City of Canton v. Hart , 141 Miss. 655 ( 1926 )

The appellee was plaintiff below and sued the appellant for damage to her property caused by the raising of the grade of the street abutting her property; such change having the effect of raising the street from eighteen to twenty inches above her property, and thereby causing the water to stand upon her lot and injuring the foundation and walls of her house. It was alleged that prior to the raising of the grade of the street abutting her lot that the water passed over plaintiff's property and over the street; the street being on a level with her property. Plaintiff's testimony showed that her property was damaged by reason of the depreciation of the value thereof, taking the property value immediately before and immediately after the raising of the street grade in question. There was other testimony admitted without objection, to the effect that the plaintiff had to get eighty loads of earth to place upon her lot at a cost of one dollar a load, and that it would require the expenditure of seven hundred fifty dollars to raise the lot to the level of the street; also that it would require several hundred dollars to raise the house and repair its walls — plaintiff's proof making it appear that it would cost about two thousand five hundred dollars to make the necessary repairs on her property. The jury returned a verdict for seven hundred fifty dollars.

Neither the plaintiff nor the defendant procured an instruction correctly defining the method of determining the value of the damage to plaintiff's property caused by the improvement, and there was no instruction telling the jury that the test of the damage was the difference in the value of the property immediately before and immediately after the raising of the grade of the street abutting plaintiff's property.

It is admitted by the appellant that plaintiff's instructions were technically correct, although it is complained that they are misleading because of the failure of the plaintiff to obtain the correct instruction on the measure of damages as above indicated. The defendant likewise failed to get an instruction on this proposition, and the jury were left without specific instruction upon that proposition. The court cannot give an instruction in this state on its own motion.

There is nothing in the record to show that the jury were misled as to the law, and we are unable to say that the jury did not know the rule, or that they erred in their finding, and the judgment will therefore be affirmed.

Affirmed.