Bates v. Chilton County

• Decision Date: 18 February 1943
• Docket Number: 5 Div. 361.
• Citation: 244 Ala. 297,13 So.2d 186
• Parties: BATES et al. v. CHILTON COUNTY.
• Court: Alabama Supreme Court

13 So.2d 186

244 Ala. 297

BATES et al. v. CHILTON COUNTY.

5 Div. 361.

Supreme Court of Alabama

February 18, 1943

Rehearing Denied May 13, 1943.

Gerald & Gerald, of Clanton, for appellants.

Reynolds & Reynolds, of Clanton, for appellee.

LAWSON Justice.

This was a proceeding brought by Chilton County to condemn a right of way through certain lands of appellants for a public highway. Commissioners were appointed and made an assessment of damages; the probate court confirmed the return of the commissioners and ordered the lands condemned. An appeal was taken to the circuit court and the cause there tried de novo the sole issue of such trial being the amount of compensation or damages to be awarded the landowners.

The commissioners appointed by the probate court awarded $400 as damages to the appellants, the owners of the land. However when the cause was tried in the circuit court, the jury found that the appellants had sustained no damages and were entitled to no compensation. Judgment was entered by the circuit court in accordance with the verdict.

Appellants duly filed a motion for a new trial on the ground that the verdict of the jury was contrary to the great preponderance of the evidence. The motion for new trial was overruled. The appellants reserved an exception and bring the case here by appeal, assigning as error the trial court's action in overruling the motion for new trial.

The right of way sought to be condemned results from a change of the location of the Birmingham-Montgomery highway approximately two and one-half miles north of Clanton.

The appellants were the owners of a tract of land containing approximately thirty acres, which land was situated in a farming community about two and one-half miles north of Clanton. Prior to the taking of the right of way here involved, appellants' property was bounded on the north and east sides by the old Birmingham-Montgomery highway. The right of way involved in this case was condemned 120 feet wide and is situated to the south and west of the old highway. It cuts through appellants' property, leaving a narrow strip of land between the two highways. Approximately 3.3 acres was left between the two highways and 5.1 acres was taken in the new right of way. As a result of the relocation of the highway, it was necessary for appellants' dwelling house, barn and filling station to be moved. The cost of the moving of these buildings was borne jointly by appellants and the State Highway Department. As a result of the moving, the buildings were damaged, but the evidence as to the extent of such damage is in conflict. The evidence is also in conflict as to the loss resulting to appellants from the destruction of shrubbery and fruit trees.

The evidence for appellants tends to show that the value of the entire tract of land after the taking of the highway and the moving of the buildings is several thousands of dollars less than it was prior thereto. On the other hand, witnesses for the County testified that the value of the entire tract was not decreased by the relocation of the road, and several of them testified that appellants' property was increased in value as a result of the construction of the new highway.

The final inquiry is the difference between the value of the tract before and after the completion of the project. McRea v. Marion County, 222 Ala. 511, 133 So. 278; Pryor et al. v. Limestone County, 222 Ala. 621, 134 So. 17. Under Section 14, Title 19, Code of 1940, in cases of "the condemnation of lands for ways and rights of ways for public highways" the commissioners, or the jury on appeal to the circuit court, must take into consideration the value of the enhancement to the remaining lands of the owner; that is, the increase in value of the remainder of the parcel or tract over which the highway is constructed. Conecuh County v. Carter, 220 Ala. 668, 126 So. 132; Rudder v. Limestone County, 220 Ala. 485, 125 So. 670, 68 A.L.R. 776; McRea v. Marion County, supra.

As before stated, the evidence for the County tended to show that the value of the remainder of appellants' lands was increased to an extent equal to or in excess of the damage done to appellants by the taking of that part of the land needed for a right of way. We do not deem it necessary to set out the evidence in detail. Suffice it to say that we have in conference fully and carefully considered all of the evidence and are not persuaded that, after allowing all reasonable presumptions in favor of the correctness of the verdict, that the preponderance of the evidence against the verdict is so decided as to clearly convince us that it is wrong and unjust. Cobb v. Malone and Collins, 92 Ala. 630, 9 So. 738. The court and jury heard and saw each of the witnesses testify, and an examination of the record persuades us that this was of peculiar advantage upon the issue of fact for determination. Verdicts are not to be set aside merely because they do not correspond with the opinion of the court or are against the mere preponderance of the evidence. Huckaba v. Hill, 209 Ala. 466, 96 So. 569. We do not think that the action of the trial court in denying the motion for new trial upon this ground should be here overturned.

Appellants contend that the trial court erred to a reversal in permitting the witness Cagle to testify, over appellants' objection, as to the value of appellants' property. The ground of the objection was in substance that it was not shown that the witness had such knowledge of the property as to qualify him to express an opinion as to its value. The evidence shows that the witness had "known" the property for a long time; was familiar with the buildings located thereon; had a general knowledge of the boundaries on two sides of the property; did not know of his own knowledge the exact number of acres included in the tract, but had based his estimate of value on twenty-five acres, which is approximately the number of acres remaining in the tract after the taking of the right of way here involved. We think the evidence shows that the witness was sufficiently familiar with the property to express an opinion as to its value. The weight of such evidence is, of course, for the jury. Union Fire Ins. Co. of...