Jacksonville, T. & K.w. Ry. Co. v. Griffin

• Decision Date: 01 May 1894
• Citation: 15 So. 336,33 Fla. 602
• Parties: JACKSONVILLE, T. & K. W. RY. CO. v. GRIFFIN.
• Court: Florida Supreme Court

15 So. 336

33 Fla. 602

JACKSONVILLE, T. & K. W. RY. CO. v. GRIFFIN.

Florida Supreme Court

May 1, 1894

Appeal from circuit court, Putnam county; Jesse J. Finley, Judge.

Action by Martin Griffin, Sr., against the Jacksonville, Tampa & Key West Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Syllabus by the Court

SYLLABUS

1. Where the alleged trespass is one constituting a permanent and necessary injury to the market value of plaintiff's fee in the land tres passed on, the failure of the declaration to allege that the plaintiff was in possession of the land at the time of the trespass does not render the declaration demurrable. Railroad Co. v. Lockwood, 15 So. 327, affirmed as to right to recover in one action for the entire damage done by such an injury.

2. The fact that damages for injury of a temporary nature are claimed in the same count with damages for a permanent and necessary injury does not affect the immateriality of possession as to the right to recovery for the latter injury.

3. The fact that there cannot be a recovery under one or more counts is of itself immaterial when there is in the declaration a count which is sufficient to support the recovery.

4. The fact that a count of a declaration may set up many elements that do not enter into the measure of damages is not ground of demurrer. It may be cause, under section 1043, Rev. St for reforming the count as calculated to embarrass the fair trial of the cause.

5. Assignments of error relating to the permission and rejection of different questions propounded to witnesses will not be considered where neither such assignments nor the briefs point where such questions are to be found in a record of 197 pages of testimony, nor they of themselves enable the court to pass upon the proposition presented.

COUNSEL

Fletcher & Wurts and T. M. Day, for appellant.

R. W. &amp W. M. Davis and Geo. P. Fowler, for appellee.

OPINION

RANEY C.J.

This action was begun on March 11, 1890. In view of its similarity to that of the same company as appellant against Lockwood, 15 So. 327, with which it has been considered, hardly more than an application of the principles there determined will be necessary.

I. The demurrer is to the amended declaration, but the first ground of demurrer as set forth is that the declaration in the first count does not allege that the plaintiff, either by himself or his agent, was in possession of the premises at the time of the alleged trespass. This ground of demurrer goes, of course, only to the first count. The argument here in behalf of the appellant is that the plaintiff (the appellee) alleges that he was in possession of the premises on January 20, 1884, and that he is still in possession, and the trespass is alleged to have been committed March 15 1887, but there is in the declaration nothing to show that at the time of the trespass the plaintiff was in possession, and that an inference that he was in possession then cannot be fairly drawn from the language used, as the plaintiff might have sold the premises after 1884, remained out of possession during the time of the alleged trespass, and then repurchased just prior to the institution of this suit. This ground of demurrer is confined to want of possession, and does not extend to want of title to the freehold or fee.

In our judgment, there is no merit in this point. The material trespass alleged to have been committed on March 15, 1887, was one constituting a permanent and necessary injury to the market value of the plaintiff's fee in the land, and he is entitled to recover for such injury to his fee, whether he was in possession at the time or not. It is unnecessary to enter into any discussion of the right to recover for the entire damage in such cases; the question is fully considered, and must be regarded as finally settled by the decision, in the case of Railway Co. v. Lockwood (decided at this term) 15 So. 327.

We...