Opinion
6 Div. 849.
May 17, 1923.
Appeal from Circuit Court, Walker County; J. J. Curtis, Judge.
A. F. Fite, of Jasper, for appellant.
Appellant's charges 17 and 21 should have been given. Steel Cities Chem. Co. v. Jenkins, 17 Ala. App. 221, 84 So. 408; S. S. S. I. Co. v. Mitchell, 161 Ala. 278, 49 So. 852.
Ray Cooner, of Jasper, for appellee.
The authorities cited by appellant are inapt.
Objection was properly sustained to the question propounded to the plaintiff on cross-examination, "What valuation were you paying taxes on?" The witness had testified to the value of his land, and it was competent to impeach his opinion in that behalf by showing that at another time he had appraised it for less. But the answer to this question would furnish no such impeachment, unless it appeared that plaintiff himself had returned or suggested the valuation upon which he was paying taxes. As framed, the question was clearly incompetent.
Plaintiff's witness Worthington, who also testified as to the value of the lands, and the damaging effect of the deposits on them, was asked by defendant's counsel:
"Well, now, your idea is then that the question of whether the deposits upon the land affected it or not depends on whether it is covered by a suit or not?"
There was nothing in his testimony that had been previously elicited that could justify this question, and, indeed, it in effect calls upon the witness to answer whether his opinion as to value and injury was honest or dishonest. The question was improper in form and in substance, and was properly excluded.
Charges 17 and 21 are not correct statements of the law applicable to this case. The complaint does not claim for prospective damage from the future operation of the mines, but only for damage already accomplished. If the waste material cast on the lands was a permanent injury to the soil (and under the evidence this was clearly a question for the jury), the abatement of the nuisance — that is, its suspension from further injurious operation — could not relieve against injury already inflicted. Abating the nuisance is not abating or curing the damage it has already caused.
The application made of the principle invoked by these charges in S. S. S. I. Co. v. Mitchell, 161 Ala. 278, 49 So. 851, and Steel Cities Chem. Co. v. Jenkins, 17 Ala. App. 221, 84 So. 408, cited by appellant, was to a state of facts which expressly excluded the kind and degree of injury here exhibited. For these reasons these charges were properly refused.
Charge 22 was properly refused as misleading. Evidently, the washer was operated in connection with the mines, and its operation was a part of the operation of the mines. The language of the charge is too broad. Moreover, the plaintiff's recovery was for damage caused solely by waste deposits on his lands, and it was of no consequence whether this damage resulted from the excavation and removal of coal from the ground, or its passage through the washer. The giving of the charge could not have helped defendant's cause, nor could its refusal have hurt it.
No other assignments of error are insisted upon, and the assignments urged being without merit, the judgment will be affirmed. Affirmed.
ANDERSON, C. J., and McCLELLAN and THOMAS, JJ., concur.