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Easterling v. Awtrey Building Corp.9/17/1999
against the party responsible for the channeling. In Johnson v. Washington, 474 So. 2d 651 (Ala. 1985), the plaintiffs alleged that after the defendant had developed his adjoining property, they had begun to experience flooding and damage to their home, along with surface-water runoff and red dirt coming onto their land. On appeal from an adverse judgment, the defendant contended that the trial court erred in instructing the jury on the law of indirect trespass as stated in W.T. Ratliff. However, the Supreme Court concluded that the trial court's instruction concerning indirect trespass was not erroneous, noting that "the evidence indicates that surface water, red dirt, sand, and other debris entered onto the plaintiffs' land." 474 So. 2d at 653 (emphasis added). Johnson thus recognizes that the deposit of surface water and debris upon land as a result of the change of the natural topography of adjacent land will give rise to an indirect-trespass claim against the owner of the adjoining land. See also Fisher v. Space of Pensacola, Inc., 483 So. 2d 392, 395 (Ala. 1986) (stating that a trespass action can be maintained in a proper case involving direct diversion of surface water, but declining to apply rule because the plaintiff's trespass claim was voluntarily dismissed before trial).
Here, as in Johnson, the plaintiff has alleged that the development of adjoining land by the defendants has caused surface water and debris to flow onto his land from the adjoining land, and both Johnson and W.T. Ratliff recognize the availability of a trespass action to remedy the damage done to Easterling's property. ABC's insistence that the resulting injury to Easterling must be considered "indirect," under Cochran's discredited analysis, does not, as a matter of law, require the application of the two-year residual personal-injury statute of limitations. Easterling's cause of action sounds in trespass rather than trespass on the case. Moreover, while the record reveals that the subdivision was developed in 1991, and that Easterling had complained to ABC of flooding problems in January 1995, there is no indication in the record whether Easterling's property first incurred damage before May 19, 1991, six years before Easterling's filed his complaint. See W.T. Ratliff, 405 So. 2d at 144 (holding that six-year limitations period began to run in 1973, "the time damage was first incurred."); cf. City of Mobile v. Jackson, 474 So. 2d 644, 649 (Ala. 1985) (holding that where the defendants' construction of duplexes on its adjacent land was not itself actionable, the plaintiffs' cause of action accrued when water flowing from the defendants' land first invaded the plaintiffs' home).
We thus conclude that the trial court erred in determining Easterling's trespass claim to be subject to a two-year, rather than a six-year, limitations period. We reverse the summary judgment in favor of ABC, and we remand the cause for further proceedings.
REVERSED AND REMANDED.
Yates, Monroe, Crawley, and Thompson, JJ., concur.
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