Atlanta & B. Air Line Ry. v. Brown

• Decision Date: 17 December 1908
• Citation: 158 Ala. 607,48 So. 73
• Parties: ATLANTA & B. AIR LINE RY. v. BROWN.
• Court: Alabama Supreme Court

48 So. 73

158 Ala. 607

ATLANTA & B. AIR LINE RY. v. BROWN.

Supreme Court of Alabama

December 17, 1908

Appeal from Circuit Court, St. Clair County; A. H. Alston, Judge.

Action by W. T. Brown against the Atlanta & Birmingham Air Line Railway for trespass on lands by stock on account of the failure of defendant to erect and keep in proper condition cattle guards. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

The following charges were refused to defendant: (1) The general affirmative charge. (2) "I charge you that plaintiff is not entitled to recover any damages for any injury or any destruction of the crop on said lands in the year 1905." (3) "I charge you that, under the evidence in this case plaintiff had no title, interest, or property in the growing crops on said land, during 1905, for which he can recover damages in this case." (6) "I charge you that plaintiff cannot recover damages for any interest or property in the crops which might have been growing on said land." (9) "I charge you that plaintiff can only recover in this case damages for such injury to his reversionary interest in said land as were of a permanent character, and the injury or destruction of said crops growing on said land during the year 1905 is not such an injury to his reversionary interest for which plaintiff can recover."

The complaint was in the following language: "Plaintiff claims of defendant, a corporation, the sum of $1,900 as damages, for that defendant is a corporation, and as such corporation was, on or about the 1st day of January, 1905 and prior thereto, and at all times during the year 1905 engaged in the operation of a railroad in and through St Clair county, Ala., which said railroad passed through the grounds and fields of plaintiff, to wit, through the lands of plaintiff situated in the town of Ragland, and of plaintiff situated in sections 7 and 18, all in township 15, range 5 east, and all situated in St. Clair county, Ala., and thereby rendered cattle guards or stock gaps necessary to prevent the depredation of stock upon plaintiff's said lands and growing crop on said lands; that defendant negligently failed and refused to put in or supply cattle guards at the several points where said railroad entered the said land of plaintiff, so as to prevent stock of all character from entering on plaintiff's land and destroying plaintiff's crops, which were at the time growing and being grown on said land, notwithstanding plaintiff made repeated demands on L. B. Parsons, the superintendent of defendant, prior to the injury thereinafterwards complained of, said railroad, and other agents of said railroad corporation, to have good and sufficient cattle guards or stop gaps placed on said railroad at such point where defendant's said railroad entered the lands of plaintiff, but defendant negligently failed so to do, and as a proximate result of such negligence of defendant, and by reason of the insufficient cattle guards or stop gaps so placed by defendant at said point where defendant's said railroad enters the said lands of plaintiff and defendant's said negligent failure on plaintiff's land to repair the same, at divers times during the year 1905 large numbers of cows, hogs, goats, horses, and other stock entered into said fields and lands at said point on defendant's said railroad, and injured and destroyed plaintiff's fruit trees, growing crops of corn, wheat, grass, hay, and cotton, and did great depredation to plaintiff's land and all crops growing thereon, by eating said growing crops, tearing down said fruit trees, tramping the ground, and entirely destroying plaintiff's said crop, and by reason of such negligence of defendant in the failure to repair and put good and sufficient cattle guards at said point plaintiff has been put to great expense and labor and loss of time in trying to keep said stock out of his said field and preventing greater depredation, all to plaintiff's damage."

There was judgment for plaintiff in the sum of $541.20.

Tillman, Grubb, Bradley & Morrow and M. M. Baldwin, for appellant.

M. M. Smith and Victor H. Smith, for appellee.

SIMPSON J.

This action was brought by the appellee against the appellant to recover damages for injuries to lands, crops, etc., by reason of the defective condition of the stock gaps on said land. Appellant insists that the demurrer to the complaint should have been sustained, because it combines two different causes in one count, to wit, the failure to put in the cattle guards and the failure, after they were placed in, to keep them in repair. This ground of demurrer was not well taken, for the reason that said causes are alleged in the conjunctive, the only effect of which is that both must be proved.

