Mobile & O.R. Co. v. Turner
| Decision Date | 26 April 1923 |
| Docket Number | 1 Div. 273. |
| Citation | Mobile & O.R. Co. v. Turner, 96 So. 707, 209 Ala. 667 (Ala. 1923) |
| Parties | MOBILE & O. R. CO. v. TURNER. |
| Court | Alabama Supreme Court |
Rehearing Denied June 21, 1923.
Appeal from Circuit Court, Washington County; Ben D. Turner, Judge.
Action by Verda E. Turner against the Mobile & Ohio Railroad Company. From a judgment for plaintiff, defendant appeals. Transferred from Court of Appeals under Acts 1911, p. 449, § 6. Corrected and affirmed.
Pelham & Adams, of Chatom, and C. T. Prince, of St. Louis, Mo., for appellant.
S. J Gray and Wallace P. Pruitt, both of Chatom, for appellee.
The case was tried by the court, sitting without a jury, on counts 3, 4, and 6, claiming respectively for trespass to plaintiff's land, for maintaining a nuisance as to her residence, and for a willful and malicious trespass to land.
The gravamen of the action is defendant's conduct in dumping several hundred creosoted pilings on a strip of land lying between defendant's main right of way and its side track which strip is claimed by plaintiff as her property. The evidence fairly supports the special findings of the trial court that the strip of land in question is the property of plaintiff; that defendant trespassed on this land by placing the pilings thereon; and that plaintiff was subjected at times to a disagreeable odor from the pilings which interfered with her comfortable use of the front porch of her residence.
But we find no support in the evidence for any judgment for substantial damages.
1. The trespass was not malicious and was not accompanied by any circumstances of wantonness or aggravation, so that only actual damage was recoverable.
2. No evidence was offered from which the court could estimate the damage suffered from the trespass complained of.
3. The measure of damages for a nuisance by which the plaintiff's home has been subjected to...
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Baldwin v. McClendon
...of the property for a home with and without such odor. Jefferson Fertilizer Co. v. Rich, 182 Ala. 633, 62 So. 40; Mobile & Ohio R.R. Co. v. Turner, 209 Ala. 667, 96 So. 707. The appellants insist that the witness, Leon F. McGinnis, was not shown to be qualified as an expert to testify about......
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