[Birmingham Railway, Light & Power Co., v. Bruce.] gage in that county was notice to the defendant of the plaintiff's mortgage lien. In view of the fact that the plaintiffs were not making any claim against the defendant based upon his dealing with cotton belonging to any one other than Morgan, the suggestion that the charge was erroneous and prejudicial because it was not expressly limited in its application to cotton belonging to Morgan cannot be sustained. The assignments of error based upon the giving of written charges 2 and 3 requested by the plaintiffs are not supported by argument or citation of authority, and need not be considered. It may be said, however, that we discover no error in either of them. As the ground of attack made in behalf of the appellant upon the action of the court in refusing to give written charges requested by him is the claim, already disposed of, that the indorsement of the judge of probate on the mortgage of Morgan to the plaintiffs, showing that it had been registered and recorded, was not in evidence, further mention of those rulings is not necessary. Affirmed. Birmingham Railway, Light & Power Co. v. Bruce. Damages for Maintaining Nuisance. (Decided Jan. 18, 1912. Rehearing denied Feb. 18. 1912. Vuisance: Temporary Nuisance; Damages.-A nuisance caused by the operation of machinery in a power plant, producing disagreeable noises and vibration, injuring the adjoining property, and causing the occupant personal discomfort is not necessarily a permanent nuisance, but is subject to abatement by the stopping of the machinery; and where, at the time of the trial of an action for a nuisance the machinery had been stopped, the damages recoverable are not measured by the difference between the value of the property before the nuisance was started, and its value afterwards. [Birmingham Railway, Light & Power Co., v. Bruce.] APPEAL from Birmingham City Court. Heard before Hon. C. W. FERGUSON. Action by Mrs. M. M. Bruce, against the Birmingham Railway, Light & Power Company for damages for creating and maintaining a nuisance. From a judgment for plaintiff, defendant appeals. Reversed and remanded. The oral charge of the court excepted to was: (1) "Then the measure of recovery as to the property would be the difference in the value of the property before the creation and maintenance of the alleged nuisance and its value after that." (2) "Yes; the reasonable market value of the property before the alleged nuisance and afterwards." TILLMAN, BRADLEY & MORROW, and L. C. LEADBEATER, for appellant. The court erred in its oral charge as to the measure of recovery.-Sloss-S. S. & I. Co. v. Mitchell, 161 Ala. 278, and authorities there cited; s. c. 167 Ala. 226. Counsel discuss assignments of error relative to evidence, and in support thereof, cite-T. C. I. & R. R. Co. v. McMillion, 49 South. 880; S. A. L. Ry. Co. v. Brown, 48 South. 48. ALLEN & BELL, and W. H. SADLER, Jr., for appellee. The nuisance was permanent and plaintiff had the right to recover her entire damages, past, present and prospective.-Montgomery v. Dennis, 137 Ala. 649. The court properly charged as to the measure of recovery.H. A. & R. R. Co. v. Matthews, 99 Ala. 24; Mobile, etc. Ry. Co. v. Dennis, 137 Ala. 657; Nashville v. Comer, 88 Tenn. 415; 3 Sedgw. on Dam. 466; 29 Cyc. 1154; 17 Am. Rep. 476; 35 Wis. 635. WALKER, P. J.-The principal basis of the plaintiff's claim to damages was the operation by the defend [Birmingham Railway, Light & Power Co., v. Bruce.] ant, the appellant here, of a power plant, located on a lot adjoining the plaintiff's residence. The main feature of the nuisance complained of was not the location of the structure, nor the mere presence of the machinery on it, but it was the operation of the machinery, causing disagreeable noises and vibrations, which, it was claimed, injured the plaintiff's property and caused her personal discomfort and suffering. The continuance of the nuisance was dependent upon the continuance of its cause. The main cause was not necessarily a permanent one. So far as the nuisance resulted from the running of the plant, it was in its very nature one that was subject to abatement by stopping the machinery that made the noise; and there was evidence tending to show that at the time of the trial it already had been abated. In such case, the damages recoverable for injury to the plaintiff's property by the nuisance are not measured by the difference between the value of the property before the nuisance was started and its value afterwards. Recent rulings touching this question render further discussion of it unnecessary.