Long Distance Telephone & Telegraph Co. v. Schmidt

• Decision Date: 24 November 1908
• Parties: LONG DISTANCE TELEPHONE & TELEGRAPH CO. v. SCHMIDT ET AL.
• Court: Alabama Supreme Court

47 So. 731

157 Ala. 391

LONG DISTANCE TELEPHONE & TELEGRAPH CO. v. SCHMIDT ET AL.

Supreme Court of Alabama

November 24, 1908

Appeal from Circuit Court, Cullman County; D. W. Speake, Judge.

Condemnation proceedings by the Long Distance Telephone & Telegraph Company against Max Schmidt and others. From a judgment for defendants, plaintiff appeals. Affirmed.

Most of the facts are stated in the opinion of the court. Assignments of error 17 and 19 are as follows: "The court erred in overruling appellant's motion to exclude the statement of the witness Richard that before the telephone line was built the appellee Cofer's land was worth $20 per acre, and after the line was built it was worth $2 less per acre." "(19) The court erred in overruling appellant's objection to the following question propounded to the witness Crutchfield: 'Taking into consideration that these trees were cut from it, how much less per acre would this land be worth after the line was built?' " The objection urged in the court below to assignment 17 was that it was shown by the testimony of this witness that the land was just as valuable after the line was built for the uses it was put to as before, and the testimony of the witness showed that he bases his opinion on probable respective or future uses. The objection urged in the court below to assignment 19 was that the question was incompetent, illegal, and leading. Assignment 25 is as follows: "The court erred in overruling appellant's objection to the following question propounded to the witness Gengler: 'What was the value of this land per acre after the line was built, taking into consideration the strip of land 15 feet wide is condemned across the front of this 80-acre tract and the cutting of the timber?' " The objection urged in the court below was because it was incompetent, illegal, and because as to the right plaintiff seeks to condemn "this hypothetical question is not sustained by the pleadings or evidence, and because the application shows that plaintiff seeks to condemn" only an easement, and not a fee. The following charges were refused to the plaintiff: "(3) Gentlemen of the jury, if the telephone poles are placed along and within the margin of the public road, then the plaintiff had a legal right to place them there, and defendants under the law are entitled to nothing more than nominal damages, such as six cents or some inconsiderable sum." "(5) I charge you that under the law the plaintiff had a right to place its poles along and within the margin of the public road and string its wires thereon, and in the exercise of this right it also had the right to cut and fell all growing timber along and within the margin of the public road without liability to the abutting owner for such cutting, the abutting owner being merely entitled to the wood when felled."

Brown &amp Kyle, for appellant.

S. J Griffin, John C. Eyster, and W. T. L. Cofer, for appellees.

TYSON C.J.

This proceeding was instituted by the appellant to condemn for its use as a telephone and telegraph company a right of way over the lands of the appellees. The questions presented arise upon exceptions reserved upon the trial relating to the amount of damages and compensation which the appellees, as landowners, are entitled to receive by reason of the construction of appellant's line, and the taking of the right of way sought to be condemned.

Against appellant's objection, the respondents were permitted to prove the value of the trees cut and destroyed by it in the construction of its line. It is conceded that the appellees, as landowners, had the right to show that the land was taken, that timber was cut, and its character, or any other element of injury done to the lands; but it is insisted that it was not competent to show the value of the trees cut and destroyed. The measure of damages in this class of cases is the value of the land when taken--before any injury thereto resulting from the construction of the line--and the injury or diminution in value caused to the...