Mobile & O.R. Co. v. Hester

• Decision Date: 18 January 1899
• Parties: MOBILE & O. R. CO. v. HESTER. [1]
• Court: Alabama Supreme Court

25 So. 220

122 Ala. 249

MOBILE & O. R. CO. v. HESTER. ^[1]

Supreme Court of Alabama

January 18, 1899

Appeal from circuit court, Tuscaloosa county; S. H. Sprott, Judge.

The proceedings in this case were instituted by the appellant the Mobile & Ohio Railroad Company, filing a petition addressed to the probate judge of Tuscaloosa county asking for the condemnation of a right of way through the lands of the appellee, William Hester.

On the hearing of the application, there was a decree of condemnation and commissioners appointed to assess the damages. Upon the report of the commissioners, the probate court rendered a final decree assessing the damages of the respondent at $750. From this decree the petitioner appealed to the circuit court. In the circuit court the question at issue was the amount of damages that should be allowed the respondent for the right of way sought to be condemned, and the facts in reference thereto, so far as are necessary to an understanding of the decision on the present appeal, are sufficiently stated in the opinion.

The bill of exceptions recites that: "As a part of his oral and general charge to the jury, the court adopted as a part of such charge and read to the jury extracts from the opinion rendered by the supreme court of New Hampshire in the case of Adden v. Railroad Co., 55 N.H. 413," and that to the reading of each of such extracts the Mobile & Ohio Railroad Company separately objected and excepted.

The petitioner requested the court to give to the jury the following written charges, and separately excepted to the court's refusal to give each of them as asked: (3) "The compensation allowed for right of way should be direct and proximate and not remote and contingent, upon circumstances which may or may not transpire. The possibility of the future destruction of buildings or like improvements by fires is a field of inquiry so remote and contingent as to be without and beyond any range of damages known to the law in this case." (4) "Mere prospective damages from fires which may occur during the future operation of the railroad are not proper elements of damages for consideration by the jury in this case." (5) "The court charges the jury that in estimating damages in this case they have only to determine the difference in value of the defendant's plantation before and since the appropriation of the right of way by the plaintiff, and they may not consider any remote damages for fires that may be hereafter occasioned by the operation of plaintiff's railroad."

The verdict of the jury was as follows: "We the jury find the issue for the defendant for damages to plantation and assess the damages at one thousand dollars." Upon this verdict the court entered the following judgment, after setting out said verdict: "It is therefore considered by the court, and it is the judgment of the court, that the defendant have, and recover of the plaintiff in the sum of one thousand dollars, the damages assessed by the jury together with the costs in this behalf expended, for which let execution issue," etc.

The petitioner appeals, and assigns as error the several rulings of the trial court to which exceptions were reserved. Reversed.

E. L Russell and Fitts & Fitts, for appellant.

Henry B. Foster, for appellee.

HARALSON J.

The measure of damages in cases of this character, as established in this court, sustained by many decisions elsewhere and text writers is, the value of the land when taken by the railroad company before any injury thereto resulting from the construction of the road, and the injury or diminution in the value thereby caused to the remaining and contiguous lands with interest on the sum thus ascertained. Jones v. Association, 70 Ala. 227; Bank v. Thompson (Ala.) 22 So. 668; Lyon v. Railway Co., 42 Wis. 553; Mobile & O. R. Co. v. Postal Tel. Cable Co. (Ala.) 24 So. 408; 3 Elliott, R. R. § 995; 6 Am. & Eng. Enc. Law, 567.

In arriving at this difference in value of the land before and after the taking, when a part only is taken, various elements of damage are to be considered, such as the difficulty of access and of communication between the different parts; the expense of constructing crossings; the interference with the drainage of the land, or the flow of surface water, or with the water supply; the injury to grass and crops; cost of fencing rendered necessary for the reasonable use and enjoyment of the remainder; danger of fire from passing engines and the like. For illustrative instances of matters to be considered in estimating these damages, see Mills, Em Dom. § 163; Lewis, Em. Dom. §§ 496-499; 3 Elliott, R. R. §§ 995, 996, 1127. As for damage from fire, Mr. Lewis lays down the rule, consonant with reason and authority to be, that "when a part of a tract is taken for railroad purposes, danger from fire to buildings, fences, timber or crops upon the remainder, in so far as it depreciates the value of the property, may properly be considered. It is immaterial that the railroad company is made absolutely liable for all losses by fire which originated from the operation of the road, whether they result from negligence or otherwise. Such a liability would doubtless render the depreciation in value less than in cases where the company was liable only for fires resulting from negligence. It is to be borne in mind that compensation is not to be given for increased exposure to fire, nor for increased insurance rates, nor from probable losses by fire in the future for which no recovery can be had, but simply from depreciation in the value of the property by reason of the danger from fire. The evidence should, therefore, be limited to showing all the facts in regard to the situation of the property and improvements relatively to the railroad and perhaps to showing the distance from the road to which the danger extends. Evidence of actual damages by fire before the assessment of...