-Sloss-Sheffield Steel & Iron Co. r. Mitchell, 161 Ala. 278, 49 South. 851; Id., 167 Ala. 226, 52 South. 69. The court was in error in the part of its oral charge excepted to, which stated the measure of recovery for damages to the plaintiff's property. Reversed and remanded. [Central of Georgia Railway Co. v. Stevenson.] Central of Georgia Railway Co. Damages for Maintaining Nuisance. (Decided Nov. 16, 1911. Rehearing denied Jan. 30, 1912. 1. Nuisance; Damages; Willfulness.--Under the facts in this case which are stated and examined, it is held that the burying of the calf and the subsequent action relative thereto did not constitute any willful or wanton misconduct. 2. Same. Where the nuisance created by a disinterred calf on defendant's right of way within one hundred and twenty feet of plaintiff's residence, which the defendant allowed to remain there three days after notice, but which the plaintiff could have abated at the expense of one dollar, a verdict of $250 for creating the nuisance was excessive. 3. Damages; Duty to Minimize.-Although the plaintiff owed defendant no duty to abate the nuisance created by it, he did owe the defendant the duty to minimize the damages if he knew that from continued neglect of defendant's servants, to abate it, he was likely to receive, or was actually receiving annoyance and inconvenience. 4. Statutes; Reduction of Damages; Due Process.-Acts 1911, p. 587, offends no provision of the Constitution, touching the right of trial by jury. APPEAL from Clay Circuit Court. Heard before Hon. JOHN PELHAM. Action by J. M. Steverson against the Central of Georgia Railway Company for creating and maintaining a nuisance. Judgment for plaintiff, and defendant appeals. Affirmed on condition that damages are remitted. LACKEY & BRIDGES, and GEORGE P. HARRISON, for appellant. In an action for damages, a party cannot recover for damages that he might have avoided by due diligence.-L. & N. v. Sullivan, 138 Ala. 379; Mitchell v. Sloss-S. S. & I. Co., 49 South. 851; Lilly v. Fletcher, 81 Ala. 234; 12 South. 447; 22 Am. St. Rep. 441. No [Central of Georgia Railway Co. v. Stevenson.] wanton or wilful misconduct is shown and punitive damages should not be awarded.-Garrett v. Sorrell, 108 Ala. 521; S. & N. R. R. Co. v. McLendon, 63 Ala. 266. The court will set aside a verdict which is excessive. Teague v. Bass, 131 Ala. 422; 13 Cyc. 123. The killing of the calf was not of itself a nuisance.—Kenney's case, 116 Ala. 310. RIDDLE, ELLIS, RIDDLE & PRUET, for appellee. The jury were at liberty to assess punitive damages.—S. & N. Ala. R. R. Co. v. McLendon, 63 Ala. 566. The person who undertakes to abate a nuisance does so at his own peril.-12 Am. St. Rep. 891. Counsel insist on application for rehearing that the act allowing the Appellate Court to abate the judgment or reverse the cause (Acts 1911, p. 587) is violative of sections 11 and 13 of the Constitution of Alabama, and of articles 1 and 14 of the Constitution of the United States. DE GRAFFENRIED, J.-The appellee brought a suit against the appellant for $5,000 damages for creating and maintaining a nuisance near his premises, which caused annoyance and inconvenience to him and his family in his home. There were two counts to the complaint. The first count charged that the nuisance was created through the negligence of the appellant, its agents or servants. The second count charged that the nuisance and the damages therefrom resulting were due to the wanton, willful, or malicious misconduct of appellant, its agents or servants. The facts are that the appellant owns and operates a railroad; that appellee' home is situated about 120 feet, in the town of Hollins, from appellant's right of way; that on or about the 2d of June a train of the appellant struck a calf, and badly crippled it, |