Highland Ave. & B.R. Co. v. Matthews

• Decision Date: 02 December 1891
• Citation: 99 Ala. 24,10 So. 267
• Court: Alabama Supreme Court
• Parties: HIGHLAND-AVE. & B. R. CO. v. MATTHEWS ET AL.

10 So. 267

99 Ala. 24

HIGHLAND-AVE. & B. R. CO. v. MATTHEWS ET AL.

Supreme Court of Alabama

December 2, 1891

Appeal from city court of Birmingham; H. A. SHARPE, Judge.

Action by Jonathan Matthews and others against the Highland-Avenue &amp Belt Railroad Company for damages. Judgment for plaintiffs. Defendant appeals. Affirmed.

In this action plaintiff sought to recover damages for injuries caused by defendant to his lot by the construction of an embankment along the avenue upon which the lot adjoined. To the complaint as amended the defendant demurred, among others, upon the ground that the plaintiff cannot recover damages for permanent injury to the land, in this form of action. This demurrer was overruled. The court, at the request of the plaintiffs, gave the following written charges: (1) "The rule by which the damages are to be estimated in this case is the difference between the market value of the property immediately before the taking or injury and such value immediately after the taking or injury caused by the construction of the railroad; in other words, the diminution in value at the time, produced thereby." (2) "Market value is the price which the property will bring when offered for sale in the market, not at a forced sale on short notice, but after such reasonable time as would be ordinarily taken to make a sale of like property. It is the highest price which at such sale those having the ability and the occasion to buy are willing to pay." (3) "If the jury are reasonably satisfied that the overflow of water on plaintiffs' property is increased by the embankment erected by the defendant for their railroad, then this is a circumstance to be considered by you in estimating any damage to the market value of the plaintiffs' property." (4) "Plaintiffs are entitled to just compensation for all injury done to plaintiffs' property by the construction of defendant's railroad on the embankment in front of the property, and the fact that property along the line of defendant's railroad appreciated in value generally, or was generally benefited by the construction of the railroad, cannot be considered by you to diminish or as a set-off to any special damage that you may find to have been done to plaintiffs' property, resulting in a reduction of its market value by the construction of defendant's railroad." The defendant separately excepted to the giving of each of these charges, and also separately excepted to the court's refusal to give each of the following written charges: (1) "That the plaintiffs are not entitled to recover as damages the difference between the value of the property before the construction of the railroad and the value thereof after such construction." (2) "That the cost of filling the lot up to the level of the railroad is not the measure of damages in this case, and the jury cannot consider such cost in estimating damages." (3) "That in estimating damages the jury cannot consider the permanent injuries, if any, which the plaintiffs have sustained by reason of the construction of the railroad in Avenue E, in front of the plaintiffs' lot." (4) "That in estimating damages the jury cannot take into consideration the smoke, rumbling, shaking, or noise incident to the operation of the railroad along Avenue E." There was, on the first trial, judgment for the plaintiff in the sum of $750. Upon the court's granting a new trial, from the rulings in which the present appeal is prosecuted, there was judgment for $1,000.

Alex. T. London, for appellant.

Chisholm & Whaley, for appellees.

WALKER J.

This was an action to recover damages caused to the plaintiffs' lot near the city of Birmingham by the construction of an embankment for the track of the defendant's railroad in the street or highway upon which the lot abutted. It was alleged in the complaint, and there was evidence tending to show, that the defendant is a corporation clothed with the right to call into exercise the power of eminent domain, and authorized by its charter to build its railroad along the street or highway in question and that, without the consent of the plaintiffs and without making them compensation, it built its railroad upon a fill or embankment made in front of the plaintiffs' lot, and thereby obstructed the ingress and egress to and from such lot, and otherwise injured it. The averments and proof show that a corporation invested with the privilege of taking private property for public use has, in the construction of its works, injured such property without first paying compensation for such injury. This constitutes a violation of the rights secured by section 7 of article 14 of the constitution of Alabama. For the redress of such a wrong an action at law lies. the jurisdiction of a court of equity to prevent the commission of such a wrong is not based upon the absence or inadequacy of legal remedies for the recovery of damages for the wrong when it has been consummated. The recognized equitable remedies may find support upon either of two grounds: (1) Upon the special jurisdiction of courts of equity to confine corporations to the exercise of the powers conferred upon them by law; and (2) upon the inadequacy of legal remedies to protect the constitutional right in its entirety, courts of law being unable to compel the payment of compensation to the property owner before his property is taken, injured, or destroyed. Railway Co. v. Witherow, 82 Ala. 190, 3 South. Rep. 23; East & W. R. Co. v. East T., V. & G. R. Co., 75 Ala. 275. The property owner, however, may fail to avail himself of the preventive equitable remedies, and rely upon his action at law for the redress of the wrong after it has been committed. If his land has been taken without his consent, and without having been duly acquired by condemnation proceedings, he can maintain ejectment for its recovery. Hooper v. Railway Co., 78 Ala. 213; Railroad Co. v. Jones, 68 Ala. 48. If his property has not been so taken, but has been injured by the construction of the defendant's works, he may sue at law to recover damages for such injury. Jones v. Railroad Co., 70 Ala. 227. Such actions have been maintained in this court without question, and we are unable to discover any reasonable ground upon which the right to maintain them can be controverted. Railway Co. v. Coskry, (Ala.) 9 South. Rep. 202; Railway Co. v. Williams, Id. 203; Evans v. Railway Co., 90 Ala. 54, 7 South. Rep. 758; City Council v. Townsend, 80 Ala. 489, 2 South. Rep. 155; City Council v. Maddox, 89 Ala. 181, 7 South. Rep. 433. The property owner may waive formal condemnation proceedings, and yet recover such damages as he may suffer in his property by reason of the building of the railroad upon or near it. Railroad Co. v. McGehee, 41 Ark. 202; U.S. v. Manufacturing Co., 112 U.S. 645, 5 S.Ct. 306; Cohen v. Railroad Co., (Kan.) 8 Pac. Rep. 138. A claim in the complaint of damages which the plaintiffs are not entitled to recover in this action does not impair the right to maintain the suit. A demurrer to a complaint which states a good cause of action is not the proper mode of evoking a decision of the court as to the rule to govern in the admeasurement of damages for the injury alleged. Kennon v. Telegraph Co., (Ala.) 9 South. Rep. 200; Carl v. Railroad Co., 46 Wis. 625, 1 N.W. 295. There was no error in overruling the demurrers to the complaint.

The principal contention in the case is upon the rulings of the trial court on the question of the measure of damages. The appellant insists that the plaintiffs could not be entitled to recover prospective damages, that they were treating the obstruction complained of as a nuisance, and that in an action for the injury caused thereby their recovery could not go beyond the damages sustained prior to the commencement of the suit. In the Alabama cases against municipal corporations, the measure of damages for injury caused to abutting property by changes in the grades of streets or sidewalks has been stated to be the difference in the market value of the property before and after the act complained of....