Town of Eutaw v. Botnick

• Decision Date: 20 April 1907
• Citation: 150 Ala. 429,43 So. 739
• Parties: TOWN OF EUTAW v. BOTNICK.
• Court: Alabama Supreme Court

43 So. 739

150 Ala. 429

TOWN OF EUTAW v. BOTNICK.

Supreme Court of Alabama

April 20, 1907

Appeal from Circuit Court, Greene County; S. H. Sprott, Judge.

Action by H. Botnick against the town of Eutaw. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Harwood & McKinley, for appellant.

De Graffenreid, Evans & Pounders and McQueen & Hawkins, for appellee.

SIMPSON J.

This was an action by the appellee against appellant, claiming damages for injury to the property of the plaintiff caused by the grading--excavating--of the sidewalk abutting said property. The complaint as amended alleged "that the said property was greatly impaired and injured and the market price of said property was depreciated" by the work done; and issue was joined on the first plea of not guilty and the third plea, alleging that the work complained of "has not lessened or impaired the market value of the property." The only assignments insisted on relate to objections to testimony.

The plaintiff, being upon the stand as a witness, had testified that the lot in question was worth $3,500 before the grading was done, and was asked on cross-examination, "whether or not, just about a week prior to the date of the grading, * * * he [the witness] had not offered to sell said property to Barnard Harwood for $3,000." This question was objected to, and the objection sustained by the court. On the cross-examination this question was proper to test "the accuracy of the witness' knowledge," "reasonableness of his estimate of value, and, in consequence, the credibility of his testimony." Buist v. Guice, 105 Ala. 518, 16 So. 915; Ladd et al. v. Ladd et al., 121 Ala. 584, 586, 25 So. 627; East Brandywine, etc., R. R. v. Ranck, 78 Pa. 454; Springer v. Chicago, 12 L. R. A. 609, 135 Ill. 552 26 N.E. 514. Consequently the court erred in sustaining the objection to this question.

The nineteenth and twenty-eighth assignments of error relate to the action of the court in sustaining objections to the question by defendant to witnesses: "What was the market value of the plaintiff's said property immediately after said grading was done?" The plaintiff himself had testified as to the market value of the property before the grading was done, and he and other witnesses had been permitted to testify that they knew the market value of said property, both before and after the grading was done, and that in their opinion the market value had been depreciated in various amounts by the grading. As to the rule of measuring damages in such cases, there have been a great many conflicting views by courts of other states; the storm center of the controversy being as to whether or not, in reaching a conclusion as to whether the property was depreciated or improved in value, the benefit which the property has received as a result of that improvement shall be taken into consideration. Lewis, in his work on Eminent Domain, states that the decisions are divided into five classes, as follows "(1) Benefits cannot be considered at all. (2) Special benefits may be set off against damages to the remainder, but not against the value of the part taken. (3) Benefits, whether general or special, may be set off as in the last proposition. (4) Special benefits may be set off against both damages to the remainder or the value of the part taken. (5) Both general and special benefits may be set off as in the last proposition." Lewis on Eminent Domain, § 465. He classes Alabama among those of the fifth class, and refers to an Alabama case (twice reported) which the learned writer does not seem to have carefully read. When the case was first before this court, it was held that just compensation for lands taken must be made in money, and that any increased value of the land arising from the public works cannot be considered, and that section 5 of the act to amend the charter of the railroad company in question, which required the jury to take into consideration the benefits, related alone to damages sustained by the owner of the lands taken, and not to "assessing the amount of compensation to be paid for lands actually taken." Ala. & Fla. R. R. v. Burkett, 42 Ala. 83, 88, 90, 91. When the case came up for consideration a second time, the decision was that the then Constitution of Alabama did not apply, as the previous charter granted the company was a contract, and according to section 5, and according to the definition of the word "compensation," the advantages were to be balanced against the disadvantages. Ala. & Fla. R. R. v. Burkett, 46 Ala. 569, 578, 579.

This distinction between "compensation" and "damages," hinted at in the above case in 42 Ala. has been fully recognized in the courts of other states, and there is reason in it. The party whose land is taken should certainly be paid in full for the land actually taken, without regard to any benefits accruing to the remaining lands; but, when the party seeks to recover for the injury or damage to the remaining lands, it is difficult to see how it can be said that any damage has been suffered, by reason of the change of grade and making of the sidewalk, if the net result of that work has been that the land has been benefited, and not deteriorated, in value. As said by the Supreme Court of Illinois: "A partial effect only is not to be considered, but the whole effect. * * * This is not deducting benefits or advantages from damages, but is ascertaining whether there be damages or not." And this was said while construing a statute which provided that benefits and advantages should not be considered. Page et al. v. Chicago, etc., Ry. Co., 70 Ill. 324, 328; Chicago, etc., R. R. v. Hall, 90 Ill. 43, 46. The Supreme Court of West Virginia, also, under a Constitution like ours, which has added the word "damaged" to "taken," in the section requiring compensation for property appropriated to public use, holds that, in ascertaining whether property not taken has been damaged, the special benefits must necessarily be taken into consideration. Blair v. Charleston, 35 L. R. A. 853, 857, 43 W.Va. 62, 26 S.E. 341, 64 Am. St. Rep. 837. The laws of New York provide that commissioners, appraising property acquired for the construction of railways, shall "make no allowance or deduction on account of any real or supposed benefits," etc.; and the Court of Appeals holds that this applies to the compensation for the land taken, and not to the damages to the remaining land. Newman v. Metropolitan Elevated R., 7 L. R. A. 289, 291, 118 N.Y. 618, 23 N.E. 901; Bohm et al. v. M. E. R. Co. et al., 129 N.Y. 576, 591, 593, 29 N.E. 802, 14 L. R. A. 344. In this last case the court says the rule permits the abutting owner to recover full amount of actual damages, but "will not permit such owners to recover, by some theoretical or abstract mode of reasoning, alleged damages, which in plain truth they have never suffered." Page 596 of 129 N. Y., page 808 of 29 N.E. (14 L. R. A. 344). See, also, Chase v. City of Portland, 29 A. 1104, 86 Me. 367. Our present Constitution has no clause prohibiting the consideration of benefits; but section 1718 of the Code of 1896 seems to bear out the distinction between "compensation" (for property actually...