[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 156 The writ of error here was taken to a judgment awarding damages for the appropriation of, and injury to real estate by unlawfully excavating and constructing and using railroad tracks on the street in front of the property, which reduced the value of the property as security for the mortgage lien on the property. The mortgage covered the fee to the middle of the street, subject to use for street purposes. The declaration was in three counts. The first count was eliminated. The plea is not guilty. This is not an action of trespass quare clausum fregit by the owner for forcible injury to the possession of real estate as in J., T. K.W. Ry. Co. v. Lockwood, 33 Fla. 573, 15 So. 2d 327, but an action on the case for impairing the value of realty as security for a mortgage loan. See Fla. So.2d Ry. v. Hill, 40 Fla. 1, 32 So. 2d 566.
An action for trespass quare clausum fregit is the proper remedy for any forcible violation of the right of possession of realty. In such action at least nominal damages may be awarded even though the trespass does not injure, but is a benefit to, the plaintiff. Plaintiff is confined to nominal damages where no actual injury is shown in an action for trespass. 96 C.J. 966, 1036.
"An action on the case lies to recover damages for torts not committed with force, actual or implied; or having been occasioned by force, where the matter affected was not tangible, or the injury was not immediate but consequential; or where the interest in the property was only in reversion — in all of which cases trespass is not sustainable." 11 C.J. 4. See Bucki v. Cone,25 Fla. 1, 6 So. 2d 160. *Page 157
A mortgagee who is not entitled to possession, may have an action on the case for damages resulting from wrongful injury to the mortgaged property, whereby the property is rendered of less value as security for the mortgage debt; the damages to be awarded being the amount of injury resulting from the damage to the property. See 2 Jones on Mortgages, Secs. 858-9.
The second count of the declaration alleges that when the acts complained of were committed, the plaintiff was the owner and holder of a first mortgage lien upon described real estate; "that * * * the defendant unlawfully and without the consent of the plaintiff, and without making compensation to the plaintiff of any kind, broke and entered upon said public road and highway, immediately in front of said land, and diverted the same from its proper highway purposes and impeded and obstructed the same by excavating said street and laying down wooden ties and iron rails thereon," etc.; * * * that by reason of the unlawful and unauthorized acts of the defendant as above set forth, it is impossible to reach said property without passing over said railroad tracks; * * * that by reason of the unlawful acts of the defendant as hereinabove set forth, the plaintiff's security became generally depreciated in value and the rental value thereof was greatly reduced and the said property so held by plaintiff as security aforesaid has been rendered practically worthless; * * * that the plaintiff, by reason of the unlawful and unauthorized acts of the defendant as above set forth, has sustained an individual and peculiar injury, differing, in kind and degree from that sustained by the public generally."
The third count adopts the second count by reference and alleges: "that the value of said land and security was further reduced by reason of the fact that in making the excavations *Page 158 for the construction of said railroad tracks, the defendant unlawfully, negligently and carelessly excavated the earth so close to the wall of the building on said land abutting upon said street that the support for the foundation of said wall was undermined, and the lateral support therefore afforded by the earth removed by the defendant, was taken away, and thereby the foundation for said wall was so weakened as to render said building unfit for use and occupancy."
One railroad track was put down the center of the street and another side track was laid on the street very near the wall of the building on the abutting lot covered by the plaintiff's mortgage.
The allegations that the defendant "broke and entered upon said public road and highway immediately in front of said land, and diverted the same from its proper highway purposes and impaired and obstructed the same by excavating," do not make the action one for trespass. The allegations of each count severally as an entirety, setting up all the acts complained of and their consequences, show a claim for consequential damages arising not directly from a violation of the owner mortgagor's right of possession, but indirectly from consequential damages to the mortgaged property which impaired the security of the plaintiff mortgagee, therefore the action is not for trespass, but is anaction on the case for consequential damages to the mortgagee's security resulting from injury to the mortgaged property as set out in the declaration.
The declaration does not allege that the mortgagor was the owner of the mortgaged property, but the declaration does allege "that said mortgage was given by one, Louis Bucholtz, joined by his wife" for $15,000.00, and that the mortgage was foreclosed; that the property was sold for *Page 159 $5,000.00, and "that a deficiency decree was duly entered against the said Louis Bucholtz, the only party liable therefor, but that said Louis Bucholtz is insolvent and said deficiency decree is utterly worthless."
There is no plea that the plaintiff's mortgage lien is in any way invalid.
This is not a condemnation proceeding under Section 29, Article XVI, of the State Constitution, to acquire a right of way for railroad tracks upon making just compensation; but it is an action on the case to recover damages for an unlawful placing of railroad tracks on a street abutting on a city lot on which a brick building exists and for injury to the walls of the building by negligent excavations, which placing of tracks and the use thereof and the injury to the walls of the buildings by excavations impair the security of a mortgage lien on the property.
