Jefferson County v. Adwell

• Decision Date: 30 June 1956
• Docket Number: 6 Div. 809
• Parties: JEFFERSON COUNTY v. Roy H. ADWELL.
• Court: Alabama Supreme Court

Page 143

103 So.2d 143

267 Ala. 544

JEFFERSON COUNTY v. Roy H. ADWELL.

6 Div. 809.

Supreme Court of Alabama.

June 30, 1956.

Rehearing Granted March 6, 1958.

Further Rehearing Denied June 12, 1958.

Maurice F. Bishop, Birmingham, for appellant.

Albert Boutwell and Mayer U. Newfield, Birmingham, for appellee.

PER CURIAM.

A major of the Court concur in the opinion of Justice LAWSON, which appears below, except in the following particular.

The difference of opinion is as to the time when the value of the land taken and the injury to other lands of the owner should be subject to ascertainment on condemnation under section 235 of the Constitution and enabling statutes. We agree that the correct formula for fixing that time is stated in Jones v. New Orleans & S. R. Co., 70 Ala. 227, as follows: 'The value of the land when taken, before the construction of the road, and before any injury to the land taken resulting from construction, and the injury, the diminution in value of the contiguous lands, is the true and just measure of the compensation'. This principle has been adhered to by later cases as pointed out in the opinion of Justice Lawson.

We do not agree with his conclusion that the time of taking is the occasion of the filing of the petition to condemn. It was however so stated in Smith v. Jeffcoat, 196 Ala. 96, 71 So. 717. But that statement was not material to any issue in that case. It was apparently not argued and no apt citation of authority appears. It was evidently a feature of the Court's argument to prove something else, for there was no argument to prove that statement. We believe the current of the argument in the Jones case, supra, and the other cases cited by Justice Lawson do not support that conclusion stated in Smith v. Jeffcoat.

The difficulty involved in the inquiry is to fix the time of the 'taking' for the purposes now under consideration. Other purposes are not here important. Section 3, Title 19, provides for filing in the probate court an application to condemn. Such application may include different tracts of land owned by different persons, all of which are 'proposed' to be taken. Section 4, Title 19, provides for setting a date for hearing the application and requiring notice. But by section 8, Title 19, the court is not required to treat the proceedings as a 'joint action' as to the separate tracts. By section 10, Title 19, a hearing must be had and conducted and evidence taken as in civil cases at law.

By section 11, Title 19, if the application is granted, the probate judge shall appoint three citizens of the county as commissioners. By section 13, Title 19, the commissioners are directed to assess separately the damages and compensation to which the several owners and others interested in each tract are entitled. The commissioners may view the land to be subjected and receive all legal evidence offered by any party touching the amount of damages the owners and others interested are entitled to receive. By section 16, Title 19, the commissioners are directed to report within twenty days as to the damages and compensation ascertained and assessed by them for the owners of each tract and others interested. Thereupon the probate court must order the report recorded and make orders of condemnation in pursuance thereof effective upon the payment of the damages and compensation so assessed and reported, or a deposit of same in court. That is the first order of condemnation by the probate court. But the condemnation is not complete until payment of the damages and compensation or deposit of it is made. If no appeal is taken that completes the court procedure. If an appeal is taken by section 17, Title 19, it is triable de novo in the circuit court. Without regard to the time when or whether the petitioner actually enters upon the land, either without an appeal, or pending the appeal under sections 18 and 24 of Title 19, we think the 'taking' for the purpose of fixing the amount of damages and compensation is when the commissioners make their report, on which the probate court shall order the condemnation.

The rulings of the trial court were not in accord with this view. Therefore the judgment should be reversed and the cause remanded.

Reversed and remanded.

LIVINGSTON, C. J., and SIMPSON, STAKELY, GOODWYN and MERRILL, JJ., concur.

LAWSON and SPANN, JJ., dissent.

LAWSON, Justice (dissenting in part).

This is an appeal from a judgment of the circuit court of Jefferson County rendered in a condemnation proceeding instituted by Jefferson County in the probate court of that county to acquire land for state highway purposes. Tit. 23, § 25, Code of Alabama 1940, as amended.

