
    Sloss-Sheffield S. &. I. Co. v. Dorman, Admr.,
    
      Damages for Causing Overflow of Land.
    
    (Decided April 15, 1909.
    49 South. 242.)
    
      Limitation of Action; Accrual of Right of Action; Overfloiuing Lands. — In an action for injuries' to land from overflow caused by the neglect of the railroad company to keep open culverts lawfully erected, limitations begin to run from the time of the injury and not from the time of the construction of the railway.
    Appeal from Jefferson. Circuit Court.
    Heard before Hon. A. A, Coleman.
    Action by H. T. Dorman against tbe Sloss-Sheffield Steel & Iron Company. From a judgment for plaintiff defendant appeals.
    Affirmed.
    The plea under discussion is plea No. 4, and is as follows : “Defendant, for further answer to the complaint, and to each count separately and severally, says that the defendant, at a time more than 10 years before the commencement of this action and the time of the grievances complained of, constructed the said trestle, culverts, openings, and embankments along and near the plaintiff’s said land in the way and manner complained of in said complaint for the passage of water which had to flow through, and for the drainage of the plaintiff’s said land, and committed'at said time the other grievances charged in the complaint; and defendant avers that since the original construction of said trestle, culverts, and openings, the defendant has continued to maintain said obstructions up to the time of the commencement of this suit, with the same effect of overflowing and damaging plaintiff’s land in time of high water, and to the same extent during the said period of 10 years as to the time this suit was brought and the grievances complained of occurred, of which plaintiff made no complaint, but acquiesced therein; and the defendant avers that during the said period of 10 years before the commencement of this suit the defendant claimed the right to maintain, and did inaintain, the said pipes, culverts, and openings near the plaintiff’s said property openly, notoriously, adversely to the plaintiff and all the world, and under claim of right to do so, and has thereby now acquired by prescription or adverse possession the right as against the plaintiff to so maintain its said trestle, culverts, and openings with effect, causing the water to overflow plaintiff’s said land as alleged in the complaint was done.”
    Tiddman, Grubb, Bradlky, and Morrow, and Charles E. Rice, for appellant.
    The court erred in sustainingappellee’s demurrer to the appellant’s 1th plea. — Bhahan v. A. a. S. R. R. Co., 115 Ala. 181.
    Sam Will John, for appellee.
    The question discussed by appellant is settled adversely to its contention in the case of S. A. & M. Ry. Co. v. Buford, 106 Ala. 813.
   DENSON, J.

This is an action by IT. T. Dorman against the Sloss-Sheifleld Steel & Iron Company to recover damages for injury to the plaintiff’s land, consequent to the overflow thereon of surface water. Such damage is alleged to have been caused by the neglect of the defendant to keep open the waterways or culverts under its railroad, through which flowed the waters of a stream that naturally drained the surface water from plaintiff’s land, in that the waters of this stream, being by such negligence checked, obstructed, and prevented from freely flowing away, Avere thrown back upon the plaintiff’s land, so submerging it and depositing refuse matter thereon as to depreciate its value. The injuries complained of are averred to have occurred in the years 1904 and 1905, and the action was begun on July 7, 1905. The defendant suffered judgment in the court below, and therefrom to this court brings his appeal.

The only question submitted for decision by the assignment of errors is the sufficiency or not of plea 4, by which defendant sought in the trial court to set up a prescriptive right in bar of the action, acquired by adverse user of 10 years. The appellant contends that., according to the rulings made in Shahan v. Alabama Great Southern Railroad Co., 115 Ala. 181, 22 South. 449, 67 Am. St. Rep. 20, the plea is sufficient, and the court erred in sustaining the demurrer thereto. On the other hand, appellee contends that the judgment on the demurrer finds full support in the case of S. A. & M. R. R. v. Buford, 106 Ala. 303, 17 South. 395. These are the only authorities cited in briefs of counsel.

We are not driven to the necessity of overruling either of the cases cited, for they are not in conflict. In the Shahan Case the gravaman of plaintiff’s cause of action consisted in the negligent construction of the embankments and culverts complained of. Of the complaint the court said: “The gist of the complaint is the averred negligence of the defendant in failing to construct and maintain sufficient openings for the passage of the water which fell on that day.” It was held on that occasion that 10 years’ 'adverse user, properly pleaded, would be sufficient answer to the cause of action alleged, which cause of action, as we have shown, proceeded upon the theory of negligence in the construction of the embankment and culverts, by which they were necessarily rendered injurious. In the case in judgment the complaint, alleges no negligence in the construction of the waterways or culverts under defendant’s railroad, but tlie gravamen of it is that defendant allowed its waterways and culverts to become filled up, and that their capacity for carrying off the water was decreased by defendant’s permitting them to become so clogged. So far as the waterways and culverts, in themselves, are concerned, they were amply sufficient, in their manner of construction and their dimensions, to carry off all the water-, and were therefore not necessarily injurious, or invasive of the rights of others, and of themselves afford no canse of action.

In this state of the case, according to the ruling made in S. A. & M. Railway v. Buford, supra, whatever of legal injury may result from the failure to keep open the waterways or culverts “furnishes a cause of action accruing when the injury occurs, and then the statute of limitations commences to run, and there may be as many successive suits and recoveries as there are successive injuries.” In other words, as was said in the Buforcl Case, the waterways and culverts “were lawful structures, lawfully erected, and furnished plaintiff no cause of action. Plaintiff’s legal injury, which gave him a cause of action, was coincident with the overflow of his land,” caused by the filling up of the waterways or culverts, “and it is from the happening of the injury the statute of limitations commenced to run.” — Polly v. McCall, 37 Ala. 20.

It follows that the plea is insufficient, and that the court properly sustained the demurrer thereto.

Affirmed.

Dowdeld, C. J., and Simpson and Mayfield, JJ., concur.  