Atlantic Coast Line Railroad v. Knapp

1. Where a petition set out the creation of an abatable private nuisance, and its maintenance by the defendant (the owner of the land on which it was erected) after notice to abate, with resulting damages, it was not subject to general demurrer on the ground that it set forth no cause of action. 2. Where a railroad company created and maintained a nuisance by diverting the natural flow of a branch, causing damage, and a suit was brought therefor, which resulted in a nonsuit; and where, while the case was pending, the company was merged with another and ceased to exist as a separate entity, tlie other company taking all of its property and' assuming all of its debts and liabilities, a. renewal of the suit against the company resulting from the merger, brought within six months after the grant of the nonsuit, was a renewal against the original company within the meaning of the Civil Code, § 4381. 3. Even if a suit for the original creation of a nuisance be barred by the statute of limitations, still, if it be a continuing nuisance which can and should be abated, a suit for damages resulting from its maintenance will not be dismissed; nor will such a suit for damages accruing within the statute of limitations be dismissed as a whole, although it may . seek to recover for some damages as to which suit is barred. 4. If a person is liable both for the creation and maintenance of a nuisance, there is no misjoinder of causes of action in suing for both in the same suit. {a) It is not held that there can be a recovery on the basis that a nuisance is permanent and not abatable, doing the entire damage at once, and also for the continuance of the same nuisance as abatable. 5. The action was one for a tort, and the allegations of merger of the two ‘companies, and as to the contract of merger by which the debts and liabilities of the company erecting the nuisance were assumed, were made to show the liability of the company formed by the merger, and did not subject the petition to demurrer on the ground that it was a suit both for a tort and on a contract. 6. The other grounds of demurrer were properly overruled, except as to the claim to recover for mental pain and anxiety caused by the sickness of plaintiff’s family, for the rent paid for a house in a town four miles • from the plaintiff’s farm for four years, and for the purchase-price and cost of maintaining a horse and buggy for seven years. Direction is given that these items be stricken.

Action for damages. Before Judge Thomas. Thomas superior court. October term, 1911. D. F. Knapp brought suit against the Atlantic Coast Line Bail-road Company for damages. The petition, as amended, alleged substantially as follows: In 1895 the plaintiff owned a certain described tract of land through which the line of the defendant com7 pany (then known as the Savannah, Florida & Western Bailway Company) extended. There flowed through plaintiff’s land a natural branch of fresh, pure water. This ran for a short distance along the right of way of the company, and then crossed the right of way and flowed into a pond on the opposite side thereof. This pond had been used by the cattle on the farm for so long a time that it was impossible to get them to go elsewhere for water, and it was the principal supply of water on the place. In the spring of 1895, against his wishes and over his protest, that company closed up, with logs, rubbish, and other things, the natural channel of the branch where it crossed the right of way of the railroad, and cut and opened a ditch from the point where it filled up the natural channel, and thus diverted the water from flowing into the pond and caused it to flow along one side of the right of way and empty into a different channel from its original one. 'This was not necessary for the complete and full en^ment and exercise of the franchise of the railroad as a public carrier. It also erected a fence on both sides of its right of way, and the plaintiff’s cattle were prevented from using the water of the branch. This branch supplied the pond with sufficient water, and since its diversion the water in the pond gets so low that it becomes stagnant and muddy and unfit for stock to drink, and often there is not enough water for plaintiff’s cattle and stock: By reason of this, certain described cattle, of a specified value; died. Prior to the diversion' of the water from the pond, plaintiff and his family lived happily and comfortably at their home on the land, and enjoyed good health; but soon after the branch was thus diverted from its natural course, water in the pond became stagnant and dried up to such an extent as to leave large portions of the bottom exposed to the heat of the sun, thus causing to be sent out poisonous, offensive, miasmatic, and malarious gases and odors which filled the atmosphere which the plaintiff and his family were compelled to inhale, their home being in close proximity to the pond. By reason of this the health of plaintiff and his family was greatly impaired, and became so bad that it was impossible for them to continue to occupy their residence, and he was compelled to remove his family to a healthy location at a great expense in