[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 483 This was a suit by appellees, lower riparian owners, for damages for the pollution of Valley Creek. The appellant is engaged in the manufacture of coal tar products, and the water which it uses for cooling its products and other purposes is taken from Possum creek by the Woodward Iron Company and pumped through pipes to the plant of appellant. After it has passed through the plant and served appellant's purposes, the water is turned into a ditch which drains into Possum creek. Possum creek, in turn, drains into Valley creek, and Valley creek passes through appellees' land several miles below.
Only the assignments of error insisted upon in the brief of appellant will be treated in this opinion.
The trial court did not commit reversible error in refusing the written charge which is made the first assignment of error, as several written charges were given by the court instructing the jury that if there was any doubt or uncertainty in regard to the amount of damages caused by this defendant they could only award nominal damages, and these charges covered the same proposition embodied in the refused charge.
Written charges which are made the basis of the second and third assignments of error should have been given. This was a joint suit by the plaintiffs, and while the evidence of the odors from the creek and the effect of the odors — was admissible for the purpose of ascertaining what the difference in value of the plaintiffs' property was, yet noxious or disagreeable odors and the inconvenience or annoyance caused by them were not elements of damages. Jefferson Fertilizer Co. v. Rich et al., 182 Ala. 633, 62 So. 40.
The court properly refused written charges which are made the basis of the fourth, fifth, sixth, eighth, ninth, and thirteenth assignments of error. The law in regard to riparian proprietors is fully stated in the case of Jones v. T. C., I. R. R. Co., 202 Ala. 382, 80 So. 464, where it is said:
"Such proprietor has the right to the extraordinary or artificial use of the stream and its waters, provided that by the use of such water it is not forced back or unreasonably or improperly precipitated on the lands of adjacent proprietors, and after its use it is restored to its natural channel without unreasonable or material diminution before it leaves the land of persons diverting or subjecting it to artificial uses, and provided, further, it is not so polluted as to unreasonably, injuriously, or materially affect its ordinary and extraordinary *Page 485 use by the proprietor of the land into which the unused waters flow by its accustomed channel."
It will be thus seen that the test is not whether the upper riparian owner who puts the waters of the stream to the extraordinary or artificial use has a modern, up-to-date plant, or only pollutes the water to such an extent as is reasonably necessary. The test is whether the water was so polluted as to unreasonably, injuriously, unjustly, or materially affect its ordinary and extraordinary use by the lower proprietor; and, if it is so polluted as to unreasonably, injuriously, or materially affect its ordinary and extraordinary use by the lower proprietor, the party polluting the stream is liable to the lower owner so affected. It appears from the record that the appellant was not situated on the banks of Possum creek, from which the water from its plant was taken, but that the water was taken from Possum creek, by the Woodward Iron Company and pumped over to appellant's plant. Appellant was therefore not a riparian owner, and was not entitled to the rights of a riparian owner as set out above.
There was no error in the refusal of written charge which is made the basis of the seventh assignment of error. This charge was argumentative.
There was no error in the refusal to give the written charge which is made the basis of the tenth assignment of error. This charge is involved, and the giving of it would only have confused the jury.
There was no error in the refusal to give the written charge which is made the basis of the eleventh assignment of error. The charge estimates the amount of damages done to the plaintiffs' property, and the trial court should not be required to give charges of this kind. Furthermore, the jury had already been instructed by written charges as to the proportion in which appellant contributed to the pollution of the stream.
There was no error in refusing to give the written charge which is made the basis of the twelfth assignment of error. Charges predicated upon doubt or confusion in the minds of the jury are incorrect. A. G. S. R. R. Co. v. Robinson, 183 Ala. 265,62 So. 815.
In refusing written charges which are made the basis of the fourteenth, fifteenth, and sixteenth assignments of error, the trial court committed reversible error. The record shows no evidence to the effect that the water was not restored to its natural channel without unreasonable or material diminution, and plaintiffs (appellees) seem to have proceeded upon the theory that all damages were caused by the pollution of the stream. The appellant company was not liable if it did not add to the pollution of Possum creek, and charges to this effect should have been given.
