Enterprise Lumber Co. v. Porter & Newton

• Decision Date: 04 June 1908
• Citation: 46 So. 773,155 Ala. 426
• Parties: ENTERPRISE LUMBER CO. v. PORTER & NEWTON.
• Court: Alabama Supreme Court

46 So. 773

155 Ala. 426

ENTERPRISE LUMBER CO. v. PORTER & NEWTON.

Supreme Court of Alabama

June 4, 1908

Appeal from Circuit Court, Houston County; H. A. Pearce, Judge.

Action by Porter & Newton against the Enterprise Lumber Company for damages to adjacent property from excavation and occupation of a street for railroad purposes. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

The facts and the objections and exceptions to testimony are sufficiently set out in the opinion of the court. The following charge was refused to the defendant: "(5) The court charges the jury that, if they find for the plaintiffs in this case, the measure of their damages is the difference between the fair market value of the land described in the complaint just before the 1st day of August, 1905, and its value on the 1st day of January, 1906.

Espey &amp Farmer, for appellant.

R. D Crawford, for appellee.

SIMPSON J.

This action was brought by the appellee against the appellant, and claimed that the defendant, in constructing a railroad along the streets of the town of Dothan, so lowered the grade of said streets as to greatly impair the ingress to and egress from plaintiff's property. It is first insisted by the appellant that inasmuch as it is not shown that appellee (plaintiff) owned the fee in the street, and, consequently no land of his was "taken," he could not recover for the mere injury to his property; and he cites the general authorities on the subject of the right of a landowner to excavate upon his own land, provided he does not undermine the land of the adjacent proprietor, etc. Section 235 of our present Constitution (of 1901) provides that "municipal and other corporations and individuals, invested with the power of taking property for public use, shall make just compensation * * * for the property taken, injured or destroyed," etc. Appellant insists that, notwithstanding this clause was also in the Constitution of 1875, yet there is an intimation in the case of City Council of Montgomery v. Maddox, 89 Ala. 188, 7 So. 433, that the adjoining landowner is not entitled to compensation for injury to his property unless he owns the fee in the street. In that case the court merely alludes to the distinction made in other jurisdictions, as to "compensation for the taking of streets, between cases in which the abutting owner has the fee, and those in which the fee is in the public, and goes on to remark that it is not necessary to decide whether any such distinction can be made under our present Constitution, and holds that "under the provisions of our present Constitution, if the contiguous proprietor of a house and lot is injured, in the sense of being damaged, by the grading of a street," and "the pecuniary value of such property is diminished, the owner is entitled to be compensated." 89 Ala. 188, 189, 7 So. 436. There is certainly no such intimation in that case as would override the plain words of the Constitution, and we hold that the abutting owner is entitled to be paid for any injury to his property, by changing the grade, whether he owns the fee in the street or not. Highland, etc.,...