McRea v. Marion County

• Decision Date: 19 March 1931
• Docket Number: 6 Div. 827.
• Citation: 133 So. 278,222 Ala. 511
• Parties: MCREA v. MARION COUNTY.
• Court: Alabama Supreme Court

133 So. 278

222 Ala. 511

MCREA v. MARION COUNTY.

6 Div. 827.

Supreme Court of Alabama

March 19, 1931

Appeal from Circuit Court, Marion County; Ernest Lacy, Judge.

Condemnation proceeding by Marion County against J. D. McRea. From a judgment of condemnation, defendant appeals. Transferred from Court of Appeals.

Reversed and remanded.

C. E Mitchell, of Hamilton, and Travis Williams, of Russellville for appellant

Kelly V. Fite and J. P. Middleton, both of Hamilton, for appellee.

FOSTER J.

This is a proceeding by a county to condemn a right of way for highway purposes.

The road through appellant's land theretofore extended near to his improvements. The right of way sought to be condemned results from a change of the location of the highway so as to be some distance from the improvements. On the trial, the circuit court refused to limit the deduction from damages to the adjoining tract to the special benefits which accrued to it by reason of the improved highway, as thus located, and refused to charge the jury at the instance of appellant that the general benefits should not be deducted from such damage.

There is a well-recognized distinction between general and special benefits. The former is that which is enjoyed by the general public of the community, through which the highway passes whether it touches their property or not. An improved system of highways generally enhances all property which is fairly accessible to it. But that which borders it, or through which it extends, has benefits by reason of that circumstance which are not shared by those which are not so situated. The pertinent inquiry on this appeal is whether both general and special benefits shall be taken into account in fixing the damages to the entire tract, to be paid as a part of the "just compensation" for that which is taken. There was before this relocation of the highway a public road extending through the land and community, and furnishing the same outlet, as that provided by the new one. It was not the circumstance of the creation of a highway to serve that and other lands, but was in the nature of an improvement of such existing highway. In doing so the highway department made a change of route as it extended through appellant's land. In respect to general benefits, this circumstance is only significant in relation to the amount, and not the fact, of their existence.

The improvement of an existing highway may, and we say generally does, result in general benefits to the lands accessible to it.

In the case of Bauman v. Ross, 167 U.S. 548, 17 S.Ct. 966, 976, 42 L.Ed. 270, upon this subject the Supreme Court of the United States uses the following expressions:

"The just compensation required by the constitution to be made to the owner is to be measured by the loss caused to him by the appropriation. He is entitled to receive the value of what he has been deprived of, and no more. To award him less would be unjust to him; to award him more would be unjust to the public. Consequently, when part only of a parcel of land is taken for a highway, the value of that part is not the sole measure of the compensation or damages to be paid to the owner; but the incidental injury or benefit to the part not taken is also to be considered. When the part not taken is left in such shape or condition as to be in itself of less value than before, the owner is entitled to additional damages on that account. When, on the other hand, the part which he retains is specially and directly increased in value by the public improvement, the damages to the whole parcel by the appropriation of part of it are lessened. *** The constitution of the United States contains no express prohibition against considering benefits in estimating the just compensation to be paid for private property taken for the public use; and, for the reasons and upon the authorities above stated, no such prohibition can be implied; and it is therefore within the authority of congress, in the exercise of the right of eminent domain, to direct that, when part of a parcel of land is appropriated to the public use for a highway in the District of Columbia, the tribunal vested by law with the duty of assessing the compensation or damages due to the owner, whether for the value of the part taken, or for any injury to the rest, shall take into consideration, by way of lessening the whole or either part of the sum due him, any special and direct benefits, capable of present estimate and reasonable computation, caused by the establishment of the highway to the part not taken."

The constitutional right of a state to permit a deduction for general benefits is summarized in McCoy v. Union Elevated R. Co., 247 U.S. 354, p. 366, 38 S.Ct. 504, 508, 62 L.Ed. 1156, as follows:

"And we are unable to say that he suffers deprivation of any fundamental right when a state goes one step further and permits consideration of actual benefits-enhancement in market value-flowing directly from a public work, although all in the neighborhood receive like advantages. In such case the owner really loses nothing which he had before; and it may be said with reason, there has been no real injury."

The opinion also quotes the text of Lewis on Eminent Domain, then closes with the quotation from Bauman v. Ross, supra, which we have copied above.

From the opinion in McCoy v. Union Elevated R. Co., supra, the United States Supreme Court leaves the question to the states, with the assurance that, if the Constitution and laws of the state permit a deduction of general benefits, it will not violate the Fifth and Fourteenth Amendments to the United States Constitution.

Our Constitution uses the words "just compensation," as does the Federal Constitution. Section 7489, Code, as amended, reads as follows (Acts 1927, p. 492):

" Compensation Not Reduced or Diminished Because of Incidental Benefits. The amount of compensation to which the owners and other parties interested therein are entitled must not be reduced or diminished because of any incidental benefits which may accrue to them, or to their remaining lands in consequence of the uses to which the lands to be taken, or in which the easement is to be acquired, will be appropriated; Provided that, in the condemnation of lands for ways and rights of ways for public highways, the commissioners may, in fixing the amount of compensation to be awarded the owner for lands taken for this use, take into consideration the value of the enhancement to the remaining lands of such owner that such highway may cause."

Section 7488 makes provision for the assessment of damages and compensation, but does not refer to benefits to the owner as a pertinent inquiry. This has been added by way of construction as properly entering into the ascertainment of damages, but not of compensation, except under the proviso to section 7489 as amended.

We note, therefore, the words "enhancement to the remaining land" and the words "incidental benefits," where they occur in section 7489, relate expressly to compensation and not to damages. In Town of Eutaw v Botnick, 150 Ala. 429, 43 So. 739, 740, this court considered the propriety of the question, "What was the market value of the plaintiff's said property immediately after said grading was done?" The opinion referred to the conflicting views among the states on the subject as noted in Lewis on Eminent Domain, § 687 (465), and followed the reasoning in Illinois and other states which allow a deduction of both such benefits. In Alabama Power Co. v. Keystone Lime Co., 191 Ala. 58, 67 So. 833, that case is cited as fixing the rule on the subject. The statement is usually made in our cases (and it is observed in practice) that the question above quoted is a proper method of proving an element of the issue. It is said in 2 Nichols on Eminent Domain, p. 776: "The decisions in the foregoing states which allow the setting off of special benefits only are not as a rule opposed to the setting off of general benefits as unconstitutional; statutes specifically declaring that general benefits shall be considered to have not been enacted and declared invalid by the courts, but the result has been reached by the construction of statutes allowing damages in general terms. As a question of construction, when it does not clearly appear that the legislature has undertaken to stretch its power to the utmost limit and to reduce the compensation that it is required by the constitution to provide to the smallest possible sum, it seems plain that for the reasons already stated general benefits ought not to be considered. And, even as a constitutional question, it may well be argued that it is not 'just compensation' when a man is singled out arbitrarily and deprived of a share in the increased prosperity of his fellow citizens, merely because the public...