Commissioners' Court of Colbert County v. Street

• Decision Date: 28 June 1897
• Citation: 22 So. 629,116 Ala. 28
• Court: Alabama Supreme Court
• Parties: COMMISSIONERS' COURT OF COLBERT COUNTY v. STREET.

22 So. 629

116 Ala. 28

COMMISSIONERS' COURT OF COLBERT COUNTY v. STREET.

Supreme Court of Alabama

June 28, 1897

Appeal from circuit court, Colbert county; Thomas R. Roulhac, Judge.

From a judgment of the commissioners' court of Colbert county in proceedings for establishment of a public road, Christ Street appealed to the circuit court, and from a judgment therein in his favor said commissioners' court appeals. Reversed.

The appeal in this case is from the rulings, proceedings, and judgment in the circuit court of Colbert county on an appeal to said court, and the action of the commissioners' court of Colbert county in the proceedings to open a public road. Upon a petition filed for the purpose of opening a public road along a certain designated section of the county, and after required notice, the court of county commissioners appointed viewers to mark out the road, and to assess the value of the land of each landowner that was to be taken in the road so opened over the route marked out. The viewers made their report, which indicated the route of the road they marked out over the land of one Christ Street, the appellee and assessed the value of the lands which were to be taken from said Street at five dollars an acre. This report of the viewers was received and confirmed, and notice given to the landowners, the appellee being included among them, as to the time when they were to hear objections as to the amount of the land taken, and the amount of the compensation allowed by the viewers. In response to this notice, Christ Street filed the following paper, signed by him, addressed to the commissioners' court of Colbert county: "The undersigned, Christ Street, hereby agrees to the report of the jury of viewers to view and mark out a public road from near Thomas Letsinger's, east on section line, to Foster's Mill road, and claims no damages for road running through his land, but asks your honorable court to allow him $240 for fencing the right of way of said road." This demand for the payment for fencing the right of way of said road was denied, but it was ordered by the court that Christ Street be paid twice the amount per acre which was assessed by the viewers. From this judgment refusing to allow him for the cost of fencing the right of way of the road, Street appealed to the circuit court; and upon bond being given, the transcript of the record of the proceedings in the commissioners' court of Colbert county was sent to the circuit court. In the circuit court, the defendant, the commissioners' court, moved the court to dismiss the appeal, upon the following grounds: (1) Because the transcript shows that the appellant appeared in the commissioners' court in this cause, and agreed to the report of viewers as made in said commissioners' court and further stated that he claimed no damages for the land taken by the said road established, but asked to be allowed a certain sum of money by that court to fence in the land on each side of the road. (2) Because there is no authority in law for an appeal from an order of the commissioners' court refusing to allow plaintiff money to fence in land condemned for the purpose of a road through which said road runs, the transcript in this case showing that the plaintiff consented to the amount that was assessed for the value of the land taken, but asked the court to allow him a certain sum of money for fencing in the road,-a thing unauthorized by law. This motion was overruled, and to this ruling the defendant duly excepted. On the trial of the cause, as is shown by the bill of exceptions, the plaintiff offered evidence tending to show the cost of constructing a fence along the road where it ran through his property. The defendant objected to each of the questions eliciting this testimony, and moved to exclude each of the answers thereto, upon the grounds (1) that the commissioners' court was not required to build said fence along said land; (2) because the testimony elicited and given was not material to the issue to be tried in the cause, and constituted no element of damage in the case. Each of these several objections and motions was overruled, and to each of said rulings the defendant separately excepted. There was other testimony tending to show that, in the section of the county where the plaintiff's land was situated, there was much of the land uninclosed by fences, but many of the roads had gates along them. Upon the introduction of all the evidence, the court instructed the jury, among other things, as follows: "That if the opening of the road through Street's land imposed upon him the burden of building additional fences, in order to obtain for his farm the same protection from cattle and stock as that which he now has for his land, such burden of fencing would be an incidental injury to his property, would be an element of damage in this case, and he would be entitled to compensation therefor." To the giving of this portion of the court's general charge the defendant separately excepted, and also excepted to the court's giving, at the request of the plaintiff, the following written charge: "Gentlemen of the jury, you must consider all the evidence in this case, and render a verdict assessing such compensation, if any, to which you may believe, from the evidence, Mr. Street is entitled, under the law as given in charge by the court." The defendant requested the court to give to the jury the following written charges, and plaintiff separately excepted to the court's giving each of them as asked: (1) "If the jury believe from the evidence that most of the public roads in the section of the county in which the road in this case is proposed to be located are not fenced, but are opened through gates, and that would be a proper road in this case, then they will allow the plaintiff no damages for a fence." (2) "Gentlemen of the jury, I charge you that, under the evidence in this case, you can allow the plaintiff no damages." (3) "I charge you, gentlemen of the jury, that the defendant is entitled to no damages for any fence he will have to build along the proposed road." (4) "Gentlemen of the jury, you can allow the plaintiff no damages for the land used in this case by the proposed road." (5) "Gentlemen of the jury, the plaintiff has waived any claim to damages for the value of the land taken." (8) "Gentlemen of the jury, in estimating the plaintiff's damages in this case, you will be limited to what the proof shows you is a just and reasonable value for the land taken up by the proposed road." There were verdict and judgment for the plaintiff. The judgment entry, after reciting the rulings of the court upon the motion made by the defendant to dismiss the appeal, and the verdict of the jury, then continued as follows: "It is therefore ordered and adjudged by the court that the plaintiffs have and recover of the defendants the sum of one hundred and sixty-two and 50/100 dollars, besides the cost in this behalf expended." The defendant appeals, and assigns as error the rulings of the court upon the motion of the defendant, and upon the evidence, and the charges given and refused.

W. P. & W. L. Chitwood, for appellant.

Wm. H. Sawtelle, for appellee.

COLEMAN J.

Upon petition filed, and after due and legal notice, and the return of viewers duly appointed, the commissioners' court of Colbert county established a public road over and across certain lands of Christ Street. The owner of the land appealed to the circuit court. The present appeal is prosecuted from the rulings...