moving, and forced to rent a house and pay rent therefor for four 3rears, beginning in the spring of 1896, at $60 per year. The expense of moving amounted to $200, and his furniture was damaged in moving in the amount of $150. By reason of his enforced removal, he was not able to keep his farm in a proper state of cultivation by personal attention and supervision. He gave it the best attention possible, but it was impracticable to run the farm as successfully as before; and by reason of this fact he lost the value of his personal labor on, attention to, 'and supervision of the farm. The distance which he was compelled to move from his home was four miles, and on account of his physical condition caused by the conduct of the defendant he was unable to attend to business on his farm, and was unable to walk the distance between it and his rented home, arid had to keep a horse and buggy for the purpose of going back and forth. During the years 1896 to 1902 inclusive he was compelled to buy and keep up this extra horse and .buggy at a cost of $120 a year; and he lost at least three years of his own labor on the farm during the period named, at a cost to him of at least U hundred dollars a year. The sickness of plaintiff and his family, caused by the unlawful and wilful acts of defendant, caused him great worry and anxiety, he suffering great mental 'and physical pain both from his own sickness and the strain of watching over and waiting upon his sick wife and children, and also expense for medicine and doctor’s bills, not only during the time he lived on the farm, but also during the years 1896 to 1899, inclusive, being the years he was compelled to stay 'away from his home by reason of the facts alleged, and up to and including the year 1902. (There was a detailed statement of the sickness of himself and family, and the expenses incurred thereby.) On account of the sickness in his family, he lost at least three years labor of himself and his family, in the years 1896 to 1902, besides the loss in labor and time expended in keeping up, feeding, and clothing his family. He and his family, having partly recovered from the sickness caused by defendant’s wrongful acts, in the fall of 1899 moved back to his home 'and farm, and undertook to again live there and cultivate the place; but on account of the sickness of himself and family, resulting from the continued diversion of the branch, he was unable to do so, and was compelled to sell his farm in 1902 at a greatly reduced price. The value of his home and farm was decreased by the wrongful acts stated, in the sum of $1,000. Ever since the diversion of the stream from its natural channel, the pond has been a continuing private nuisance. The defendant, after being notified by plaintiff, to abate it, continued to maintain it, and thus caused the damages to the plaintiff. On September 30, 1901, plaintiff filed his action in this superior court against the defendant company, then known as the Savannah, Florida & Western Eailway Company, for this cause of action, but a nonsuit was granted by the presiding judge at the October term 1904. Plaintiff, having paid all costs in that case, renews this action within six months after the date of the nonsuit. In April, 1902, the Savannah, Florida & Western Eailway Company merged and consolidated with the Atlantic Coast Line Eailroad Company, under the name of the latter, which took charge of and operated all of the property of the former company, and by the agreement of merger assumed all of the debts and liabilities of the former company both in law and as matter of contract. No other provision was made for the payment of the debts and liabilities of the Savannah, Florida & Western Eailway Company, and that company went entirely out of existence. Damages were laid at $6,000. The defendant demurred generally and specially to the petition. Among other grounds of demurrer, it was contended that the peti- „ tion set out no cause of action; that if any cause of action ever existed, the right to sue was barred by the statute of limitations; that there was a misjoinder of causes of action, in that plaintiff sought to recover for the creation of a nuisance, and 'also for its maintenance after notice to abate it; that there was a misjoinder of actions, in that the plaintiff sought to recover on an alleged tort, and also on an alleged contract of merger between the Atlantic Coast Line Eailroad Company and the Savannah, Florida & Western Eailway Company. There were numerous special grounds of demurrer as to particular paragraphs and allegations in the petition. The court struck the allegations by which it was sought to recover for the support of the plaintiff’s minor daughters; those in regard to $150 damages arising from the breaking of furniture;, those by which it was sought to recover for labor of the members of' the plaintiff’s family, without naming the members and giving the character and value of the services, and those which sought to recover for feeding and supporting his family; also the allegations in regard to the decrease in market .value of the place, because the market value was not stated. The other grounds of the demurrer were overruled; and the defendant excepted.