SAYRE, J.
— Appellant having recovered a substantial judgment in the court below, he can complain on this appeal only of those rulings which affected the proper measure of. his recoverable damages. — Donovan v. S. & N. Ala. R. R. Co., 79 Ala. 429.
The second count of the complaint was a. repetition in substance of the allegations of the other counts, except that it alleges the acts complained of to have been done in part wantonly and illegally, and in another part wantonly and willfully. As to this count the court gave the general affirmative charge in favor of the defendant. The other counts were submitted to the jury and upon them the plaintiff had a recovery. The affirmation of harmful error in the ruling as to the second count must, therefore, rest upon the theory that under the evidence it was open to the jury to assess exemplary or punitory damages as for wanton and willful wrong in the construction of the works which caused his injury. Defendant’s general purpose was the erection of a union passenger railway station in the city of Birmingham, with approaches thereto, the whole covering several blocks and the intervening streets and avenues. This it was authorized to do under its charter. Plaintiff’s lot was situated on the north side of Sixth avenue between Twenty-Sixth and Twenty-Seventh streets about 200 feet west from Twenty-Seventh street. Defendant owned the [598]*598entire block on the opposite side of the avenue and that part of tbe block in which plaintiff’s lot was located lying between that lot and Twenty-Seventh street. A wall was built across th'e avenue in line with the eastern boundary of plaintiff’s property completely stopping travel along that avenue. The account of what else defendant did in Sixth avenue is not entirely clear, but we gather that on the side opposite to- plaintiff’s premises it constructed an inclined driveway leading from the original level of the avenue to the elevated surface beyond the wall. The purpose of this was to furnish access to that part of the terminal station used for the receipt and delivery of parcels shipped by express. This change reduced that part of the avenue available for travel on its original grade, and not obstructed by the wall across the street, to a width of 43 feet. The sidewalk immediately in' front of plaintiff’s premises was not disturbed. There is no pretense that the changes made in the streets, avenues, and alleys of the city, a number of which were involved, were in excess of the necessary and appropriate completion of the general design of serving the convenience of the public and the carriers who were expected to make use of the terminal station. The defendant, without doubt, acted under the authority and in accordance with the direction of the constituted municipal authorities. No circumstance of insult or aggravation is shown, but only the fact that the ordinance of the city under authority of which the work was done, in so far as it authorized the vacation or abandonment of some parts of streets and avenues, was void because it had not express legislative authority. If conceivably a verdict for punitory damages might have been based upon these facts, we think the passage of the act of March 6, 1907, before the time of the trial, though subsequent to the infliction of. the injury, vacating and [599]*599annulling the public streets which had actually been closed by the erection of the terminal station, and thereby confirming and ratifying to the extent of legislative competency the structures complained of, had the effect to relieve defendant of liability for damages whiqli it is assumed might otherwise have been assessed for the purpose of punishment. Such damages are assessed in proper cases in the interest of the state. They are awarded not for the compensation of the plaintiff, but as a warning to other wrongdoers. A plaintiff has no right to maintain an action merely to inflict punishment. Exemplary damages are in no case a right of the plaintiff, but are assessed at the discretion of the jury for the purpose indicated; and when the wrongdoer dies before the action is brought to trial, and the action survives against his personal representative, only compensatory damages may be recovered. — 1 S'edg. Dam. § 860 et seq. The state had the right to remit punitory damages, and by implication did so when it passed the act of ratification. That act could not, of course, have had effect in the way of divesting previously vested rights, and by its terms, out of abundance of caution merely, those rights were preserved. The plaintiff’s right to complete and adequate compensation for property taken or injured, including injury to his special right in the highway as a means of enjoying the free and convenient use of his abutting property, remained without impairment. The charge in question was properly given.