The application for the order of condemnation was filed in the probate court on December 4, 1952, and included several tracts of land with which we are not here concerned. See § 8, Tit. 19, Code of Alabama, 1940. The property here involved, referred to in the application as 'Tract No. 1' was needed in connection with the widening and improving of the old Birmingham-Montgomery Highway (U. S. Highway 31). Tract No. 1 was described in the application as 'All of that part of Lots 16, 17, 18, 19 and 20 of Block 17 of the South Birmingham, heights Land Company Subdivision, the map or plat of which is recorded in Map Book 7, page 41, in the office of the Judge of Probate of Jefferson County, lying westerly of the present right of way line of U. S. Highway No. 31 and containing 0.72 acres more or less.' At the time the application was filed in the probate court a brick front building used probate court a brick front building used and operated as a night club called 'Shades Mountain Country Club' was situated on 'Tract No. 1.' Roy H. Adwell and the First National Bank of Birmingham were said in the application to claim or assert some title or interest in the property described above. It is without dispute that at the time the application was filed in the Probate Court, Adwell was the owner of the property, subject to a mortgage thereon held by the First National Bank of Birmingham.

In accordance with the provisions of § 4, Title 19, supra, the probate court upon the filing of the application, made and entered an order appointing December 22, 1952, for the hearing of the application. On the appointed date the hearing was held, and an order made granting the application. § 7, Tit. 19, supra. In the same order the Judge of Probate appointed three commissioners 'to assess the damages and compensation to which the said owners of said land sought to be condemned are entitled.' The commissioners were ordered to report as to their findings within the time prescribed by law. §§ 11-16, Title 19, supra.

On December 24, 1952, before the commissioners had viewed the property here involved or had taken any steps towards ascertaining the damages and compensation to which the owner might be entitled, the night club situated on the property was partially destroyed by fire.

Thereafter, on January 19, 1953, the commissioners viewed the property and took testimony as to its value. Another such hearing appears to have been held on either February 2 or 3, 1953. The commissioners filed their report on February 3, 1953, wherein the damages and compensation due to the owners were fixed at $18,275. This figure admittedly was not based on a consideration of the value of 'Tract 1' prior to December 24, 1952, the date of the fire.

On February 20, 1953, a decree was rendered in the probate court adjudging that the county having paid into court the full amount of the damages and compensation assessed by the commissioners, has an easement and right of way for public road and public highway purposes, etc., over and upon the property here involved. § 16, Title 19, supra.

On March 4, 1953, a written 'Notice of Appeal' was filed in the probate court, which in pertinent part reads: 'Comes Roy H. Adwell, respondent in the above entitled cause, and prays for and hereby takes an appeal to the circuit court of the 10th Judicial Circuit of Alabama, from the order of condemnation entered in said cause on the 3rd day of February, 1953, in so far as said order of condemnation relates to the land described as Tract 1,' etc. (Emphasis supplied.) Thereafter on March 20, 1953, the Judge of Probate transmitted to the clerk of the circuit court of Jefferson County copies of the application for order of condemnation and other pertinent papers, all of which were forthwith received and marked filed in the office of the circuit clerk. On the same day, March 20, 1953, the circuit clerk executed a receipt reading: 'Received Probate Court Check No. 1107, in the sum of Seventeen Thousand Five Hundred and no/100 ($17,500.00) Dollars covering above award.' Why the check was for $17,500 instead of $18,725, the amount fixed by the appraisers, does not appear, and we are not here concerned with that question.

On March 24, 1953, the State of Alabama, on whose behalf Jefferson County instituted this proceeding, went into possession of Tract 1 and immediately began road construction. Apparently the State's action followed the giving of bond by the condemnor as provided by § 18, Title 19, Code 1940.

Adwell did not make demand for jury trial in the circuit court, but the condemnor, Jefferson County, did file a written demand for jury trial on August 31, 1953, which demand was on the same day stricken on motion made by Adwell.

Thereafter, on October 15, 1953, Jefferson County filed a motion to dismiss Adwell's appeal, which motion was overruled on the day it was made.

After being continued from time to time by consent, the cause came on for hearing on August 19, 1954, before the Honorable J. Russell McElroy, the presiding judge of the Tenth Judicial Circuit, Jefferson County.

Before the taking of testimony was begun, the trial court announced that all of the parties agreed in open court on the following matters, among others: (1) that the land involved was subject to...