Alabama Power Co. v. Henson

• Decision Date: 16 March 1939
• Docket Number: 1 Div. 41.
• Citation: 237 Ala. 561,187 So. 718
• Parties: ALABAMA POWER CO. v. HENSON.
• Court: Alabama Supreme Court

187 So. 718

237 Ala. 561

ALABAMA POWER CO. v. HENSON.

1 Div. 41.

Supreme Court of Alabama

March 16, 1939

Rehearing Denied April 13, 1939.

Appeal from Circuit Court, Washington County; Joe M. Pelham, Jr. Judge.

Proceeding by the Alabama Power Company to condemn lands of L. T. Henson for a right of way. From a judgment fixing compensation to be paid, plaintiff appeals.

Affirmed.

Martin Turner & McWhorter and Henry Upson Sims, all of Birmingham Howard Scott, of Chatom, and Nicholas E. Stallworth, of Mobile, for appellant.

Gordon, Leigh, Leigh & Gordon, of Mobile, for appellee.

BOULDIN Justice.

The time within which an appeal may be taken to the Supreme Court from the judgment of the Circuit Court in condemnation proceedings is thirty days. Code 1923, § 7498.

This statute, not the general six months' statute, Code, § 6127, governs such appeal.

In case a motion for new trial is seasonably made, and jurisdiction of such motion acquired, the time for taking an appeal from the original judgment dates from the judgment overruling or granting the motion for new trial, or jurisdiction of such motion is otherwise terminated.

For the purposes of an appeal the finality of the judgment is suspended pending the motion for new trial. Shipp et al. v. Shelton, 193 Ala. 658, 69 So. 102; Childers v. Samoset Cotton Mills, 213 Ala. 292, 293, 104 So. 641; 2 Alabama Digest, Appeal and Error, p. 506, + 345.

When a motion for new trial is seasonably presented to the trial Judge who makes and signs an indorsement thereon showing the motion was filed and presented to him, and also indorses thereon an order setting a date during the term but beyond thirty days from the rendition of the judgment for the hearing of such motion, and thereupon counsel for the opposing party indorses an acknowledgment of service of notice of the motion and of the day so set, and the motion with these indorsements is lodged with the clerk, the motion for new trial is pending from that date; and the court has jurisdiction to hear the motion on the day so set.

The fact that the clerk had not indorsed on the motion the fact and date of filing in his office, and had entered no orders on the minutes of the court, but had merely attached the motion with orders thereon to the motion docket, furnished no ground for a motion challenging the jurisdiction of the court to proceed. There was evidence of record for the entry of all proper orders on the minutes.

The appeal was taken within thirty days from the judgment overruling the motion for new trial. The motion of appellee in this court to dismiss the appeal because not taken within the time allowed by law is, therefore, overruled.

The issue in the Circuit Court related to the just compensation to which the landowner was entitled for a right of way 100 feet in width for the erection and maintenance of transmission lines of the Alabama Power Company, with incidental easement to remove danger trees outside of the strip of 100 feet.

The landowner appealed from the assessment made in the Probate Court, namely, the sum of $1,070. The verdict of the jury, and judgment of the court thereon, fixed the just compensation at $2,850. The Power Company appeals. The trial of such issue in the Circuit Court is de novo.

The right of way is through a body of lands, enclosed by a fence, containing about 4,000 acres. The tract is valuable chiefly for standing and growing timber, for turpentining and for pasturage.

Evidence was directed to the market value of the right of way 100 feet in width, containing 25.51 acres, and to the value of the danger trees standing at the time, and which have been or may be cut for the protection of the transmission line. The injury to the market value of timber lands in this adjacent zone by reason of the continuing right to remove trees as they grow high enough to endanger the line was also an element of compensation or damages to be considered. These elements of damage are not questioned, but the testimony of witnesses varied as to values.

Dealing with assignments of error presenting certain rulings on evidence, we hold it was within the discretion of the trial court in course of the examination of plaintiff's witness Boykin to refuse plaintiff's request to have the witness make a calculation of the value of the property within the right of way. He had given his opinion of the value per acre. The number of acres were agreed. The jury could make the calculation. There was no error in refusing to delay the trial for the witness to make it.

This witness was one of the Commissioners who made the assessment of damages in the first instance. On cross-examination by defendant, landowner, this fact was drawn out. On further cross-examination, the defendant, over the objection and exception of plaintiff, drew out the amount of such assessment. Clearly such assessment was not evidence. The trial of that issue was de novo. If offered in evidence by the party seeking to sustain such assessment, to influence the jury by giving them the judgment of commissioners who had made a finding on the subject, its admission should clearly be refused. But here it was offered in cross-examination of a witness who had thus committed himself, and by the party challenging the adequacy of the assessment, and was followed up by further cross-examination tending to show an omission of certain items proper to be considered in estimating the damages, thus increasing his estimate of damages at the time of the trial to $1,423.65. Whatever influence the amount of the assessment could have on the jury was favorable to plaintiff.

The right of cross-examination, in our opinion, and the measure of discretion allowed in that respect, governs here, and there appears no reversible error. The well known measure of damages in such cases is the difference in market value of the tract or body of lands before and after the taking.

This may be proven by evidence of the value before taking and the value thereafter. The evidence may go into greater detail. It may be directed to the value of the strip over which the condemner for public use obtains such dominant use and control over the same that its full value on an...