The petition alleges that when the plaintiffs purchased their property they purchased an easenxent ixi the alley, axxd have occupied axxd used it ixx conjunctioxx with other citizexxs for year’s, payixxg a good i’ouxid px’ice’ for it, for when the propex’ty was pux’chased xnaixy huxxdx’ed dol lars more were paid for it than adjoinixxg property of the same size could be bought for, on account of this alley privilege which made their propex'ty especially valuable owing to the open thoroughfare which is the direct line of travel for a large nuxnber of customex-s who have been ixx the habit of tradixxg ixx the store, etc., and who live on Fifth street and other parts of the city east of their property ; that the vast bulk of the trade of the store which goes to the support of the petitioners and rendex’s their propex'ty valuable, comes froxxx the vast number of people who have homes east of it on Fifth stx-eet and adjoining alleys, who have for year’s been ixx the habit of using this alley as a thoroughfare to the store; and that fx'om this source axxd from this cross-street great volumes of trade have for years come to their property, so that, for a sixxall staxxd, there is no more valuable business property ixx the city; but that jf this cross-street is pennitted to be closed, the vast bulk of trade will be cut off fx’oxxx the stoi’ehouse, their natural ixxgress to axxd egress from the same being destroyed, and the same will be dx’iven to other stox’es, axxd the valxxe of their property thus greatly and permanently ixxjux’ed. The defendaxxts’ answer alleges that the plaintiffs’ lot has xxo peculiar value on accouixt of beixxg located on the alley; that every lot as originally laid out ixx the city, had an alley appux'tenant to it; that the plaixxtiffs have no easement or interest ixx the alley ; that it has beexx closed for yeax’S, on the opposite side of Fifth street from defexxdants’ property, hy the Cerxti’al railroad, and many similar alleys elsewhere in the city have been allowed to be closed by the abutting property-owners ; that defendants’ business demands depot buildings of such length as to extend across the alley, and it is impossible to build a depot on either of the two lots alone; and that the proposed occupation of the alley will not in any manner affect the value of plaintiffs’ property, but on the contrary all property in that portion of the city has increased in -value since it has become generally known that defendant intended to locate its offices and depots there, and plaintiffs’ property is to-day worth more by reason of the contemplated location of defendant’s depot than it was before said property was purchased by defendant for this reason.The motion for a new trial contains twenty-seven grounds. The only ones material here are the assignments of error on the following parts of the charge of the court:“ If you find, however, that there is a special damage done to that property or business, then you can inquire, on the other hand, whether the effect of the railroad closing the alley by building a depot there would be to enhance the value of that property and increase it, and increase the value of the business; and if you find from the proof that the enhanced value was equal to or greater than the damage done to the business, then you would still find for the defendant.” Error, because the matter complained of was not the building of a depot but the closing of the alley, and if under this charge the jury might set off the enhancement arising from the depot, if the property was damaged by the closing of the alley, it was immaterial whether by a depot or a fence ; because the charge allows the enhancement arising from a depot and assumes that one will be built, and the question of damage is to be offset by the enhancement from said depot, when one may not be built; and because the pleadings do not authorize the charge“If, however, you find there was a damage done to-the property, and at the same time an enhanced value created by these railroad improvements- there, but that the damage done to this property and business was greater than the improvements, you would find for Mrs. Harvey, or trustee in the case.” Error, because misleading in allowing enhanced- val-u-e to be set off' against actual damage.“ If you find there is- any special damage to her, you go and inquire as to the effect of these improvements, these depot buildings, and as to the effect that would have on the value of that property and business. If you find — and you ought to look at all that, look into the nature of the proposed improvements that would close up this alley, the- probable improvements that would be put there, the number of men that would be employed there, the traffic that it would create, — all those things you ought to consider in deciding whether or not these improvements by the railroad company would enhance the value of this property, and then you look into the question and decide according to the truth of it as you find it from the evidence. If the property will be damaged by the closing of this alley, and at the same time its value will be enhanced by the improvements put there, the value of the property and business will be increased, and the enhancement was greater thau the damage, you would of course find there was no special damage done.” Error, because the charge assumes that a traffic would be created by improvements, and is expression of opinion on that point; because it allows speculative improvements and speculative enhancement of value to set off and overcome actual damage, and is misleading to the jury in allowing the enhancement arising from any improvement to affect the actual damage; and because it is unauthorized by the pleadings.“Now if, under the instructions I have given you, you find there would be special damage, your answer to this question, and that would be your verdict, would be simply, ‘ It would.’ If you find the other way, there would be no damage, or the enhanced value was greater or would offset the damage, then your answer to it would be, ‘ It would not.’ ” Error, because misleading, it not 'being the law that actual damages may be diminished by the enhancement of the property; and because the pleadings do not authorize such an instruction.“ They further say as to that, that the object of the railroad is to place across that alley or that end of the alley, that twenty-foot alley, a freight and passenger depot and let the alley terminate there at their depot with an outlet down across ten feet wide running down and parallel with 4th & 5th streets, and that the effect of placing that improvement there will be largely to increase the value of the Harvey property, and that the effect of the business done at their depot will be to add largely to the business done by Harvey at his store, or Mrs. Harvey.” Error, because no such charge is justified by the pleadings, nor was any such defence set up in the answer, and the effect of this statement in the charge was to divert the minds of the jury from the true issue upon which they should pass, and was calculated to make them consider and set off speculative advantages which they should not consider in this case as against the actual special damages proved to flow from the nuisance complained of and sought to be enjoined.Hardeman & Nottingham, for plaintiff.Gustin, Guerry & Hall, for defendant.
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