Opinion
6 Div. 57.
May 20, 1920. Rehearing Denied June 30, 1920.
Appeal from Circuit Court, Walker County; J. J. Curtiss, Judge.
A. F. Fite, of Jasper, for appellant.
The demurrer to the complaint should have been sustained. 203 Ala. 78, 82 So. 93; 202 Ala. 381, 80 So. 463; 90 Ala. 534, 8 So. 46. On these authorities it is insisted that defendant was entitled to the affirmative charge upon the complaint as a whole.
Ray Cooner, of Jasper, for appellee.
The cause should be affirmed, on the following authorities: 164 Ala. 500, 51 So. 150; 192 Ala. 422, 68 So. 339; 194 Ala. 176, 69 So. 601; 199 Ala. 589, 75 So. 9; 126 Ala. 560, 28 So. 392; 181 Ala. 587, 61 So. 283; 12 Ala. App. 441, 68 So. 563.
This appeal is from a judgment rendered in favor of appellant against appellee for damages to plaintiff's land, alleged to have been caused by deposits of coal dust and other débris which came from a washer operated by defendant at its coal mine; said débris filling the creek that flowed through plaintiff's land, causing the land to be overflowed, and rendering the water unsuitable for any domestic purposes.
A very similar cause against this appellant has been recently determined by this court — Corona Coal Co. v. Hooker, 85 So. 477, at present term — and several of the assignments of error here presented were there decided adversely to appellant, and in answer thereto we merely make reference to that authority.
Ante, p. 221.
There are two questions of minor importance, not treated in that case, which we will briefly consider here. The first count of the complaint appears to be practically a duplicate of that which appears in the statement of the case in Corona Coal Co. v. Hooker, supra. There were other counts, adopting the language of the first, but placing the dates of the several overflows at different periods — all of which, however, were within the period of one year next preceding the filing of this suit. The insistence is made that the affirmative charge was due because of the fact that the exact dates of the overflows alleged in these counts were not established by the proof. These dates were alleged under a videlicet, and the exact date of the overflow was not a matter of importance. This insistence is therefore without merit. Henry v. McNamara, 114 Ala. 107, 22 So. 428; Corona Coal Co. v. Bryan, 171 Ala. 86, 54 So. 522, Ann. Cas. 1913A, 878; 4 Mayf. Dig. 454.
There was proof tending to show that a certain ford of the creek near the plaintiff's land was rendered impassable on account of these overflows. This ford was on a road known as the Settlement Road, which had been used by the public for some 25 years, and also used by the plaintiff for ingress and egress to his farm. The proof also tended to show that the rendering of this ford impassable required the plaintiff to go some distance out of his way to reach a market. From this evidence the jury could have inferred that such condition of affairs affected the value of plaintiff's land, and therefore charge 8, requested by the defendant, to the effect that plaintiff could recover nothing on account of the ford of the creek being filled, was properly refused.
We find no error in the record, and the judgment of the court below will be affirmed.
Affirmed.
ANDERSON, C. J., and SAYRE and BROWN, JJ., concur.