On Rehearing.
On appellant’s application for rehearing in this case, it is asserted that the decree below is erroneous because of the inclusion therein of damages resulting to appellee’s property as the result of the creating and maintaining of the alleged nuisance, occurring after the filing of the original bill. The cases of Harris v. Town of Tarrant City, 221 Ala. 558, 130 So. 83; Goodyear Tire & Rubber Co. v. Gadsden Sand & Gravel Co., 248 Ala. 273, 27 So.2d 578, and others, are cited to the proposition that recoverable damages arising from creation and maintenance of an abatable nuisance are limited to injuries suffered up to the filing of the suit, each occurrence or recurrence of harmful consequences constituting a separate cause of action. As to this specification of error, it is said that we made no response in our opinion on original deliverance.
True, we did not specifically treat the question, being impressed then, as we are now, that the insistence was without merit. In deference to counsel’s earnest argument in brief on rehearing, we will proceed to set forth our reasons for the stated conclusion.
The decree is in pertinent part as follows :
“ * * * Upon consideration thereof the Court is of the opinion that the complainant is entitled to the relief prayed for in his bill of complaint insofar as he prays for damages suffered by him as a proximate consequence of the acts of the respondent, but is not entitled to an injunction, since by reason of facts occurring after the bill was filed the right to such injunction does not now exist. The Court is further of the opinion that the complainant has suffered damages in the sum of One Thousand ($1,000.00) Dollars as a proximate consequence of the creating and maintaining of the nuisance alleged in the bill of complaint prior to the time that said nuisance was remedied after the filing of the original bill herein.” (Italics supplied.)
The brief, in setting out a part of the decree, underscores the language italicized by us above. Apparently, we are asked to lift the two groups of words out of their context and, by placing them in juxtaposition, give to the decree the construction contended for. This, of course, would be an unwarranted grammatical contortion. Construed in its entirety, we think the effect of the decree is to grant the complainant “the relief prayed for in his bill of complaint insofar as he prays for damages,” fixing the amount thereof, “as a proximate *56consequence of the creating and maintaining of the nuisance alleged in the bill“ (italics supplied). The injunction was denied by reason of matters occurring after the bill zvas filed.
Moreover, the testimony discloses that, while there were subsequent overflows of the complainant’s property, complainant confined his claim for damages to the occurrences alleged in the bill and the court could have been under no misapprehension as to this. Many instances might be pointed out, but we think the following will suffice. On cross-examination of complainant, as a witness, he was asked a question relating to a ditch then existing near his.property. Complainant’s counsel interposed: “We object to that. We are not talking about today. We are talking about in December and in October, 1948. That is the time of the damages complained of.” (The bill was filed January 13, 1949.) In reply, counsel for defendant stated in effect that the matter sought by his questions was pertinent to the phase of the bill seeking an injunction. Those items of evidence relating to overflows occurring after the filing of the bill were chiefly elicited by defendant, with apparent aim of showing its freedom from negligence and lack of liability in any event. The most specific estimate of complainant’s damage was made by his witness Van Valkenburgh, based upon an examination of complainant’s premises shortly after the bill was filed. The witness detailed the damages to complainant’s house and the cost of repairs caused by the occurrence alleged in the bill. His estimate was placed at $1,000. But he stated that, in addition to the house damage, complainant’s floor furnace had been damaged to the extent of $200. But, as we have said, there was evidence of subsequent flooding of the property. It was disclosed that the floor furnace was repeatedly damaged by the successive overflows. It is significant that in framing the decree the trial court made an award in the exact amount of the estimated cost of restoring complainant’s house, eliminating any allowance as for the furnace.
We are not convinced that appellant’s contention for error in the decree is sustainable. The application for rehearing is overruled.
Opinion extended and application for rehearing overruled.
LIVINGSTON, C. J., and STAKELY and MERRILL, JJ., concur.