McLemore v. Alabama Power Co., 5 Div. 829

CourtSupreme Court of Alabama
Writing for the CourtCOLEMAN; LIVINGSTON; BLOODWORTH; LIVINGSTON; LIVINGSTON; COLEMAN; LIVINGSTON, C.J., and McCALL; LIVINGSTON, C.J., and SIMPSON
Citation228 So.2d 780,285 Ala. 20
PartiesLaura E. McLEMORE et al. v. ALABAMA POWER COMPANY.
Docket Number5 Div. 829
Decision Date10 April 1969

Page 780

228 So.2d 780
285 Ala. 20
Laura E. McLEMORE et al.
v.
ALABAMA POWER COMPANY.
5 Div. 829.
Supreme Court of Alabama.
April 10, 1969.
Rehearing Denied Nov. 20, 1969.

[285 Ala. 22]

Page 782

Howard & Dunn, Wetumpka, for appellants.

Martin Balch, Bingham, Hawthorne & Williams and Jesse S. Vogtle, Birmingham, Holley, Milner & Holley and Reneau & Reneau, Wetumpka, for appellee.

COLEMAN, Justice.

The landowner appeals from a judgment awarding compensation and damages for lands condemned and acquired in connection with the construction, operation, and maintenance of a proposed dam, canal, and electric power plant on the Coosa River in Elmore County.

As we understand it, the owner's parcel of land before the taking contained 178.9 acres and after the taking contained 78.3 acres. On the basis of these figures, the condemnor acquired approximately 100 acres. We understand that about 47 acres of the land taken was woodland and the remainder was open land.

The probate court awarded the owner $45,441.00. The condemnor appealed to the circuit court. The cause was tried by a jury which awarded the owner $24,970.00. Judgment was entered accordingly.

The condemnor made bond as provided by statute and took possession of the premises on April 4, 1964. The jury returned their verdict on August 26, 1964. After her motion for new trial had been overruled, the owner appealed to this court.

I.

The owner asserts that the court erred in refusing to give to the jury her requested written charge to effect that the jury should determine the amount of compensation to which she was entitled, then compute interest on the compensation from the date condemnor took possession until the date of the trial, and add the interest so computed to the compensation and bring in a verdict for the total amount. 1

Page 783

The landowner also asserts that the court erred in charging the jury orally as follows:

'. . . the Court charges you, as a matter of Law, the property owners are not entitled to recover interest at all in this particular case, the way it has come up.'

The insufficiency of the verdict for failure to allow interest is also made grounds of the motion for new trial.

Appellant states the proposition of law for which she contends as follows:

'WHEN A CONDEMNOR HAS APPEALED TO THE CIRCUIT COURT AND HAS TAKEN POSSESSION OF THE PROPERTY, THE LANDOWNER IS ENTITLED TO INTEREST ON THE AWARD FROM THE TIME HE IS DEPRIVED OF THE USE OF THE LAND AND AWARD UNTIL [285 Ala. 24] THE TIME OF THE AWARD IN THE CIRCUIT COURT.'

By requesting charge 3, appellant properly raised the question. 2 The question is whether the owner is entitled to interest from the time the condemnor takes actual physical possession of the land until the date of the jury verdict. This court answered this question in the affirmative in 1958 by our decision in Jefferson County v. Adwell, 267 Ala. 544, 103 So.2d 143.

In Adwell, the court determined and fixed the amount of the owner's compensation and damages without the intervention of a jury. The judgment, as shown in the original record in Adwell, recites in pertinent part as follows:

'IT IS HEREBY CONSIDERED, ORDERED ADJUDGED AND DECREED by the Court that Roy H. Adwell, the appellant-landowner herein is entitled to receive of Jefferson County, Alabama, appellant-condemnor, as compensation and damages for the taking of the property hereinafter described, the sum of Forty-six thousand five hundred ($46,500.00) dollars, and

'It is further considered, ordered, adjudged and decreed by the court that the said appellant is entitled to receive of appellee interest at the rate of six (6%) per centum on said sum of $46,500, from the 24th day of March, 1953 until paid, said interest amounting to the sum of $4120.03 as of the date of this decree; and'

Attached to the judgment in Adwell is the opinion of the learned trial judge which, as here pertinent, recites:

'This court is of the opinion and finds that the reasonable value (and also the reasonable market value) of the Adwell property on December 4, 1952, (that being the date on which the petition was filed) was $46,500.

