Opinion
6 Div. 794.
March 17, 1936.
Appeal from Circuit Court, Jefferson County; John Denson, Judge.
Action for damages to property by Homer Campbell against the Lehigh Portland Cement Company. From a judgment for plaintiff, defendant appeals.
Affirmed.
Plea 8, to which others were similar, alleges that for a period of more than ten years prior to institution of this suit defendant has been engaged in the operation of a limestone quarry on its said premises, and in the mining and quarrying of limestone has used dynamite and other explosives which were necessary for the successful and practical operation of said quarry; that the operation of said quarry has been by the same means and methods and of the same character for a continuous period of ten years prior to the institution of this suit; that such user of said quarry as aforesaid was continuous, adverse, and under a claim of right, and for more than ten years before the institution of this suit said quarry was so used in the aforesaid manner with the knowledge of the plaintiff; and that by virtue of such user defendant has acquired the right to continue such use.
Bradley, Baldwin, All White, of Birmingham, for appellant.
A count which fails to state the cause of action with sufficient certainty and clearness to enable defendant to be prepared against it is subject to appropriate demurrer. Chapman v. Weaver, 19 Ala. 626; Sloss-Sheffield Steel Iron Co. v. Sampson, 158 Ala. 590, 48 So. 493. Separate and distinct causes of action cannot be joined in the same count; a count alleging blasts by the use of dynamite on different days throughout a period of one year is demurrable as joining more than one cause of action. Ala. G. S. R. Co. v. Shahan, 116 Ala. 302, 22 So. 509; Sloss-Sheffield Steel Iron Co. v. Mitchell, 167 Ala. 226, 52 So. 69; H. A. B. R. Co. v. Dusenberry, 94 Ala. 413, 10 So. 274; L. N. R. Co. v. Cofer, 110 Ala. 491, 18 So. 110; Lehigh P. C. Co. v. Donaldson, 231 Ala. 242, 164 So. 97. The right to an easement upon another's land may be acquired by prescription. Joyce, Nuisances, 92; Roundtree v. Brantley, 34 Ala. 544, 545, 73 Am.Dec. 470; Ala. C. C. I. Co. v. Turner, 145 Ala. 639, 39 So. 603, 117 Am. St. Rep. 61; Stouts Mt. C. C. Co. v. Ballard, 195 Ala. 283, 70 So. 172; Wright v. Moore, 38 Ala. 593, 82 Am.Dec. 731; Dangelo v. McLean F. B. Co. (C.C.A.) 287 F. 14; Wellington v. Cambridge, 220 Mass. 312, 107 N.E. 976; Bradbury M. Co. v. Laclede Gaslight Co., 128 Mo. App. 96, 106 S.W. 594; Collins v. Sargent, 89 Cal.App. 107, 264 P. 776.
Mullins Deramus, of Birmingham, for appellee.
Blasts continuously occurring over a period of one year give rise to one cause of action where the injury done on any particular day could not be distinguished from that done on any other day. One primary right or subject of controversy may be evidenced by a series of acts or a continuous course of conduct over a period of more than a single day. Sloss-Sheffield Steel Iron Co. v. Mitchell, 161 Ala. 278, 49 So. 851; Lehigh P. Co. v. Donaldson, 231 Ala. 242, 164 So. 97; Stouts Mt. C. C. Co. v. Ballard, 195 Ala. 283, 70 So. 172. Where recovery could be had under other counts, error, if any, in overruling demurrer to one count, would be harmless. Bates v. Turney, 26 Ala. App. 98,
153 So. 782; McClelland v. Coston, 227 Ala. 267, 149 So. 697; Sov. Camp, W. O. W., v. Ward, 201 Ala. 446, 78 So. 824, L.R.A. 1918E, 594; Globe Rutgers F. I. Co. v. Home I. L. Corp., 226 Ala. 275, 146 So. 610: Supreme Court Rule 45. Plea that defendant had been engaged in operations for period of ten years, in the same manner, by the same method, and to the same extent, and that the blasting operations caused a certain amount of noise and vibration, which continued throughout the period to the knowledge of plaintiff, should also aver that the injuries and damages to plaintiff were uniform during said period. 46 C.J. 754; Stouts Mr. C. C. Co. v. Ballard, supra.
