Alabama Great Southern R. Co. v. Russell
| Decision Date | 22 March 1949 |
| Docket Number | 6 Div. 717. |
| Parties | ALABAMA GREAT SOUTHERN R. CO. v. RUSSELL. |
| Court | Alabama Court of Appeals |
Rehearing Denied May 17, 1949.
Reversed after Remandment March 21, 1950.
Further Rehearing Denied May 23, 1950.
Benners, Burr, Stokely & McKamy, of Birmingham, and Jones Dominick & McEachin and Liston C. Bell, all of Tuscaloosa for appellant.
Jas. J. Mayfield, of Tuscaloosa, for appellee.
Charles Russell plaintiff below, gained a verdict and judgment in the amount of $800 in a suit against the Alabama Great Southern Railroad Company. The complaint claimed damages because of defendant's action in negligently permitting combustible material to accumulate on its right of way, which material was ignited by fire escaping from one of defendant's locomotives. As a proximate result of the negligence of the defendant a large amount of timber and fences were rendered useless, and plaintiff's land and vegetation thereon was rendered less valuable.
In the complaint as filed it was alleged that plaintiff's land was adjacent to the defendant's right of way.
After conclusion of the testimony the defendant's attorney called the court's attention to the facts that the evidence showed that plaintiff's land was about a half mile distance from defendant's right of way, and insisted that the defendant was entitled to the general affirmative charge because of the variance between the allegations of the complaint and the proof.
Thereupon with consent of defendant's attorney the complaint was amended in one of the points of variance, and as amended showed at this point that plaintiff's land adjoined the land of Jimmie Hinton whose land was adjacent to the defendant's right of way.
Thereafter the court called the attention of plaintiff's attorney to the fact that a supposed variance still existed, and a second amendment was attempted, which defendant's attorney contends was made without his consent or knowledge.
On petition of defendant a writ of certiorari was granted by this court causing the records and pleadings in the court below to be forwarded to this court.
The allowance of this second amendment by the court was the basis of one of defendant's grounds of its motion for a new trial. Voluminous affidavits were submitted by the attorneys for the respective sides. It is likewise strenuously and lengthily argued and asserted as error on this appeal.
We pretermit consideration of the propriety of the court's action in permitting the so called second amendment, for in our opinion its allowance was in any case error without injury.
The complaint alleges that plaintiff's land was 'adjacent' to defendant's right of way.
Adjacent means lying near, close, or contiguous, neighboring, bordering, etc. Webster's New International Dictionary, Sec. Ed.; Grimsley v. First Ave. Coal & Lumber Co., 217 Ala. 159, 115 So. 90. The term is a relative one, and its meaning must be determined in connection with the facts with which it is used.
In United States v. St. Anthony Ry. Co., 192 U.S. 524, 24 S.Ct. 333, 48 L.Ed. 548, the court held that an act granting the railroad the right of way through public lands with the privilege of taking material for construction of its road from public land 'adjacent to' the line of the road, public lands within two miles of the railroad line were adjacent thereto.
While the words adjacent and adjoining are sometimes used as synonymous in their etymological sense, yet strictly speaking, there is a difference. That which is adjacent may be separated by some intervening object; that which is adjoining must touch in some part.
It is clearly inferable from the evidence that plaintiff's land was in an area of large tracts of woodland and interspersing cultivated tracts. It is our conclusion that even without the attempted amendment the allegations and the evidence conformed to a degree justifying the court's rulings on the demurrer in this regard.
Even if it be assumed that the plaintiff's land should not be considered as adjacent to the defendant's land because separated therefrom by a distance of a half mile, and that the court erred in overruling defendant's demurrer, this error was rendered innocuous by the undisputed proof that plaintiff did own a tract of land within one half mile of the railroad line, and that his land was burned over. Smith v. Tripp, 246 Ala. 421, 20 So.2d 870, and cases therein cited.
