Batterton v. City of Birmingham

• Citation: 218 Ala. 489,119 So. 13
• Decision Date: 15 November 1928
• Docket Number: 6 Div. 995
• Parties: BATTERTON v. CITY OF BIRMINGHAM et al.
• Court: Supreme Court of Alabama

119 So. 13

218 Ala. 489

BATTERTON v. CITY OF BIRMINGHAM et al.

6 Div. 995

Supreme Court of Alabama

November 15, 1928

Rehearing Denied Dec. 20, 1928

Appeal from Circuit Court, Jefferson County; Roger Snyder, Judge.

Action for damages by Henry T. Batterton against the City of Birmingham and others. From a judgment for defendants plaintiff appeals. Affirmed.

Nesbit & Sadler, of Birmingham, for appellant.

Horace C. Wilkinson, of Birmingham, for appellees.

GARDNER J.

Appellant owns a valuable lot on the southeast corner of Twenty-Fourth street and First avenue in the city of Birmingham, on which is located a building rented for wholesale purposes. The city of Birmingham, in conjunction with a number of railroad companies, erected a viaduct over said Twenty-Fourth street from First avenue on the north to Avenue B on the south. Appellant's property fronts on First avenue 50 feet and runs back with uniform width to Morris avenue, which is the avenue immediately south of First avenue.

Appellant insisted his property was damaged by the erection of the viaduct, and brought this suit against the city, the several railroads interested, and the construction company, to recover the damages then sustained. He offered proof, upon the trial, tending to show a depreciation in value of his property to the extent of $15,000.

On the other hand, defendants' evidence tended to show that the property had suffered no damage whatever, but, on the contrary, according to some of the testimony, had been in fact increased in value by the erection of the viaduct.

The issues of fact thus presented were submitted to the jury resulting in a verdict for defendants, and from the judgment following, plaintiff prosecutes this appeal.

There was evidence tending to show a diminution to this property as to light and air by the construction of the viaduct. Plaintiff's property abutted on Twenty-Fourth street which is "not only public, but public in all its parts, not only for the movement of men and things on it, but the easement of light, air, and view." First Nat. Bank v. Tyson, 144 Ala. 457, 39 So. 560; 1 Thompson on Real Property, § 540. Plaintiff therefore could maintain an action for interference with light and air to his property (authorities supra), and he was entitled to be compensated for any damage thus sustained. City of Montgomery v. Maddox, 89 Ala. 181, 7 So. 433; Town of Avondale v. McFarland, 101 Ala. 381, 13 So. 504.

It is therefore insisted that the court committed reversible error in giving charge 3 at defendants' request (fifth assignment of error), which instructed the jury against the award of any damages on account of obstruction of light. The complaint (which consists of one count) was specific in designation of the elements of damage sustained by plaintiff in the erection of the viaduct, and contains no reference to obstruction of light or air. The action of the trial court in giving said charge was evidently based upon the fact that no claim was made therefor in the complaint, and we conclude the court was so justified, and that no reversible error is made to appear.

Any interference with the ingress and egress to and from plaintiff's property affected its value, and if charge 24, given for defendants, is to be interpreted otherwise, the giving of said charge would constitute error. The charge merely instructs the jury against the award of damages for "alleged disadvantages in loading trucks with goods." The property was not shown to be used and occupied by plaintiff himself, but was rented, and manifestly, plaintiff could not recover for any inconvenience suffered by the tenant, but only as it affected the rental or market...