City of Huntsville v. Rowe

• Decision Date: 26 March 2004
• Citation: 889 So.2d 553
• Parties: CITY OF HUNTSVILLE v. Roland H. ROWE, as trustee of the DIMITRIU FAMILY TRUST, and Elvina Geauque.
• Court: Alabama Supreme Court

889 So.2d 553

CITY OF HUNTSVILLE v. Roland H. ROWE, as trustee of the DIMITRIU FAMILY TRUST, and Elvina Geauque.

1020868.

Supreme Court of Alabama.

March 26, 2004.

Nancy S. Gaines of Gaines & Gaines, L.L.C., Magnolia Springs; and Aubrey O. Lammons, Huntsville, for appellant. John H. Lavette and Patrick M. Lavette of Davenport & Lavette, P.C., Birmingham, for appellees.

On Application for Rehearing

PER CURIAM.

The opinion of October 31, 2003, is withdrawn, and the following is substituted therefor.

The City of Huntsville ("the City") appeals from a judgment entered on a jury verdict awarding compensation in a condemnation proceeding to Roland H. Rowe, as trustee of the Dimitriu Family Trust, and Elvina Geauque, the owners of the condemned property ("the owners"), and from the trial court's order denying the City's postjudgment motion for a new trial. We affirm.

The City condemned a portion of the owners' property to secure an easement described as follows in the order of condemnation:

"[A] sanitary sewer easement under over and along the hereinafter described lands, together with all rights appurtenant thereto and including the right to enter upon said lands for the purpose of constructing, maintaining, repairing, altering, replacing or removing a sewer line or lines, manholes and all appurtenances thereto under, upon, over, through, above and across the lands hereinafter described; the right to prevent the placing or maintaining of any obstruction on said lands that would interfere with the purpose of said easement, as above and hereinafter described; and all other rights and benefits necessary or convenient for the full enjoyment or use of the easement sought to be acquired, including but not limited to the full and free right of ingress and egress over and across the hereinafter described lands described in said COMPLAINT...."

The easement is a 40-foot-wide strip, comprising 3.624 acres of a 290.19-acre tract of unimproved land. The probate court awarded the owners compensation for the property taken for the easement. The owners appealed the probate court's award to the Madison Circuit Court for a jury trial on the issue of damages pursuant to § 18-1A-283, Ala.Code 1975.

The owners moved for a partial summary judgment in the circuit court, asking the court to determine the proper method of valuing, under § 18-1A-170(b), Ala.Code 1975, the property taken for the easement. Section 18-1A-170(b) provides: "If there is a partial taking, the valuation rule is the difference between the fair market value of the entire property before the taking and the fair market value of the remainder after the taking." More specifically, the owners sought a judgment declaring "that the taking of an easement must be valued as if the entire fee is taken," and an order prohibiting the City from contending or testifying at trial "that the damage[s] to be awarded the property owner for the land actually taken within the easement are less than the value of the entire fee of said land within the easement at the time of the taking." (Emphasis added.) The trial court granted the owners' motion.

At trial, the owners moved in limine for an order prohibiting the City's appraisal experts from testifying in a manner inconsistent with the partial summary judgment. In other words, the owners sought to preclude testimony that the value of the 3.624 acres constituting the easement after the taking was greater than $0. The trial court granted the motion. Before the jury returned its verdict, the City's appraisal expert made an offer of proof that the value after the taking was 75% of the value of the land before the taking. The jury awarded the owners $68,856. The trial court entered a judgment on that verdict. The trial court denied the City's motion for a new trial, and the City appealed, specifically challenging the partial summary judgment and the order on the motion in limine.

The dispositive issue on appeal is whether the trial court erred in ruling that the taking of the owners' property for an easement for an underground pipeline must be compensated as if the entire fee-simple title to the property on which the easement lies had been taken. The City contends that it should have been allowed to present evidence indicating that the market value of the 3.624 acres constituting the easement was greater than $0 after the taking. The owners contend that they are entitled, as a matter of law, to the full market value of the 3.624 acres, as though fee-simple title to the 3.624 acres had been taken.

