fifth assignment error in Alabama

1960The court discussed the subject at great length in the case of Alabama Power Co. v. Keystone Lime Co., 191 Ala. 58 , 67 So. 833, 835 , where it was held that the trial court committed reversible error when it orally charged the jury in effect that if the fear of operation of electric power line or cable was prevalent in the community, and it affects the value of the remaining tract of land, then it was proper for the jury to allow such weight as it thought it was entitled to, and to assess or determine the amount of diminution in value of the property on that account.

1960The court discussed the subject at great length in the case of Alabama Power Co. v. Keystone Lime Co., 191 Ala. 58 , 67 So. 833, 835 , where it was held that the trial court committed reversible error when it orally charged the jury in effect that if the fear of operation of electric power line or cable was prevalent in the community, and it affects the value of the remaining tract of land, then it was proper for the jury to allow such weight as it thought it was entitled to, and to assess or determine the amount of diminution in value of the property on that account.

1921The- case therefore falls within the exception, and the affirmative charge was properly refused. [3] In arguing the fifth assignment of error counsel for appellant rely upon the principle that declarations of one in possession of land, explanatory thereof, are admissible, citing Smith v. Bachus, 195 Ala. 8 , 70 South. 261 , and insists that the court erred in excluding the testimony of witness Isom that Hamilton told him that he had bought the land.

1921The- case therefore falls within the exception, and the affirmative charge was properly refused. [3] In arguing the fifth assignment of error counsel for appellant rely upon the principle that declarations of one in possession of land, explanatory thereof, are admissible, citing Smith v. Bachus, 195 Ala. 8 , 70 South. 261 , and insists that the court erred in excluding the testimony of witness Isom that Hamilton told him that he had bought the land.

1921One of the foundations, however, for the admission of such evidence is the fact that these declarations were made while the party was in possession of the property (Payne v. Crawford, 102 Ala. 387 , 14 South. 854 ), and it is sufficient answer to this assignment of error that there was no proof that at the time of the declaration Hamilton was in possession of this land. [4] There is some reference as to the assignment of error dealing with damages for waste on the land sued for, but, as there was no finding by the jury or judgment by the court of any damages whatever, these assignments need no

1914The question called for no answer relevant or material to any issue in the case, and comes clearly within the rule providing that latitude and extent of cross-examination as to such matters rest largely in the discretion of the court, and are not reviewable, unless abused. —Mitchell Square Bale Ginning Co. v. Grant, 143 Ala. 194 , 38 South. 855 ; Sloss-Sheffield, etc., Co. v. House, 157 Ala. 663 , 47 South. 572 ; 6 Mayf.

1914The question called for no answer relevant or material to any issue in the case, and comes clearly within the rule providing that latitude and extent of cross-examination as to such matters rest largely in the discretion of the court, and are not reviewable, unless abused. —Mitchell Square Bale Ginning Co. v. Grant, 143 Ala. 194 , 38 South. 855 ; Sloss-Sheffield, etc., Co. v. House, 157 Ala. 663 , 47 South. 572 ; 6 Mayf.

1914The question called for no answer relevant or material to any issue in the case, and comes clearly within the rule providing that latitude and extent of cross-examination as to such matters rest largely in the discretion of the court, and are not reviewable, unless abused. —Mitchell Square Bale Ginning Co. v. Grant, 143 Ala. 194 , 38 South. 855 ; Sloss-Sheffield, etc., Co. v. House, 157 Ala. 663 , 47 South. 572 ; 6 Mayf.

1914The question objected to, which constitutes the fifth assignment of error, calls for the opinion of the witness as -to what some other person would know, and the objection was properly sustained. —Central of Georgia Railway Co. v. Martin, 138 Ala. 531 , 36 South. 426 ..

1913We think the statement admissible as a part of the res gestee, in that it appears with reasonable certainty that the declaration to Mr. Ship was produced by and instinctive upon the occurrence to which it related. — Nelson v. State, 130 Ala. 83 , 30 South. 728 , and authorities there cited.