129 So. 50 | Ala. | 1930
There was a judgment for appellee against appellant, city of Birmingham, for damage claimed to her house and lot by lowering the grade of a public alley along the back of her *383 lot, by cutting down five or six feet, and rendering the lot inaccessible from the alley.
Appellant cites authorities in other states to the effect that, in the absence of statutory or constitutional provisions, there can be no recovery for consequential damages to property growing out of the original establishment of the grade of a street. Authorities in other states are in conflict on this subject. 44 Corpus Juris, 427, 428.
Questions of this nature have long been settled in Alabama. To restate briefly the rule, as so well settled, it is that without section 235, Constitution, or its equivalent, no such damages were recoverable. By the adoption of that provision in the Constitution of 1875, and continuing it in effect in that of 1901, consequential damages to adjoining property, resulting from a change or improvement in the streets while engaged in the construction, enlargement, or improvement of the same, may be recovered. The question of whether it is the original establishment of the grade is immaterial in the light of the rule as finally settled in the cases of Avondale v. McFarland,
Charge A given at the request of plaintiff, when tested by the principles we have discussed, the pleadings and evidence did not state an incorrect proposition and was not reversible error.
Depreciation in the market value of the property caused by the improvement is a proper element of the damages claimed. Evidence which shows such depreciation, including facts which affect the question, such as inconvenience of ingress and egress (Batterton v. Birmingham,
Therefore, charges 28 and 18 were refused appellant without reversible error. Likewise the court did not err in overruling a general objection to evidence that in accomplishing the work the city tore down plaintiff's fence.
We cannot say that the court erred in not setting aside the verdict and judgment because it was excessive. There was ample evidence to support it. The complaint, we think, was not subject to the demurrer argued by counsel (grounds 11, 12, and 13). It insufficiently refers to the filing of the claim within one year after the accrual thereof.
We find no reversible error, and the judgment is affirmed.
Affirmed.
ANDERSON, C. J., and GARDNER and BOULDIN, JJ., concur.