'This court is of the opinion that an award of just compensation to the landowner in this case requires that he be also awarded interest on $46,500 at the rate of 6% Per annum from March 24, 1953 (that being the day on which the condemnor took possession of the property)

Page 784

to the day on which this judgment is being rendered. Although the time for the fixation of the value of the property is, as stated above, the day on which the condemnor, filed the petition for condemnation, yet if the condemnor does not interfere with the landowner's possession, use and occupancy of the property until a later time, so that the landowner is allowed to remain in possession and to have the undisturbed use and occupation of the property subsequent to the filing of the petition, interest should not begin until the condemnor takes physical possession of the property. This court thinks that the use and occupation of the land by the owner prior to the condemnor's taking of physical possession of the land should be considered reasonably as having a value equal to the interest.

'The condemnor in this case makes no contention that he is entitled to any credits for any rental value of the property, or any profits made by the landowner from his use of the land, during the period between the day of the filing of the petition for condemnation and the day on which the condemnor took physical possession of the property. As respects the landowner's claim to an award of interest, the condemnor contends that if it is proper that an award of interest [285 Ala. 25] should be made, interest should not begin to run until the day on which judgment is rendered in this Circuit Court.

'In accordance with the views expressed above, judgment is being rendered awarding the landowner the sum of $46,500 plus interest thereon at the rate of 6% Per annum from March 24, 1953 to the day of this judgment (viz. Sept. 14, 1954) the total sum being $50,620.03.'

The condemnor in Adwell strenuously objected to the allowance of interest in that case. 3 The transcript of evidence in Adwell closes with the following colloquy between court and counsel, to wit:

'THE COURT: Since the above statement of opinion and colliquy as set forth above had, there has been an additional argument made with reference to the matter of time, the time at which interest should begin. After having reconsidered the question of time as of which the running of interest should begin, I have now come to the opinion that the proper time for interest to begin in this case is March 24, 1953. I am of the opinion that although the time for the fixation of the value of the property is the day on which the petition for condemnation was filed yet if the condemnor does not interfere with the possession, use and occupancy of the property until a later time, so that the owner is allowed to remain in possession and to have the undisturbed use and occupation of the property subsequent to the filing of the petition, interest should not start until the condemnor takes physical possession of the property. It occurs to me that the use and occupation of the property by the owner prior to the condemnor's taking possession physically of the property has a value that should reasonably be considered as equal to interest. Of course, it necessarily follows that under this view that the condemnor is not entitled to a credit for any rental value of

Page 785

the property or any profits made by the owner for his use of the property during the period of time between the filing of the petition and the physicial taking of possession of the property by the condemnor.

'Therefore, the result of this revised view of the Court will mean that the amount of the award to the property owner will be.$46,500.00 plus interest thereon at the rate of 6% Per annum from and including March 24, 1953, to the day on which judgment is rendered in Circuit Court, which is August 21, 1954.

'Would you gentlemen like to comment any further on that?

'I don't ask you to take any exception, I give you an exception to the judgment.

'MR. BISHOP: I don't think it is necessary, but of course we do except to it. We except to the opinion, and to every word and every phrase thereof, and assure that the Court will be given the grounds and reasons therefor, and will be frankly well-stated in a brief in due course.'

On original deliverance in Adwell, June 30, 1956, the majority of this court held that '. . . the 'taking' for the purpose of fixing the amount of damages and [285 Ala. 26] compensation is when the commissioners make their report . . ..' (267 Ala. at 548, 103 So.2d at 145) Justices Lawson and Spann dissented. On rehearing, the dissenting opinion by Justice Lawson became the majority opinion and fixed the valuation date as 'the date of the filing of the application . . .' to condemn in the probate court. With respect to the allowance of interest, Justice Lawson said:

'The trial court correctly awarded interest from March 24, 1953, the day on which the property was occupied by the State of Alabama, which was the day on which the land was appropriated by the condemnor and on which it became precluded from abandoning the proceeding. Southern Railway Co. v. Cowan, supra (129 Ala. 577, 29 So. 985); Morton Butler Timber Co. v. United States, 6 Cir., 91 F.2d 884; Haig v. Wateree Power Company, 119 S.C. 319, 112 S.E. 55.' (267 Ala. at 555, 103 So.2d at 152)

The instant writer was not a member of this court at the time of original deliverance in Adwell, but did participate in the decision on rehearing. So far as the writer recalls, the only question on which the justices expressed different opinions on rehearing was the valuation date. The opinions do not reflect and the writer does not recall that any of the justices disagreed with Justice Lawson's holding as to the allowance of...

