60 So. 447 | Ala. Ct. App. | 1912
Lead Opinion
1. Section 223 of the present Constitution provides that “no city, toAvn or other municipality shall make any assessment for the cost of sideAvalks or street paving, or for the cost of the construction of any seAvers against property abutting on said street or sidewalk so paved, or drained by such sewers, in excess of the increased value of such property by reason of the special benefits derived from such improvements.” The above italics are ours and are made by us because the italicized portions of the quoted section have an important bearing upon the questions involved in this case. This section was, for the first time, made a part of our organic law when the Constitution of 1901 was adopted. Prior to that time it had no counterpart in any of our Constitutions. Its adoption simply meant that the people of Alabama Avere determined that the costs of the above-mentioned improvements should be borne hy the municipalities under whose direction they were made, except such portions of such costs as were reflected in the increased values of
2. In this case the principal question was whether, on account of a certain sidewalk which was laid by the city of Anniston on one side of the appellant’s land, such property, within the meaning of the above subdivision of the Constitution, had been “increased in value by reason of the special benefits derived from” such sidewalk. There was a conflict in the evidence on the subject and at the written request of the appellant the trial court gave to the jury the following written charge: “If the value of the property of the defendant Avas not increased by laying the sidewalk along the same, then your verdict should be for the defendant.” The appellant also asked the court to give to the jury
As the above-quoted constitutional provision, in express terms, prohibits any assessment, in cases like the present, “in excess of the increased value of the property by reason of the special benefits derived from the improvement,” we see no reason why the above charge, under the facts of this case, does not express the law. It may be, as was said by the Supreme Court in Harton v. Town of Avondale, 147 Ala. 468, 41 South. 934, that it is often a difficult matter to ascertain accurately the extent of the benefits accruing to lands by reason of such improvements; but that difficulty does not change or affect the language or the meaning of the subdivision of'the Constitution above quoted. While the word “worth” in some connections means something other than pecuniary value — as when we speak, for instance, of a man or woman of worth — nevertheless, when used in law, it means that “sum of valuable qualities which renders a thing valuable and useful” expressed in the current medium of the country. As used in the above charge, it means value, and nothing more. When a man, in common parlance, says that a particular plantation is “worth” $10,000, he means that the value of that plantation is $10,000. When he says that A. is worth a million dollars, he means that the value of A.’s property is a million dollars. — Scruggs & Echols v. Riddle, 171 Ala. 350, 45 South. 641.
When we say that a man’s right arm is of great worth to him, we may have an idea entirely foreign to that of pecuniary value. If, however, that man’s arm,
Of course, anything that tends to add to the actual or even prospective enjoyment by the owner of real property, or which tends, in any way, to increase its desirability either for business or residence purposes, any betterment which, to use the language of one of the witnesses in this case, makes “for tenants and renders it easier to hold tenants,” and anything which tends to increase the attractiveness of real property, may be said to add to the value or worth of such property. Under the plain mandate of the above constitutional provision, however, the cost of no street, sidewalk, or sewer improvement, and no part of the cost of any street, side-walk, or sewer improvement, can be legally assessed by a municipality against abutting land which
In fact, the correctness of the propositions above announced is so evident that we would be inclined to the opinion that the refusal of the trial court to give the charge under discussion to the jury was error without injury, but for the fact that the course of the trial, as indicated by the bill of exceptions, and the argument of counsel in their briefs on file in this case indicate that there was, before the 'jury and propably considered by-them, some kind of peculiar value other than an “in
There are, indeed, instances where, when the full enjoyment of property, considering the use to which it is devoted, is interfered with by another, the owner of such property has been permitted to recover damages for such decrease in the value of such use, although the actual value of such property, in money, had actually been increased by the act or acts which created the de-' crease in' the value of the property for the use to which it was devoted; but the reasoning in those'cases lias no applicability here. — Baltimore & P. R. Co. v. Fifth Baptist Church, 108 U. S. 317, 2 Sup. Ct. 719, 27 L. Ed. 739; Birmingham Waterworks Co. v. Martini, 2 Ala. App. 652, 56 South. 830.
In the instant case, as we have already said, the Constitution and the statutes of the state expressly declare how and for what amounts assessments like the one under consideration shall be laid. In our opinion, therefore, the trial court committed reversible error in infusing to give the above charge to the jury, which the appellant, in writing, requested it to give to the jury in his behalf.
3. There are many other questions presented by this record, but we do not deem it necessary to discuss them. The rulings of the trial court on all matters not already discussed, and which are properly presented to ns for our consideration, are in accordance with our views of the law as applied to the facts of the case.
For the error pointed out, the judgment of the court below is reversed, and the cause remanded.
Reversed and remanded.
Rehearing
On Application for Rehearing.
The trial court gave, at the request of the appellant, defendant below, the following charges, to-Avit: “(1) If the value of the property of the defendant Avas not increased by laying the sidewalk around the same, then your verdict should be for defendant. (2) If the value of the defendant’s property around which the sideAvalk was laid Avas not increased by the laying of such sideAvalk, then your verdict must be for defendant.” But that court refused to give at appellant’s request the following charge, to Avit: “Gentlemen, by increase in value is meant increase in Avorth in dollars and cents, and if Mr. Duke’s property has not been so increased then you cannot find for plaintiff.” We held in the original opinion that this charge should have been given for reasons, therein ably and clearly set forth by Judge de Graffenried, the Avriter of the opinion, Avhich was adopted by this court, after he became a member of the Supreme Bench.
It is uoav urged for the first time, in this particular, that the charge is faulty in that it makes no reference to the sidewalk or improvement, and that it might therefore mislead the jury into the error of taking into consideration, in ascertaining whether there was no increase in value of defendant’s property, depressions in values resulting from the panic in Anniston. We think the insistence is untenable. The charge is to be construed with reference to the two charges, hereinbefore quoted, which preceded it and which Avere the only ones that had been given or were given to the defendant, appellant here, each of which properly required a ver
Rehearing is denied.