Alabama Terminal R. Co. v. Benns

• Decision Date: 07 November 1914
• Docket Number: 795
• Parties: ALABAMA TERMINAL R. CO. v. BENNS.
• Court: Alabama Supreme Court

66 So. 589

189 Ala. 590

ALABAMA TERMINAL R. CO. v. BENNS.

No. 795

Supreme Court of Alabama

November 7, 1914

Appeal from City Court of Bessemer; J.C.B. Gwin, Judge.

Action by W.E. Benns against the Alabama Terminal Railroad Company for damages. Judgment for plaintiff, and defendant appeals. Affirmed.

The complaint contained two counts, and as amended are as follows:

Plaintiff claims of defendant *** damages for that defendant in the construction of its railroad along the north side of Fourteenth street, and near the property line of said street in the city of Bessemer *** has erected a large, high embankment, for the main line of its railroad tracks, ranging from, to wit, 18 to 30 feet high on the northeast side of said street between Berkley and Clarendon avenues, and placed a part of said embankment over into said street for a distance of about, to wit, 10 or 15 feet; and in crossing Clarendon and Dartmouth avenues, with said embankment and railroad, defendant filled up each of said avenues with said embankment, excepting only a small archway about, to wit, 30 feet wide, and 15 feet high in the center; and plaintiff avers that by reason of the construction of said embankment and railroad, which plaintiff avers was intended for and is and will be a permanent institution as a railroad, a common carrier of freight and passengers, plaintiff's property to wit, lots 13, 14, 15, and 16 in block 123, on the corner of said Fourteenth street and Clarendon avenue, immediately in front of and facing on the opposite side of said street from said embankment and railroad, have been greatly damaged and depreciated in value for that by reason of said embankment and railroad the value of the use and occupation of said property has been greatly depreciated; his said property has been rendered more inconvenient to get to and from; that the way to and from his said property had been largely blocked and abridged and rendered less desirable that the entire front view of his property to the city of Bessemer proper had been cut off, excluding view and light north, northeast, and east; that the circulation of air had been materially interfered with; that the way to and from his said property over the avenues and streets on the side of his property next to said railroad has been narrowed, cut down and abridged, and plaintiff's said property is exposed to danger from fire, and is subjected to jarring noise vibration, smoke, cinders, dust, etc., from the operation of said railroad, to go upon and fall and remain on plaintiff's said property. And plaintiff avers that the part of Clarendon avenue between Fourteenth and Fifteenth streets, where it runs into, crosses, or intersects Fourteenth street, and which was an approach and public highway passing to and by plaintiff's said property, and furnished an outlet therefrom, between plaintiff's said property and said city of Bessemer, and Fourteenth street, which also furnished an approach to, passageway by, and an outlet from, said property, and which said avenue and street were the only outlets or passageways to and from or by plaintiff's said property to the city of Bessemer and other places; and plaintiff avers that each of said ways were traveled and used by the public, and intended for such use and travel, as well as outlet from plaintiff's said property; and plaintiff avers that the value of his said property is dependent on its accessibility, prominence, and the number of people and travel which passed to, in front of, and by, said property; and plaintiff further avers that by reason of the construction of said railroad and its operation as aforesaid, the public travel to, from, and by said property along said way, as set out above, has been largely diverted, and the prominence and importance of plaintiff's said property has been destroyed and diminished and its value diminished; and plaintiff avers that Clarendon avenue and Fourteenth street, by reason of the construction and operation of said railroad, as aforesaid, are rendered less convenient and less accessible to the occupants and those who desire to use or occupy said property of plaintiff; and plaintiff avers that said city of Bessemer was laid off into lots, blocks, avenues, and streets, and said streets dedicated, as well as said avenues, to public use as public highways, long prior to the construction of said railway.

Count 2 is a practical repetition of count 1 in an abridged form, with this addition:

"And plaintiff avers that he has suffered and will suffer all the damages mentioned in the first count of the complaint as amended, which said first count is hereby adopted and made a part of the second count."

The following are the charges referred to as given for the defendant:

"(A) The court charges you that you cannot award plaintiff any damages because the circulation of his air has been materially interfered with.

"(B) You cannot award plaintiff any damages on account of the usual noises made in the operation of defendant's train.

"(C) You cannot award plaintiff any damages for the closing of the alleyway between Clarendon and Dartmouth avenues on the north side of Fourteenth street.

"(D) The operation of a railroad constructed by lawful authority cannot, by reason of the noise, smoke, vibration or other objectionable features necessarily incident thereto, be deemed a nuisance, in the absence of any negligence or abuse in the manner of its operation.

"(E) Unless you believe from the evidence that plaintiff has suffered special injuries different in kind from what the general public in the same neighborhood has suffered, you cannot award him any damages.

"(F) You cannot award plaintiff any damages on account of smoke given off from engines engaged in the usual and ordinary operations of its railroads.

"(G) Defendant had the right to construct the embankment testified about on its own property.

"(H) If you are reasonably satisfied from the evidence that travel has been

diverted from and by plaintiff's land, you cannot award him damages, unless this diversion is caused by the construction of defendant's railroad, and not by the opening of the other streets, by the city of Bessemer.

"(I) You can only allow damages caused by acts of defendant for which it was liable as charged by the court.

"(J) You can only allow plaintiff the reduced market value of his property caused by acts of defendant for which it is liable, and not any reduction caused by the lawful acts of defendant."

"(N)

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