Alabama Power Co. v. Thompson

• Decision Date: 16 October 1947
• Docket Number: 7 Div. 909.
• Citation: 250 Ala. 7,32 So.2d 795
• Parties: ALABAMA POWER CO. v. THOMPSON.
• Court: Alabama Supreme Court

32 So.2d 795

250 Ala. 7

ALABAMA POWER CO. v. THOMPSON.

7 Div. 909.

Supreme Court of Alabama

October 16, 1947

Rehearing Denied Dec. 18, 1947.

Knox, Liles, Jones & Woolf, and Walter J Merrill, all of Anniston, and Martin, Turner & McWhorter and Alvin W. Vogtle, Jr., all of Birmingham, for appellant.

Merrill & Merrill, of Heflin, for appellee.

LAWSON Justice.

This is a suit by appellee, J. L. Thompson, against appellant, the Alabama Power Company, to recover damages for certain trespasses alleged to have been committed by the defendant company upon lands of Thompson.

It appears from the pleading and evidence in this cause that the Alabama Power Company is a power corporation organized and existing under the laws of this state. As such corporation it has the right and power to acquire lands for public use in the conduct of its quasi public business. It may enter legally upon lands which it contemplates acquiring for public use, to examine and make surveys thereon for routes and lines, but is subject to liability for all damage done as a result of such entry. § 82, Title 10, Code of 1940; Birmingham-Trussville Iron Co. v. Allied Engineers Inc., 225 Ala. 522, 144 So. 1.

In May, 1944, Thompson purchased from Mr. and Mrs. C. M. Elliott approximately ten acres of land situated in the southwest quarter of the northeast quarter and in the northwest quarter of the southeast quarter of Section 10, Township 16 South, Range 10 East, all in Cleburne County.

The Alabama Power Company in the latter part of 1945 and early part of 1946 was engaged in making plans and preparations for the erection of a rural power line in the vicinity of the above-described land. Finding it necessary or expedient to construct such electric distribution line over said land, the power company made inquiry as to the owner thereof. Concluding that the land was still owned by Mr. and Mrs. C. M. Elliott, the Power Company, on January 9, 1946, secured from the Elliotts what is termed a 'pole line permit,' which in pertinent part is as follows:

'* * * do hereby grant to said Alabama Power Company, its successors and assigns, the right to construct, operate and maintain its lines of poles and towers and appliances necessary in connection therewith, as located by the final location survey heretofore made by said Company, for the transmission of electric power with the right to string thereon from time to time electric power and telephone wires and the right to permit other corporations and persons to attach wires to said poles and towers upon, over and across the following described lands situated in Cleburne County, Alabama [Here follows the description of the land to which the permit is applicable which description includes part of the land conveyed by the Elliotts to Thompson.] Together with all the rights and privileges necessary or convenient for the full enjoyment or use thereof, including the right of ingress and egress to and from said lines; and also the right to cut and keep clear all trees, and to keep clear all obstructions, that may injure or endanger said lines.'

Acting under the instrument just above quoted from, and without the consent of Thompson, the Alabama Power Company, on February 26, 1946, entered on the lands of plaintiff and cut down 150 or more trees. On the following day, a 'pole' was 'set' on the property and a 'guy wire' was installed thereon on April 5, 1946. The time of the stringing of the line does not appear.

Thompson became aware that his land had been entered and his trees cut within four or five days. Having been unable to settle the matter with the Alabama Power Company, Thompson filed this suit on June 28, 1946.

There were two counts in the complaint. Count 1 claimed damages for trespass upon plaintiff's land, for cutting trees thereon and for destroying the building site. Count 2 sought recovery of the statutory penalty for wilfully and knowingly cutting the trees.

Defendant's demurrer was filed on July 19, 1946. On July 22, 1946, the cause was continued until October 14, 1946, at the request of both parties

On October 14, 1946, the court overruled defendant's demurrer. Defendant company then on the same day filed five pleas. The first two were of the general issue, the third and fourth were in bar to the further maintenance of the suit, and the fifth set up the defense that the defendant entered upon the land and cut the trees thereon under the mistaken belief that it was the property of C. M. Elliott and wife. Thompson, the plaintiff, then demurred to the pleas filed by defendant company. Upon motion of the parties the hearing on the demurrers to the pleas was continued to October 29, 1946, at which time the trial court overruled the demurrers of plaintiff as to the pleas of the general issue and as to plea 5 (mistake) in answer to the second count of the complaint wherein the cutting of the trees was charged to have been wilfully and knowingly done. Demurrer was sustained as to pleas three and four, which were in effect in bar to the further maintenance of the suit and to plea five (mistake) in so far as it purported to be a defense to the first count (trespass) of the complaint.

