Harvey v. Warren

• Decision Date: 22 January 1925
• Docket Number: 3 Div. 699
• Citation: 102 So. 899,212 Ala. 415
• Parties: HARVEY v. WARREN.
• Court: Alabama Supreme Court

102 So. 899

212 Ala. 415

HARVEY v. WARREN.

3 Div. 699

Supreme Court of Alabama

January 22, 1925

Appeal from Circuit Court, Montgomery County; Leon McCord, Judge.

Petition by Mera Warren against Ellie W. Harvey to condemn a right of way. From a judgment for plaintiff, defendant appeals. Affirmed.

Hill Hill, Whiting, Thomas & Rives, of Montgomery, for appellant.

L.A Sanderson and Thos. B. Hill, Jr., both of Montgomery, for appellee.

THOMAS J.

This appeal is from a judgment of the circuit court in condemnation of a right of way sought under the Act of September 30, 1919 (Gen.Acts, p. 982); the initial proceeding was had in the probate court pursuant to provisions contained in article 1, c. 79, Code of 1907, § 3860 et seq. Appeal was taken from the award in the probate court to the circuit court, where the amount of the damage was substantially reduced by the verdict of the jury. Code 1907,§ 3875; Stollenwerck v. Elmore County, 210 Ala. 489, 98 So 466; M. & B.R.R. Co. v. L. & N.R.R. Co., 192 Ala. 136, 68 So. 905; Const. § 235.

The sufficiency of the petition was challenged on the ground, among others, that the foregoing act was violative of section 1 of article 14 of the Constitution of the United States. The overruling of demurrers is assigned as error. The provision is contained in the Constitution of this state that the Legislature may by law secure to persons or corporations the right of way over the lands of other persons or corporations, and by general laws provide and regulate the exercise by persons and corporations of the rights reserved, etc. Section 23. Such a statute has been upheld in this court. Steele v. Commissioners' Court, 83 Ala. 304, 3 So. 761; Sloss-Sheffield S. & I. Co. v. O'Rear, 200 Ala. 291, 76 So. 57; Alabama, etc., Co. v. Mt. Vernon, etc., Co., 186 Ala. 622, 65 So. 287.

In Mt. Vernon, etc., Co. v. Alabama, etc., Co., 240 U.S. 30, 36 S.Ct. 234, 60 L.Ed. 507, the Supreme Court of the United States said, of the argument made against the Alabama statute and the purposes of condemnation thereunder, that--

"In the organic relations of modern society it may sometimes be hard to draw the line that is supposed to limit the authority of the Legislature to exercise or delegate the power of eminent domain. But to gather the streams from waste and to draw from them energy, labor without brains, and so to save mankind from toil that it can be spared, is to supply what, next to intellect, is the very foundation of all our achievements and all our welfare. If that purpose is not public we should be at a loss to say what is. The inadequacy of use by the general public as a universal test is established."

Under this definition, the provisions of the act of September 30, 1919, are not offensive to the Fourteenth Amendment to the Constitution of the United States. See Strickley v. Highland Boy Gold Min. Co., 200 U.S. 527, 26 S.Ct. 301, 50 L.Ed. 581, 583, 4 Ann.Cas. 1174; Clark v. Nash, 198 U.S. 361, 25 S.Ct. 676, 49 L.Ed. 1085, 4 Ann.Cas. 1171; Rindge Co. v. Los Angeles County, 262 U.S. 700, 43 S.Ct. 689, 67 L.Ed. 1186.

The respective insistences of the parties hereto made in the court below present for construction the meaning of the expressions of the statute, "a convenient right of way" over the lands intervening between such body of land and the public road nearest or most convenient thereto. (Italics supplied.) Has the condemnor the absolute right of selection of the right of way that "is desired," or is the convenience of both owners to be considered under the physical facts entering therein, when granting or refusing condemnation? We have indicated that the word "convenient" appears in the statute in referring to the right of way sought to be condemned and to the public road to which access is desired.

The several ways of charging, subjecting, or dedicating lands to use as a public highway need not now be repeated. Williams v. Oates (Ala.Sup.) 102 So. 712; City of Birmingham v. Graham, 202 Ala. 202, 79 So. 574; City of Mobile v. Chapman, 202 Ala. 194, 79 So. 566; Locklin v. Tucker, 208 Ala. 155, 93 So. 896; Gulf States, etc., Co. v. Beveridge, 209 Ala. 473, 96 So. 587; Hill v. Houk, 155 Ala. 448, 46 So. 562; McDade v State, 95 Ala. 28, 11 So. 375; Card v. Cunningham, 199 Ala. 222, 74 So. 335; Manning v. House, 211 Ala. 570, 100 So. 772.

It has been noted that to come within the provisions of the Constitutions (state and federal) having application to the taking of private property by paying to the owner just compensation (Ala. Const. § 23; 14th Amend. to Const. of U.S.), the use to which it is to be subjected must be a recognized "public use" (Mt. Vernon, etc., Co. v. Alabama, etc., Co., 240 U.S. 30, 36 S.Ct. 234, 60 L.Ed. 507); that (of the right of way in question) the condemnor has the initial selection or election of the general route that "is desired" to the public road nearest or most convenient thereto, the granting or the denial of his petition then depending upon the physical facts showing or denying that the selection made by petitioner is that provided for by statute as the convenient right of way to the public road nearest or most convenient thereto. In this ascertainment, the physical "convenience" of both landowners will be considered, to which we will later advert.

We do not understand that under the conflicting tendencies of evidence the verdict was contrary to defendant's given charge No. 1; nor do we find application for the rule of Talley v. Whitlock, 199 Ala. 36, 73 So. 976; or Standard Oil Co. v. Humphries, 205 Ala. 529, 88 So. 855, denying to juries the right to disregard peremptory instructions given by the court.

Within these proper issues to be tried, it follows there was no error in refusing to allow petitioner to be asked whether or not at the time of her purchase of her lands there was a public road leading therefrom or thereby, or whether petitioner had been unfriendly or sought to injure defendant and her property. We find no erroneous rulings on evidence.

Plaintiff's written charge No. 2, if confusing as to the meaning of the words ...