At the request of the defendant the court charged the jury in this language: “No aesthetic.or unreasonable desire of the plaintiff for convenience of way should be permitted by the jury to expand his right of access to an extent beyond that necessarily essential to a fairly convenient way.” This language was taken from the opinion in Jackson v. Birmingham F. & M. Co., 154 Ala. 464, [600]*60045 South. 660. Its use illustrates the fact that not every expression used arguendo by courts in the decision of causes is suited to the instruction of juries. The language here used, as an instruction to the jury, was open to verbal criticism in that it seems to speak of aesthetic convenience,'whereas convenience is a matter of utility, while the aesthetic relates to the beautiful in its adaptation to the production of pleasurable sensation, with which latter the law of eminent domain has no concern. Certainly, when separated from its context in che case from which it is taken, it is a partial and unsatisfactory statement of the principles of that case, and we are unable to see that there was any occasion for its use in the case at hand. Nevertheless, as far as it went it stated no unsound proposition of law, and we are unwilling* to affirm error of the action of the trial court in giving it in charge to the jury. Any misleading tendency possibly involved might easily have been corrected by an explanatory charge. If plaintiff apprehended prejudice to his cause from the charge, it was his privilege to offer the necessary explanation. — 2 Mavf. Dig. p. 573, § 214, et seq.
Charge 3 should not have been given. At the time of its construction the embankment across Sixth avenue was a nuisance. — State v. L. & N. R. R. Co., 158 Ala. 208, 48 South. 391; Douglass v. City Council of Montgomery, 118 Ala. 509, 24 South. 745, 43 L. R. A. 376; Webb v. Demopolis, 95 Ala. 116, 13 South. 289, 21 L. R. A. 62. And whether a nuisance or not, there was evidence tending, to support plaintiff’s contention that it injuriously affected his special right of access from that part of Sixth avenue beyond the embankment and from Twenty-Seventh street The extent and value of that right under conditions obtaining prior to the construction of the embankment, and so the extent of the [601]*601injury caused, thereby to the plaintiff, were in dispute. The court could not therefore affirm as matter of law that the embankment had not been a nuisance, though that perhaps was of no moment, nor that plaintiff was not entitled to recover damages on account of its obstruction of Sixth avenue. Much the same question was raised by giving charge 7 at plaintiff’s request.
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SAYRE, J.
— Appellant having recovered a substantial judgment in the court below, he can complain on this appeal only of those rulings which affected the proper measure of. his recoverable damages. — Donovan v. S. & N. Ala. R. R. Co., 79 Ala. 429.
The second count of the complaint was a. repetition in substance of the allegations of the other counts, except that it alleges the acts complained of to have been done in part wantonly and illegally, and in another part wantonly and willfully. As to this count the court gave the general affirmative charge in favor of the defendant. The other counts were submitted to the jury and upon them the plaintiff had a recovery. The affirmation of harmful error in the ruling as to the second count must, therefore, rest upon the theory that under the evidence it was open to the jury to assess exemplary or punitory damages as for wanton and willful wrong in the construction of the works which caused his injury. Defendant’s general purpose was the erection of a union passenger railway station in the city of Birmingham, with approaches thereto, the whole covering several blocks and the intervening streets and avenues. This it was authorized to do under its charter. Plaintiff’s lot was situated on the north side of Sixth avenue between Twenty-Sixth and Twenty-Seventh streets about 200 feet west from Twenty-Seventh street. Defendant owned the [598]*598entire block on the opposite side of the avenue and that part of tbe block in which plaintiff’s lot was located lying between that lot and Twenty-Seventh street. A wall was built across th'e avenue in line with the eastern boundary of plaintiff’s property completely stopping travel along that avenue. The account of what else defendant did in Sixth avenue is not entirely clear, but we gather that on the side opposite to- plaintiff’s premises it constructed an inclined driveway leading from the original level of the avenue to the elevated surface beyond the wall. The purpose of this was to furnish access to that part of the terminal station used for the receipt and delivery of parcels shipped by express. This change reduced that part of the avenue available for travel on its original grade, and not obstructed by the wall across the street, to a width of 43 feet. The sidewalk immediately in' front of plaintiff’s premises was not disturbed. There is no pretense that the changes made in the streets, avenues, and alleys of the city, a number of which were involved, were in excess of the necessary and appropriate completion of the general design of serving the convenience of the public and the carriers who were expected to make use of the terminal station. The defendant, without doubt, acted under the authority and in accordance with the direction of the constituted municipal authorities. No circumstance of insult or aggravation is shown, but only the fact that