The plaintiff recovered a judgment against the City of Anniston for damages to his house and lot for the negligent maintenance of a defective culvert or storm sewer whereby the sewer overflowed during heavy rains, thereby causing the damages.
The case went to the jury on Counts 6, 8, 9, 10, and 12. Pleading was in short by consent.
Counts 6, 8, and 9 alleged negligence in the maintenance of the sewer of inadequate and insufficient size and capacity to carry the rain water, thereby causing the overflow. Essentially, these counts claim damages for the maintenance of an improperly constructed sewer of insufficient size to carry off the surface waters.
There are three assignments of error but we address ourselves to Assignment of Error No. 1, which we think is well taken. This assignment charges error in the refusal by the trial court to give the following written requested charge:
Contrary to what the appellee argues, the principle sought to be exposited in the foregoing charge was not covered by any other charge, including the court's oral charge, and we think the refusal of this charge is fatal to an affirmance of the case.
The sewer was constructed some four years before it overflowed and damaged the plaintiffs' property. Counts 6, 8, and 9 allege a permanent, unabatable nuisance and under the authorities the statute began to run upon completion of the faulty construction. A cause of action for such permanent nuisance arises on construction of the nuisance and the statute of limitations of one year runs from the time of the construction of same.—Goodyear Tire & Rubber Co. v. Gadsden Sand & Gravel Co., 248 Ala. 273,278, 27 So.2d 578, See also Huntsville v. Miller, 271 Ala. 687, 127 So.2d 606.
In Goodyear Tire & Rubber Co. v. Gadsden Sand & Gravel Co., supra, (248 Ala. at p. 278, 27 So.2d at p. 582) we said:
Again we there said:
Quite clearly then the defendant was entitled to have this principle explained to the jury by the stated charge.
The principle was aptly stated in Harris v. Town of Tarrant City, 221 Ala. 558, 560, 130 So. 83, 84:
City of Birmingham v. Flowers, 224 Ala. 279, 281, 140 So. 353, 354, states the principle in the following language:
In brief appellees argue, in addition to the proposition that the charge is otherwise covered, that the charge is misleading, relying upon City of Birmingham v. Flowers, supra. In that case this court dealt with Charge 115, refused to defendant, which was in this language:
We held, "The trial court did not err in refusing the defendant's requested Charge 115. If not otherwise faulty it was misleading". We observed that there was no proof that the culvert was permitted to become choked or stopped up. Appellees in brief in the present case refer to testimony of their witness to the effect that brush was in the drainage sewer and trash and that it stayed full of mud all the time. Testimony of appellant's witnesses was to a contrary effect. Thus, not only is there a difference between the charges involved in the two cases, but between the facts. The charge here dealt with merely followed established principles in cases of this nature.
It results from the foregoing that we are constrained to hold that the learned trial court erred to a reversal in refusing the above charge.
Reversed and remanded.
LIVINGSTON, C. J., and MERRILL and HARWOOD, JJ., concur.