City of Birmingham v. Brown

• Decision Date: 15 May 1941
• Docket Number: 6 Div. 658.
• Parties: CITY OF BIRMINGHAM v. BROWN.
• Court: Alabama Supreme Court

2 So.2d 305

241 Ala. 203

CITY OF BIRMINGHAM v. BROWN.

6 Div. 658.

Supreme Court of Alabama

May 15, 1941

John S. Foster, of Birmingham, for appellant.

Graham & Wingo, of Birmingham, for appellee

LIVINGSTON, Justice.

The appellant, the City of Birmingham, a municipal corporation filed its application in the Probate Court of Jefferson County, Alabama, against Margaret E. Brown, J. Arthur Action and Hilton T. Hall, the appellees, seeking to condemn for public park purposes certain real estate belonging to appellees, a large part of which lands were located without the corporate limits of the City of Birmingham.

By appropriate demurrer to the application, defendants raised in the Probate Court the question of the city's authority to condemn for public park purposes real estate located without the corporate limits of the city. The ruling on demurrer was adverse to defendants. Based upon the same theory, defendants filed their formal objection to the granting of the application. The Probate Court sustained demurrers to the objection filed by defendants, and after a hearing made and entered an order granting the city's application to condemn. Commissioners were appointed by the Probate Court to assess the damages and compensation to which the owners of the lands were entitled.

Thereafter upon the report of the commissioners, the Probate Court entered an order of condemnation. Section 7491, Code of 1923, Code 1940, Tit. 19, § 16. From the order of condemnation Margaret Brown, one of the owners of the real estate condemned, appealed to the Circuit Court of Jefferson County Alabama. Her demurrer to the city's application to condemn, filed in the Circuit Court, presented the same question presented in the Probate Court, viz., the authority of the city to condemn for public park purposes real estate without the corporate limits of the city, which demurrer was sustained; hence the city's appeal.

The action of the Circuit Court in sustaining the demurrer to the application presents to this Court two questions for review first, does the appeal provided for in section 7492, Code of 1923, Code 1940, Tit. 19, § 17, contemplate a trial de novo in the Circuit Court of the condemner's right to condemn, or is the sole question reviewable on such an appeal the matter of damages or compensation. Second, has a municipal corporation the authority to condemn for public park purposes real estate located without the corporate limits of the city?

In answering the first question, an examination of the pertinent statutes and their history should be an aid. The provision of section 7482, Code of 1923, Code 1940, Tit. 19, § 7, for the hearing of evidence on the application to condemn first appeared in the Code of 1886 as a part of section 3211. Section 3211 did not provide for an order of the court granting or refusing the application. On the contrary, on the day set for the hearing, a jury was summoned and impaneled in the Probate Court, section 3210, Code of 1886, and evidence both as the right to condemn and of the amount of damages or compensation was submitted, and the court determined the issue of law as to the right to condemn, and submitted to the jury the issue of fact as to the damages. Sections 3210, 3211, Code of 1886.

Section 3212 of the Code of 1886 provided for an order of condemnation upon the rendition of the verdict of the jury assessing the damages or compensation to which the owner of the land is entitled; and section 3215, Code of 1886, provided for an appeal by either party to the Supreme Court from the order of condemnation. In the Code of 1896, section 1718, we find that the jury in the Probate Court has been eliminated, and that the manner or method of fixing the damages or compensation is by commissioners, which later method still remains the law. Section 7486, Code of 1923, Code 1940, Tit. 19, § 11. This change from the law embodied in the Code of 1886 resulted in the provision for the order "granting or refusing the application" to condemn, and the further provision for an appeal direct to the Supreme Court from such order. Section 1717, Code of 1896. We think it significant that, following section 1717, Code of 1896, section 1720 of the same Code, provides for an appeal to the City or Circuit Court "from the assessment of damages and compensation by the commissioners," as distinguished from the appeal to the Supreme Court from the order "granting or refusing the application." (Italics ours.)

