City of Tuscaloosa v. Patterson

• Decision Date: 30 September 1988
• Parties: CITY OF TUSCALOOSA v. J.W. PATTERSON. 87-126.
• Court: Alabama Supreme Court

Page 283

534 So.2d 283

CITY OF TUSCALOOSA v. J.W. PATTERSON.

87-126.

Supreme Court of Alabama.

Sept. 30, 1988.

Madelene L. Hollingsworth and Robert W. Ennis IV, Tuscaloosa, for appellant.

Wilbor J. Hust, Jr., of Zeanah, Hust & Summerford, Tuscaloosa, for appellee.

STEAGALL, Justice.

J.W. Patterson sued the City of Tuscaloosa on October 1, 1986, for flood damage to his businesses as a result of changes made by the City to a street at the intersection on which Patterson's heating and air conditioning business, his aluminum fabrication business, and his laundromat are located. After an ore tenus nonjury hearing, the trial judge held that the City was liable under Article XII, § 235, Constitution of Alabama 1901, ¹ and awarded Patterson $15,000 in damages. The court denied the City's motion for a new trial.

The City contends on appeal that the trial court erred in not joining as indispensable parties under Rule 19, A.R.Civ.P., the United States Government, the State of Alabama, the State of Alabama Highway Department, and Meador Contracting Company. The City also argues that it has no liability under § 235; that such liability would place an improper, additional burden on it; and that the court erred in awarding damages.

Patterson's three businesses are located at the corner of Hargrove Road and Second Avenue East in Tuscaloosa. The City of Tuscaloosa contracted with both the State of Alabama and the Alabama Highway Department for improvements to be made at that intersection in accordance with plans developed by the State under a federal transportation improvement program. The State awarded the construction contract to Meador Contracting Company. Of the cost, 87.5% would be paid from federal and state funds, while the City was to pay 12.5%.

Pursuant to its contract, the City had an island and a turn lane installed on Second Avenue East in May 1985. Patterson's laundromat is adjacent to Second Avenue East and now experiences flooding, whereas it did not before. Prior to the changes, the road had a crown in it that allowed water to flow down either side of the street. The street as completed has no crown, although the plans provided for one, and water now backs up in front of Patterson's laundromat, coming from the City's right-of-way, which is five feet from the sidewalk adjacent to the laundromat; the water comes over the sidewalk and through the door of the building. Patterson testified that before the work was done, water never stood at the door of the building and that now puddles will stand as long as two or three days.

I

Patterson correctly contends that the federal government, the State of Alabama, the Highway Department, and Meador Contracting Company were not indispensable parties. Patterson's action against Tuscaloosa was not based on negligent construction, but upon § 235. The plaintiff, in an action under § 235, may waive the tort and sue in assumpsit for compensation. Mahan v. Holifield, 361 So.2d 1076 (Ala.1978); Hunter v. City of Mobile, 244 Ala. 318, 13 So.2d 656 (1943). Section 235 clearly places liability upon "[m]unicipal and other corporations and individuals invested with the privilege of taking property for public use," and not the above entities as the City alleges. Therefore, they were not necessary parties for the adjudication of Patterson's § 235 claim, and the trial court correctly denied the City's motion to dismiss on that ground.

Furthermore, the City cannot now avoid liability on the basis that the work was authorized to be done by a third person, here an independent contractor. Sherlock v. Mobile County, 241 Ala. 247, 2 So.2d 405 (1941). A city must compensate a property owner where a project undertaken by the highway department, with the knowledge and consent of the city, causes a direct physical disturbance of a right, either public or private, that the property owner enjoys in connection with his property. Bragg Apartments, Inc., v. City of Montgomery, 281 Ala. 253, 201 So.2d 510 (1967); Alabama Power Co. v. City of Guntersville, 235 Ala. 136, 177 So. 332 (1937). Here, Patterson was entitled to enjoy the same ease of ingress to and egress from his laundromat after work was done on the intersection as he did before the street was enlarged.

II

The burden is on the property owner to prove the existence and the extent of the damage to his property, and the measure of damages is the difference between the value of the property before the work was done and the value afterwards. Fricke v. City of Guntersville, 254 Ala. 370, 48 So.2d 420 (1950). Patterson testified that his property's fair market value before the street was changed was $135,000, and that its value after the work was completed was $60,000....