Long Distance Telephone & Telegraph Co. v. Schmidt

TYSON, C. J. — This proceeding was instituted by the appellant to condemn for its use as a telephone and [395] telegraph company a right of way over the lands of the appellees. The questions presented arise upon except tions reserved upon the trial relating to the amount of damages and compensation which the appellees, as landOAvners, are entitled to receive by reason of the construction of appellant’s line, and the taking of the right of way sought to be condemned. Against appellant’s objection, the respondents were permitted to prove the value of the trees cut and destroyed by it in the construction of its line. It is conceded that the appellees, as landoAvners, had the right to show that the land was taken, that timber was cut, and its character, or any other element of injury done to the lands; but it is insisted that it was not competent to show the value of the trees cut and destroyed. The measure of damages in this class of cases is the value of the land Avhen taken — before any injury thereto resulting from the construction of the line — and the injury or- diminutiou in value caused to the remaining and contiguous lands. —M. & O. R. R. Co. v. Hester, 122 Ala. 249, 25 South. 220, and cases cited. In arriving at the difference in the value of the land before and after the taking, it seems clear to us that the value of the growing-trees cut or destroyed may Avell and properly go to the jury, to be considered by them. It is true the value of the trees should not be awarded to the landowner as a district and independent injury to the lands, but for the purpose of shedding light upon the amount of injury done them by the construction the value of the trees may be shoAvn. —M. & O. R. R. Co. v. Hester, supra. As said in Perdue v. Brooks, 85 Ala. 462, 5 South. 126: “The value of the timber destroyed is not necessarily equivalent to the depreciated value of the land, but may be regarded in the inquiry as to the extent of its diminution in value. —Clark v. Zeigler, 79 Ala. 346.” The testi [396] nxony being admissible for this purpose, the court correctly admitted it in evidence. If appellant perceived that the jury might be misled, to its prejudice, by giving to this testimony a consideration broader than its legitimate scope, it should have had its effect limited by proper instruction. Assignments Nos. 4, 5, 6, 12, 16, and 29 are insisted upon jointly. The insistence relied on in support of them is that the testimony which the court refused to exclude, and upon which ruling they are predicated, showed the possible or probable uses to which the land might be put in the future. We do not find this to be true. For examples, take assignment No. 4: The question asked witness was, “What was the land in that community adapted to?” And this elicited the answer: “It is adapted for (to) farming,” etc. Again, assignment No. 5 is predicated upon an objection to this question: “What is the land in that neighborhood used for?” The answer to this question was that it is used “for farming and residence property.” Just how the value of land is to be ascertained without an inquiry into its adaptability to certain purposes or its fitness for certain uses we are unable to see. There is clearly no merit in the insistence.. We do not.find that the objection here urged against the admissibility of the testimony, made the predicate for assignments Nos. 17 and 19, was interposed in the court below. The objections there interposed were clearly properly overruled. ■It is urged in support of assignment No. 25 that the court erred in permitting the hypothetical question to be asked the witness Gengles against appellant’s objection, for the reason that the question assumed that the strip of land sought to be. condemned was not of the width stated in the question. It is true that a hypothetic [397] cal question should not contain matter which the evidence does not tend to support, but technical accuracy is not required as- to this. —Parrish v. State, 139 Ala. 43, 36 South. 1012. But we apprehend that, in order for the appellant-to avail itself of the exception based upon the overruling of its objection, it was necessary to point out definitely and specifically the vice in the question. The general objection that was interposed will not suffice for this. 8 Ency. Pl. & Pr. 223 et. seq.; 2 Eliott on Ev. § 882 et seq. Charge 3, refused to appellant, ignored all right of the appellees to compensation for the right of way outside of the ground actually occupied by the poles erected by it upon which its wires were strung. For this reason, if for no other, it was properly refused. Charge 5 was also properly refused, as having a tendency to mislead the jury. The matter for their consideration and determination was not the appellant’s liability for cutting and felling growing timber, but it was the amount of compensation and damages to which the appellees were entitled by reason of the construction of its line and the taking of the right of way sought to be condemned. We have considered, every question insisted upon for a reversal, and, finding no error, the judgment must be affirmed. Affirmed. Simpson, Anderson, and Benson, JJ., concur.