There was no error in refusing written charge which was made the basis of the seventeenth assignment of error. The measure of damages in this case was the proportionate part of the difference in the rental value of the property with the polluted stream and without the polluted stream for the year next preceding the date of the filing of the suit which the defendant caused. The defendant seems to have proceeded upon the idea that it was only liable for the proportionate part of the difference between a reasonable rental value for the year in which the suit was brought and the year next preceding, caused by the pollution of the stream by the defendant. This is incorrect, as it appears from the record that the stream was polluted during both of these years.
The trial court did not commit reversible error in refusing to require the plaintiffs to elect whether they would proceed with this suit or the chancery suit. The defendant showed that there was a pending suit in chancery filed against it by the plaintiffs and other parties, and sought to have plaintiffs elect whether they would proceed with the equity suit or the action at law, and to this end filed a motion. But the motion was denied by the trial court. It is only when a bill in chancery and the suit at law are prosecuted for the same claim that the plaintiff or claimant can be compelled to elect in which court he will proceed. To come within this principle the two suits must have substantially the same aim and scope. It is not enough that the two suits relate to the same subject-matter, unless the relief sought in each case is substantially the same. An examination of the bill filed in chancery discloses that its chief aim is to enjoin the defendant and others from the continued polluting of Valley creek, while the present suit is for the pollution of said stream for the year next preceding the filing of the suit. It is apparent that the relief sought in each case is not the same. Ex parte Alabama Gold Life Insurance Co., 59 Ala. 192.
While the defendant objected to the question asked the witness L.W. Jones as to whether the water was fit for domestic use or fit for stock, the record shows no exception to the question or motion to exclude the answer, and the trial court will not be put in error for overruling said objection. This also applies to the questions asked said witness in regard to the rental value of the farm, and also to the question asked the witness Frank Jones in regard to the value of the land.
We think it was proper for the plaintiff to be allowed to prove the value of farming land not affected by creek conditions in order to prove the diminution in value of his own land. It was not proper, however, for *Page 486 the defendant to prove the rental value of land similarly situated to the plaintiffs' land, because this took into consideration the creek conditions, and plaintiff had introduced no evidence showing diminution in value of any lands other than his own.
Whether the plant operated by the defendant was an up-to-date one could have had no bearing on this case, except to show that the acts of the defendant were willful or wanton, and as counts 3 and 4 were stricken before the case went to the jury, there was no issue as to willful or wanton injury, and the action of the trial court in refusing to allow defendant to show that it had an up-to-date plant was without injury.
The court did not err in sustaining the objection to the question asked the witness McDougal: "Tell the jury whether the stench from the creek is such that you are unable to work on the farm." Plaintiffs' land bordered on the creek, while the witness McDougal testified that part of his (McDougal's) farm which was nearest the creek was a quarter of a mile distant from the creek. Nor was the defendant deprived of any testimony sought by this question, as the witness McDougal was allowed to testify in detail as to the effect the odor from the creek had on him. There was no error in sustaining the objection to the question asked the witness L.M. Crawford: "Now is there any difference in the water which comes out from the tar product plant and the creek; which is the worse?" This called for a conclusion of the witness.
From the condition of the record, the trial court will not be put in error for its ruling in excluding evidence in regard to the tar escaping from defendant's plant and running over the ground and being burned off. It is not clear whether the tar referred to as getting in the creek had gotten in the creek since June, 1917, and as this is an action for damages for a period of one year immediately preceding the filing of this suit, on July 19, 1918, we are not prepared, as stated above, from the record, to say that the court erred in excluding this testimony.
We are not impressed with the argument of the appellant to the effect that the affirmative charge should have been given in its favor. There was evidence tending to show that the appellant's plant contributed to the pollution of Valley creek, and, this being so, the trial court properly refused to give the affirmative charge.
There was no error in the action of the court in sustaining the plaintiffs' objection to the question asked the witness O.C. Wright, "I will ask you if it is not a fact that this valley was partially settled 30 years ago?" as we can see no material bearing it would have on this case.
For the errors pointed out, the judgment must be reversed and the cause remanded.
Reversed and remanded.