Funderburk v. Mayor of Columbus

Cook, P. J., delivered the opinion of the court. The appellant was the plaintiff in the trial court, and in her declaration she demanded damages from, the city of Columbus. The declaration avers that the plaintiff was the owner of a certain described lot of ground fronting on “Main street,” and on this, lot had been erected a storehouse and other improvements; that prior to the change of grade in Main street the-property was worth six thousand dollars, and had a rental value of sixty dollars per month; that after the grade of Main street was changed, and because- of barricades erected on the street ingress to and egress from the storehouse was made so difficult, that the value of the property diminished four thousand dollars. The city filed a plea of general issue, and thereunder gave notice of certain special defenses, to wit: (1) That that' portion of Main street where graded and complained of is a part of the hill and steep ascent of many hundred feet in length leading up from the public bridge spanning the Tombigbee river, and by reason of its steep ascent was unsuited as a roadway for loaded, vehicles, and somewhat difficult of ascent,, particularly, in bad weather; that to remedy this defect a competent engineer was employed by the city to properly grade and improve said street by raising the grade and by placing g*uard rails on the retaining sides thereof to protect the public from possible mishap; that evidence would be produced to show that the damages claimed by plaintiff are ridiculously exorbitant and unreasonable; that evidence would be introduced to show that the value of the property had been improved and benefited by the grading. Generally speaking, the evidence for plaintiff sustained her claim for damages, while the evidence for the defendant tended to show that plaintiff’s property was not greatly damaged. [185] It will be seen that plaintiff was proceeding upon the theory that the city had damaged her property for the benefit or use of the public, and that she introduced evidence to prove her claim, and if there was nothing more in this case, it would be clear that the learned trial judge erred when he peremptorily instructed the jury to find for defendent. If the city damaged plaintiff’s property for the general welfare, the public must compensate her for her loss — it would be unfair, of course for the individual to bear the entire burden. But there is another question presented by this record which we will now proceed to examine. This question is argued here, and it is probable that the trial court based his directions to the jury upon that question. The record shows that the plaintiff was not the owner of the legal title to the property when the grading of the street was done. The record discloses that she had bargained for and paid for the property, but she had no deed of conveyance from the former owner, but she had rented the property to the former owner, and he was in possession of the storehouse. Plaintiff had the equitable title to the property, but did not possess the legal title thereto. If it was necessary to take or damage the property for the public use-, the city could and .should have instituted' the proper proceedings to exercise that power — but the city does not.admit that it either took or damaged the property. — but it seems to us that the evidence, or the weight of evidence, strongly tends to show that the property was damaged, at least, temporarily. There was some opinion evidence to the contrary. It .appears also that the barricades remained after the plaintiff had received the legal title to the' land, and that the egress and ingress from and to the store was .seriously impaired. This fact alone makes the peremptory instruction erroneous. We also believe that, under .the facts of this case, the plaintiff had title and posses [186] sion which was sufficient to support a claim for damages. She had the equitable title and possession from the beginning, and afterwards procured the legal title.. Reversed and remanded..