Alabama Power Co. v. Sides

• Decision Date: 15 January 1925
• Docket Number: 6 Div. 132
• Citation: 212 Ala. 687,103 So. 859
• Parties: ALABAMA POWER CO. v. SIDES.
• Court: Alabama Supreme Court

103 So. 859

212 Ala. 687

ALABAMA POWER CO. v. SIDES.

6 Div. 132

Supreme Court of Alabama

January 15, 1925

Rehearing Denied April 30, 1925

Appeal from Circuit Court, Walker County; R.L. Blanton, Judge.

Proceeding by the Alabama Power Company to condemn lands of Jeff T Sides. From judgment fixing damages, plaintiff appeals. Reversed and remanded.

A.F Fite, of Jasper, and Martin, Thompson, Foster & Turner and H.A. McWhorter, all of Birmingham, for appellant.

Curtis Pennington & Pou, of Jasper, for appellee.

GARDNER J.

Appellant obtained a decree of condemnation of a right of way, 25 feet in width, and consisting in the aggregate of 3.16 acres through the lands of the appellee. From the amount of compensation fixed by the commissioners, appointed by the probate court, the appellee appealed to the circuit court, where the only issued tried was the amount of compensation to be paid. That issue was tried before a jury, and from the judgment fixing the amount of damages, the appellant has prosecuted an appeal to this court.

A discussion of the evidence would serve no useful purpose. Suffice it to say appellant offered proof tending to show no damage to the lands of the appellee, except that fixed for the value of the strip of land actually covered by the right of way. While, on the other hand, appellee introduced proof tending to show considerable damage to the remaining land, and, further, offered testimony to the effect that the appellant, in taking the right of way subsequent to the decree of condemnation, has cut down timber for a width of from 80 to 100 feet, which was of substantial value.

Upon original consideration of this cause, we were inclined to the view the court committed error in declining to permit the witness King to testify what price he was paid by appellant for a right of way through his lands of similar character to that of appellee, upon the recognized general rule that "Market value is simply the potential patronage of buyers, expressed in terms of money," and that the selling value of similar property is some evidence of value. 1 Greenleaf on Evidence, 91; T.C.I. Co. v. State, 141 Ala. 103, 37 So. 433; State v. Brintle, 207 Ala. 500, 93 So. 429; State v. Donaldson, 209 Ala. 400, 96 So. 617.

Upon reconsideration, however, we have reached the conclusion that by the weight of authority and sound reasoning as well, sales of this character by the property owner to the condemning party form an exception to the general rule. This upon the theory that such sales are in the nature of a compromise. The rule is well stated in 2 Lewis on Eminent Domain, 667, as follows:

"What the party condemning has paid for other property is incompetent. Such sales are not a fair criterion of value, for the reason that they are in the nature of a compromise. They are affected by an element which does not enter into similar transactions made in the ordinary course of business. The one party may force a sale at such price as may be fixed by the tribunal appointed by law. In most cases the same party must have the particular property, even if it costs more than its true value. The fear of one party or the other to take the risk of legal proceedings ordinarily results in the one party paying more or the other taking less than is considered to be the fair market value of the property. For these reasons such sales would not seem to be competent evidence of value in any case, whether in a proceeding by the same condemning party or otherwise."

See, also, Oregon R.R. Co. v. Eastlack, 54 Or. 196, 102 P. 1011, 20 Ann.Cas. 692, and note; Pac. Ry. v. Packing Co., 60 Or. 534, 120 P. 389, Ann.Cas.1914A, 371, and note.

There is very respectable authority to the contrary (Curley v Mayor, etc., ...