the ordinance of the city under authority of which the work was done, in so far as it authorized the vacation or abandonment of some parts of streets and avenues, was void because it had not express legislative authority. If conceivably a verdict for punitory damages might have been based upon these facts, we think the passage of the act of March 6, 1907, before the time of the trial, though subsequent to the infliction of. the injury, vacating and [599]*599annulling the public streets which had actually been closed by the erection of the terminal station, and thereby confirming and ratifying to the extent of legislative competency the structures complained of, had the effect to relieve defendant of liability for damages whiqli it is assumed might otherwise have been assessed for the purpose of punishment. Such damages are assessed in proper cases in the interest of the state. They are awarded not for the compensation of the plaintiff, but as a warning to other wrongdoers. A plaintiff has no right to maintain an action merely to inflict punishment. Exemplary damages are in no case a right of the plaintiff, but are assessed at the discretion of the jury for the purpose indicated; and when the wrongdoer dies before the action is brought to trial, and the action survives against his personal representative, only compensatory damages may be recovered. — 1 S'edg. Dam. § 860 et seq. The state had the right to remit punitory damages, and by implication did so when it passed the act of ratification. That act could not, of course, have had effect in the way of divesting previously vested rights, and by its terms, out of abundance of caution merely, those rights were preserved. The plaintiff’s right to complete and adequate compensation for property taken or injured, including injury to his special right in the highway as a means of enjoying the free and convenient use of his abutting property, remained without impairment. The charge in question was properly given.
At the request of the defendant the court charged the jury in this language: “No aesthetic.or unreasonable desire of the plaintiff for convenience of way should be permitted by the jury to expand his right of access to an extent beyond that necessarily essential to a fairly convenient way.” This language was taken from the opinion in Jackson v. Birmingham F. & M. Co., 154 Ala. 464, [600]*60045 South. 660. Its use illustrates the fact that not every expression used arguendo by courts in the decision of causes is suited to the instruction of juries. The language here used, as an instruction to the jury, was open to verbal criticism in that it seems to speak of aesthetic convenience,'whereas convenience is a matter of utility, while the aesthetic relates to the beautiful in its adaptation to the production of pleasurable sensation, with which latter the law of eminent domain has no concern. Certainly, when separated from its context in che case from which it is taken, it is a partial and unsatisfactory statement of the principles of that case, and we are unable to see that there was any occasion for its use in the case at hand. Nevertheless, as far as it went it stated no unsound proposition of law, and we are unwilling* to affirm error of the action of the trial court in giving it in charge to the jury. Any misleading tendency possibly involved might easily have been corrected by an explanatory charge. If plaintiff apprehended prejudice to his cause from the charge, it was his privilege to offer the necessary explanation. — 2 Mavf. Dig. p. 573, § 214, et seq.
Charge 3 should not have been given. At the time of its construction the embankment across Sixth avenue was a nuisance. — State v. L. & N. R. R. Co., 158 Ala. 208, 48 South. 391; Douglass v. City Council of Montgomery, 118 Ala. 509, 24 South. 745, 43 L. R. A. 376; Webb v. Demopolis, 95 Ala. 116, 13 South. 289, 21 L. R. A. 62. And whether a nuisance or not, there was evidence tending, to support plaintiff’s contention that it injuriously affected his special right of access from that part of Sixth avenue beyond the embankment and from Twenty-Seventh street The extent and value of that right under conditions obtaining prior to the construction of the embankment, and so the extent of the [601]*601injury caused, thereby to the plaintiff, were in dispute. The court could not therefore affirm as matter of law that the embankment had not been a nuisance, though that perhaps was of no moment, nor that plaintiff was not entitled to recover damages on account of its obstruction of Sixth avenue. Much the same question was raised by giving charge 7 at plaintiff’s request. Construed in connection with the evidence in the cause, as they must be, these charges — more plainly the last mentioned — in effect instructed the jury that, if the erection of the embankment left Sixth avenue conveniently opened in one direction from his abutting lot, the plaintiff suffered no recoverable damage from the fact that the avenue ivas on the same block wholly closed to travel in the other. The proposition of these charges is not tenable, as was determined in the case of Birmingham Ry., L. & P. Co. v. Moran, 151 Ala. 187, 44 South. 152, 125 Am. St. Rep. 121. If plaintiff had enjoyed a right of access to Sixth avenue in the direction of Twenty-Seventh street and thereby to Twenty-Seventh street, that right contributing to the value of his property, and that value was materially impaired by the construction of defendant’s works, he was entitled to have the injury so caused taken into account in the assessment of damages.
