Meighan v. Birmingham Terminal Co.

• Decision Date: 03 February 1910
• Parties: MEIGHAN v. BIRMINGHAM TERMINAL CO.
• Court: Alabama Supreme Court

51 So. 775

165 Ala. 591

MEIGHAN v. BIRMINGHAM TERMINAL CO.

Supreme Court of Alabama

February 3, 1910

Appeal from City Court of Birmingham; C. C. Nesmith, Judge.

Action by J. M. Meighan against the Birmingham Terminal Company. From a judgment for plaintiff, he appeals on the ground of inadequacy of damages. Reversed and remanded.

The case made by the complainant is: That the plaintiff was owner of a certain lot in the city of Birmingham, on Sixth avenue which is particularly described, and that defendant within a year obstructed or caused to be obstructed Sixth avenue immediately next to where plaintiff's lot abuts thereon and that on account of such obstruction the lot is rendered less accessible, less desirable as a place of residence, and less desirable as real estate. The tendencies of the testimony are sufficiently set out in the opinion.

The following charges were given at the request of the defendant (2) "The law does not guarantee that the plaintiff's way to and from his property along Sixth avenue should remain the same, without change or diminution. Alterations may be made or obstructions created in that avenue under legal authority, and plaintiff could not complain, provided a reasonable means of getting to and from his property is left to him." (3) "The erection of the embankment across Sixth avenue, under the circumstances and issues of this case, was and is not a nuisance, for which special damages may be recovered by the plaintiff." (4) "If the jury should consider that the plaintiff was entitled to some damages under the evidence, their verdict must be limited to that amount of damages which the evidence reasonably satisfies the jury the plaintiff has sustained, and nothing can be added thereto, to reimburse the plaintiff for lawyer's fees or other costs of this lawsuit." (5) "An abutting owner is not necessarily entitled to have the thoroughfare on which his lot abuts maintained as a continuously opened thoroughfare, provided his private right of access to and from his property is left by some reasonably convenient route or way. The law does not guarantee the continuance of the way as it was dedicated, but only that the owner shall not be prevented from getting into and out of his property by some reasonably convenient way." (6) "The mere fact, if it be a fact, that the obstruction of the street was not authorized by law at the time it was erected, under the circumstances of this case, and under the averments of each count of the complaint, cannot avail the plaintiff as a claim for damages." (7) "An abutting owner is not necessarily damaged as a matter of law, where only one way to and from his property is vacated or closed by authority of law. He is not legally damaged if some reasonably convenient way in and out is left for him, and affording him reasonable connection with other thoroughfares." (8) "If you believe from the evidence that the plaintiff's property has been improved more than it has been damaged by the defendant's work complained of, when considered in connection with the whole improvement, you should find for the defendant." (9) "Plaintiff's damage, if any, is the permanent damage done to his lot, as the net proximate result of the defendant's obstruction complained of, viewed in connection with the depot improvements of defendant, of which that structure is an incident." (10) "The opinions of witnesses as to the market value of property should be weighed by the jury in the light of other evidence, and the opportunity of the witnesses to know such value, and the reasonableness or unreasonableness of their estimate of such value. The jury are not bound to take any man's opinion of such value, but may act on their own judgment and good sense in arriving at a just value, in the light of the whole evidence." (11) Set out in the opinion. (12) "The Legislature, or the city, if authorized by the Legislature, may abolish or abandon a dedicated street, or may refuse or fail to open up and maintain a dedicated street; and hence, in a suit of this kind, no damages can be claimed, based exclusively on the doing away with a part of the avenue or the discontinuance of it."

Plaintiff's recovery was $500.

Frank S. White & Sons and R. P. McNally, for appellant.

Weatherly & Stokeley, for appellee.

SAYRE J.

Appellant having recovered a substantial judgment in the court below, he can complain on this appeal only of those rulings which affected the proper measure of his recoverable damages. Donovan v. S. & N. Ala. R. R. Co., 79 Ala. 429.

The second count of the complaint was a repetition in substance of the allegations of the other counts, except that it alleges the acts complained of to have been done in part wantonly and illegally, and in other part wantonly and willfully. As to this count the court gave the general affirmative charge in favor of the defendant. The other counts were submitted to the jury and upon them the plaintiff had a recovery. The affirmation of harmful error in the ruling as to the second count must, therefore, rest upon the theory that under the evidence it was open to the jury to assess exemplary or punitory damages as for wanton and willful wrong in the construction of the works which caused his injury. Defendant's general purpose was the erection of a union passenger railway station in the city of Birmingham, with approaches thereto, the whole covering several blocks and the intervening streets and avenues. This it was authorized to do under its charter. Plaintiff's lot was situated on the north side of Sixth avenue between Twenty-Sixth and Twenty-Seventh streets about 200 feet west from Twenty-Seventh street. Defendant owned the entire block on the opposite side of the avenue and that part of the block in which plaintiff's lot was located lying between that lot and Twenty-Seventh street. A wall was built across the avenue in line with the eastern boundary of plaintiff's property completely stopping travel along that avenue. The account of what else defendant did in Sixth avenue is not entirely clear, but we gather that on the side opposite to plaintiff's premises it constructed an inclined driveway leading from the original level of the avenue to the elevated surface beyond the wall. The purpose of this was to furnish access to that part of the terminal station used for the receipt and delivery of parcels shipped by express. This change reduced that part of the avenue available for travel on its original grade, and not obstructed by the wall across the street, to a width of 43 feet. The sidewalk immediately in front of plaintiff's premises was not disturbed. There is no pretense that the changes made in the streets, avenues and alleys of the city, a number of which were involved, were in excess of the necessary and appropriate completion of the general design of serving the convenience of the public and the carriers who were expected to make use of the terminal station. The defendant, without doubt, acted under the authority and in accordance with the direction of the constituted municipal authorities. No circumstance of insult or aggravation is shown, but only the fact that the ordinance of the city under authority of which the work was done, in so far as it authorized the vacation or abandonment of some parts of streets and avenues, was void because it had not express legislative authority. If conceivably a verdict for punitory damages might have been based upon these facts, we think the passage of the act of March 6, 1907, before the time of the trial, though subsequent to the infliction of the injury, vacating and annulling the public streets which had actually been closed by the erection of the terminal station, and thereby confirming and ratifying to the extent of legislative competency the...