Cumbaa v. Town of Geneva

• Decision Date: 13 January 1938
• Docket Number: 4 Div. 990
• Citation: 235 Ala. 423,179 So. 227
• Parties: CUMBAA et al. v. TOWN OF GENEVA.
• Court: Alabama Supreme Court

179 So. 227

235 Ala. 423

CUMBAA et al. v. TOWN OF GENEVA.

4 Div. 990

Supreme Court of Alabama

January 13, 1938

Rehearing Denied Feb. 24, 1938

Appeal from Circuit Court, Geneva County; Robt. S. Reid, Judge.

Condemnation proceeding by the Town of Geneva against Anna Cumbaa and others. From a judgment for plaintiff, defendants appeal.

Reversed and remanded.

Carmichael & Tiller, of Geneva, for appellants.

Mulkey & Mulkey, of Geneva, for appellee.

GARDNER Justice.

The Town of Geneva secured a judgment of condemnation (section 7476, Code 1923) against the real estate of Anna Cumbaa and her children, consisting of a dwelling and storehouse on their lot in Geneva, Ala., for the purpose of erecting thereon a levee. The validity and regularity of the judgment are not under attack, and the sole question here for consideration relates to the matter of compensation.

The learned trial judge, following the lead of Odum v Rutledge & Julian R. Co., 94 Ala. 488, 10 So. 222 entertained the view that the Town of Geneva acquired only an easement in the property, with the title to the building vesting in the original owner, subject only to the right of the levee authorities to have them removed, if thought to interfere therewith. These buildings were kept intact and elevated as the levee progressed in height, and are now on the levee several feet above the surface. That they are yet subject to further removal by the town, if found necessary for levee purposes, is quite clear. The question is not whether the town now desires any such removal, but rather the legal right to do so in the future. Collins v. Alabama Power Co., 214 Ala. 643, 108 So. 868, 46 A.L.R. 1459.

The case was tried upon the theory these buildings belonged to the original owners, and their value was not to be included in the calculation of compensation. The jury was so instructed in the oral charge. Charges 6 and 9, refused to defendants, were to the effect that these buildings constituted a part of the realty, and that the issue to be determined by the jury was the market value of the land condemned with the buildings thereon.

The Odum Case, supra, dealt with condemnation for a railroad right of way, and, as pointed out in Downing v State, 214 Ala. 199, 107 So. 80, 82, railroad companies are authorized to condemn "ways and rights of way," properly construed as the right to acquire an easement only. But the law is for practical purposes and looks to practical ends, and, as observed in Ensign Yellow Pine Co. v Hohenberg, 200 Ala. 149, 75 So. 897, 898, "in the ordinary case of an application to condemn an easement, not limited to a term of years, the rule is to award to the owner the value of the entire fee at the time of taking."

It is the generally accepted rule that, "when a piece of land upon which buildings have been erected and affixed to the soil is taken by eminent domain, so far as the buildings add to the market value of the land, they must be considered in determining the compensation to be awarded to the owner." 10 R.C.L. 141; 20 Corpus Juris 799.

In accordance with the provisions of section 7478, Code, the petition discloses that the Town of Geneva desired such interest in the property condemned as would serve the purpose of the construction and maintenance of a levee. And in Downing v. State, supra, the court noted that the purpose...