Alabama M. Ry. Co. v. Williams

• Decision Date: 15 April 1891
• Citation: 9 So. 203,92 Ala. 277
• Parties: ALABAMA M. RY. CO. ET AL. v. WILLIAMS.
• Court: Alabama Supreme Court

9 So. 203

92 Ala. 277

ALABAMA M. RY. CO. ET AL. v. WILLIAMS.

Supreme Court of Alabama

April 15, 1891

Appeal from circuit court, Pike county; JOHN P. HUBBARD, Judge.

This action was brought by the appellee, John D. Williams, against the appellant corporations, the Alabama Midland Railway Company and the Alabama Terminal & Improvement Company, and sought to recover damages for injury to his property caused by the grading of the street, which was necessitated by the grade of the railroad track of the Alabama Midland Railway Company. The contract for grading this part of the railroad was originally let to the Alabama Terminal & Improvement Company, and by it sublet to other contractors. Upon the evidence the defendants requested the general affirmative charge for both defendants collectively, and then asked the general affirmative charge for each defendant separately. The court refused to give each of the charges as requested, and the defendants separately excepted.

Gardner & Wiley and A. A. Wiley, for appellants.

John Gamble, P. O. Harper, and W. L. Parks for appellee.

WALKER J.

The appellee's residence lot lay between Elm and Walnut streets, in the city of Troy, in this state. He sold to the appellant railway companies a strip of land off of the western portion of said lot as a right of way for its railroad. In building the railroad through said strip, and cross Walnut and Elm streets, which bounded said lot on the north and south, respectively, a cut was made so that the railroad ran below the levels or grades of the two streets and then the two streets, and the sidewalks abutting said lot, were cut down to correspond in grade with the bed of the railroad. The suit was brought to recover damages alleged to have been suffered by appellee as a result of cutting down the streets and sidewalks in the front and rear of his said residence lot. Injuries caused to property abutting on a street by reason of the act of the municipal authorities in grading or cutting down the street or sidewalk to a lower level may confer upon the property owner a right of action for damages, notwithstanding a previous condemnation, sale or dedication of the lands included in the street; and in such case the right to recover damages is well settled, if the change in the street or sidewalk is such as not to be presumed to have been in the contemplation of the parties at the time of the original condemnation, sale, or...