99 Ala. 24 | Ala. | 1892
This was an action to recover damages* caused to the plaintiffs’ lot near the city of Birmingham by the construction of an embankment for the track of the defendant’s railroad in the street or highway upon which the lot abutted. It was alleged in the complaint, and there was evidence tending to show, that the defendant is a corporation clothed with the right to call into exercise the power of eminent domain, and authorized by its charter to build its railroad along the street or highway in question, and that, without the consent of the plaintiffs, and without making them compensation, it built its railroad upon a fill or embankment made in front of the plaintiffs’ lot, and thereby obstructed the ingress and egress to and from such lot, and otherwise injured it. The averments and proof show that a corporation invested with the privilege of taking private property for public use has, in the construction of its works, injured such property, without first paying compensation for such injury. This constitutes a violation of the rights secured by Section 7 of Article XIY of the Constitution of Alabama. Eor the redress of such a wrong an action at law lies. The jurisdiction of a court of equity to prevent the
The principal contention in the caséis upon the rulings of the-trial court on the question of the measure of damages. The appellant insists, that the plaintiffs could not be entitled to recover prospective damages, that they were treating the obstruction complained of as a nuisance, and that in an action for the injury caused thereby their recovery could not go beyond the damages sustained prior to the commencement of the suit. In the Alabama cases against municipal corporations, the measure of damages for injury caused to abutting property, by changes in the grades of streets or sidewalks, has been stated to be the difference in the market value of the property before and after the act complained of.—City Council of Montgomery v. Maddox, 89 Ala. 181; City Council of Montgomery v. Townsend, 80 Ala. 489. The appellant contends that those authorities are not applicable here. It is true, that the rule contended for by the appellant is supported by the decisions in several states. In Uline v. N. Y. C. & H. R. R. Co., 101 N. Y. 98; 53 Am. Rep. 123, the suit was by an abutting owner to recover damages sustained from the construction of a railway in the street fronting his premises; and after a full consideration of the question of the measure of damages, it was held that the plaintiff could recover only temporary damages, that is, such damages as had been sustained up to the commencement of the action. This ruling has been adhered to in later cases arising in that court, and some other courts have reached similar conclusions.—Carl v. Sheboygan &c. R. R. Co., 46 Wis. 625; 6 Am. & Eng. Encyc. of Law, 595, note 4. There are evidences in the later New York cases that that court has not remained satisfied with the decision in the Uline Gase. The inconveniences which have been developed in the attempts to adhere to that ruling have, however, been obviated, in a great measure, by encouraging such shifts- as permitting damages for permanent injury to property to be assessed in such cases, if the defendant failed to invoke the benefit of the decision against the propriety of this course, thus allowing the rule as to the measure of damages to be determined by the acquiescence of the parties, rather than by the law; or, by allowing a judgment for past loss of rentals, and, in the same case, granting an injunction restraining the further operation and maintenance of the road, unless the defendant paid a certain sum equal to the amount of depreciation in the value of the property, as for a permanent appropriation.—Pond v. Metropolitan Elevated Rwy.
The reasonable rule on the subject, and the one which is maintained by the preponderance of the authorities, is, that, where permanent structures are erected so as to cause a depreciation in value of adjacent or contiguous reality, the injured party may, and therefore must, recover compensa
The rulings of tbe court involving other’questions, though assigned as errors, were not insisted upon in tbe argument for the appellant, and, for tbat reason, will not be considered.
Affirmed.