Bragan v. Birmingham Ry., Light & Power Co.

Decision Date25 November 1909
Citation163 Ala. 93,51 So. 30
PartiesBRAGAN v. BIRMINGHAM RY., LIGHT & POWER CO.
CourtAlabama Supreme Court

Appeal from City Court of Birmingham; Thomas W. Wert, Judge.

Action by A. P. Bragan, administratrix, against the Birmingham Railway, Light & Power Company. From the judgment, and an order denying a new trial, plaintiff appeals. Affirmed.

Tomlinson & McCullough, for appellant.

Willman Grubb, Bradley & Morrow and Charles E. Rice, for appellee.

SAYRE J.

The main question involved is whether, in assessing damages which have accrued to the owner of property attingent upon a public street by grading the street and constructing a street railway thereon, special benefits which have accrued to the property thereby must be considered. The street was graded and the railway constructed under a license from the city of Birmingham, and the defendant in constructing the embankment conformed to the grade which had been fixed by the municipal authorities. The plaintiff's claim was for consequential damages, and not for the taking of any part of his property. There was no averment of additional servitude imposed upon the street. This question must be taken as settled in this court by the case of Town of Eutaw v. Botnick, 150 Ala. 429, 43 So. 739. It was there said: "The party whose land is taken should certainly be paid in full for the land actually taken, without regard to any benefits accruing to the remaining land; but when the party seeks to recover for the injury or damage to the remaining lands, it is difficult to see how it can be said that any damage has been suffered by reason of the change of grade and making of the sidewalk, if the net result of that work has been that the land has been benefited, and not deteriorated, in value." And further: "The simple question is whether or not, taking all things into consideration, the property has deteriorated in value as a result of the work done, or has it increased in value? Of course, if it has increased in value, the owner has not been damaged. In other words, the test is the difference between the market value before and after the work done." That conclusion was reached after a careful survey of the authorities and underlying considerations. We are not disposed to embark upon further argument. The decision in Birmingham Ry., L. & P Co. v. Oden, 146 Ala. 495, 41 So. 129, was considered in Town of Eutaw v. Botnick, supra, and found to contain no sufficient reason for disturbing the conclusion reached. It is evident that the distinction between compensation for property taken and damages to property not taken, but damaged only, was not in the mind of the court when it condemned charge 6 requested by the defendant in the Oden Case. That charge asserted that, in estimating damages in that case, the jury might consider whether the construction or operation of a street railway in front of plaintiff's property had enhanced its value. But the section of the Code and the case of Hooper v. S. & M. R. R. Co., 69 Ala. 529, cited to support the opinion at that point, have to do with the ascertainment of compensation for property taken, whereas the case there in hand involved only the admeasurement of consequential damages to property injured but not taken.

In response to the question, "Has the rental value of the property been injured?" the witness Tomlin answered "I do not know; I should say I think so." On motion of the defendant this answer was excluded. We incline to the opinion that this ruling was error. We take the answer of the witness to mean at least this much: That, while he could not state with the assurance of positive knowledge that the rental value of the property had been impaired, his opinion was that such was the case. Though the probative force of this opinion was affected by the consideration that the manner of its statement showed it not to be positively fixed or deeply rooted in the mind of the witness, yet it was an opinion about a matter which was the proper subject of proof by opinion, and should have been submitted to the jury for their consideration of its weight. The witness had qualified himself to give an opinion by testifying to his knowledge of land values in the neighborhood. Evidently the answer was excluded for the reason that the witness had qualified his opinion by stating that he did not know. But in the next breath the witness testified without objection that, to his best judgment, the damage to the market value of the property by reason of the...

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9 cases
  • McRea v. Marion County
    • United States
    • Alabama Supreme Court
    • March 19, 1931
    ... ... deduction of both such benefits. In Alabama Power Co. v ... Keystone Lime Co., 191 Ala. 58, 67 So. 833, ... in Bragan v. Birmingham R. L. & P. Co., 163 Ala. 93, ... 51 So. 30, ... ...
  • Alabama Cent. R. Co. v. Musgrove
    • United States
    • Alabama Supreme Court
    • November 24, 1910
    ... ... Montgomery So. Ry. Co. v. Sayre, 72 Ala. 443. This ... case is recognized by ... Hames v ... Brownlee, 63 Ala. 277; Bragan v. Ry., L. & P ... Co., 163 Ala. 93, 51 So. 30 ... ...
  • Dorroh v. Jefferson County
    • United States
    • Alabama Supreme Court
    • May 24, 1956
    ...of the amount of the damages. Atlanta & Birmingham Air Line Ry. Co. v. Brown, 158 Ala. 607, 48 So. 73; Bragan v Birmingham Ry., Light & Power Co., 163 Ala. 93, 51 So. 30; Alabama Power Co. v. Thompson, 250 Ala. 7, 32 So.2d 795, 9 A.L.R.2d 974. The statement made by the appellant, B. H. Dorr......
  • Meighan v. Birmingham Terminal Co.
    • United States
    • Alabama Supreme Court
    • February 3, 1910
    ...v. Botnick, 150 Ala. 429, 43 So. 739, and in the more recent case of Bragan v. Birmingham Rwy., L. & P. Co. (decided at the present term), 51 So. 30. It made to appear in the evidence that when it became known in a general way and to the public generally that the improvement contemplated by......
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