The evidence presented by the plaintiff was to the effect that on Sunday afternoon, 16 February 1947, fire was observed in sedge grass growing on defendant's right of way immediately after the passage of one of defendant's trains. This fire spread to the lands of Jimmie Hinton and then onto the land of the plaintiff.
In June 1945 plaintiff bought 30 acres of land from Jimmie Hinton for $1250. Thereafter he erected certain buildings thereon and made other improvements thereon looking towards its operation as a farm.
When plaintiff purchased the land Hinton reserved all merchantable timber 4 inches and up 12 inches from the ground, for a period of twelve months, together with right of ingress and egress to remove said timber.
In this connection Hinton, a witness for the plaintiff, testified that he cut the 'timber' trees on plaintiff's land, and sold the rights to the smaller trees, or what is referred to in the testimony as 'paperwood,' to a Mr. McDaniel.
As to how much timber had been removed from plaintiff's land by Hinton, or his vendee McDaniel, the record shows the following during the cross examination of Mr. Hinton:
The plaintiff testified that of the 30 acres he had bought from Mr. Hinton, he had placed about 18 acres in cultivation, and some 12 or 13 acres were in woodland pasture. In this woodland pasture area the plaintiff testified that there were, in his judgment between 600 and 700 young pine trees growing. Mr. Hinton also testified that this area was thickly covered with young pine and gum trees.
According to plaintiff and his witnesses the vegetation on this 12 or 13 acres of woodland pasture, together with about 1300 feet of three strand barbed wire fencing and posts, were destroyed by the fire, with the exception of an area of considerably less than one acre.
The plaintiff further testified on direct examination concerning merchantable timber left on his land after expiration of the reservation in the Hinton deed. He stated that there was 'some good timber left' in the 'wet places.' In this connection plaintiff's attorney states in his brief:
Plaintiff also testified on direct examination in reply to the question 'What was the condition of the trees and grass down there after the fire?' that there was nothing that a cow or mule could graze on.
After testifying that he was familiar with the value of property in the community in which he lived the plaintiff was, over defendant's objection and exception in each instance, permitted to testify that the reasonable value of his property before the fire was $2500, and its reasonable value after the fire was $1500.
The ground of defendant's objection was that the measure of damages was the value of the particular things destroyed, i. e., the vegetation and fencing, and not the reasonable market value of plaintiff's farm before and after the fire.
The above was the only evidence presented by the plaintiff tending to establish the value of his property injured by the fire.
On cross examination the plaintiff testified that he himself had bought a 1/8 interest in 52 acres of land sometime previously, paying $50 for his interest, and later selling it for $175. He also knew of two other transactions in real estate, but did not know the purchase price or the sale price in either instance.
Plaintiff also testified he did not know the value per acre of the cultivated portion of his land, nor the value per acre of the wooded area of his farm.
At the conclusion of this line of testimony the defendant moved that the plaintiff's testimony concerning the value of the damages to his land be excluded on the ground that it had been shown that the plaintiff was not qualified to testify as to values. The court denied this motion.
No error resulted from the court's ruling in the premises. It is well settled by our decisions that the owner of personalty may testify as to its value, whether he is generally familiar with such values or not. Ward v. Reynolds, 32 Ala. 384; Moss v. State, 146 Ala. 686, 40 So. 340; Southern Ry. Co. v. Morris, 143 Ala. 628, 42 So. 17; Alabama Power Co. v. Armour & Co., 207 Ala. 15, 92 So. 111; Lincoln Reserve Life Ins. Co. v. Armes, 215 Ala. 407, 110 So. 818. In such cases it is considered that ownership itself renders the owner competent to testify as to its value. For the same reason, an owner of land, by virtue of his ownership, may testify as to its value. Wigmore on Evidence, 3rd Ed., Vol. III, Sec. 714; Hellstrom v. First Guaranty Bank, 54 N.D. 166, 209 N.W. 212, 45 A.L.R. 1487; Lyle v. Ginnold, 174 Wash. 104, 24 P.2d 449; Sacramento Suburban Fruitlands...
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