Housing Authority of Birmingham Dist. v. Title Guarantee Loan & Trust Co., 6 Div. 908.

• Decision Date: 28 May 1942
• Docket Number: 6 Div. 908.
• Citation: 243 Ala. 157,8 So.2d 835
• Court: Alabama Supreme Court
• Parties: HOUSING AUTHORITY OF BIRMINGHAM DIST. v. TITLE GUARANTEE LOAN & TRUST CO. et al.

8 So.2d 835

243 Ala. 157

HOUSING AUTHORITY OF BIRMINGHAM DIST. v. TITLE GUARANTEE LOAN & TRUST CO. et al.

6 Div. 908.

Supreme Court of Alabama

May 28, 1942

Rehearing Denied June 30, 1942.

The following charges were refused to petitioner:

"X. The Court charges the Jury that the cost of the property in 1925 is not a proper factor in determining the market value of the property in June 1940."

"1-A. The Court charges the Jury that the test of the market value of the property is what it would have reasonably sold for in the market in June, 1940 and under the conditions then existing."

"4. The court charges the Jury that the test for determining the amount of compensation to which the owners of the property are entitled is the reasonable market value of the property at the time of the taking."

"6. The Court charges the Jury that the amount of compensation to be awarded is to be determined by the fair market value of the property."

The witness Whatley testified in effect that he knew what the property was worth after the subdivision, and was asked "What is your opinion?" The overruling of objection to this question is made the basis of the 9th assignment of error.

On cross-examination this witness was asked: "With a willing purchaser and a willing seller in June 1940, the value would have been $4500 to $5000, is that right?" Sustaining objection to the question forms the basis of assignment 10.

Respondents propounded this question to witness Smith: "How much loan did you make on the property on the 12th of April 1927; the amount of the loan in other words?" The overruling of objection to this question is made the basis of assignment 12.

Petitioner's objection to the following statement of respondents' counsel in argument to the jury (assignment 13) was overruled: "It was common experience that mortgage companies lending money would not lend unless the property was worth fifty or sixty per cent above this value."

These charges were given at respondents' request:

"11. The court charges the jury that if you are reasonably satisfied from the evidence that the owner of the property involved in this proceeding could probably have sold it in June, 1940, but that the price at which the owner could probably have sold the property would not justly compensate him for his property, and that in order to justly compensate him for the property taken, it would be necessary for you to go beyond the probable sale price, and award a sum sufficient to put the owner in as good a position pecuniarily as the owner would have occupied, if the property had not been taken, then the court charges you that you should go beyond the probable sale price, and award such sum as would justly compensate the owner for the property taken."

"13. The court charges you that your duty under the law is to award the owners of the property involved in this case just compensation for the property taken, and, if after a fair consideration of all the evidence you are reasonably satisfied that just compensation calls for a larger sum than any probable sale price of the property in June, 1940, then you award just compensation, and do not confine or limit yourselves to any probable sale price of the property."

Exum & Whitmire, W. H. Sadler, Jr., and Wm. L. Clark, all of Birmingham, for appellant.

Horace C. Wilkinson, of Birmingham, for appellees.

GARDNER, Chief Justice.

This is a condemnation proceeding instituted by petitioner, the Housing Authority of the Birmingham District (appellee here) against J. S. Abney and his wife seeking to condemn real estate owned by the respondents, a lot 50 feet by 190 feet situated in Birmingham, Alabama. Title 19, § 1 et seq., Code 1940; Title 25, §§ 4, 5, Code 1940, General Acts 1935, pp. 85 and 126.

Upon the trial of the cause in the Circuit Court the jury fixed the valuation at $7,350. Petitioner, insisting that the sum from the evidence, was excessive, has prosecuted this appeal.

It was agreed between the parties that compensation was to be fixed as of June, 1940, and the only questions here presented relate to the matter of valuation, as the right of condemnation under the statute is unquestioned. Housing Authority of Phenix City v. Harris, 241 Ala. 419, 3 So.2d 54; Housing Authority of Phenix City v. Stillwell, 241 Ala. 420, 3 So.2d 55.

Petitioner insists the only rule applicable to this case on the question of "just compensation" was that which entitled the respondents to the reasonable market value of the property as of the month of June, 1940. As is well understood this is a general rule in cases of this character. "As a general rule the value of the property taken affords the measure of compensation. 'Value,' as used in this connection, is a relative term whose meaning depends on the circumstances; it ordinarily means market value, and hence the owner of the property taken is entitled to its market value, or the owner of property taken is entitled to its cash market value, fair market value, or fair cash market value, all of which expressions are substantially synonymous." 29 C.J.S., Eminent Domain, § 136, pp. 969, 970; 18 Amer. Jur. 875; Orgel on Valuation pp. 55-58.

Most generally our own Court has used the yardstick "reasonable market value". De Moville v. Merchants & Farmers Bank, 233 Ala. 204, 170 So. 756, 761; Alabama Power Co. v. Herzfeld, 216 Ala. 671, 114 So. 49; Dean v. County Board of Education, 210 Ala. 256, 97 So. 741; Jones v. New Orleans & S. R. Co., 70 Ala. 227. The expression "fair market value" appears to find favor in United States v. New River Collieries Co., 262 U.S. 341, 43 S.Ct. 565, 567, 67 L.Ed. 1014. But as above indicated such expressions are considered as substantially synonymous.

Petitioner offered a number of witnesses duly qualified as experts in real estate valuation whose testimony tended to show that this particular lot had a market value in June, 1940, and that its valuation was estimated between $3,500 and $4,200.

Though upon cross-examination the testimony of these witnesses may show no sales of real estate in that particular block in which this lot is situated or perhaps the adjoining block, yet the proof indicates sales in that area which may properly form a basis by way of comparison for the market value of the property here involved. The suggestion of counsel for respondent, therefore, that the evidence of these witnesses may be treated as in the nature of a "testimonial non-entity" referred to in some of our cases (Hicks v. Burgess, 185 Ala. 584, 64 So. 290; Stockburger Bros. v. Aderholt, 195 Ala. 56, 70 So. 157) is inapplicable to the facts as here presented.

The property here in question was purchased in 1925 and since held by the respondents as original purchasers. The proof shows, and indeed it is a matter of common knowledge that during that period very high prices prevailed for real estate. The purchase price was $15,000 and the assumption of a $900 improvement assessment. Upon consideration, therefore the matter of reasonable market value we think it appropriate that the Court should have charged the jury as requested in petitioner's refused charge "X", to the effect that this original cost of the property in this remote period was not a proper factor in determining the market value of the property in June, 1940. State v. Bienville Water-Supply Co., 89 Ala. 325, 8 So. 54. Likewise charge 1-A was improperly refused to petitioner. Dean v. County Board of Education, supra. We do not mean to indicate a reversal of the cause could properly be rested upon refusal of these two charges in the light of the oral charge of...