Of charges 2 and 5 we will not say more than that while they assert correct propositions of law, they were, in view of the evidence, calculated to mislead the jury. We do not affirm error of the action of the court in respect to them.
Charge 12 was doubtless understood to express the same idea as 7, and will he disposed of in like manner.
We discover no tenable objection to charge 10.
[602]*602Appellant criticises charge 4 as calculated to belittle his recoverable damages, in hypothesizing his right to recover damages, it refers to them as “some” damages. No other exception is taken to the charge. We do not suppose that by this charge the jury was led to the conclusion that the court had the purpose, or did in fact, detract from the effect of the testimony by which plaintiff sought to establish the amount of his damages. The criticism draws too fine a point. There was no error here. ■
There was no error in giving charge 6. The charge went, not to the measure of damages, but to the plaintiff’s right of recovery. The plaintiff did recover. The charge, if error, was harmless. — Donovan’s Case, supra.
Charges 8 and 9 were properly given. Plaintiff’s property was not taken, but damaged consequentially only. The question raised by these charges, has been considered in this court and determined adversely to appellant’s contention in Town of Eutaw v. Botnick, 150 Ala. 429, 43 South. 739, and in the more recent case of Bragan v. Birmingham Ry., L. & P. Co., 163 Ala. 93, 51 South. 30.
It was made to appear in the evidence that when it became known in a general way and to the public generally that the improvement contemplated by the defendant would be constructed, property in the vicinity, including plaintiff’s, took on considerable increment of unearned value by reason thereof, but that when later it Avas learned that the improvement Avould result in a permanent and complete obstruction of Sixth avenue at IVenty-Seventh street, this value Avas lost to plaintiff and others similarly affected by the closure of that avenue. By several questions propounded to witnesses plaintiff indicated the opinion that he was entitled to [603]*603have the jury take into consideration, in determining the amount of recovery to he awarded him, the speculative value which his property for a time acquired on a mistaken idea as to what effect the improvement would have upon his property. While plaintiff had the right to have the jury consider every reasonably assured present and prospective use and adaptation of his property, it seems hardly necessary to say that he had no right to the benefit of a common estimate of value which was based upon expectations demonstrated at the time of the trial, and by the very constructions of which he complained, to have been groundless. The proper measure of damage was the difference in the market value of the property before and after the acts complained of. —H. A. & R. R. R. Co. v. Matthews, 99 Ala. 24, 10 South. 267, 14 L. R. A. 462. Of this measure the plaintiff had the benefit. In excluding the proposed measure, there was no error.
We are of opinion that plaintiff should have been allowed to ask the defendant’s witness Molt-on to state “whether or not if Sixth avenue was opened across Twenty-Seventh street, the other conditions being the' same, whether or not that would affect the value as compared with what it is now.” Our opinion as to this is determined by considerations which have already had notice. We need only now to say that there was evidence which tended to support plaintiff’s contention that Sixth avenue had been a traveled highway across Twenty-Seventh street before defendant made any change in it. Plaintiff was entitled to the opinion of the witness as to the value of his lot on this hypothesis and to have this hypothesis, and the witness’ dependent opinion submitted to the jury. If the change in Twenty-Seventh street affected the value of plaintiff’s lot unfavorably, this fact, in connection with all others affect[604]*604ing its value one way or the other, must have been taken into account by the jury.
“Property frequently goes here from residence purposes into business purposes with the changes going on in Birmingham?” This question was disallowed to the plaintiff without error. The hypothesis upon which it sought to base an estimate of value was too general, vague, indefinite, and speculative to afford a trustworthy basis of opinion.
We have considered the assignments of error, and find none other which demand separate treatment or call for a reversal of the judgment. What we have said will suffice for another trial. For the errors indicated, the judgment of the court below will be reversed and the cause remanded for another trial.
Reversed and remanded.
Dowdell, O. J., and Anderson and Evans, JJ., concur.