Coffee County v. Spurlin, 4 Div. 297.

• Decision Date: 16 December 1943
• Docket Number: 4 Div. 297.
• Citation: 245 Ala. 99,16 So.2d 12
• Court: Alabama Supreme Court
• Parties: COFFEE COUNTY v. SPURLIN.

16 So.2d 12

245 Ala. 99

COFFEE COUNTY v. SPURLIN.

4 Div. 297.

Supreme Court of Alabama

December 16, 1943

J. C. Fleming, of Elba, for appellant.

Carnley & Carnley, of Elba, for appellee.

STAKELY Justice.

This is a proceeding for condemnation of land for a public highway. The question is presented as to what effect, if any, war conditions, which prevent completion of the project according to plan, should have on the rights of the parties.

On December 10, 1941, Coffee County instituted the proceedings in the Probate Court of Coffee County. Among the property owners named in the petition was J. R. Spurlin. In due course the court appointed commissioners to assess damages and compensation for the owners of the property. The commissioners reported no damage to J. R. Spurlin. Thereupon the property was condemned. An appeal was taken from this order to the Circuit Court of Coffee County, where the case was tried de novo. On March 2, 1943, the jury returned a verdict in effect condemning the property and assessing "the compensation and damages to which J. R. Spurlin is entitled as None."

Thereupon J. R. Spurlin, the defendant, made a motion for a new trial which the court granted. This appeal has been taken from this ruling of the court.

The facts are undisputed that Coffee County, desiring to improve an existing road in front of defendant's property condemned part of defendant's property abutting on the road, the land taken being about one-half to three-fourths of an acre. The land taken was worth from $25 to $50 per acre. The proposed highway, when completed, contemplated a hard surface road, generally called blacktop. If the highway could be completed according to plan, then the enhancement in value to the remaining lands would more than offset the value of the lands taken. However, the only work actually done was grading and widening the road, no base being laid down and no paving. The work was stopped because of lack of machinery and materials, arising out of war conditions. Work ceased about a year before the case was tried. There was no enhancement in value to the remaining lands by reason of the work which was done.

The court charged the jury in substance that it should first value the land taken from the defendant and then ascertain the value of the remaining lands before any work was done and then when the work stopped; that if there was no difference in such value, defendant would be entitled to the value of the lands taken, but if the remaining lands were enhanced to an extent equal to the value of the lands taken, then the defendant would not be entitled to any award.

The court further charged the jury that it could not take into consideration the value of the remaining lands as though the highway had been completed according to plan. No exception was taken to the oral charge by the defendant nor did the defendant ask for the affirmative charge. The instructions to the jury were erroneous because they are contrary to the requirements of the statute (§ 14, Title 19, Code of 1940).

"The proper rule for the admeasurement of damages and compensation for taking of land for right-of-way to construct a public highway is the value of the land actually taken and consequent damage to adjoining lands and the commissioners or court in fixing the amount to be allowed the land owner must take into consideration the value of the enhancement to the remaining lands of such owner by reason of the construction of said highway. Code, § 7489; Acts of Alabama 1927, p. 492 [Code 1940, Tit. 19, § 14]; Conecuh County v. Carter, 220 Ala. 668, 126 So. 132; McRea v. Marion County, 222 Ala. 511, 133 So. 278." Pickens County v. Jordan, 239 Ala. 589, 196 So. 121, 122.

To sum up the situation, the jury awarded the defendant nothing, although his lands which were taken had value under the undisputed evidence and although, under the undisputed evidence, his remaining lands were not enhanced in value by the work actually done. Accordingly, we think the court acted correctly in granting the motion because, under the instructions of the court, the defendant was entitled to an award for the lands taken. This is true even though the instructions of the court were erroneous and the defendant did not ask for the affirmative charge.

"The oral charge of the court and the special charges given at the request of the parties constituted the law of the case for the guidance of the jury on the trial. Whether or not the charge, thus constituted, correctly states the law is not a matter for jury consideration, and if the verdict of the jury when considered in the light of the court's charge is contrary to the undisputed evidence, or against the great weight of the evidence, on motion for new trial it should be set aside. Penticost...