It is next insisted that the complaint should have alleged that the notice was given to some agent who was authorized to place the cattle guards in. The statute does not so require, but simply requires that the demand shall be made on the "defendant or their agents." The citizen is not supposed to know what the duties of the several agents of the railroad company are, and the statute very properly fails to require him to ascertain the particular one whose duty it is to place the cattle guards in.

It is next insisted that said complaint is subject to the demurrer because it does not allege that demand was made on the defendant or its agent to repair the cattle guards. The statute requires the railroad company to "put cattle guards upon such railroad and keep the same in repair whenever the owner * * * shall make demand upon them or their agents and show that such guards are necessary to prevent the depredations of stock upon the land." Code 1896, § 3480. We do not construe this statute to require a new demand whenever the cattle guards become out of repair; but, when the demand is made to place them, it then becomes the duty of the company to place them in and keep them in repair. The charge of failure to keep the cattle guards in repair is sufficient, without specifying which particular ones are out of repair. The description of the land is sufficient for identification. It is not necessary to allege that, when the demand was made, the plaintiff showed to the railroad company that the cattle guards were necessary. That is a matter of evidence, and, when it is shown to the court, that is a sufficient compliance with the statute. The complaint alleges, as a matter of fact, that they were necessary.

The proof that the railroad that ran through plaintiff's lands was known as the "Atlanta & Birmingham Air Line Railway," was assessed in that name, etc., was sufficient to make out a prima facie case; and, if the defendant did not introduce any evidence to the contrary, the court was justified in basing its charge on the idea that that is the railroad company whose road runs through plaintiff's land.

The appellant, in arguing assignments 2, 3, 4, and 5, insists that the proper measure of damages in this case is the difference in the value of the land before and after the depredation by the stock, and that it was improper to admit testimony as to the "hoorah grass" and "Johnson grass" destroyed by the stock. It is true that the general rule is recognized in this state that, in an action for trespass to the land itself, the difference between the value of the land before and after the trespass is the measure of the damage. Brinkmeyer et al. v. Bethea, 139 Ala. 376, 35 So. 996. This is not an action of trespass, but an action for negligence resulting in injury. The true rule is said to be that "if the thing destroyed, although it is part of the realty, has a value which can be accurately measured and ascertained, without reference to the soil in which it stands, or out of which it grows, the recovery must be for the value of the thing thus destroyed, not the difference in the value of the land before and after such destruction." Whitbeck v. N.Y. Cent. R. R. Co., 36 Barb. (N. Y.) 644-647. This rule is applied to crops, grass, fruit trees, etc. Byrne v. Minneapolis, etc., Railway, 38 Minn. 212, 36 N.W. 339, 8 Am. St. Rep. 668; Railway v. Horne, 69 Tex. 644, 649, 9 S.W. 440; Galveston, H. & S. A. Ry. v. Rheiner et al. (Tex. Civ. App.) 25 S.W. 972; Berard et al. v. Atchison, etc., R. (Neb.) 113 N.W. 537; Gresham v. Taylor, 51 Ala. 505. Our own court has said: "If the trespass consisted of a severance of a part of the freehold from the rest, for instance, growing timber or minerals, the value of the thing severed, while it constituted a part of the freehold at the time of severance, and not as a chattel after severance, may be regarded as a proper measure of recovery" (Warrior, etc., Co. v. Mabel Mining Co., 112 Ala. 626, 20 So. 918); and again, in a case where damages were claimed for a continuing trespass, that "the difference in the value" before and after the trespass "is an improper measurement of damages," although it might be competent evidence, to be considered by the jury in connection with the other evidence ( Abercrombie & Williams v. Windham, 127 Ala. 180, 182, 28 So. 387). Where there is damage to the land, and also destruction of property attached to the land capable of ascertainment as to its value, recovery may be had for both. Receivers, etc., v. Pfluger (Tex. Civ. App.) 25 S.W. 792; Ft. Worth, etc., R. v. Wallace, 74 Tex. 581, 12 S.W. 227. These principles have been distinctly applied to cases where the suit is for damages for failure to keep the cattle guards in repair. Smith v. Chicago, etc., R., 38 Iowa, 518, 522; St. Louis & S. F. Ry. v. Ritz, 33 Kan. 404, 6 P. 533; K. C., M. & O. Ry. v. Mayfield (Tex. Civ. App.) 107 S.W. 940. It results that there was no error in the matters set forth in said assignments.

The court erred in allowing...