Mobile O. R. Co. v. Turner ( 1923 )

The case was tried by the court, sitting without a jury, on counts 3, 4, and 6, claiming respectively for trespass to plaintiff's land, for maintaining a nuisance as to her residence, and for a willful and malicious trespass to land.

The gravamen of the action is defendant's conduct in dumping several hundred creosoted pilings on a strip of land lying between defendant's main right of way and its side track, which strip is claimed by plaintiff as her property. The evidence fairly supports the special findings of the trial court that the strip of land in question is the property of plaintiff; that defendant trespassed on this land by placing the pilings thereon; and that plaintiff was subjected at times to a disagreeable odor from the pilings which interfered with her comfortable use of the front porch of her residence.

But we find no support in the evidence for any judgment for substantial damages.

1. The trespass was not malicious and was not accompanied by any circumstances of wantonness or aggravation, so that only actual damage was recoverable.

2. No evidence was offered from which the court could estimate the damage suffered from the trespass complained of.

3. The measure of damages for a nuisance by which the plaintiff's home has been subjected to noxious and disagreeable odors is the difference in value of the property for a home with and without such odors. Jefferson Fert. Co. v. Rich,182 Ala. 633, 62 So. 40. The evidence supplied no basis for an estimation of plaintiff's damage in this case, and the judgment cannot be grounded on the court declaring upon a nuisance.

Moreover, the testimony of plaintiff's husband, an authorized agent and spokesman, shows that after the pilings were dumped he expressly forbade their removal by defendant, thereby consenting to their continued presence, and barring any complaint of the consequences.

At most, under the evidence, plaintiff was entitled to recover only nominal damages, and the judgment for $500 will be corrected and a judgment for $1 will be here rendered for plaintiff; appellee will be taxed with the costs of the appeal.

Corrected and affirmed.

ANDERSON, C. J., and McCLELLAN and THOMAS, JJ., concur.