Leahy v. State

• Decision Date: 17 December 1925
• Docket Number: 1 Div. 387
• Parties: LEAHY v. STATE.
• Court: Alabama Supreme Court

106 So. 599

214 Ala. 107

LEAHY v. STATE.

1 Div. 387

Supreme Court of Alabama

December 17, 1925

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

Condemnation proceeding by the State of Alabama, through the State Docks Commission, against Richard P. Leahy. From the judgment defendant appeals. Reversed and remanded.

Stevens McCorvey, McLeod, Goode & Turner, of Mobile, for appellant.

Thos C. McClellan, of Birmingham, for the State.

MILLER J.

This is a proceeding commenced by the application of the state of Alabama, acting through its agency, the state docks commission, against Richard P. Leahy, in the probate court of Mobile county, to condemn for the state a parcel of land, containing about 4.61 acres, the property of the defendant, for use in the authorized harbor development at Mobile. Section 93, Const.1901, as amended (see Code 1923, p. 434), and article 4, c. 44, Code 1923.

The defendant recognized and admitted in his answer the right of the state to condemn this property for the use mentioned in the application, and that an actual necessity existed for the state to own it. Sections 2543 and 2546, Code 1923. So the only litigated question or issue between the parties was the amount of damages, the just compensation for the property to be made to the owner, the defendant, by the state. Section 23, Const. of 1901.

The commissioners appointed by the probate court fixed the compensation to be paid defendant by the state for the property at $24,500, which was duly reported by them in writing to the court; and the court ordered the report recorded, and made an order of condemnation of the property upon the payment of the damages and compensation so assessed and reported or the deposit of same in court. Section 7491, Code 1923. The state appealed from this decree to the circuit court, and the cause was tried de novo by the circuit court with a jury. Section 7492, Code 1923. The jury, by verdict in the circuit court, fixed the damages and compensation at $11,000, and, from a judgment by the court of condemnation of the property, upon the payment by the state of $11,000, as damages and compensation, so fixed by the jury, and the cost of the cause, this appeal is prosecuted to this court by the defendant.

There are 157 errors assigned, growing out of rulings of the court on admission of evidence and written charges given at request of the state, but some of them are not argued in brief of appellant. Errors assigned in civil cases, but not argued in brief by appellant, will be deemed waived, and will not be considered by this court. Henry v. Hall, 106 Ala. 84, headnote 10, 17 So. 187, 54 Am.St.Rep. 22; Provident Life & Acct. Ins. v. Priest, 212 Ala. 576, headnote 1, 103 So. 678.

The state planned and determined to secure the land near the city of Mobile, located and lying between the Mobile river, Three Mile creek, and the line of the Southern Railway, as shown by a map introduced in evidence, for the authorized harbor development. This location and the plan as laid out and adopted by the state docks commission had been approved by the government. The land within the above boundaries was owned by various parties. The land involved in this cause is located therein. The owners of this property knew it could and would be condemned for the purposes mentioned by the state, if they did not agree on a price and sell it to the state. With this knowledge many of the owners agreed on the price and conveyed for cash consideration their respective properties within the area mentioned to the state.

The court, over timely objection and exceptions of the defendant, permitted the state to prove the name of each of these vendors, the number of acres each sold and conveyed to the state, and the amount of the cash consideration paid by the state to each for his property. These sales by these different vendors to the state were in the nature of a compromise settlement between the parties. These vendors were facing a suit for condemnation of their property and the ascertainment of the amount of just compensation to be paid them for it through the courts, if they did not agree on compensation and convey their property to the state. When they each agreed on the price for their respective property with the state, and each conveyed it to the state, each knew the state had the right to and would condemn the property and have the amount of damages ascertained through court proceedings, if the price was not agreed to and conveyance of the property made to the state by them. The trial court erred in admitting this testimony, as to these sales to the state, to the jury in this cause. It is clearly incompetent evidence. It violates the sound rule sustained by the weight of authority in 2 Lewis on Eminent Domain, 667, which is quoted with approval by this court in Ala. Power Co. v. Sides, 212 Ala. 687, headnote 1, 103 So. 859; and it may be for other reasons incompetent evidence, but as to this we do not decide. See Tenn. C.I. & R. Co. v. State, 141 Ala. 103, 37 So. 433; State v. Brintle, 207 Ala. 500, 93 So. 429; State v. Donaldson, 209 Ala. 400, headnote 4, 96 So. 617.

One witness testified that--

"The land bordering on both One Mile and Three Mile creeks is available for mill use. Three Mile creek is more desirable from a frontage proposition or as a navigable stream for a mill site than One Mile creek. *** Three Mile creek varies in width; it is wider and deeper than One Mile creek."

The defendant objected to the questions calling for the foregoing answers, and moved to exclude the answers. The objections and the motions were overruled by the court ...