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21 practice notes
  • Williams v. Alabama Power Co.
    • United States
    • Supreme Court of Alabama
    • March 12, 1999
    ...in delayed-payment condemnation actions. Jefferson County v. Adwell, 267 Ala. 544, 103 So.2d 143 (1956); McLemore v. Alabama Power Co., 285 Ala. 20, 228 So.2d 780 (1969). In McLemore, this Court held that a landowner is entitled to interest from the date the condemnor takes actual possessio......
  • Flurry v. State, 5 Div. 68
    • United States
    • Alabama Court of Criminal Appeals
    • September 25, 1973
    ...the court showed that Rabren was qualified to make these determinations. We think this issue was settled in McLemore v. Alabama Power Co., 285 Ala. 20, 228 So.2d 780, and in State v. Wilbanks, 289 Ala. 166, 266 So.2d 619. In Wilbanks, supra, the Court 'Generally, 'voir dire' denotes the pre......
  • Knabe v. State, 3 Div. 274
    • United States
    • Supreme Court of Alabama
    • February 12, 1970
    ...to forced sales. Southern Electric Generating Co. v. Leibacher, 269 Ala. 9, 16, 17, 110 So.2d 308. In McLemore v. Alabama Power Company, 285 Ala. 20, 228 So.2d 780, or rehearing November 20, 1969, the majority of this court expressed '. . . the opinion that an expert should be permitted on ......
  • Southern Natural Gas Co. v. Ross
    • United States
    • Supreme Court of Alabama
    • March 8, 1973
    ...the date from which the interest begins. Petitioner argues that it was held in both Adwell, supra, and McLemore v. Alabama Power Co., 285 Ala. 20, 228 So.2d 780, that (quoting from 'We are also of opinion that the rule of Adwell is correct in allowing interest from the day on which condemno......
  • Request a trial to view additional results
21 cases
  • Williams v. Alabama Power Co.
    • United States
    • Supreme Court of Alabama
    • March 12, 1999
    ...in delayed-payment condemnation actions. Jefferson County v. Adwell, 267 Ala. 544, 103 So.2d 143 (1956); McLemore v. Alabama Power Co., 285 Ala. 20, 228 So.2d 780 (1969). In McLemore, this Court held that a landowner is entitled to interest from the date the condemnor takes actual possessio......
  • Flurry v. State, 5 Div. 68
    • United States
    • Alabama Court of Criminal Appeals
    • September 25, 1973
    ...the court showed that Rabren was qualified to make these determinations. We think this issue was settled in McLemore v. Alabama Power Co., 285 Ala. 20, 228 So.2d 780, and in State v. Wilbanks, 289 Ala. 166, 266 So.2d 619. In Wilbanks, supra, the Court 'Generally, 'voir dire' denotes the pre......
  • Knabe v. State, 3 Div. 274
    • United States
    • Supreme Court of Alabama
    • February 12, 1970
    ...to forced sales. Southern Electric Generating Co. v. Leibacher, 269 Ala. 9, 16, 17, 110 So.2d 308. In McLemore v. Alabama Power Company, 285 Ala. 20, 228 So.2d 780, or rehearing November 20, 1969, the majority of this court expressed '. . . the opinion that an expert should be permitted on ......
  • Southern Natural Gas Co. v. Ross
    • United States
    • Supreme Court of Alabama
    • March 8, 1973
    ...the date from which the interest begins. Petitioner argues that it was held in both Adwell, supra, and McLemore v. Alabama Power Co., 285 Ala. 20, 228 So.2d 780, that (quoting from 'We are also of opinion that the rule of Adwell is correct in allowing interest from the day on which condemno......
  • Request a trial to view additional results

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