93 Ala. 280 | Ala. | 1890
— The Anniston & Atlantic Railway Company having instituted proceedings to condemn a right of way over the lands of Cooper and others, and paid the assessed damages into court before final judgment of condemnation, proceeded to build its road on the proposed right of way. At this stagé Cooper et al. filed their bill in the Chancery Court of Calhoun county, praying an injunction restraining the rail
On the trial, evidence was adduced going to show that the company employed counsel to secure a dissolution of the injunction, agreeing to pay a reasonable compensation for services in that behalf; that such services were rendered, both in the Chancery and Supreme Courts, and that reasonable compensation therefor “was from $275.00 to $400.00.” The plaintiff was entitled to recover for attorney’s fees thus incurred or expended, either in supporting a motion tor dissolution before the chancellor, or in defending an appeal to this court by complainants, pending which the injunction was reinstated. — Bolling v. Tate, 65 Ala. 417. And it is of no moment, in this connection, that the railway company, pending the injunction, or after its final dissolution, ‘abandoned its purpose to condemn a right of way over complainant’s lands. Nptwithstanding this, it was under a necessity to prosecute a dissolution, since the suit, had it not been defended, might have resulted in costs against the defendant; and it can not be assumed in this action, for the want of proof of present injury caused by the restraining order, that there „was no occasion to employ counsel. — Rosser v. Timberlake, 78 Ala. 162. Moreover, it appears by this record that the abandonment of the right of way proposed to be condemned was consequent.
With respect to the damages claimed on account of the company being obstructed and delayed in building its road, the only evidence is that, at the time of the issuance of the writ, it had a force of hands engaged in constructing the road over the right of way; that this force continued in that work for two days after the writ issued and was served, and that the company “was largely damaged by being enjoined from the use of said right of way.” This was no evidence of damages resulting by way of delay or obstruction from the injunction, upon which to base a verdict for the plaintiff in that regard. Even conceding that, under the facts as to a final abandonment of (his right of way being necessitated by the injunction, the plaintiff would be entitled to recover for expenditures incurred by the company, in work on its road there previous to the service of the writ, or even previous to its service on the company’s superintendent, the testimony supplies no data from which such damages could be assessed. It does not appear how many hands were employed, nor whether they were to be paid at all, nor, if paid, what they were to or did receive, nor the length of time they so labored, nor the amount of work they did. It does not appear, in short, that any expense was incurred or paid for work done upon the right of waj^ which had to be abandoned by reason of the injunction. And the statement of the witness Scott, that the company was largely damaged by being enjoined from the use of this right of way, is not only not competent evidence — such evidence as, if admitted without objection, might sustain a verdict, though inadmissible on objection— but it is no evidence at all. It involves no fact upon which a verdict could be supported; it furnishes the jury with no basis for the assessment of any damages claimed for delay in building the road, or for deprivation of this right of way. Yet the court, in effect, directed and required the jury to assess damages resulting to the company from delay in consequence of the issuance of the writ.
Charge No. 5 given at plaintiff’s instance, and excepted to, is as follows: “If the Anniston & Atlantic Railway Company was delayed by the issuance of the injunction, you must assess its damages tor that amount in addition to attorney’s fees; and the jury is the judge of such damages, and they must assess the same.” Delay was proved, but there was no proof of consequent damages. The inevitable effect of this charge was to require damages to be assessed for mere delay, though no
We have carefully considered the action of the trial court on the demurrers to the amended complaint, on demurrers to certain pleas filed by defendants, and with respect to other charges given and refused. Mairy of the points involved in those rulings have been disposed of adversely to appellants in what we have already said. For the rest, the rulings of the court are so patently correct in every particular, that a discussion of them in detail here would subserve no good purpose.
For the errors committed in giving the 4th and 5th charges requested by plaintiff, the judgment must be reversed, and the. cause remanded.