68 So. 873 | Ala. | 1915
(1) It clearly appeared from the testimony of defendant’s witness Jones that the negro Elmore’s cotton was made on land similar to defendant’s, and with seasons practically the same, and that Elmore’s land and his cultivation of his cotton were
(2) Defendant was asked by his counsel how much a certain tract planted in corn would have produced in 1911, with the seasons and culture as shown, “if it had not been for the fumes.” The context of his testimony shows that the fumes referred to were those that issued from defendant’s plant, and the question, as framed, was definite enough, and not otherwise objectionable. The objections to this and a number of similar questions were properly overruled.
(3) Where permanent injury is done to land by the casual or recurrent overflow of water, the measure of damages is the difference between the value of the premises with and without such injury at the time thereof. —S. S. S. & I. Co. v. Mitchell, 181 Ala. 576, 61 South. 934.
(4) It was therefore proper for his counsel to ask defendant: “What was the difference in value between that land immediately before this water overflowed it and immediately after the water overflowed it from the International Agricultural Corporation plant, for all purposes — the market value?”
We do not think the question was misleading because of the fact that the last clause of it was tacked on to the original question by amendment; and, even if possibly misleading, plaintiff should have investigated its effect by cross-examination.
(5) Nor was it necessary to ask for the reasonable market value of the lands, since “market value” necessarily means its fair or reasonable value. — 5 Words and Phrases, 4385.
(6) Defendant testified that he had one acre in “garden corn” which should have yielded 50 bushels. He
As a more accurate basis for estimating the injury-caused by the destruction of this crop, defendant might have stated the date of its probable maturity and the market value of such corn at that time. It is common knowledge that the earliest crops of any vegetable command the highest market prices. If defendant’s corn should have matured for market in mid-season, it would probably not have brought the average price for the whole season. For this reason, the writer was of the opinion that the admission of the statement in question was erroneous. The rest of the court are of the opinion, however, that, inasmuch as the value stated was not to be used as the measure of .recovery, but only as a basis for the estimation of damages, and as it was, in fact, legitimate evidence tending to show the amount of. damage suffered, it was properly, admitted.
There being no error in the record, the judgment will be affirmed.
Affirmed.