At the conclusion of the testimony the trial court at the request of the defendant gave the general affirmative charge in favor of defendant as to Count 2 of the complaint.

However, upon request of plaintiff the trial court gave the general affirmative charge in his favor as to the first count.

The jury returned a verdict for plaintiff in the amount of $200. There was judgment in accordance with the verdict. Motion for new trial having been overruled, the Alabama Power Company has appealed to this court.

There are ten assignments of error. Assignments 2 and 10 are not argued and consequently must be considered as waived. Supreme Court Rule 10, Code 1940, Title 7, Appendix; McDavid v. United Mercantile Agencies, Inc., 248 Ala. 297, 27 So.2d 499.

Assignments of error 1, 3, and 4 are argued together in brief, and are to the effect that the trial court erred in sustaining demurrer of plaintiff to defendant's pleas 3 and 4, which as heretofore shown were in bar to the further maintenance of the suit. We will consider that question first.

Plea No. 3 alleges in substance that the defendant is a corporation organized under the laws of the State of Alabama and has the right under its charter to condemn land on which to construct electric power lines; that on July 23, 1946, about three weeks after plaintiff filed the trespass action, the defendant company instituted condemnation proceedings in the probate court of Cleburne County, Alabama, to condemn a right of way over the same lands which are involved in the trespass action, to which proceedings Thompson was a party defendant; that all of the matters which are at issue in this suit were litigated and adjudicated in said condemnation proceeding, a complete certified copy of such proceeding being attached to and made a part of the plea; that there was awarded to plaintiff the sum of $75 as compensation for damages, and that the defendant paid the sum so awarded together with the costs of the condemnation proceedings into the probate court of Cleburne County on August 17, 1946, whereupon the probate court entered an order of condemnation; that thereafter plaintiff, Thompson, appealed from said order of condemnation to the circuit court of Cleburne County; that upon the taking of the appeal by Thompson the Power Company filed in said probate court a bond in double the amount of the damages awarded to Thompson.

Defendant's Plea No. 4 contains substantially the same averments as Plea 3 with the additional allegations that after the lines were built and before the condemnation proceedings were begun the Power Company attempted on numerous occasions, in good faith but without success, to effect a settlement with Thompson for the injuries caused him.

The grounds of demurrer in effect raised these points, namely, (1) that the pleas were prolix and contained irrelevant matter in that the record of the condemnation proceedings, which was made a part of the pleas, showed the award which was made by the commissioners in the probate court; (2) that the averments of the said pleas did not constitute a defense to the suit.

The judgment of the trial court sustaining the demurrer was general, not stating the particular grounds which were sustained.

Pleas 3 and 4 were not prolix nor were they subject to demurrer because the records of the condemnation proceedings in the probate court were incorporated therein. On appeal to the circuit court for ascertainment of compensation to which a property owner is entitled from judgment rendered in condemnation proceedings in the probate court, neither the report of the commissioners nor the judgment rendered can be introduced legally as evidence of just compensation. Alabama Power Co. v. Henson, 237 Ala. 561, 187 So. 718; Housing Authority of Phenix City v. Stillwell, 241 Ala. 420, 3 So.2d 55. But such rule has no application here where defendant in support of his plea of former adjudication makes a part of such plea the record of proceedings in the former suit. In some jurisdictions it is held that it is necessary in support of such a plea to incorporate in, or to annex to, the plea the whole record of the former suit. 50 C.J.S., Judgments, § 832, P. 401. Moreover, prolixity is reached by motion to strike rather than by demurrer. Atlantic Coast Line R. Co. v. Carroll, 208 Ala. 361, 94 So. 820; Title 7,§ 213, Code of 1940. Unnecessary and improper matter in a plea is subject to being stricken on motion, but such matter in a plea does not render it demurrable. Barnett v. Freeman, 197 Ala. 142, 72 So. 395.

The question raised by those grounds of ...