| OCR Text |
Show 84 ALABAMA the owner of overlying land cannot place anything in percolating waters under his land which will result in pollution to the springs of his neighbors.69 3.7 Diffused Surface Waters Although Alabama has always recognized the civil law rule in dealing with the right of a landowner to rid himself of diffused surface water, the court has never applied the doctrine so strictly as to admit of no exceptions.60 Indeed, a literal application of the rule would completely inhibit any kind of rural as well as urban development. While the exceptions which appear to exist have not been consistently applied, such a pattern in the cases is not particu- larly unusual. The early case of Hughes v. Anderson*1 dealt with drainage of rural land, and although embracing the civil law approach, the court permitted an upper landowner to facilitate drainage by constructing ditches. A caveat was added, however, that he must do so with a "prudent regard to the welfare of his neighbor, and provided he did no more than concentrate the water, and cause it to flow more rapidly, and in greater volume on the inferior heritage."62 Although this language is rather ambiguous, the whole tenor of the opinion suggests that departures from or modifications of the rule will be regarded strictly. Some later cases ignored the suggested "excep- tion ;"63 others seized upon it as a means of allowing some modification of the upper terrain where it seemed reasonable under the cir- cumstances.64 The most recent decision dealing with rural land quite clearly commits the court to a modified version of the civil law rule.65 There the court permitted the upper owner to construct a new ditch which caused surface water to enter the lower land at a different place. An early case intimated that city properties might necessitate a qualification of the civil law rule in the interest of municipal development.66 The court never, however, went quite so far as to adopt anything like the common enemy approach to urban land.67 Instead, what eventually emerged was a rather firm rule permitting the owner of the lower city lot to obstruct the flow of surface water68 and at the same time restricting the right of the upper owner to collect surface water in a channel and cast it in concen- trated form onto a lower landowner.69 v. Killian, 175 Ala. 224, 57 So. 825 (1912). 80 Surface waters are discussed in H. Cohen, note 2 p. 1, at 482-86. « 68 Ala. 280, 44 Am. Rep. 147 (1880). «2 Id. at 286. ^Nininger v. Norwood, 72 Ala. 277, 47 Am. Rep. 412 (1882) ; Crabtree v. Baker. 75 Ala. 91, 51 Am. Rep. 424 (1883) ; Sloss & Sheffield Steel & Iron Go. v. Nance, 216 Ala. 237, 113 So. 50 (1927) ; see also City of Mobile v. Lartigue, 23 Ala. App. 479, 127 So. 257 (1930). a* See King Land Go. v. Bowen, 7 Ala. App. 462, 61 So. 22 (1913). a5 Vinson v. Turner, 252 Ala. 271, 40 So. 2d 863 (1949). «• Nininger v. Norwood, note 4 p. 14. or See Dekle v. Vann, 279 Ala. 153, 182 So. 2d 885 (1966). <*Hall v. Rising, 141 Ala. 431, 37 So. 586 (1904) ; Shanan v. Brown, 179 Ala. 425, 60 So. 891 (1913) ; Tennessee Goal, Iron & R. Go. v. Perolio, 206 Ala. 403, 90 So. 876 (1921). Winter v. Gain, 279 Ala. 481, 187 So. 2d 237 (1966) held that a city ordinance could not validly change this rule. as Kay-Noojin Dev. Go. v. Haokett, 253 Ala. 588, 45 So. 2d 792 (1940) ; Kay-Noojin Dev. Go. v. Kinnser, 259 Ala. 49, 65 So. 2d 510 (1953). |
