Southern Ry. Co. v. Cleveland

• Decision Date: 17 November 1910
• Citation: 169 Ala. 22,53 So. 767
• Parties: SOUTHERN RY. CO. v. CLEVELAND ET AL.
• Court: Alabama Supreme Court

53 So. 767

169 Ala. 22

SOUTHERN RY. CO. v. CLEVELAND ET AL.

Supreme Court of Alabama

November 17, 1910

Appeal from Law and Equity Court, Mobile County; Saffold Berney Judge.

Action by Toulmin Cleveland and others against the Southern Railway Company. From a judgment in favor of plaintiffs, defendant appeals. Reversed.

The patent referred to is in effect that William F. Cleveland had deposited in the office of the Secretary of State of Alabama a certificate of the receiver of the swamp and overflowed lands of Alabama in and for the district of Mobile, whereby it appears that full payment has been made by said Cleveland according to certain statutes therein mentioned, for certain described lands therein set out. Execution appears to be as follows: "In testimony whereof, I, Robert B. Lindsey Governor of the state of Alabama, have caused these letters to be made patent, and the seal of the swamp and overflowed land office to be hereto attached. Given under my hand at the city of Montgomery, the 2d day of January, 1872. Robert B Lindsey, Governor of Alabama, by W. B. Chardavoyne, Secretary. [Land Office of Alabama, Seal.]" The other facts sufficiently appear in the opinion of the court. There also appears a certain certificate, made by the Secretary of State, as to what is shown by the record of the office relative to a certain patent issued to William F. Cleveland January 2, 1872.

The following written charges were requested by the defendant, and refused: (5) "The court charges the jury that, if you believe the evidence, you can award to the plaintiff only nominal damages under the first count of the complaint." (9) "The court charges the jury that the measure of the plaintiff's damages in this case, under the first count of the complaint, is the difference in the market value of the land trespassed on immediately before the commission of the injuries and the market value of the land immediately thereafter." Charges 4 and 6 are as follows: (4) Restricting plaintiff to nominal damages only. (6) Restricting plaintiff to nominal damages only under the second count.

Bestor, Bestor & Young, for appellant.

Gaillard & Mahorner and Gregory L. & H. T. Smith, for appellees.

DOWDELL C.J.

The first count of the complaint is in the Code form for trespass to land (quare clausum fregit), describing the injury thereto as "excavating and removing from said lands large quantities of sand and gravel, to wit, 20,000 cubic yards, on, to wit, the 1st day of December, 1907." The second count is for conversion "on, to wit, the 1st day of September, 1906, and on divers days thereafter, of the following chattels, to wit: Twenty thousand cubic yards of sand taken by the defendant" from certain land--the same as that described in the first count. Issue was joined on the plea of not guilty to both counts, and, judgment being rendered for plaintiffs, the defendant appeals.

Several of the assignments of error are based on the sustaining of plaintiffs' objections to defendant's questions to witnesses, calling for testimony as to the value of the land immediately before and after the alleged trespass. Without considering these questions separately, we hold that the trial court was in error in not permitting the defendant to adduce evidence in this respect under the issue as made on said first count. The general rule heretofore recognized by this court, in cases of trespass to real estate, when the injury is done to the realty itself, is that the measure of damages is the difference in the value of the land immediately before and after the trespass; that is, the diminution in the value of the land caused by the trespass. Brinkmeyer v. Bethea, 139 Ala. 376, 35 So. 996, and authorities cited; also A. & B. A. Railway Co. v. Brown, 158 Ala. 607, 48 So. 75; Buck v. L. & N. R. R. Co., 159 Ala. 305, 48 So. 699; 28 Am. & Eng. Ency. Law (2d Ed.) 606; 13 Cyc. 150. The cases of White v. Yawkey, 108 Ala. 271, 19 So. 360, 32 L. R. A. 199, 54 Am. St. Rep. 159, and Ivey Coal Co. v. Alabama Coal Co., 135 Ala. 579, 33 So. 547, 93 Am. St. Rep. 46, are based on actions of trover, wherein the measure of damages is different.

It follows that the court erred in refusing written charges 5 and 9, requested by defendant. Charge 5 might well have been given for the further reason that the first count alleges a single trespass, whereas the evidence shows a continuous trespass, or rather a chain or series of trespasses at divers times extending through a period of several years, without showing the damage arising from any single trespass. Where but a single trespass is charged on a specific day, as in the first count, the precise date of its commission being immaterial, it follows that the plaintiff may prove any time before the institution of the action, provided it is not barred by the statute of limitations if pleaded; but he is restricted to the proof of one act. 21 Ency. Pl. & Pr. 812-816; Abercrombie v. Windham, 127 Ala. 180, 28 So. 387; 2 Chitty on Pleading (11th Am. Ed.) 847, and notes; Kendall v. Bay State Brick Co., 125 Mass. 533; Union Naval Stores Co. v. Pugh, 156 Ala. 369, 47 So. 48.

The paper writing introduced in evidence by the plaintiff,...