[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 485 The foregoing statement of the case, in connection with the report of the cause on former appeal (Profile Cotton Mills Co. v. Calhoun Water Co., 189 Ala. 181, 66 So. 50), sufficiently discloses the nature of the suit and the issues presented for determination. Upon the former appeal this court determined, after due consideration, that the proof offered by way of affidavits did not entitle complainant to an injunction pendente lite, and sustained the lower court in the denial of the same.
An examination of the evidence upon this appeal discloses that it is not materially variant from that contained in the former record — there being only some slight omissions and additions. The additional proof of any consequence, to our minds, in the present record relates to the ordinance of the city of Jacksonville granting certain rights as to the spring, but which, in our opinion, is satisfactorily explained by the witness George P. Ide.
We do not therefore deem it necessary to enter into an argumentative analysis of the evidence, as a discussion of the same would serve no useful purpose. The conclusion of facts which we have reached would result in a denial of relief to the complainant upon the principle upon which the equity of the bill was rested in the opinion on the former appeal, as well as, also, upon any principle insisted upon by counsel for appellant in his brief as rested upon the last amendment to the bill. Such being the case, no necessity arises for the discussion of any legal principles. The evidence on this appeal has been given careful consideration, and we will here state our conclusion as to the facts presented in a summary manner, omitting a discussion of the evidence, which is in accord with the present policy in dealing with questions of fact. Acts 1915, pp. 594, 595, § 3.
We are reasonably satisfied from the proof that the purchase of the tract of land here in controversy by George P. Ide, whose title the appellee acquired, was without reference to the location of complainant's predecessor, the Ide Cotton Mills, and that at the time mill No. 1 was constructed this tract of land, known as the Jack Fish alley tract, was not at all essential to the operation of said mill. In fact the water used strictly for mill purposes was procured entirely independently of this tract of land. That at that time there were only a small number of operatives' houses, and we are of the opinion the fact that some of the piping conveying the spring water to these houses was *Page 486 placed upon this tract of land, with Ide's consent, is not a matter which should have any material bearing, as this water supply at that time was not considered a matter of very great concern, as the public waterworks company was offering to supply the water therefor.
We are further convinced that, when mill No. 2 was constructed, and it was determined by the superintendent and vice president of the mills, both of whom were men of considerable experience in the cotton mill business, and by the said Ide, to build the dam together with the pumping station, and lay additional piping upon this tract of land so as to obtain sufficient supply of water by gravity, rather than by the more expensive method of pumping, there was no intention on the part of Ide in granting permission for this purpose to vest in the complainant any permanent easement thereto, or to in any manner divest himself of the fee-simple title to the property. Nor was such the intention, in our opinion, of any of the parties concerned therein; nor do we think that complainant's entry upon the land was, to use the language of the bill as amended, "upon the assumption, basis, or just expectation — all raised knowingly by Ide — that the occupation was for an indefinite period, and never to be disturbed."
The agreed statement of facts discloses that the said Ide offered to the vice president and to a number of the directors to sell this tract of land to the complainant at its cost price, or its reasonable market value, and that the offer was declined. It further appears from the evidence of one of the directors, that he himself brought the matter to the attention of other directors, and suggested its purchase by the company, but the suggestion did not meet with favor. This witness, testifying as to this particular matter, said: "I have resided in Jacksonville, Ala., since 1872. I was one of the original stockholders of the Ide Cotton Mills, and was a director from its incorporation until the year 1911. I knew all along that Mr. Ide personally owned the tract which is in controversy in this suit, known as the Jack Fish alley tract. Several times I recommended to members of the board that the company buy the site from him, and he always expressed a willingness to sell at a fair valuation. I am unable to state whether or not these conversations were had during meetings of the board or to members of the board not assembled in meeting. I do not know of any record being made upon the minutes of any such recommendations or offers."
The evidence for the respondent tends strongly to show that the complainant made no claim to any permanent easement or right to the use of this tract of land for these purposes until the matter of this litigation arose. While it may appear that some of the large stockholders who were nonresidents (the Henrys particularly) might not have been informed in regard to the exact status of the water supply, yet we are convinced that the company had full notice thereof through the superintendent, vice president, and the members of the board of directors to whom the matter was mentioned.
We are further convinced that, although a considerable sum of money was expended in procuring the water supply, yet, as a matter of fact, we conclude that only a small amount thereof, not exceeding a few hundred dollars, was expended on the lands here in controversy, which would not otherwise have been spent, and that this small sum was of little consequence in comparison with the considerable benefit derived by the company in procuring the water in this manner. We are also persuaded that the complainant is in no manner dependent upon this tract of land for its water supply, but that of course, to procure it in another manner would entail more expense, which, however, we think the proof shows would not be in excess of what is usually borne by cotton mills of this size. That notwithstanding the necessity of the change, and the expense incident thereto, we are of the opinion that, even taking this into consideration, the arrangement whereby the complainant made use of this tract of land for these purposes has proven profitable to the company. While the evidence may fail to disclose that this matter was brought formally before a meeting of the board of directors, witnesses being uncertain as to that, and there being no record evidence thereof, yet it clearly appears that it was brought to the attention of members of the board by one of the members thereof, and also by Ide, as well as to the superintendent and vice president who were experienced in the business, and who seem to have been largely instrumental in having the water supply arranged in its present manner.
We do not find from this evidence that Ide has been guilty of any fraud, misrepresentations, or concealment of facts; nor has he misled the company either by word or conduct. If it was unwise to have the water supply provided in the present manner, which of course is not conceded as above indicated, it was, in our opinion, merely an error of judgment, which would confer upon complainant no right to relief by this bill. We concur, in conclusion, with the following comment found in the opinion of the judge of the city court on the former appeal in this cause, wherein it was said: "It is but fair to say, however, that there is no reasonable ground for believing that Ide was actuated by other than proper motives in his dealings. He, of course, did not foresee a relation of antagonism between himself and the mill. The mill's success or failure meant his success or failure, as he must have understood always. Subsequent results cannot convert that into fraud which was not fraud in the beginning."
Holding as we do to the foregoing views upon the questions of fact presented, it results that we are in accord with the conclusion of the court below in denying the relief and dismissing the bill. The decree will be accordingly affirmed.
Affirmed.
ANDERSON, C. J., and McCLELLAN and SAYRE, JJ., concur.