Mississippi Central Railroad v. Magee

46 So. 716, 93 Miss. 196

Opinion

Whitfield, C. J.,

delivered the opinion of the court.

It was manifest and fatal error to refuse the first instruction asked for the defendant, in the following words: “The court instructs the jury, for the defendant, that plaintiff is' in no event entitled to recover any damages to the land in question prior to the date of his purchase thereof of his father, or subsequent to the filing of this suit.” Obviously, the plaintiff had no right to recover any damages from the overflow of the land prior to his acquisition of title to the land; and in this character of suit, the injury being a continuing one, he was entitled to recover only the damage accruing up to the time of the institution of the suit. Chapman v. Copeland, 55 Miss. 476; Railroad Co. v. Archibald, 67 Miss. 38, 7 South. 212.

On this declaration it was also error to permit evidence to go to the jury as to damage to land north of the railroad. The declaration on a new trial should be amended to state accurately the land which it is claimed was damaged. The appellee himself states, in his testimony in this case, that he was only claiming damage to the tract south of the railroad, composing about sixteen acres.

Certain, of the instructions authorized the jury to assess tire damages at whatever amount they may think appellee was entitled to receive. Such instructions should always state that the jury are entitled to award such damages as the testimony may warrant; not whatever sum the jury may think right. This error would not, however, be reversible here, because one of the instructions does state the matter correctly; but this error should be avoided in the future.

The judgment is reversed, and the cause remanded.

Reversed.