Fricke v. City of Guntersville

Decision Date26 October 1950
Docket Number8 Div. 550
PartiesFRICKE v. CITY OF GUNTERSVILLE.
CourtAlabama Supreme Court

Marion F. Lusk, of Guntersville, for appellant.

Starnes & Starnes, of Guntersville, for appellee.

LAWSON, Justice.

This appeal involves a review of a decree of the circuit court of Marshall County, in equity, overruling exceptions to a report of the register made on reference and confirming the report.

In 1946 the City of Guntersville dug a drainage ditch along the eastern boundary of three lots owned by appellant in Block 41, according to the Richardson survey of the town of Guntersville. This ditch was a part of a drainage project constructed under the provisions of § 601, Title 37, Code 1940. The ditch was dug for the purpose of preventing surface waters which flowed across appellant's property in a southeasterly direction from reaching business property located to the east of appellant's property. The ditch was dug in an alley which bounded appellant's property on the east, separating it from the aforementioned business property.

After the ditch was dug appellant's guardian, his mother, made complaint to the City authorities. The City installed tile and covered most of the ditch which was adjacent to two of the lots, but left uncovered all of the ditch which bounded lot number 5, the southernmost of the three lots, upon which the residence was situated. This uncovered ditch is three feet wide and three feet deep. Prior to the digging of the ditch the surface of lot number 5 and the alley were level. There is no driveway into lot number 5 from Obrig Avenue, on which the lot faces, and none can be constructed because of the width of the residence. The lot is only fifty feet wide.

The ditch was left open by the City authorities upon advice of competent engineers.

Upon complaint being made, the City authorities offered to construct a bridge or driveway so that appellant could have a means of ingress and egress to lot number 5 from the alley.

Appellant's guardian did not call upon the City to construct such a driveway. Instead, appellant, suing by his said guardian, filed his bill in the circuit court of Marshall County, in equity, seeking to require the City of Guntersville to fill or cover the drainage ditch and also prayed for general relief. The trial court rendered a decree refusing to require the City to fill or cover the ditch, but incorporated in the final decree the following provisions:

'However, the Court having obtained jurisdiction of the parties, in order that Equity may be done, is of the opinion that the Complainant is entitled to such damages as he may have sustained by the reason of the digging of this ditch in the manner set forth in the original Bill, and that the amount of said damages should be ascertained by competent proof.

'It is, therefore, Ordered, Adjudged, and Decreed by the Court that this cause be referred to the Register of the Circuit Court and that the Register hold a reference to ascertain the damage to Complainant's property by reason of the acts complained of in the original Bill, and report back to the Court his findings in the premises.

'Until the coming in of said report said cause is retained for such further orders as may be required.

'This 27th day of January, 1948.'

Prior to the holding of a reference the complainant appealed to this court from the decree refusing to require the City to cover or fill in the ditch. We affirmed. Fricke v. City of Guntersville, 251 Ala. 63, 36 So.2d 321. The writer of this opinion wrote the opinion for the court on first appeal and made certain mistakes as to description which are herein corrected, though such mistakes did not affect the conclusion reached, nor do they have any bearing on the questions presented on this appeal. In the second paragraph of the opinion on the first appeal it is stated that Block 41 is bounded on the west by Dunlap Avenue. That is incorrect. Dunlap Avenue bounds the said block on the east. The word 'northeastern' where it appears in the first sentence of the fourth paragraph of the opinion should have read 'northwestern.'

A municipal corporation is liable for damages to a property owner whose property is injured as a result of the construction of such a drainage project. § 601, Title 37, Code 1940; § 235, Constitution 1901. The burden is on the property owner to show damage and the amount thereof. Smith v. Town of New Decatur, 166 Ala. 334, 51 So. 984. The measure of recovery is the difference in the market value of the property before and after the work done. Town of Eutaw v. Botnick, 150 Ala. 429, 43 So. 739; Smith v. Town of New Decatur, supra.

After affirmance by this court, a reference was held in accordance with the provisions of the decree of January 27, 1948, heretofore set out.

A number of witnesses were examined orally before the register. The register reported that the complainant was not entitled to any damages. Complainant filed exceptions to the report. The trial court overruled the exceptions and rendered decree confirming the report of the register. It is from that decree that the present appeal is taken.

We cannot agree with the insistence of counsel for appellant that the trial court in the decree of January 27, 1948, found that complainant was entitled to damages and that the reference was ordered for the sole purpose of ascertaining the extent of such damage. It is clear that the trial court did not place such...

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9 cases
  • Hoffman v. Jordan
    • United States
    • Alabama Supreme Court
    • 16 Junio 1955
    ...such assignments of error as pertain to rulings of the court on exceptions to the report of the register. In Fricke v. City of Guntersville, 254 Ala. 370, 48 So.2d 420, 422, this court 'It is well settled in this state that on an appeal from a decree confirming the report of the register on......
  • Fricke v. City of Guntersville, 8 Div. 625
    • United States
    • Alabama Supreme Court
    • 1 Mayo 1952
    ...before the register, we are clearly satisfied that his finding that appellant is not entitled to any damage is clearly wrong.' 254 Ala. 370, 373, 48 So.2d 420, 422. On remandment, additional evidence was This is the last and final appeal and questions the propriety of the decree of the lowe......
  • Lott v. City of Daphne
    • United States
    • Alabama Supreme Court
    • 13 Enero 1989
    ...of Montgomery, 423 So.2d 187, 188 (Ala.1982). See also, Hendrix v. Creel, 292 Ala. 541, 297 So.2d 364 (1974); Fricke v. City of Guntersville, 254 Ala. 370, 48 So.2d 420 (1950). The evidence at trial clearly presented sufficient facts for the jury to conclude that the City undertook to const......
  • Willingham v. Lankford, 8 Div. 681
    • United States
    • Alabama Supreme Court
    • 25 Marzo 1954
    ...of appellant. The rule of review in such cases, so well settled as to be axiomatic, is thus stated in Fricke v. City of Guntersville, 254 Ala. 370, 372, 48 So.2d 420, 422: 'It is well settled in this state that on an appeal from a decree confirming the report of the register on evidence giv......
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