The Montgomery advertiser., 1906-04-06
WE SELL CHEAPEST

1dlIure 10 ODyect IS not a WalV6r OL his right to move to suppress the de- positions because the commissioner was of counsel in the cause.
 I. Dispositions; Motion to Suppress. Motion to suppress depositions, made before final hearing. is in time.
 ,. Equity: Headings; Evidence.-A bill not sworn to. and a cross-bill and answer. not being required to be sworn to. are mere pleadings, and cannot be looked to as evidence on the final hearing as evidence.
 Appeal from the Marengo Chancery Court.
 Heard before Hon. Thomas H. Smith. Affirmed. Opinion by Tyson, J. Dow dell, Simpson and Denson, J. J. Concur. TUTwILER COAL, COKE AND IRON
 co. V. NICHOLS.
 Decided Dec. 21, 1S05-(3s So. Rep. 762).
 1. Limitation of Actions; Water Courses; Pollution.-An action for in- juries to a lower riparian proprietor by pollution of water course is within Code 1896, Sec. 2s01. subdivision 6, Him. iting the actions for any injury to the person or rights of another. not arising from contract and not otherwise spe- cially enumerated. to one year, so that plaintiff is only entitled to recover damages which accrue within a year prior to the commencement of the ac- tion.
 2. Waters and Water Courses; Pollu- tion; Damages: Evidence.-In an action by lower riparian proprietor for the of the condition of the streams prior to the twelve months limitation perioi within which plaintiff was entitled to recover damages and subsequent to the commencement of the action was aj- missible for the purpose of showing the effect of the pollution. If any, on plain tiff's land and in the river. 3. Same; Crops.-In an action by a riparian proprietor for the pollution of water course. evidence of the kinds of crops plaintiff raised on his lands and their value was admissible as tend ing to show the nature and character of the land and the crops it was adapt ed to. as bearing on the question of its value.
 4. Same; Health of Plaintiffs Family; Odors.-In an action for pollution of a water course by the waste from defend ants coal washer. evidence showing that the health of plaintiffs family had been affected and that there was an odor from the river was admissible ). Same; Fish.-Where plaintiff sued to recover damages for the pollution of a water course, evidence that fish had decreased in the stream and that plaintiffs catch had not been as great since the operation of defendants coal washer which was alleged to have pol luted the stream. and that dead fish were discovered in the stream, was admissible, though plaintiff had no title to the fish in the stream until caught.
 6. Trial; Evidence; Motion to Strike It is within the discretion of the court to overrule a motion to exclude evil dence introduced, where no objection was made to the evidence or to the question calling therefor.
 :. Waters and Water Courses: Pol lution; Evidence-Where. in an action by a riparian proprietor for the pollu- tion of a water course. he proved the purchase of certain land adjoining his riparian land. the whole forming one farm. the deed to such additional land was admissible though no part thereof was riparian.
 <. Trial: Abstract Instructions; Re fusal.-Where. in an action for pollu- tion of a water course, there was no proof that plaintiffs fish traps were constructed in violation of law. an in- struction on the hypothesis that the traps were so constructed was properly refused as abstract.
 g. Limitation of Actions; Pollution of Water Course; Instructions.-In a suit by a riparian proprietor for pollution of a water couse. it was error for the court to refuse to charge that plaintiff could not recover for any damages done to him or his land by defendant for more than a year prior to the bring ing of suit.
 10. Waters and Water Courses; Pol