The suit is to recover damages for obstructing the natural flow of surface waters from the lands of the plaintiff, causing them to remain wet and unfit for cultivation.
The plaintiff and defendant own and control adjoining lands; the defendant's lying below, and servient to, the lands of plaintiff for the drainage of surface waters.
The injury is laid to impounding waters by an embankment creating a pond on defendant's land.
Count 1 charges that defendant maintained such embankment; that during the winter and spring of 1924 defendant permitted surface water to fill the pond up to or near the boundary of plaintiff's land, "thereby obstructing the natural flow of the surface water falling on plaintiff's land, and causing same to accumulate and flow back on plaintiff's said land," resulting in the injury.
Count 2 charges the embankment was constructed by defendant or the party under whom it acquired title 20 years or more before bringing the suit, and now maintained by defendant. Like count 1, the injury is laid to the collection of water in the pond in 1924 in such quantities as to obstruct the flow of surface water and cause it to flow back and stand upon plaintiff's land.
The evidence goes to the effect that a railroad embankment first impounded a pond on the lands now owned by defendant, and about 1912 a mining company, defendant's predecessor in title, constructed a wing dam, raising the level of the pond, and providing a spillway over the new construction; that defendant acquired the property, and took possession June 1, 1923; that at normal stages the upper end of the pond is about a quarter of a mile from the lower end of plaintiff's land.
There is some evidence that by heavy rains of the spring of 1924 the pond rose to about the line; but, as we construe the evidence, it is not claimed that the pond extended upon plaintiff's land, but the real injury was due to other conditions. Manifestly, until the water in the pond reached the level of plaintiff's lands, it could not, and did not, obstruct the flow of surface water. The complaint expressly limits the cause of action to the influence of the water in the pond, causing an obstruction or eddy, turning back or impounding surface water on plaintiff's land. The evidence does not support the finding of the court, sitting as a jury, for an injury of that sort.
The real damage which plaintiff's evidence tends to support is this: That the water coming down through plaintiff's farm and over defendant's lands gathered naturally into a ditch or channel; that the water in the pond so eddied the water as it entered the pond during freshets as to cause settling and filling of this channel first on defendant's lands and progressively until it contributed to fill up the ditch on plaintiff's land, causing the water to break over on plaintiff's lands, spreading, washing the soil, depositing débris, and causing it to remain wet and unfit for cultivation. This filling of the channel, it is claimed, caused the break over to reach from year to year further up on plaintiff's premises, and extend the untillable zone; that specially heavy rains in 1924 worked greater injury than ever before.
The filling up of the channel, or raising the earth level where water entered the pond, whether in one channel or at many points, so that the flow was obstructed and water caused to remain on plaintiff's land, to her substantial injury, gave a cause of action.
Filling up the ditch on plaintiff's land by natural processes due to the obstruction, and so diverting the water before reaching the line, would be subject to the same rule. Causing her lands to remain wet and untillable, either by hindering the flow or raising the water level in the soil by near contact to standing water, was a breach of the all-prevailing law that the lower lands are subject to a servitude for the natural drainage of the higher.
The liability of this defendant for the injury of 1924 would turn on negligence or failure of duty in maintaining the conditions on its premises after its purchase in 1923. *Page 239
If it had notice that this embankment had caused a filling up of the natural channel on its land leading to like conditions on plaintiff's land, the duty would be upon it to put its own premises in condition to allow the natural flow to be resumed. To knowingly maintain a private nuisance created by its predecessor would be actionable. But, if it had no notice that the existing condition of the drains was due to the impounded water, it would not be responsible for injury resulting from filling up drains by its predecessor in title.
If the variance between allegation and proof of the quo modo of the alleged injury could be treated as waived by failure to object to the evidence, it would still be insufficient to bind defendant for conditions created by its predecessor for failure to prove such notice as would impose on defendant the duty to remedy them.
Neither the claim set up in the complaint nor the evidence was subject to the plea of the statute of limitations of ten years. It applies to private nuisances per se acquiesced in for ten years.
Recurring or increasing injury due to the manner of maintaining the obstruction is not within the rule. The statute of limitations of one year runs from the date of the injury sued for. T. C. I. Co. v. Bunn, 202 Ala. 22, 79 So. 360; A. G. S. R. Co. v. McEniry, 200 Ala. 200, 75 So. 958; Stouts Mountain Coal Co. v. Ballard, 195 Ala. 283, 70 So. 172; S. A. M. Ry. Co. v. Buford, 106 Ala. 313, 17 So. 395.
Reversed and remanded.
ANDERSON, C. J., and SAYRE and GARDNER, JJ., concur.