| Ala. | May 24, 1909
The complaint did not confine the claim for damages to a mere pollution of the water in “Valley creek,” but set out damages of a permanent character to plaintiff’s land, resulting from the formation of a crust or deposit on same, caused by the defendant in placing or permitting certain refuse or waste matter to get in the creek, and which was conveyed to and deposited on said land by rises and overflows of said creek.
Charge 1, requested by the defendant, was properly refused. If not otherwise bad, it confines the plaintiff’s right to recover to a mere pollution of the water and to the extent of imparing its purity, when, under the pleading and evidence, the plaintiff was entitled to re
The trial court did not err in refusing to let the witness Tate answer the question, “To what extent did the deposits that you saw affect its value, if at all?” This question called for the quantum of damages to the land, if any. It did not seek to ascertain only whether or not the land was damaged, but went further, and sought the extent to which the value was affected, with the hypothesis. Witnesses can detail the injuries, and state the value of the thing damaged before and after the injury; but the jury, and not the witnesses, must fix the quantum of damages suffered. — C. of G. R. R. Co. v. Barnett, 151 Ala. 407, 44 South. 392 (where this question is fully discussed.) Whether or not there is an exception, in this particular, as to experts, we need not decide, as Tate may have been an expert on land values in Jefferson county, yet it was not shown that he was an expert in determining the effect of deposits on the value of same, so. as to supply his opinion for that of the jury in determining the extent of the injury to the value of the land. On the other hand, whether an expert or not, he could give the extent of the injury, and, if he knew the land, could testify what it was worth before and after the injury, but could not give the value of the injury, nor make the deductions for the jury. This rule, while followed by the court- in the Barnett case, supra, was criticised by Mr. Wigmore; but it seems to be supported by the weight of authority and is stare decisis in Alabama.
The witness Gwinn and others were competent to testify as to the value of the land before and after the deposit, and it was for the jury to determine the extent or quantum of the damages. They did not have to be experts as to land values, and the only predicate required,
The fact that Rainey had in mind 100 acres, instead of 50 acres, when testifying, did not render his evidence "valueless. He testified to the value of the land, not in bulk, but per acre; and the proportion fixed by him could have been applied by the jury to a reduced area, in the proportion that the injured land bears to the other part of the tract — that is, the injured and the uninjured land could have been scaled proportionately, so as to correspond with 50, instead of 100, acres.
There was no error in permitting the witnesses to give the size of the clods when the land was plowed, as the evidence tended to show that the deposit caused said clods, and the existence and the size of said clods was a circumstance to be considered by the jury in determining whether or not the agricultural value of the land was affected.
It is insisted that the verdict of the jury was excessive, and that the trial court should have granted the motion for a new trial upon this ground. There was much evidence from which the jury could find that the plaintiff sustained the damage assessed. True, it looks rather improbable that only a portion of a tract of land could be damaged to the extent of $600, with crop damage included, when the plaintiff only paid $380 for the entire tract a few years previous to the injury; yet there was evidence that the land was worth a great deal more that the plaintiff had cleared some of it since he bought it, and, so far as we know, he may have bought it very cheaply. Again, prices may have enhanced suddenly and considerably, which is not an uncommon thing in some localities. One of the defendant’s witnesses testi
The judgment of the city court is affirmed.
Affirmed.