Brinkmeyer v. Bethea

Citation139 Ala. 376,35 So. 996
PartiesBRINKMEYER ET AL. v. BETHEA.
Decision Date21 January 1904
CourtSupreme Court of Alabama

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 necessary to restore the property to the condition in which it was before the trespass was committed." 3 Am. & Eng. Ency. Law, 36; 3 Sedg. on Damages (8th Ed.) § 932.

There was no inadvertent removal of the soil from the lot, but as appears, it was knowingly and willfully done, and it cannot be said that the objection to the evidence allowed, that it was illegal and irrelevant, was well taken. White v Yawkey, 108 Ala. 275, 19 So. 360, 32 L. R. A. 199, 54 Am. St. Rep. 159; Abercrombie v. Windham, 127 Ala 182, 28 So. 387. Indeed, it seemed to have...

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27 cases
  • Howell v. City of Dothan
    • United States
    • Supreme Court of Alabama
    • May 13, 1937
    ...... Yawkey, 108 Ala. 270, 19 So. 360, 32 L.R.A. 199, 54. Am.St.Rep. 159; Warrior C. & C. Co. v. Mabel Min. Co., 112 Ala. 624, 20 So. 918; Brinkmeyer et al. v. Bethea, 139 Ala. 376, 35 So. 996; and see authorities,. 80 A.L.R. 617 et seq.; 96 A.L.R. 74 et seq. . . It is. further ......
  • Rushing v. Hooper-McDonald, Inc.
    • United States
    • Supreme Court of Alabama
    • September 5, 1974
    ...in the market value of the land immediately before, and after the trespass is the measure of plaintiff's damages. Brinkmeyer v. Bethea, 139 Ala. 376, 35 So. 996; Southern Ry. Co. v. Cleveland, 169 Ala. 26, 53 So. 767. 'Nevertheless, if it be shown that not only injury to the real estate was......
  • Alabama Great Southern R. Co. v. Russell
    • United States
    • Alabama Court of Appeals
    • March 22, 1949
    ...270, 19 So. 360, 32 L.R.A. 199, 54 Am.St.Rep. 159; Warrior C. & C. Co. v. Mabel Min. Co., 112 Ala. 624, 20 So. 918; Brinkmeyer et al. v. Bethea, 139 Ala. 376, 35 So. 996; and see authorities, 80 A.L.R. 617 et seq.; 96 A.L.R. 74 et We can see no distinction, in so far as determination of res......
  • Foust v. Kinney
    • United States
    • Supreme Court of Alabama
    • November 28, 1918
    ...... is done to the realty itself, the damage is measured by the. difference between the value of the land before and after the. trespass. Brinkmeyer v. Bethea, 139 Ala. 376, 35 So. 996; Davis v. Miller-Brent Lumber Co., 151 Ala. 580,. 587, 44 So. 639; Gosdin v. Williams, 151 Ala. 592,. 44 So. ......
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