Downing v. State
| Decision Date | 17 December 1925 |
| Docket Number | 1 Div. 394 |
| Citation | 107 So. 80,214 Ala. 199 |
| Parties | DOWNING et al. v. STATE. |
| Court | Alabama Supreme Court |
Rehearing Denied Jan. 21, 1926
Appeal from Circuit Court, Mobile County; C.A. Grayson, Judge.
Bill to quiet title to land by the State against Anna M. Downing and others. From a decree overruling demurrer to the bill defendants appeal. Affirmed.
Smith Young, Leigh & Johnston, of Mobile, and Hamilton & Caffey, of Brewton, for appellants.
Thos C. McClellan, of Birmingham, for the State.
By its bill in this cause the state seeks to quiet its title to certain lands acquired by condemnation for the use of the state docks commission at the port of Mobile. The bill states the entire case, so that the question at issue may be appropriately determined by a ruling on demurrer. For the state the contention is that its condemnation proceedings in the probate court of Mobile were had under authority and in agreement with the provisions of the act of September 18, 1923 (Acts 1923, p. 330 et seq.), putting into effect the amendment to section 93 of the Constitution (adopted November, 1922), authorizing the state "to engage in the work of internal improvement of promoting, developing, constructing, maintaining and operating all harbors or seaports within the state or its jurisdiction, including all kinds of terminal facilities at seaports," etc. Section 1. The contention for the state is that the proceeding conferred upon it an indefeasible title in fee; the insistence on the other hand being that the state acquired only an easement for the uses indicated, the ultimate title remaining in the parties defendant who owned the property at the time of the proceeding in question and to whom the property will revert in case the state, for any reason or in any manner, should abandon its docks project at Mobile.
What occasion there may be for the apprehension evidenced by the state's bill is not made to appear. In the briefs reference is made to a question that might arise in the event the docks commission should determine to exercise the power, vested in it by section 5 of the act, "to exchange any property or properties acquired under the authority of this act for other property or properties usable in carrying out the powers hereby conferred," and it is suggested that to use the power of condemnation to acquire property with a view to its later exchange to private persons, corporate or natural, would involve a violation of section 23 of the Constitution, providing, inter alia, that private property shall not be taken for private use, or for the use of corporations, other than municipal, without the consent of the owner. The proposal of such an exchange of properties would bring to the surface the inquiry whether the fee or a mere easement had been acquired by the state through the process of condemnation contemplated by the act. In the last-named alternative, that is, in case the statute be construed as authorizing an easement only, the state, stilll retaining its ownership and control of the docks improvement, would have no title upon the faith of which to negotiate an exchange, and this circumstance, along with the fact that the Enabling Act contemplates a permanent improvement and its permanent operation, that "the title," meaning, in the absence of qualifying terms, the whole title, "to all property acquired under the authority of this act shall vest in the state of Alabama," and that the commission "may dispose of, sell or lease to others, at reasonable prices and for reasonable compensation, any," but, evidently, not all "of said property,"--these facts should suffice to sustain the state's contention as to the nature and extent of the title acquired by its proceeding under the act. In this connection perhaps it is well to note also that the owners--so to speak of the parties defendant--have been compensated to the extent of the full value of their lands. Ensign Yellow Pine Co. v. Hohenberg, 200 Ala. 149, 75 So. 897, and cases there cited.
It is true, of course, that the right of eminent domain is in derogation of private right, and that authority for its exercise, whether directly by the state or its authorized grantee, will be strictly construed, and this principle has in many cases been applied to the effect that the expropriation of land does not give a fee-simple estate therein, in the absence of express statutory language to that effect, but only a right to use and occupy the land for the purpose for which it is taken. Lazarus v. Morris, 212 Pa. 128, 61 A. 815. There are scores of cases on the subject, not all of them in accord. We will not undertake a review of them. We think the following excerpt from Bowden v. York Shore Water Co., 114 Me. 150, 95 A. 779, fairly states the status of opinion on the subject, and expresses the reasonable rule of interpretation to be applied to the statute and the proceeding under review:
--citing adjudicated cases and other authorities.
But it is not necessary, we think, that any technical language be used to vest a fee in the public. Washington Cemetery v. Prospect Park, 68 N.Y. 591. Or, adopting the language of the Supreme Judicial Court of Massachusetts, in Newton v. Perry, 163 Mass. 321, 39 N.E. 1032, we will say:
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Weldon v. State
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Nearhos v. City of Mobile, 1 Div. 416
...them.' Relative to the title acquired by a city in proceedings to condemn lands for park purposes the most apt authority is Downing v. State, 214 Ala. 199, 107 So. 80, written by Mr. Justice Sayre. Recognizing that the right of eminent domain, being in derogation of the common law, must be ......
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