Alabama Terminal R. R. v. Benns , 189 Ala. 590 ( 1914 )

SOMERVILLE, J.

Action for damages for consequential injuries to property instituted by the property owner, the appellee, against appellant, which constructed an embankment, and a railroad thereupon, near plaintiff’s property. There was judgment for the plaintiff of $500.

The report of the appeal will contain counts 1 and 2, us last amended, avoiding repetition as far as may be, in their reproduction.

The trial court gave to the jury special charges lettered (by us for convenience) A to J, inclusive, and that lettered N. These instructions will be set out in the report of the appeal. These special instructions and the charge of the court, delivered ex mero motu to the jury, affirmatively restricted the possible bases of plaintiff’s right to recover for diminution in value of his property flowing or resulting alone from the fact, if found, that a part of the public streets were burdened without lawful authority, with an high embankment, on top of which a railway was constructed, and that the only lead to a right in the plaintiff to recover was upon the theory of a nuisance, affecting plaintiff’s property, created by the unlawful use of the street so incumbered by the embankment and operated railway; and that in order to recover, and so as fixing the limit and measure of his recovery, the plaintiff must have shown that the injury he suffered in his property was a special, peculiar injury, proximately resulting from the public nuisance in consequence of. the public nuisance.—Duy v. Ala. Western Ry. Co., 175 Ala. 162, 174-177, 57 South. 724, Ann. Cas. 1914C, 1119. Giving these affirmative restrictions, imposed by the court through the instruction of the jury, the proper, necessary effect, both below and here on review, it is obvious that many of the questions discussed in brief for appellant are without influence or bearing on this review.

No prejudicial error attended the overruling of the demurrers to amended counts 1 and 2. These counts sufficiently show that the injurious consequences complained of were special, peculiar to the plaintiff’s property, and not common to the public. The diminished market value of the property in proximate consequence of the unlawful permanent obstruction of the street and its use for railway purposes, was the true measure of plaintiff’s damages.

All facts and circumstances which legitimately tended to afford evidential bases for the ascertainment of the diminution vel non of the value of the property by reason of the public nuisance were relevant and admissible. If the presence of the embankment and the operated railway in the public street was wrongful, constituting a public nuisance, and permanent in character, the plaintiff was entitled to show every circumstance arising from such wrongful use of the public street that tended to impair the market value of his property, to the end that the plaintiff might be compensated, if found so entitled, for all his damage in this single action at law.—Dennis v. M. & M. Ry. Co., 137 Ala. 649, 658, 35 South. 30, 97 Am. St. Rep. 69. A careful consideration of each assignment of error, argued in brief, predicated of rulings on the admission of evidence — evidence tending to show interference with the comfortable use of the property and of the effect of the movement of engines and trains over the railway in respect of the enjoyment or use of the property — discloses no prejudicial error. If, in the wrongful permanent encroachment upon and use of the street, the right to view and light and the circulation of air in and over the street was infringed and resulted in the diminution in market value of his property on that street, certainly evidence of those effects of the wrongful act were receivable on the issue of diminution vel non in the market value of the property, in consequence of the public nuisance. The Crofford Case, 158 Ala. 288, 48 South. 366, did not involve a public nuisance, an unlawful encroachment upon a street. The doctrine of that decison, in respect of the easements of light, view, and air, is referable to cases where one improves his own property, not where a public street is unlawfully obstructed.

Charges 2, 34, and 35, refused to defendant, were invasive of the province of the jury, and were properly refused. So, too, was the trial court correct in refusing to defendant charges 8 and 22. They would have deprived the plaintiff of proper elements of consideration in arriving at the damnifying effect of the asserted encroachment on the public streets.

There was no prejudicial error wrought by or in .the excerpts from the oral charge of the court of which defendant complains in assignments and in brief.

This suit was begun on February 5, 1909. Service of the summons was perfected on February 11, 1909. On February 15, 1909, a receiver was appointed by the Circuit Court of the United States. That appointment of the receiver had no effect to hinder or abate the prosecution to judgment of this then pending action against the defendant.—High on Receivers (4th Ed.) § 318; Pine Lake Iron Co. v. La Fayefte Car Works, (C. C.) 53 Fed. 853.

Much of the testimony was given with express reference to the locus in quo as shown by a map. At the close of the evidence offered for the defendant, the defendant introduced in evidence the map made by the witness Lacy. This map, while referred to as an exhibit to the bill of exceptions, does not appear in the transcript. It thus appears that, notwithstanding the formal recital of the bill that it contains all the evidence adduced on the trial, the bill of exceptions does not embody very material matter presented and admitted in the court below. Under these circumstances this court cannot review the action of the trial court in declining to give the affirmative charges requested for defendant.—Warble v. Sulzberger Co., 185 Ala. 603, 64 South. 361; Continental Gin Co. v. Milbrat, 10 Ala. App. 351, 65 South. 424.

There is no merit in the errors assigned and insisted upon in brief for appellant. So the judgment must be affirmed.

Affirmed.

Anderson, C. J., and McClellan and Sayre, JJ., concur.