According to the undisputed evidence, the 290-acre tract is currently devoted to agriculture, but its highest and best use is for industrial and commercial development. The value of the acreage unencumbered by the easement has not been diminished by the taking. The City points out that the proposed sewer pipe would be installed approximately 16 feet below the surface and that the only visible evidence of the pipeline's presence will be a series of 11 raised manholes spaced 200 to 400 feet apart along the length of the pipeline. Additionally, the City will control vegetation growth within the easement, and the owners are prohibited from fencing the area or placing structures or other obstructions that would interfere with the City's maintenance of the pipeline. In their brief to this Court, the owners state that, according to testimony presented at trial, the City "contemplates being able to use the easement as a virtual roadway, maintaining it for vehicular traffic." Furthermore, the owners state, the evidence reflects that the City "contemplates that when the old sewer line that is adjacent to the new sewer easement needs repair or replacement, it can use any part of the 3.624-acre easement as a staging and work area for its men, material, machinery, bulldozers, buildings, and equipment."

All parties agree that this case is controlled by § 18-1A-170(b), which sets forth the valuation rule for partial takings. "Subsection (b) states the standard of compensation in Alabama for a partial taking of the owner's property, and to that extent is essentially the same as [the Uniform Eminent Domain Code] Section 1002(b)." Commentary to § 18-1A-170. Subsection (b) "states accurately and codifies the standard previously used in Alabama and continues past Alabama law." Id. (emphasis added). The parties further agree that the proper standard for valuing a partial taking is the "before-and-after" rule as set forth in § 18-1A-170(b).

The City concedes that the partial summary judgment is consistent with cases involving takings for a railroad right of way. More specifically, it acknowledges in its brief that in the "ordinary class" of cases, that is, "in cases involving railroad easements the measure of the value of the railroad easements is the full actual value of the land," as though the full fee interest was taken, citing Ensign Yellow Pine Co. v. Hohenberg, 200 Ala. 149, 75 So. 897 (1917). Nevertheless, the City contends that a case, such as this one, involving a subsurface pipeline easement is not of the "ordinary class" of easement cases. In a pipeline-easement case, the City argues, the fee owner "retains ... significant rights of ownership with value." In this case, the City insists, the owners retain significant rights, and therefore are not entitled to the full value of the land as though the fee was taken.

The City relies upon Alabama Power Co. v. Carden, 189 Ala. 384, 66 So. 596 (1914), in which Alabama Power brought a condemnation action to acquire an easement to flood — periodically — a portion of property owned by P.L. Carden. More specifically, "[t]here was evidence submitted [at] the trial that tended to show that a small part of [Carden's] land would be submerged in times of flood in consequence of the impounding of water at lock 12" on the Coosa River. 189 Ala. at 387, 66 So. at 596 (emphasis added). The Court stated:

"The trial court instructed the jury upon the theory that the market value of the land was the measure of the compensation as for the area to be submerged, taking no adequate account of the condition, if so found by the jury from the evidence, that the submersion would only be periodic, not permanent, and that there would remain in [Carden] a consistent right and use for which he should not be compensated."

189 Ala. at 388, 66 So. at 597 (emphasis added).

This Court held that the instruction was error. 189 Ala. at 388, 66 So. at 597. In doing so, it explained:

"This evidence [that a small part of Carden's land would periodically be submerged], if credited, had the effect to qualify the taking of that area to an extent and to a degree below what would be the case if a permanent, or substantially continued, retention of water on the area was the result of the operations in question. If the effect of the dam at lock 12 was to submerge the stated area upon occasions of flood only, [Carden] would have left in him the right to use the land, consistent with [Alabama Power's] right thereto, for any purpose to which he could devote it. Where the owner, after condemnation, `retains substantial rights in the property, he cannot insist on their value being included in the measure of his compensation.' 10 Am. & Eng. Ency. of Law, p. 1150; 2 Lewis on Eminent Domain, § 746. The owner is only entitled to be compensated for that taken and other remaining property injuriously affected in consequence. Accordingly, if the jury should find that the area was to be actually submerged upon occasions of flood only, and that these occasions would leave to the owner opportunity for its use to his own advantage, the measure of the compensation as for the property (area) thus taken is the value of that area before and after condemnation. Under such circumstances, to require [Alabama Power] to compensate for the whole value of the area thus appropriated would necessarily afford [Carden] a remuneration for that of which he has not been

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