Hunter v. City of Mobile

Decision Date13 May 1943
Docket Number1 Div. 192.
Citation13 So.2d 656,244 Ala. 318
PartiesHUNTER et al v. CITY OF MOBILE.
CourtAlabama Supreme Court

Smith Hand & Arendall, of Mobile, for appellants.

Harry Seale, of Mobile, for appellee.

GARDNER Chief Justice.

Plaintiffs are the owners of business property abutting on Government Street in the City of Mobile, which they claim was diminished in market value by the construction of the ramp or approach to what is known as the Bankhead Tunnel. The averments of the complaint are substantially identical with those held to state a cause of action in McGowin v. City of Mobile, 241 Ala. 576, 4 So.2d 161, and a detailed statement of the manner in which the property is alleged to have been damaged may well be here omitted. The complaint is properly interpreted as stating a cause of action in assumpsit, and no question as to its sufficiency is here presented.

The point here for review turns upon the ruling of the trial court overruling plaintiffs' demurrer to Plea Two interposed by the defendant. This plea reads as follows "Two. Prior to the filing of the suit the Plaintiffs did not present to the Clerk of the City of Mobile within six months from the accrual thereof a claim upon which this suit is based, as required by Section 476 of Title 37 of the Alabama Code of 1940, and the action is, therefore, barred by the statute of non-claim."

On account of the adverse ruling of the court as to the sufficiency of this plea, plaintiffs took a non-suit, and prosecute this appeal. The plea is based upon Section 476, Title 37, Code of 1940, which reads as follows: "§ 476. All claims against the municipality (except bonds and interest coupons and claims for damages) shall be presented to the clerk for payment within two years from the accrual of said claim, or shall be barred; claims for damages growing out of torts shall be presented within six months from the accrual thereof or shall be barred."

It was the contention of the defendant that the claim of plaintiffs was for damages growing out of a tort and therefore governed by the latter provision of the above noted section, requiring presentation to the clerk of the city within six months from the accrual thereof. The trial court accepted this view.

But we find ourselves unable to agree. The claim of plaintiffs was for compensation, which rested upon Section 235, Constitution of 1901. As originally enacted, the property owner was compensated only for property taken or applied to a public use and no consideration given to the injury or destruction of property adjoining the public improvement. As said in City Council of Montgomery v. Townsend, 80 Ala. 489 2 So. 155, 157, 60 Am.Rep. 112: "In such case the protection of private property was sacrificed to the good or convenience of the community, and the individual loss or injury was regarded as damnum absque injuria, to be borne by the citizen for the public benefit." As the constitutional provision now reads, a liability is imposed for private property injured or destroyed though not taken, " * * * a liability for consequential damages,--from which municipal corporations were theretofore exempt." The abutting property owner's compensation for injury to his property is upon the same basis as theretofore existed when the property was actually taken. City Council of Montgomery v. Maddox, 89 Ala. 181, 7 So. 433; City Council of Montgomery v. Townsend, supra; McEachin v. City of Tuscaloosa, 164 Ala. 263, 51 So. 153; Alabama Power Co. v. City of Guntersville, 235 Ala. 136, 177 So. 332, 114 A.L.R. 181. This is self-evident from the very language of the constitution, and was expressed in the Maddox case, supra [89 Ala. 181, 7 So. 436], as follows: "The injury was held to be the direct result of the construction, and 'to stand upon the same footing as to consequential injuries as if it had been an actual taking of a portion of the plaintiffs' property.' "

The exact question here for consideration appears never to have been directly presented for decision in this Court. Many authorities are to be found noted in 30 C.J.S., Eminent Domain, § 395, p. 105 and 44 C.J. p. 473. Some of the authorities go so far as to hold the only right of action is assumpsit, based upon an implied contract to compensate the owner for property thus injured, taken, or destroyed. Illustrative cases are Foster v. City of New Orleans, 155 La. 889, 99 So. 686; Litka v. City of Anacortes, 167 Wash. 259, 9 P.2d 88; Martin v. Western States Gas Co., 8 Cal.App.2d 226, 47 P.2d 522; Jacobson v. State of N.Dak., 68 N.D. 259, 278 N.W. 652, 653. In this latter case the court observed: "What is recovered is 'compensation,' which presupposes a contract, expressed or implied. It is not damages in the strict sense of the word." These authorities are based upon the theory that as the municipality was lawfully engaged in making the public improvement, it therefore could not be a trespasser or a wrongdoer and that, of consequence, its conduct could not be deemed tortious.

Other authorities are to the effect, however, that when the municipality in the prosecution of a public improvement either takes or injures adjoining property without first having instituted condemnation proceedings or making just compensation to the owner, such conduct is of consequence wrongful and will support an action on the case.

