Conecuh County v. Carter, 3 Div. 905.

• Decision Date: 25 January 1930
• Docket Number: 3 Div. 905.
• Parties: CONECUH COUNTY v. CARTER. [*]
• Court: Alabama Supreme Court

126 So. 132

220 Ala. 668

CONECUH COUNTY v. CARTER. ^[*]

3 Div. 905.

Supreme Court of Alabama

January 25, 1930

Appeal from Circuit Court, Conecuh County; F. W. Hare, Judge.

Proceeding by Conecuh County to condemn a right of way across lands of Mary A. Carter for the purpose of constructing a highway. From a judgment granting defendant's motion for a new trial after a verdict awarding defendant no damages plaintiff appeals. Reversed and remanded.

Brown J., dissenting.

Hamilton & Jones, of Evergreen, for appellant.

Jones &amp Jones, of Evergreen, for appellee.

SAYRE J.

In a proceeding to assess compensation for land taken by the county for the location of a highway, a jury in the circuit court returned a verdict awarding the defendant landowner no damages. And then, before judgment, the court, on motion of the defendant, set aside the verdict. The county reserved an exception and brings the case here by appeal. The sole question at issue between the parties relates to the proper measure of the compensation to be awarded.

The judgment in the trial court appears to have been based upon the theory that the amendment of section 7489 of the Code by the Act of August 30, 1927 (Acts, pp. 492, 493) was inoperative-unconstitutional, as we presume.

The question as to the unconstitutionality of the amendment was considered in Rudder v. Limestone County (Ala. Sup.) 125 So. 670, and, as for any objection then taken against it determined in favor of the appellant in this case. The court now finds no sufficient reason for a change of opinion. We note, however, the fact that the language of the amendment is that "the commissioners may, in fixing the amount of compensation to be awarded the owner for lands taken for this use, taken into consideration the value of the enhancement to the remaining lands of such owner. ***" It is not the opinion of this court that this language of the amended statute confers upon the commissioners-or the jury if an appeal is taken to the circuit court as in this case-a discretion to consider or not the value of the enhancement to remaining lands. That would lead to unnecessary and unwarranted inequalities in the administration of the statute. It must be assumed in the interpretation of the statute that the legislative intention was that it should be administered alike in all cases. It results that "must" is read into the proviso, amendment, in the place of "may," and that, in case of "the condemnation of lands for ways and rights of ways for public highways"-the only case in which the...