I am persuaded that the decree of the court below was correct and should be affirmed.
The whole matter may be embraced within a narrow compass. The bill discloses, and the proof sustains the averments, that complainant has erected a very substantial home on a lot purchased from the Mountain Brook Estates, Inc., defendant in this cause, in what is known as Mountain Brook. Upon this lot was a natural drainage ditch which the defendant corporation filled and abandoned, but in its stead devised and constructed an artificial drainage system through said property. A sewer pipe of defendant company crosses this artificial ditch and acts as a partial dam. This ditch so constructed by the defendant was 20 feet in width. In the warranty deed executed to the complainant, the grantor, defendant corporation, reserved an easement through said lot 20 feet wide for the construction of this drainage ditch. The bill charges, and the proof shows, that the ditch is insufficient to carry off the water drained through it, and that in fact this easement was reserved for the benefit of defendant corporation in draining other lots which it had or had sold in said subdivision, and not for the purpose of draining the lot purchased by the complainant. As a result of the insufficiency of this drainage ditch, during heavy rains it overflows beyond the limits of the easement and into complainant's residence, creating obnoxious and foul odors as well as an unhealthy condition.
It had been represented to the complainant at the time he purchased the lot that the ditch was sufficient for drainage purposes, and he saw no debris or other evidence of overflow. The first knowledge he had of the insufficiency was less than 12 months before the filing of this bill.
This brief statement suffices to show that complainant has suffered a grievous injury, which is continuous in its nature and properly to be defined as a nuisance. It is clear enough he should not be without remedy.
It is a well-settled principle that to protect a landowner against recurring injuries from wrongful diversion of water, equity has jurisdiction and may abate the nuisance. Town of York v. McAlpin, 232 Ala. 158, 167 So. 539; Mobile O. R. Co. v. Red Feather Coal Co., 218 Ala. 582, 119 So. 606; Atlantic Coast Line Ry. v. Woolfolk, 178 Ala. 190, 59 So. 633.
It is said in the opinion that complainant purchased with knowledge. In the first place, the case of Nashville, C. St. L. Ry. v. Yarbrough, 194 Ala. 162, 69 So. 582, is to the effect that a purchase with knowledge is no defense to an action of this character. Among the authorities there cited was that of Bigbee Fertilizer Co. v. Scott, 3 Ala. App. 385, 58 So. 86, 87, in which latter opinion it was pointed out that "the continuance and every use of that which is in its erection and use a nuisance is a new nuisance," against which the injured party has a remedy.
The opinion also states that complainant purchased without exacting a warranty. But it is difficult to understand what character of warranty he should have demanded. Certainly, it was not incumbent upon complainant to demand a warranty from the defendant corporation that it would not create *Page 164 a nuisance. What was said in the Bigbee Fertilizer Co. case, supra, is applicable here — to the effect that he had a right to presume that the defendant would act lawfully and so conduct itself that he would be protected from needless injury to his property. It was not incumbent upon complainant to anticipate that the defendant would extend its easement beyond its bounds and trespass upon his property by flooding his lot and thus creating a nuisance. He had the right to assume that the defendant's erection of this ditch and its maintenance would suffice for the drainage purposes for which it was erected.
The opinion also indicates that the fact that other lots have been sold and the subdivision afterwards incorporated into a municipality relieved defendant of the alleged nuisance. But the holding in Lamb v. Roberts, 196 Ala. 679, 72 So. 309, L.R.A. 1916F, 1018, demonstrates that one who creates a nuisance, even on his own land, cannot escape responsibility therefor by conveying the property to another. See also 46 C.J. p. 744; 4 Restatement of the Law of Torts, pp. 276 and 7.
And as to the subsequent formation of a municipal corporation, 43 C.J. p. 1122 is to the effect that, where a defendant would otherwise be charged with liability, it is no defense that a municipality is also liable. Indeed, the liability of the original wrongdoer takes priority over that of the city. City of Birmingham v. Carle, 191 Ala. 539, 68 So. 22, L.R.A. 1915F, 797; City of Tuscaloosa v. Fair, 232 Ala. 129,167 So. 276.
The New Hampshire Court in Robertson v. Monroe, 80 N.H. 258,116 A. 92, states that no case is to be found in which it has been doubted that he who erects a nuisance continues liable as long as the nuisance continues. The cases of City of Birmingham v. Corr, 229 Ala. 321, 157 So. 56; Louisville N. R. Co. v. Smith, 141 Ala. 335, 37 So. 490, and Ellard v. Goodall,203 Ala. 476, 83 So. 568, also contain statements of principles which have a bearing upon the equity of this bill.
I am therefore persuaded that an application of well-settled principles of equity to the averments of this bill, and indeed, to the undisputed proof, discloses that the complainant was entitled to relief and that the trial judge reached the correct conclusion.
I, therefore, respectfully dissent.
SIMPSON, J., concurs in these views.