 512.
March 2, 1950. Rehearing Denied May 4, 1950.
Appeal from the Circuit Court of Madison County, E. H. Parsons, J.
Douglass Taylor, Robt. K. Bell, Taylor, Bell Taylor and Patrick W. Richardson, all of Huntsville, for appellant.
A municipality has authority to grade and drain streets, and this authority extends to private builders working upon streets through their lands, if such streets have been dedicated to the public by recorded plat. Code 1940, Tit. 56, §§ 12-25; Atlantic Coast Line R. Co. v. Woolfolk, 178 Ala. 190, 59 So. 633; 44 C.J. 429. The cities of this State are expressly given authority to make all needful drainage improvements. Code 1940, Tit. 37, § 601. A property owner does not incur legal liability to his neighbor by doing on his own premises a thing which the law recognizes as rightful, unless he does it in a wrongful or negligent exercise of the right. Shahan v. Brown, 179 Ala. 425, 60 So. 891, 43 L.R.A., N.S., 792. That which the law authorizes can not be a nuisance. Ables v. Southern R. Co., 164 Ala. 356, 51 So. 327; City of Prichard v. Ala.-Power Co., 234 Ala. 339, 175 So. 294. The doing of a thing not in itself unlawful or inherently dangerous does not constitute a nuisance per se. It can become a nuisance by reference to surrounding circumstances, but therein enters the element of want of proper care by defendant in its doing and that want of care must be alleged and proved. Kinney v. Koopman, 116 Ala. 310, 22 So. 593, 37 L.R.A. 497, 67 Am.St.Rep. 119. There can be no abatable nuisance for doing in a proper manner what is authorized by law. Branyon v. Kirk, 238 Ala. 321, 191 So. 345; Harris v. Town of Tarrant City, 221 Ala. 558, 130 So. 83; Wheeler v. River Falls Power Co., 215 Ala. 655, 658, 111 So. 907. An upper land owner is permitted to so ditch his own lands as to drain them, provided he did so with prudent regard for the welfare of his neighbor, and did no more than concentrate water and cause it to flow more rapidly and in greater volume on the inferior heritage. Hughes v. Anderson, 68 Ala. 280, 44 Am.Rep. 147; Vinson v. Turner, 252 Ala. 271, 40 So.2d 863.
Clarence L. Watts and Walter F. Eigenbrod, of Huntsville, for appellees.
The bill seeks relief as for a private nuisance in the maintaining by respondent of a system of open drains and ditches on its premises which recurrently collect and cast water upon complainants' residence lot, and is sufficient against the general demurrer assigned. Town of York v. McAlpin, 232 Ala. 158, 167 So. 539; Equity Rule 14, Code, Tit. 7, p. 1052; King Land Improvement Co. v. Bowen, 7 Ala. App. 462, 61 So. 22.
This suit comes to us on appeal from a decree overruling the demurrer to a bill in equity. Appellees filed the bill against appellant seeking to enjoin appellant from maintaining an alleged nuisance consisting in the collection of surface water upon its property by appellant as the upper proprietor in the City of Huntsville and casting it upon complainants' property being the lower of them. The demurrer contained only one ground, that there is no equity in the bill.
Appellee's property is his dwelling house and lot. The property of appellant was being developed as a residential section. In so doing it was laid off in streets and ways, which were opened, causing ditches to drain the rain water collecting and depositing it upon said property of appellee.
It is further alleged that this caused appellee's residence to be damp, moldy and unfit for occupancy as a residence and to become a hazard to his health and that of his family, and causing damage to his property to the amount of to wit $7,500.
The bill seeks to invoke a well known equitable principle in this State, which prevents an upper proprietor from casting rain water deposited upon his lot upon the premises of the lower proprietor in greater volume and greater rapidity and in a channel to his damage, whereas such water would naturally spread out over a wide surface and pass off without injury. Such "owner has no right to so grade his land or to so erect embankments as to thus turn the natural flow of the surface water, nor can he gather this surface water into a body on his own land, and then discharge it in a body, when without being so collected and discharged it would have been scattered and diffused over greater territory." Southern Railway v. Lewis, 165 Ala. 555, 51 So. 746, 749, 138 Am.St.Rep. 77; Perry v. McCraw, 226 Ala. 400, 147 So. 178; Vinson v. Turner, 252 Ala. 271, 40 So.2d 863; Drummond v. Franck, 252 Ala. 474, 41 So.2d 268. It is also said in the Lewis case, supra: "The better or at least the more general rule seems to be that the natural drains must be kept open, and that the lower estate is subject to the servitude of receiving this water through its accustomed and natural channels."
Our cases make a distinction where the property is situated in an incorporated city or town. In the Lewis case, supra, the suit was, as here, by the proprietor of the lower lot against that of the upper and it was in an incorporated town. This Court observed that 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." In Shanan v. Brown, 179 Ala. 425, 60 So. 891, 43 L.R.A., N.S., 792, the distinction between town and rural property was asserted without the limitation expressed in the Lewis case, supra.
In the case of Ex parte Tennessee Coal, Iron R. R. Co., 206 Ala. 403, 90 So. 876, this Court took note of the limitations expressed in the Lewis case, supra, but declined to apply them to a situation where the lower proprietor had built an obstruction on his property to the flow of the water upon it from the upper proprietor, thereby causing the water to accumulate upon the property of the upper proprietor, although there was no other way for the water to have an outlet, when the area was in an incorporated town or city.
In the case of Perry v. McCraw, supra, this Court noted that status of the law. These cases referred to the Lewis case, supra, as being one where the suit was against the upper proprietor for collecting the surface water into a channel and casting it upon the property of the lower proprietor, which was occasioned by the improvements being made upon the upper property. All those cases held that the upper proprietor had no such right, although there was no other outlet or drainage for the water, and that the owner of such property was liable in damages for so doing and was subject to an injunction to prevent him from it.
The result of our decisions is that the lower proprietor in an incorporated town or city can build a wall or other obstruction on his property extending to the line between it and the other property, and thereby prevent water from passing from it over his property, although that is the only way in which the surface water can pass, and when there is no drainage provided by the town or is otherwise possible, and all simply because the area happens to be incorporated in a town or city.
But we are not here dealing with the right of the lower proprietor in this respect, but we are dealing with the liability of the upper proprietor who, by his operations, collects the surface water into a channel and casts it upon the property of the lower proprietor, when without it being so collected it would be scattered and diffused, and because it is collected it causes damage to the lower proprietor. Such liability of the upper proprietor is now said not to be affected by the question of whether the area is within an incorporated town or city. Ex parte Tennessee Coal, Iron R. R. Co., supra; Perry v. McCraw, supra.
The allegations of the bill are sufficient to bring it within the principle of those cases. If there is any deficiency of averment to make it more precise, it is not pointed out in the demurrer. For the reasons which we have indicated, we think the demurrer was properly overruled.
Affirmed.
BROWN, LAWSON, SIMPSON and STAKELY, JJ., concur.