Brinkmeyer v. Bethea

• Decision Date: 21 January 1904
• Citation: 139 Ala. 376,35 So. 996
• Parties: BRINKMEYER ET AL. v. BETHEA.
• Court: Alabama Supreme Court

35 So. 996

139 Ala. 376

BRINKMEYER ET AL. v. BETHEA.

Supreme Court of Alabama

January 21, 1904

Appeal from City Court of Jefferson; Chas. A. Senn, Judge.

Action by S. Bethea against L. C. Brinkmeyer and another to recover damages for trespass to real estate.From a judgment in favor of plaintiff, assessing his damages at $250, defendants appeal.Affirmed.

Jno.C Farney, for appellants.

Wm. M Bethea, for appellee.

HARALSON J.

The form of action is in trespass to real estate described in the complaint, which belonged to the plaintiff.The trespass as averred, consisted in removing from the real estate, clay, dirt and top soil, in the month of July, 1902.The complaint was in Code form,--No. 26, p. 948, of the Code.Its sufficiency was not in any wise questioned, and the trial was had by and before the presiding judge, on the plea of not guilty, a jury having been waived.

It was admitted by the defendants on the trial, that the land described in the complaint belonged to plaintiff, and he was in possession of the same at the time of the alleged trespass complained of.The evidence showed without conflict, that defendants committed the trespass.

A witness for the plaintiff testified that he knew the value of the property described in the complaint before the alleged trespass, and immediately thereafter; that it was worth $500 before and $250 immediately thereafter, or, in other words he stated, that the property before the dirt, clay and top soil were removed therefrom, was worth $500, and immediately afterwards, it was worth $250.The defendant objected to this evidence as being illegal and irrelevant, which objection was overruled.

"In actions for injury to real property, when the injury is done to the realty itself, the measure of damages is the difference in the value of the land before and after the trespass, or in some cases the amount...