Following these sections into the Code of 1907, we find that, that part of section 1717, Code of 1896, providing for an appeal direct to the Supreme Court from the order "granting or refusing the application" is eliminated, and the remainder of the section is covered by section 3865, Code of 1907. Section 3865, supra, was brought forward without change in the Code of 1923 as section 7482, Code 1940, Tit. 19, § 7. We also find that when section 1720 of the Code of 1896 was brought forward into the Code of 1907, as section 3875, the appeal provided for therein was not limited to an appeal from the "assessment of damages and compensation by the commissioners," but, on the contrary, section 3875 provided for an appeal to the Circuit or City Court from the "order of condemnation"; and section 3875, Code of 1907, was brought forward, without material change, into the Code of 1923 as section 7492, Code 1940, Tit. 19, § 17.

These successive changes in the statutory law, the elimination of the direct appeal to the Supreme Court from an order "granting or refusing the application"; the change made in the appeal to the Circuit Court from the "assessment of damages and compensation by the commissioners" to an appeal from "the order of condemnation," evinces a legislative intent to give to the condemnee the right to appeal to the Circuit Court the important question of the condemner's right to condemn in order that the condemnee shall not be forced to the use of some extraordinary remedial writ to review that question.

We also find in section 7495 of the Code of 1923, Code 1940, Tit. 19, § 20 (section 3878, Code of 1907) provision for an appeal by the condemner to the Circuit Court and a trial de novo in the event his application is denied in the Probate Court. This section was new to the Code of 1907, and apparently was enacted to meet the changes summarized above, and to give to the condemner the right of appeal to the Circuit Court when the application to condemn was refused.

No case is cited, nor has our search revealed one by this Court directly deciding the question here discussed. However, in the case of Mobile & Birmingham R. R. Co. v. Louisville & Nashville R. R. Co., 192 Ala. 136, 68 So. 905, 906, a condemnation proceeding, the right of appeal to the Circuit Court from an order of condemnation apparently was regarded as carrying with it the right to review the order granting the application to condemn. In reviewing the statutory changes discussed above, this Court there said: "Under the provisions of the Code of 1907, §§ 3875, 3878, every appeal from the probate court is to the circuit court, or court of like jurisdiction. If the petition was granted, the appeal is from the final order of condemnation, and 'the trial shall be de novo.' Section 3875, supra. If the petition was denied, and the superior court on appeal-'determines that the application should be granted, it shall proceed forthwith to have the damages and compensation assessed by a jury."' We have examined the record of that case, as is our right, and find that the appeal from the Probate Court was from an "order of condemnation", and that the trial de novo in the Circuit Court included the trial of the right to condemn. In other words, included a review of the order of the Probate Court "granting the application." The Circuit Court first sustained the order of the Probate Court "granting the application," but later granted a motion to set aside the judgment and entered a judgment denying the right to condemn. In any view, the case apparently recognizes the right of the Circuit Court to review the order of the Probate Court "granting the application" to condemn. To the same effect is the case of Ex parte City of Bessemer (City of Bessemer v. Goodwyn, Judge), 240 Ala. 52, 197 So. 20.

As indicative of the character or nature of the order "granting the application" for condemnation, that is to say, whether final or interlocutory, this Court said in the case of J. Blach & Sons v. Hawkins, 238 Ala. 172, 189 So. 726, 728: "The petition for the writ of prohibition contains a general prayer and as the appellant had no right of appeal from the interlocutory order of the probate court on the demurrer to the petition, he had the right to test the ruling by mandamus as pointed out in the cases supra, and Ex parte Watters et al., 180 Ala. 523, 61 So. 904." And while the order may be reviewable by mandamus or other extraordinary remedial writ that, in our opinion, is not sufficient reason for holding that it was not the intent of the legislature that it be reviewed in the Circuit Court on an appeal to that court from the order of condemnation.

We hold therefore that upon appeal to the Circuit Court under section 7492, Code of 1923, from an order of condemnation entered by the Probate Court, the interlocutory order granting the application to condemn is reviewable; and, further, that the petitioner's right to condemn shall be determined by the court without the aid of the jury, while the amount of damages or compensation to be assessed is a question exclusively for the jury. Mobile & Birmingham R. R. Co. v. Louisville & Nashville R. R. Co., supra.

This brings us to the question of the city's authority to condemn for public park purposes real estate located without the...