City of Birmingham v. Kennedy

WALKER, P. J. — This was an action to recover damages for the alleged injury to a lot of the plaintiff (appellee here) resulting from the construction and enlargement of a public highway upon which the lot abutted. By instructions embodied in the oral charge to the jury, which were duly excepted to, and by the refusal to give written charges requested by the defendant, the court denied the right of the jury, in considering the question of the plaintiff’s lot having been damaged by the work done on' the highway upon which it abutted,'to consider the benefit to the lot resulting from that work, done at the instance of the defendant municipality, It may be inferred, especially from expressions used by the court in the part of its oral charge to which an exception was reserved, that the rulings of the court in this connection were induced by its misapprehension of the import of a ruling made in the case of Town of Eutaw v. Botnick, 150 Ala. 429, 435, 436, 43 South. 739, in holding that certain testimony as to the improvement of a sidewalk in front of the property there in question was properly excluded. We think it is apparent from what was said in the opinion rendered in that case in reference to the excluded evidence that the court did not regard it as having any tendency to prove that the building of the sidewalk referred to had affected the value of the property in question. Indeed, its lack of such tendency was the ground upon which it was held to have been properly excluded. Evidently the court was of opinion that what was sought to be proved by the excluded testimony ivas, not the effect of the work done 547 upon t-lie plaintiffs property contiguous to it, but that the sidewalk itself was improved and that the plaintiff himself had been benefited by having the use of a better sidewalk than Avas available to him before. The evidence was held to have been properly excluded because of the conclusion of the court that its admission would have diverted the attention of the jury from the consideration of the proper inquiry in the case, which was Avhether the property of the plaintiff had been improved or deteriorated by the work'done upon the highway contiguous to it, to the consideration of the irrelevant inquiry as to Avhether the sidewalk itself had been improved, with the result of enabling the plaintiff personally to enjoy a benefit which was shared in by the general public. Evidently the court regarded the excluded testimony as having no tendency to prove that the property there in question Avas either benefited or harmed by the work done by the municipality as tending to prove only that the sidewalk adjoining the property, not the property itself, was improved, and that the plaintiff personally, not his property, Avas benefited by his having the opportunity of using the ucav sideAvalk. Other parts of the opinion rendered in that case plainly negative the conclusion that it could have been the court’s intention, in the ruling referred to, to assert that the defendant municipality in such a case 'may not prove that the property in question was benefited by the work done on the highway contiguous to it instead of having been damaged as claimed by the plaintiff. In the course of the opinion it was said: “It is difficult to see hoAV it can be said that any damage has been suffered by reason of the change of grade and making of the sidewalk, if the net result of that Avork has been that the land has been improved and not deteriorated in value.” And, after citing rulings in other jurisdictions to the effect 548 that, in ascertaining whether property not taken has been damaged, the special benefits must necessarily be taken into consideration, the conclusion of the court was thus expressed: “The general trend of the best authorities is that the simple question is whether or not, taking all things into consideration, the property has deteriorated in value, as the result of the work done, or has it increased in value? Of course if it has been increased in value, the owner has not been damaged- In other words, the test is the difference between the market value before and after the work done.” This decision and others following and in line with it have settled the proposition in this state that, when a claim is made that property has been damaged as the result of work done on a highway upon which it abuts, the special benefits accruing to the property from such work must be considered and set off against the damages. — Bragan v. Birmingham Railway, Light & Power Co., 163 Ala. 93, 51 South. 30; Meighan v. Birmingham Terminal Co., 165 Ala. 591, 51 South. 775; Smith v. Town of New Decatur, 166 Ala. 334, 51 South. 984. Under these authorities it must be held that the court was in error in the rulings mentioned. We are not of opinion that the court was in error in sustaining the objection to the question asked the witness Stewart, which is set out in the twelfth assignment of error. There was no evidence tending to prove that any assessment had been made or attempted to be made against the plaintiff’s property for the whole or a part of the cost of the improvement of the highway upon which it abutted. We cannot conceive how the defendant could have been prejudiced by not being allowed to prove that a witness had considered or failed to consider a fact of the existence of which there was no evidence. Reversed and remanded.