The measure of damages that may be awarded is the difference in the value of the property just before and since the tort was committed, insofar as the value of the property is shown to have been decreased by the placing and use of the railroad tracks by the defendant and by excavations which injure the walls of the building, as alleged in the declaration. See Seaboard All-Fla. Ry. Co. v. Leavitt, 105 Fla. 600, 141 So. 2d 886.
The declaration in effect alleges that by reason of the unlawful acts of defendant as stated therein, the plaintiff's security became generally depreciated in value and that the property so held by plaintiff as security has been rendered practically worthless.
The plea of not guilty is a denial of the wrongful acts alleged. If the wrongful acts and resulting damage to the value of the property are proven as alleged, appropriate damages may be awarded for depreciation of the value of *Page 160 the security, measured by the difference in the value of the property before and since the unlawful excavations and laying and use of the railroad tracks in the street immediately in front of the building on the mortgaged property, if, and to the extent that, such unlawful acts depreciated the value of the property as security for the plaintiff's mortgage loan on the property.
The plaintiff had no right to complain of any unlawful acts in relation to the property or to the effect of such unlawful acts, except as such acts unlawfully appropriate or depreciate the value of the property so as to be an injury to plaintiff's rights as mortgagee.
The action here is not for consequential damages to abutting property resulting from a duly authorized change in the grade of, or work upon, a street for street purposes, where there was no physical invasion of abutting property or negligence in the work done on the street as in Dorman v. City of Jacksonville, 13 Fla. 538, 7 Am. Rep. 253; Selden v. City of Jacksonville, 28 Fla. 558,10 So. 2d 457, 29 Am. St. Rep. 228, 14 L.R.A. 370; Bowden v. City of Jacksonville, 52 Fla. 216, 42 So. 2d 394; Crum v. Sumter County,68 Fla. 122, 66 So. 2d 723.
In Gonzales v. City of Pensacola, 65 Fla. 241, 61 So. 2d 503, Ann. Cas. 1915 C.P. 1290, it was alleged that the city negligently injured abutting property in grading a street, In this case negligence is charged in making excavations in the street to lay a railroad side track resulting in injury to the foundation of a building on the abutting lot, in addition to charges of damage to the value of the property by the construction and use of railroad tracks in the street, thereby reducing the value of plaintiff's security for a mortgage loan on the property.
The evidence indicates that the property has a brick *Page 161 building on it which at the time was unoccupied and not in good condition and not of sufficient value to fully secure the mortgage debt when the alleged unlawful excavation and construction of the railroad tracks was done; and there is evidence that the excavation, construction and use of the railroad tracks in the street in front of the mortgaged property have reduced the value of the property and to that extent impaired the mortgage security of the plaintiff mortgagee.
But the evidence should be considered as confined to an ascertainment of the value of the property immediately before the railroad tracks were laid in the street opposite the property and the extent to which the alleged unlawful acts appropriated or depreciated the value of the property as security of the mortgage debt.
This is an action to recover damages for acts of the defendant alleged to have unlawfully caused a taking and a depreciation of the value of property so as to impair the value of a mortgage lien on the property given to secure a loan; and even if the acts complained of have made the property unsuited for its former uses, the plaintiff as mortgagee is injured only as the value of the property as security for the mortgage debt has been thereby impaired.
If the construction and use of the railroad tracks on the street so near to the mortgaged property as to obstruct ingress and egress has in fact directly enhanced the value of the property as security for the mortgage debt, no such issue is made in the pleadings.
The declaration alleges an unlawful injury to the property that impairs the value of plaintiff's mortgage lien; and the plea of not guilty is a denial of the wrongful acts alleged. There is no plea that defendant lawfully added to the value of the mortgaged property. *Page 162
Plaintiff has the burden of proving the acts as alleged and the damages caused by such acts. Defendant may adduce evidence to show the alleged acts were lawfully done, or that the acts alleged did not so injure the property as to impair the plaintiff's mortgage security.
Any competent evidence tending to show that defendant appropriated or damaged the property as alleged which directly reduces the value of the mortgaged property and thereby impairs plaintiff's mortgage security, may be adduced to show the amount of plaintiff's injury. Here the action being not for compensation for property or right of way appropriated to the use of a corporation in condemnation proceedings under Section 29, Article XVI, of the Constitution, but an action on the case for a taking and damage to property which impairs plaintiff's mortgage security, and under the issues made, the defendant cannot in this action by the mortgagee show any benefit that may indirectly or consequentially inure to the benefit of the property from the unlawful acts complained of.
The damages awarded appear to be excessive.
Reversed for a new trial.
WHITFIELD, C.J., and ELLIS, TERRELL, BROWN, BUFORD and DAVIS, J.J., concur.
ON PETITION FOR REHEARING.