The bill in this case sought an injunction restraining the county of Morgan from making certain extensions or improvements of its public road in the nature of deepening a certain ditch and laying tiling for the purpose of draining a certain basin and which the complainants contend would divert the surface water from its natural flow and swell the quantity above what would ordinarily flow into the "Orr branch" and which will result in injury to their property. The bill seems to proceed under section 235 of the Constitution as heretofore construed in the case of Dallas County v. Dillard, 156 Ala. 354,47 So. 135, 18 L.R.A. (N.S.) 884. It may therefore be conceded that the complainants would be entitled to relief if the proof *Page 163 showed that their property would be damaged as a result of said enlargement, extension, or improvement; but, after a careful consideration of this record, the court is of the opinion that the complainants' property will not be materially damaged. The only possible damage that can result to the complainants is that the increase of the volume of the water into the Orr branch may tend to injure the complainants' spring by contributing to certain overflows, thus depriving them of the temporary use of same as well as polluting, to some extent, the water. It is true this tile may increase to a slight degree the volume of water in the Orr branch, but not to such an extent of injuring or overflowing the spring, under ordinary weather conditions, and the proof shows overflows of the spring before the changed condition during heavy rains or floods. It may be conceded, however, that the spring may be more easily overflowed on rare occasions with the proposed tile emptying into the said Orr branch than before, but this occasional condition and damage resulting therefrom is fully overcome and offset by the benefits that will accrue to the complainants' premises as a result of the said improvement, which will rid it of all danger from the standing water in the basin, afford better drainage for some of their land, to say nothing of giving them a better road. We do not think that the proof shows that there will be any material injury to the timber or otherwise than above noted. Therefore, taking into consideration the value of the complainants' property before and after the completion of the drainage in question, we do not think that there will be any diminution in same. Town of Eutaw v. Botnick, 150 Ala. 429, 43 So. 739; Ala. Cen. Co. v. Musgrove, 169 Ala. 424, 53 So. 1009; Enterprise Co. v. Porter, 155 Ala. 426, 46 So. 773; Ala. Power Co. v. Keystone Co., 191 Ala. 58, 67 So. 833, Ann. Cas. 1917C, 878. Moreover, the conclusion of the trial court upon the facts cannot be disturbed, as it affirmatively appears from the record that it had evidence before it which is not set out in the record to this court. Several maps, plats, and photographs were used and often referred to by the witnesses in their testimony and which were made exhibits to their depositions, and which said depositions and exhibits were included in the note of submission and were evidently before and considered by the trial court. Yet Exhibit A to the testimony of H. E. Thomas and Exhibit B to the testimony of Weinmann were not made a part of the record to this court and were not sent up under the rule providing for the inspection of the originals. Hale v. Tenn. Co., 183 Ala. 507, 62 So. 783.
Counsel for appellee have also suggested an estoppel against these complainants in their argument, and we may concede that one of the complainants did acquiesce in, or consent, to the drainage of the basin with an outlet through the "Orr branch," and that she cannot now avoid the result because the present ditch was inadequate to accomplish the purpose for which it was intended upon the theory that her consent was to an imperfect drainage and not to the new plan intended to accomplish the purpose for which the ditch was cut, but this defense, not having been specially set up by plea or answer, is unavailable. Jones v. Peebles, 130 Ala. 269, 30 So. 564. Besides, the case must be affirmed for reasons above suggested.
The decree of the law and equity court is affirmed.
Affirmed.
MAYFIELD, SOMERVILLE, and THOMAS, JJ., concur.