This appeal is on the record proper, without bill of exceptions. Only some questions arising out of rulings on demurrers to pleadings are presented for our consideration.
Count 2 of plaintiff's (appellee's) complaint is, in pertinent part, in this language: "Plaintiff claims of the defendant the sum of $3,000.00, as damages, for that heretofore and during the 12 months period next preceding the filing of this suit while the plaintiff was in possession of and residing on premises known as 804 Bush Avenue in Tarrant, Jefferson County, Alabama, and was the owner of said premises, and while the defendant was engaged in blasting operations nearby said premises, the defendant did negligently conduct itself in and about said blasting operations in such a way that as a proximate consequence of said negligence of the defendant the plaintiff's said house has been shaken, etc.
Appellant argues very vigorously here that the trial court committed reversible error in overruling its demurrers to this count 2 of plaintiff's (appellee's) complaint.
Of course it is the law that a count in a complaint which alleges more than one distinct cause of action is subject to demurrer. Sloss-Sheffield Steel Iron Co. v. Mitchell, 167 Ala. 226, 52 So. 69; Alabama Great Southern Railroad Co. v. Shahan, 116 Ala. 302, 22 So. 509.
But we think the action of the court in overruling appellant's demurrers to count 2 of the complaint may be sustained on either of two grounds, viz.: (1) The said count was sufficient as against the demurrers, on the authority of what was said by our Supreme Court in the opinion in the case of Lehigh Portland Cement Co. v. Donaldson, 164 So. 97, 100, to wit: "The complaint [count], we think, shows that the one subject of controversy is the continued series of blastings negligently conducted in accordance with a single sustained method pursued in executing one general scheme, and is therefore a single cause of action in tort, though it consists of more than a single act, similar in some respects to a count declaring on a series of notes which arise out of the same transaction. Morrow v. Shuff, 219 Ala. 395, 122 So. 635. It is not therefore subject to the objection made in that respect." And see Sloss-Sheffield Steel Iron Co. v. Mitchell, 161 Ala. 278, 49 So. 851, and Stouts Mountain Coal Coke Co. v. Ballard, 195 Ala. 283, 70 So. 172.
Or (2) if we are in error as to our just state of conclusion, above, it is apparent that the same evidence that was admissible under this count 2 was admissible under count No. 1, of the complaint, to which no objection is here urged. Hence appellant could not have been injured by the action of the court under discussion. And therefore no reversal of the judgment because of this action would, in any event, be ordered. Supreme Court rule 45; Globe Rutgers Fire Ins. Co. v. Home Investment Loan Corporation, 226 Ala. 275, 146 So. 610. And see Sovereign Camp, W. O. W., v. Ward, 201 Ala. 446, 78 So. 824.
As for the action of the court below in sustaining appellee's demurrers to appellant's pleas 8, 9, 10, and 11, it would seem that it is only incumbent upon us to cite the opinion in the case of Stouts Mountain Coal Coke Co. v. Ballard, 195 Ala. 283, 70 So. 172. As therein pointed out: "In order to establish a prescriptive right to the maintenance of a nuisance, the user must not only be open, adverse, and continuous, etc., but with the knowledge and acquiescence of the person whose right is invaded, and of such a nature as to produce a uniform result during the period of adverse user." (Italics ours.)
Each of these pleas 8, 9, 10, and 11 were defective in (to mention nothing else) failing to allege that the "use" relied on was "such as to produce a uniform result during the period of adverse claim or holding." The demurrers to each of them were properly sustained.
What we have said hereinabove disposes of all questions arising out of rulings assigned for error and argued here.
We find no prejudicially erroneous ruling to have been made, and the judgment is affirmed.
Affirmed.