Railway Co. v. Graham

Per Curiam. 1 Life estate may be estabHshed by parol The plaintiff’s parol contract of lease was taken out of the operation of the statute of frauds by part performance. His title was good therefore even against his grantor, and there was no error in allowing proof of it against a stranger. 2. whatdamflows recoveraWhen the several parts of the charge are read together, it fairly means that the plaintiff should recover for the damage done to his crops for the years 1888 and 1889, and for the damage done to his estate by the prospect of future overflows, that is, the depreciation of its value by the improper construction of the company’s road-bed. No complaint is made of the charge as to the recovery for damage to the crops. As to the depreciation in value of the plaintiff’s estate, there was no proof except of facts which tend to.show that the estate was of value, but the jury could draw no certain deduction of any particular sum at which the damage should be fixed from the facts proved. No verdict, save for nominal damages, could therefore be sustained upon that score. The special damages to crops, etc., might have been estimated ata little more than $400. The verdict was for $500. It is not therefore sustained by the evidence. There is no other error for which the judgment should be reversed. What part of the verdict the jury based upon the special damages proved, and what part upon the unascertained injury to the estate, cannot be determined. If they had returned a verdict for $250, for the damages actually proved, the appellant could not haye been heard to complain, and that sum would seem to be a fair compensation to the appellee for the damages proved. If the appellee will remit and take judgment for that amount, and pay the costs of the appeal within thirty days, he may do so; otherwise the judgment will be reversed,.and the cause remanded for a new trial. It is so ordered.