Hatter v. Mobile County

Decision Date22 December 1932
Docket Number1 Div. 753.
Citation226 Ala. 1,145 So. 151
PartiesHATTER v. MOBILE COUNTY.
CourtAlabama Supreme Court

Appeal from Circuit Court, Mobile County; Claude A. Grayson, Judge.

Petition of the County of Mobile for condemnation of a right of way over lands of E. Lyles Hatter. From a judgment of condemnation, defendant appeals.

Reversed and remanded.

Petitioner's witness Rogers testified that he was resident engineer of the state highway department, in charge of paving the road, and went upon defendant's land and saw a lumber loader; that this loader was on the right of way resting on railroad rails and was movable; that it was on wheels like a railroad car that the right of way was 80 feet, and there were no tracks on each side of the loader; that there had been a track there.

He was examined as follows:

"Q. Describe the appearances there. A. Well, the fact-it seemed there had been some repairs made on it.
"Q. All right, Mr. Rogers, what did you do, representing the State Highway Department, with respect to that loader, when you came along there? A. There was nothing done for some little time, and finally I moved it from the right-of-way.
"Q. In moving it from the right-of-way, how did you do that? A. We used some timbers for a track to roll it on and rolled it off the right-of-way.
"Q. All right, what happened then? A. The loader was moved back on the right of way. There was a fence erected then on the right-of-way line between the loader and the property and trespass notices put on fence."

Defendant objected to each of the foregoing questions, and the action of the court in overruling these objections is made the basis of assignments 6, 7, 8, and 9.

Defendant's witness Ezelle testified: "There were improvements on these properties, on the Telegraph Road at the time these condemnation proceedings were started. I cannot enumerate them but there were several little stores and a meeting house." He was asked:

"Q. What has happened to these improvements since the Telegraph Road has been abandoned there?"
"Q. What has happened to the rentability of these improvements since the Telegraph Road has been abandoned?"
"Q. Have those properties become vacant and unused since the travel has been shifted over and across the railroad on to the pavement?"

The action of the court in sustaining objections to these questions is made the basis of assignments 12, 13, and 14.

Assignment 18 is as follows:

"18. The Court erred in sustaining the petitioner's objection to the question to the appellant Hatter:
"'Mr. Hatter, it has been testified here in your hearing, that you own a number of buildings of various kinds, on these same identical forties, where they were traversed by the original location of this highway,-so long as that highway was open, was it possible to use them, and rent them and make money out of them?"'

The following charges were given for petitioner:

"2. The Court charges the jury that while the defendant is entitled to the full value of the land taken, you should deduct therefrom the increased value of the remaining portion of the tract, by reason of the improvement, and if this equals or exceeds the value of the land so taken you should not allow any damages."

"7. The court charges the jury that there are only three tracts of land to be considered in determining the injury or benefits material in this case, viz: the forty touching Gunnison Creek, the Payne tract and the forty on which the loader was situated."

Inge, Stallworth & Inge, of Mobile, for appellant.

James H. Webb, of Mobile, for appellee.

GARDNER J.

This is a condemnation proceeding by the county of Mobile for a right of way eighty feet in width through two forty-acre tracts belonging to appellant, E. Lyles Hatter, to be used in the erection of a paved highway on the west side of the Southern Railroad running through said land as a relocation of what was formerly known as the "Telegraph Road," which ran on the east side of said railroad, and likewise through this same land.

As to the two forties there are approximately five acres embraced in the land condemned, and all of which is situated about twenty miles from the city of Mobile. The major portion of the proof concerns what is referred to as the north forty, which furnished an outlet to Hatter for a large tract of land (7,000 acres) used chiefly for timber and mill site, and upon which forty he had a lumber yard and track for loading cars on the Southern Railroad. The amount of compensation awarded by the jury for the forty was $590. Along the old roadway Hatter also had some buildings, both for business and residence purposes, which he insists were damaged by the removal of the highway several hundred feet to the west.

The...

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8 cases
  • Hamrick v. Town of Albertville, 8 Div. 404.
    • United States
    • Alabama Supreme Court
    • 12 April 1934
    ... ... Denied May 31, 1934 ... Appeal ... from Circuit Court, Marshall County; E. P. Gay, Judge ... Proceeding ... by the Town of Albertville to fix an assessment ... consideration. McRea v. Marion County, supra; Hatter ... v. Mobile County, 226 Ala. 1, 145 So. 151; Pryor et ... al. v. Limestone County, 222 Ala ... ...
  • St. Clair County v. Bukacek
    • United States
    • Alabama Supreme Court
    • 23 March 1961
    ...from the highway. Hooper v. Savannah & M. R. Co., 69 Ala. 529; Pike County v. Whittington, 263 Ala. 47, 81 So.2d 288; Hatter v. Mobile County, 226 Ala. 1, 145 So. 151; McRea v. Marion County, 222 Ala. 511, 133 So. The authorities cited in the preceding paragraph hold that when the ways of i......
  • Pike County v. Whittington
    • United States
    • Alabama Supreme Court
    • 12 May 1955
    ...causes it to differ from the instant case, but we have read the original record and we find no such distinction. In Hatter v. Mobile County, 226 Ala. 1, 145 So. 151, 153, this court 'In the McRea Case, supra, this court considered also the question of damage to the owner by the removal of t......
  • Blount County v. Campbell
    • United States
    • Alabama Supreme Court
    • 19 February 1959
    ...completed project for which the land is condemned may produce on the remaining tract. Pike County v. Whittington, supra; Hatter v. Mobile County, 226 Ala. 1, 145 So. 151; McRea v. Marion County, supra; Hooper v. Savannah & M. R. Co., 69 Ala. In the case at bar as a result of the taking of a......
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