Birmingham Mineral R. Co. v. Smith

• Decision Date: 09 May 1890
• Citation: 89 Ala. 305,7 So. 634
• Parties: BIRMINGHAM MINERAL R. CO. v. SMITH.
• Court: Alabama Supreme Court

7 So. 634

89 Ala. 305

BIRMINGHAM MINERAL R. CO. v. SMITH.

Supreme Court of Alabama

May 9, 1890

Appeal from city court of Birmingham; H. A SHARPE, Judge.

Hewitt, Walker & Porter, for appellant.

W C. Ward, for appellee.

CLOPTON J.

In a proceeding instituted by appellant to condemn a right of way over the land of appellee, and to determine the compensation to which he is entitled, the former introduced in evidence the assessment rendered by the latter to the tax assessor sworn to by him, in which the land in question was listed and its value estimated at $3,400 for taxation for the year 1888. Appellee testified that the tract of land was worth at the time the award of compensation was made, in December, 1887, by the commissioners appointed by the judge of probate, and at the time of the trial, $1,000 per acre; the tract containing 34 acres. The valuation in the assessment was made as of the 1st day of January, 1888.

The sole question in the case arises on the following charge given by the court at the instance of the appellee: "The tax assessment offered in evidence in this case can have no effect except to discredit the defendant, Smith, as a witness in the case." The charge, in effect, declares that the land-owner's sworn valuation of the land for the purpose of taxation is, in condemnation proceedings, incompetent as independent evidence of value, and limits its effect to the purpose of impeachment. Such is the statement of the rule in 6 Amer. & Eng. Cyclop. Law, 622, citing Railroad Co. v Henry, 8 Nev. 165, where it is said that the estimate for taxation, though sworn to by the land-owner, "could have no weight in determining the value of the property in question, incompetent in fact for that purpose, though perhaps admissible to tend to contradict his testimony in chief." The elementary authors state the rule in varied and qualified phraseology. In Lewis, Em. Dom.§ 448, it is thus stated: "The assessment of property for taxation being made for another purpose, and not at the instance of either party, and not usually at the market value of the property, is not admissible as evidence of value in condemnation proceedings;" citing Railway Co. v. Eddy, 42 Ark. 527, and Brown v. Railroad Co., 5 Gray, 35. In the first case, it was held not to be error to exclude from the jury the valuation of the land made by the assessor for the purposes of taxation on the ground that, being made for a different purpose; it is not a fair criterion of its market value; and in the second case the court says: "It is also questionable whether any valuation made for the special purpose of taxation, and that some years previously to the assessment of damages by the jury, could be a useful or proper aid to the jury in fixing the value of the land, or the damages sustained by the petitioner on the location of...