Ensign Yellow Pine Co. v. Hohenberg

• Decision Date: 19 April 1917
• Docket Number: 5 Div. 603
• Citation: 75 So. 897,200 Ala. 149
• Parties: ENSIGN YELLOW PINE CO. v. HOHENBERG.
• Court: Alabama Supreme Court

75 So. 897

200 Ala. 149

ENSIGN YELLOW PINE CO. v. HOHENBERG.

5 Div. 603

Supreme Court of Alabama

April 19, 1917

Rehearing Denied June 21, 1917

Appeal from Circuit Court, Elmore County; W.W. Pearson, Judge.

Application to condemn a right of way by the Ensign Yellow Pine Company against Morris Hohenberg. From a judgment for defendant, the applicant appeals. Affirmed.

Holley & Morrow and Smoot & Mullins, all of Wetumpka, for appellant.

Frank W. Lull, of Wetumpka, and Hill, Hill, Whiting & Stern, of Montgomery, for appellee.

SAYRE J.

In its application to the probate court appellant sought to condemn simply a right of way for its railroad over the lands of appellee. When the case reached the circuit court appellant offered to amend its application, so as to show an easement for a limited term of 15 years as the interest to be condemned. The court, on appellee's objection, denied the amendment.

The application was subject to proper amendment in the circuit court (Newton v. Ala. Mid. Rwy., 99 Ala. 468, 13 So. 259); but there is no authority for a proceeding to condemn an easement for a term of years. The statute (Code, § 3860) authorizes an application "to take lands, or to acquire an interest, or easement therein." Statutes delegating the power of eminent domain must be strictly construed in favor of the owner of the property it is sought to condemn. New & Old Decatur, etc., v. Karcher, 112 Ala. 676, 21 So. 825; 10 R.C.L., p. 196, § 168. The proceeding vests in the applicant "the easement proposed to be acquired for the uses and purposes stated in the application, and for no other uses or purposes" (Code, § 3882), thus leaving the fee in the owner. But 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. Ala. Power Co v. Keystone Lime Co., 191 Ala. 58, 67 So. 833; Long Distance Tel. & Tel. Co. v. Schmidt, 157 Ala. 391, 47 So. 731. This rule has been adopted for the reason that in such cases the distinction between the easement and the fee so far as it enters into a determination of the damages to be assessed, is of no practical value. There is no indication in the statute of a legislative intention that the owner's compensation for land taken may be reduced by the more or less problematical present value of the land to be returned after a term of years with the scars of its intervening use upon it. Such an appraisement would, in most cases, introduce an element of uncertainty into the ascertainment of that just compensation which is a constitutional prerequisite to the condemnation of private property by individuals or corporations. If the Legislature may authorize such mode of taking and valuing property, at least its will to that end should be clearly and distinctly expressed. Hibernia R.R Co. v. De Camp, 47 N.J.Law, 518, 4 A. 318, 54 Am.Rep. 197; Waterbury v. Platt, 75 Conn. 387, 53 A. 958, 60 L.R.A. 211, 96 Am.St.Rep. 229; Currier v. M. & C.R.R. Co., 11 Ohio St. 228.

The...