But the view also seems to prevail that the property owner may waive the tort and sue in assumpsit for compensation as upon an implied contract. Illustrative of this view are: Nelson County v. Loving, 126 Va. 283, 101 S.E. 406; State Highway Commission v. Puskarich, 148 Kan. 388, 83 P.2d 132; Dayton v. City of Asheville, 185 N.C. 12, 115 S.E. 827, 30 A.L.R. 1186. The case of United States v. Great Falls Manufacturing Co., 112 U.S. 645, 5 S.Ct. 306, 311, 28 L.Ed. 846, is much in point in support of the conclusion that a cause of action in assumpsit will lie, as is to be noted from the following excerpt from the opinion in that case: " * * * we are of opinion that the United States, having by its agents, proceeding under the authority of an act of congress, taken the property of the claimant for public use, are under an obligation, imposed by the constitution, to make compensation. The law will imply a promise to make the required compensation, where property, to which the government asserts no title, is taken, pursuant to an act of congress, as private property to be applied for public uses. Such an implication being consistent with the constitutional duty of the government, as well as with common justice, the claimant's cause of action is one that arises out of implied contract within the meaning of the statute, which confers jurisdiction upon the court of claims of actions founded 'upon any contract, express or implied, with the government of the United States.' "

A consideration of our own authorities discloses that in cases of this character a tort action has been sustained. Dallas County v. Dillard, 156 Ala. 354, 47 So. 135, 18 L.R.A., N.S., 884; Highland Ave. & Belt R. Co. v. Matthews, 99 Ala. 24, 10 So. 267, 14 L.R.A. 462; Hamilton v. Alabama Power Co., 195 Ala. 438, 70 So. 737; Alabama Midland Ry. v. Coskry, 92 Ala. 254, 9 So. 202; City Council of Montgomery v. Townsend, supra; City of Birmingham v. Evans, 221 Ala. 381, 129 So. 50; Thompson v. City of Mobile, 240 Ala. 523, 199 So. 862.

In Jones v. New Orleans & S.R. Co., 70 Ala. 227, private property had been taken for public use without first making compensation or instituting condemnation proceedings. The public use was for railroad purposes. It was conceded in the opinion that though technically speaking, the railroad was a trespasser by reason of its neglect to first pursue the proper remedy for acquiring the lands, yet as there was in the road a continuing right to pursue this remedy and thus render the possession rightful, a plain distinction was drawn between such a trespasser and what the opinion denominates a common trespasser. The court further refers to the fact that under the constitution the property owner was entitled only to just compensation, saying: "Fair, reasonable, adequate, just compensation for the loss or injury he may sustain, the constitution guarantees to the citizen whose property is taken for public uses. When this is afforded, the purposes of right, and of the constitution, are satisfied."

And as to recovery of consequential damages for property not taken it may well be seen that the necessity to ascertain and compensate before proceeding with the work is not at all times practicable. Illustrative is ...

To continue reading

Request your trial
17 cases
  • Hadfield v. Oakland County Drain Com'r
    • United States
    • Supreme Court of Michigan
    • 17 mai 1988
    ... ... Brenda LANDRY and Emmett Landry, husband and wife, ... Plaintiffs-Appellees, ... CITY OF DETROIT, a municipal corporation, Defendant-Appellant, ... Detroit Wayne Joint Building ... 637, 138 N.W.2d 322, quoting Hunter v. City of Mobile, 244 Ala. 318, 13 So.2d 656 (1943) ... Noting that it was unnecessary to ... ...
  • Gainer v. School Board of Jefferson County, Ala.
    • United States
    • U.S. District Court — Northern District of Alabama
    • 4 novembre 1955
    ...Allen v. Intendant & Councilmen of LaFayette, 1899, 89 Ala. 641, 8 So. 30, 9 L.R.A. 497 (unjust enrichment); Hunter v. City of Mobile, 1943, 244 Ala. 318, 13 So.2d 656 (a taking of private property by a city under its power of eminent domain not a common trespass under a constitutional prov......
  • Suess Builders Co. v. City of Beaverton
    • United States
    • Supreme Court of Oregon
    • 29 décembre 1982
    ...obligation to pay for unjust enrichment. Cf. Richardson v. Investment Co., 124 Or. 569, 264 P. 458 (1928), and see Hunter v. City of Mobile, 244 Ala. 318, 13 So.2d 656 (1943). Each of these subsections leads to a six-year period of limitation. Moreover, that would be the period under ORS 12......
  • Thom v. State (State Report Title: Thom v. State Highway Com'r)
    • United States
    • Supreme Court of Michigan
    • 7 décembre 1965
    ... ... In Allen v. City of Detroit, 167 Mich. 473 [133 N.W. 317] 36 L.R.A ... Page 324 ... [N.S.] 890, Justice ... The latest and most exhaustively written case there is Hunter v. City of Mobile, 244 Ala. 318, 13 So.2d 656. The court ruled [376 Mich. 637] that where a ... ...
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT