Dothan-Houston County Airport Authority, Inc. v. Horne, DOTHAN-HOUSTON

• Decision Date: 04 April 1974
• Docket Number: DOTHAN-HOUSTON
• Citation: Dothan-Houston County Airport Authority, Inc. v. Horne, 292 So.2d 656, 292 Ala. 273 (Ala. 1974)
• Parties: COUNTY AIRPORT AUTHORITY, INC. v. C. E. HORNE et al. SC 436, 436A, 436B.
• Court: Alabama Supreme Court

Page 656

292 So.2d 656

292 Ala. 273

DOTHAN-HOUSTON COUNTY AIRPORT AUTHORITY, INC. v. C. E. HORNE et al.

SC 436, 436A, 436B.

Supreme Court of Alabama.

April 4, 1974.

C. R. Lewis, Dothan, for appellant.

Charles L. Woods, Ozark, for appellees.

JONES, Justice.

These are three consolidated appeals arising out of awards of compensation to the property owners in condemnation proceedings brought by Dothan-Houston County Airport, Appellant. The assignments of error--raising the sole issue dispositive of each appeal--claim error in the overruling of motions for new trials on the ground of excessiveness of the verdicts. Finding no error to reverse, we affirm.

The facts are simple. The property owners' property lies at the very end of one of the jet runways; and, in ascending and descending, the planes travel on an angle 30--60 feet from the surface over plaintiffs' property. It is the air space above the line formed by this angle which the Airport sought to condemn. This is known as an avigation easement. It is not a fee but a perpetual right of use. The only right of access acquired to the surface is the right to go onto the property and cut the top of the trees at the low point of the easement acquired, which in itself does little or no harm to the property; and the property owners do not contend otherwise.

Two points are contended by the property owners as affecting the 'before and after' value of their property caused by the low-flying aircraft:

1. Improvements are limited to one story.

2. The use and enjoyment of the property is materially affected by the noise and vibration.

Involved are three tracts of land consisting of approximately four acres, three acres, and one acre, respectively. Only tract three has improvements of any substantial value--a reasonably modern seven-room residence. Expert testimony on behalf of the Airport is to the effect that each of the tracts is mere rural property best suited for farming, and that the avigation easement constitutes only nominal depreciation in value. None of the Airport witnesses went onto the property, witnessed the air space in use, or talked with any of the residents in the immediate area concerning the noise or vibration caused by the planes. They merely rode by and viewed it form their cars; and each admitted that the only element of damage which he took into account in arriving at his estimate of depreciated value was the fact that the easement gave the Airport the right to come onto the property and cut the tree tops that protruded into the condemned space.

The property owners' expert testimony takes the position basically that the properties' best and highest use is for industrial and commercial purposes. Lay witnesses, neighbors, also describe in rather vivid detail the annoyance and inconvenience caused by the coming and going of aircraft just over their roof tops.

The appellant in an excellent brief, under 'Statement of the Facts,' summarizes the testimony of an adjoining landowner thusly:

'I have been living there for 29 years and I am definitely aware of the air traffic over my home and the home of Mrs. Horne. It's hard to describe what happens when a jet aircraft or other aircraft flies over my property to land on the north-south runway. First of all, it effects the way of tension in your body, the noise is unbearable, the dishes in the kitchen rattle, the windows rattle, and there is no such thing as watching TV or carrying on a normal conversation with anyone. We've had windows cracked and plumbing trouble caused by the airplanes. They cause our pictures to be disarranged and there's smoke damage. Over a period of time it's especially bad on the windows and it's very hard to clean and it's very noticeable on the paint work of the house. Very often the lights of approaching planes shine right in our bedroom and, of course, the noise will awaken you.'

The highest estimate of the total difference in the 'before and after' value of all three tracts given by any witness on behalf of the Airport is $8,900, and the lowest is $2,500. The lowest such estimate on behalf of the property owners is $33,000 and the highest is $81,467. The jury, under supervision of the Court, was permitted to view the property in question.

The verdicts are:

Tract #1  $24,000
                Tract #2    6,000
                Tract #3   11,500
                          -------
                TOTAL     $41,500
                

Our research discloses that this is the first avigation easement case ever reviewed by this Court. ¹ The record of the proceedings below reveals that the trial Court applied, and we think correctly, the well-established principles governing the measure of damages in eminent domain cases generally. ²

The alleged error on the ground of excessiveness of the verdicts invokes two equally well-established rules of appellate review: (1) The action of the trial Court in overruling a motion for a new trial is due to be affirmed unless the verdict is unsupported by competent evidence, or (2) that the verdict is against the preponderance of the evidence or is palpably wrong and manifestly unjust. Renfroe v. Weaver, 285 Ala. 1, 228 So.2d 764 (1969).

These two rules (or, perhaps more accurately, two aspects of the same rule) must be applied in the context of condemnation cases where the verdicts are well within the outer ranges of the 'before and after' evaluations.

In State v. Burroughs, 285 Ala. 177, 230 So.2d 235 (1970), in which the jury had heard testimony by condemnor's witnesses that the difference in value after the taking was between $1,880 and $2,600, and testimony by condemnee's witnesses for between $15,000 and $22,000, before awarding a judgment for $18,000, Justice Simpson stated the proposition that:

'Where there is a conflict as to the amount of damages sustained as a result of condemnation procedures, a presumption will be indulged in...