77 So. 350 | Ala. | 1917
This is the second appeal in this case. 73 So. 28.1 Upon the second trial the case was tried upon counts 7, 8, 9, and 10, and which were added after the first trial, and after the reversal of the cause upon the former appeal. Count 7 is for trespass, while counts 8, 9, and 10 are in case.
The plaintiff, in order to have recovered under the trespass count, had to show a prior possession of the land upon which the side track was laid, actual or constructive. There was no proof of an actual possession by the plaintiff, though he contends that he had the constructive possession under his title; that is, the fee to the street, *57
subject to the use of same by the public. It may be conceded, but which we do not decide, that if the plaintiff had the title to the entire street he could maintain trespass as against a mere wrongdoer, although the street had been dedicated as a public highway. L. N. R. R. Co. v. Higginbotham,
Counts 8, 9, and 10 do not seem to proceed under section 227 of the Constitution of 1901, as they charge that the track was wrongfully laid, and not that it was laid under a privilege or franchise permitting such construction or operation. They therefore proceed either under section 235 of the Constitution, or upon the theory that the thing done was a wrongful obstruction, and amounted to a public nuisance in obstructing Front or Clanton street. They also set up that the ingress and egress of plaintiff to and from his home and brickyard was prevented or greatly interfered with, and it may be that they charge an injury different in kind from that suffered by the public generally. A. G. S. R. R. Co. v. Barclay,
Moreover, we are not prepared to say that the trial court could be reversed for refusing charge 1, requested by the plaintiff, and which was intended as the general charge, as it is perhaps bad in form. While it has the hypothesis as to believing the evidence, it is coupled up with a peremptory instruction that "it only remains for you to assess his damages." This at least rendered it misleading, not being preceded by the condition that if the jury should find for the plaintiff.
There was no error in permitting the defendant to file the plea of the statute of limitations, notwithstanding it had pleaded the general issue. Code 1907, § 5331. Moreover, the record discloses no objection and exception to the filing of same.
Assignment of error is not sufficiently specific to warrant the consideration of charges refused the plaintiff. It says:
"The court erred in refusing to give each and every one of the written charges requested by the plaintiff."
We find that twelve written charges were requested and refused, and the assignment of error or the brief of counsel do not specify any particular one to be passed upon by this court. Ashford v. Ashford,
Counsel for appellant contend that the oral charge of the court did not sufficiently discuss and cover the legal questions involved in the case, and did not fully set forth certain legal principles favorable to the plaintiff. If the oral charge was not as full and instructive as plaintiff's counsel desired, he could have requested the giving of written charges elucidating and explaining his theory of the case from a legal standpoint and urged error on the part of the court in refusing same; but we do not, as a rule, pass on things the trial court did not say in the oral charge. Williams v. State,
The trial court did not err in overruling the appellant's objections to the record copy of the deed from Bennett to the Montgomery *58
Railroad. It was not in the possession of the defendant and its whereabouts was unknown. It was an ancient document, nearly 80 years old. Alexander v. Wheeler,
The objection that it was not signed by the wife and separately acknowledged is of no merit. In the first place, it would be incumbent upon the objector to show that the grantor was a married man and that the land conveyed was a part of the homestead. As a matter of law, however, the deed was made in 1838, long before our homestead exemption law and the method of conveying the homestead was adopted. Miller v. Marx,
The trial court did not err in admitting the Winter map and his testimony in connection therewith. He was an expert, and the map in connection with his testimony was but a fair and legitimate effort on the part of the defendant to show the location and surroundings of the sidetrack and street which was an issue in the case.
We have considered all the assignments of error which have been properly assigned and insisted upon in brief of counsel, and it will serve no good purpose to discuss all of them. It is sufficient to say that we find no reversible error in the record, and the judgment of the Circuit Court is affirmed.
Affirmed.
MAYFIELD, SOMERVILLE, and THOMAS, JJ., concur