Morgan County v. Hill

• Decision Date: 09 October 1952
• Docket Number: 8 Div. 635
• Parties: MORGAN COUNTY v. HILL et al.
• Court: Alabama Supreme Court

Page 838

60 So.2d 838

257 Ala. 658

MORGAN COUNTY v. HILL et al.

8 Div. 635.

Supreme Court of Alabama.

Oct. 9, 1952.

Julian Harris and Norman W. Harris, Decatur, for appellant.

Russell W. Lynne, Decatur, for appellee.

GOODWYN, Justice.

This is a condemnation proceeding under the provisions of Code 1940, Tit. 19, Chapter 1. By this proceeding the county seeks to acquire additional right of way for increasing U. S. Highway 31 from a two-lane to a four-lane highway.

The application for condemnation was filed originally in the Probate Court of Morgan County, where the commissioners assessed damages and compensation and, in pursuance thereof, the court made and entered an order of condemnation. The county appealed from this order to the circuit court where a jury assessed damages and compensation at $1,900, and an order of condemnation was entered thereon. It is from this final judgment that this appeal is taken.

The county filed its motion for a new trial, which was heard and refused by the circuit court.

The following statement of facts, taken from appellant's brief, is without dispute:

'D. Homer Hill owned 7.85 acres of land which fronted 1040 feet along the east side of U.S.Highway 31. The highway, as it existed before the condemnation, was a two-lane highway having a fifty foot right of way and an eighteen foot pavement. From a point near Vinemont to a point a short distance north of Hartselle it was being converted into a four-lane highway. As the condemnation affected the Hill property the existing pavement was to be used as the west, or south-bound lane, and an additional lane was to be constructed east of the existing pavement for the east, or north-bound lane of the four-lane highway. Each lane was to be a twenty-three foot pavement separated by a thirty foot grass parkway.

'The Hill property was improved with a store building or filling station, a well, a shed, a sign board, and two privys, which were situated wholly or partially on the strip of land being condemned. In addition to the permanent easement for the right of way, the application as amended sought a temporary easement to relocate the above improvements on the adjoining land so that they would have the same relative location to the improved highway as they originally had to the existing highway, and in the application applicant undertook and agreed to relocate the same in a workmanlike manner.

'The strip of land being condemned abutted the existing right of way on its east side, was 1040 feet long and 93 feet wide and contained 2.22 acres; after the condemnation there remained to the landowner 5.65 acres with the same length frontage on the new highway.'

There are four assignments of error. Assignments three and four are not argued and, therefore, must be considered as waived. Supreme Court Rule 10, Code 1940, Tit. 7, Appendix; Alabama Power Co. v. Thompson, 250 Ala. 7, 32 So.2d 795, 9 A.L.R.2d 974.

The first assignment of error is that the trial court erred in giving defendant's charge 2, which is as follows:

'The court charges the jury that where part of a tract is taken the owner is entitled to recover not only the market value of what is taken, but the difference between the market value of the entire tract and the market value of what is left.'

The second assignment is that the trial court erred in denying appellant's motion for a new trial. The insistences on this point are (1) that it was error to give the foregoing charge, and (2) that the jury's verdict awarding damages and compensation, was excessive.

We are dealing here solely with the question of compensation and damages when only a part of a tract is condemned 'for ways and rights of ways for public highways'. Code 1940, Tit. 19, § 14. The applicable rule in such cases is well established: The final inquiry as to the compensation to be awarded, if any, is the difference between the value of the entire tract immediately before the taking and the value of the part of the tract remaining after the taking, giving effect to any enhancement in value of the part remaining resulting from the construction of the road. If the part remaining is worth as much as or more after completion of the project than the entire tract was worth immediately before the taking, the landowner has sustained no damage and is not entitled to any compensation. Code 1940, Tit. 19, section 14; Morgan County v. Griffith, Ala.Sup., 59 So.2d 804; Rountree Farm Co. v. Morgan County, 249 Ala. 472, 31 So.2d 346; Coffee County v. Spurlin, 245 Ala. 99, 16 So.2d 12; Bates v. Chilton County, 244 Ala. 297, 13 So.2d 186; Pickens County v. Jordan, 239 Ala. 589, 196 So. 121; Pryor v. Limestone County, 222 Ala. 621, 134 So. 17; McRea v. Marion County, 222 Ala. 511, 133 So. 278; Conecuh County v. Carter, 220 Ala. 668, 126 So. 132; Rudder v. Limestone County, 220 Ala. 485, 125 So. 670, 68 A.L.R. 776.

Assignment of Error 1.

Appellant contends that charge 2 allows a duplication or doubling of an element entering into just compensation; that the giving of this charge was prejudicial because it 'tells the jury that the defendants are entitled to the difference between the value of the entire tract and the value of the part remaining, plus the value of the portion condemned,' and, therefore, 'the defendants are allowed damages equal to double the value of the portion condemned plus any damage to the remaining land which the jury might think resulted from the taking.'

Considered in the light of the rule hereinabove set out, charge 2 is clearly inapt, and might well have been refused on that ground; yet, it is our view that the giving of it does not call for a reversal of this case. A determination that an erroneous charge has been given does not carry with it an automatic reversal. It is only when the error complained of 'has probably injuriously affected substantial rights of the parties' that we are authorized to reverse; and this is to be determined 'after an examination of the entire cause'. Code 1940, Tit. 7, Appendix, Supreme Court Rule 45. We have considered, in consultation, the entire cause and have concluded that the giving of charge 2 has not 'probably injuriously affected substantial rights' of the appellant. Both parties, in questioning the witnesses, recognized, as the law of the case in awarding compensation, the approved rule as hereinabove stated. The trial judge, in his oral charge, fully and clearly expounded this rule. And we fail to see in the evidence any rational basis for the jury to apply charge 2 as interpreted by appellant.

Assignment of Error 2.

On the insistence that the damages awarded are excessive and should not be allowed to stand, the evidence, as is usual in such cases, is in conflict; the opinions of the witnesses ranging from $666 to $3,166. That there was evidence to support the jury's verdict is clear. The weight of the evidence, and the credibility of the witnesses, were passed on by the jury. The presiding judge, in denying the appellant's motion for a new trial, evinced his satisfaction with the verdict. In these circumstances, we are constrained to apply, once again, the landmark decision of this Court in the case of Cobb v. Malone and Collins, 92 Ala. 630, 9 So. 738, 739. The profundity of the rule there announced, and its appropriateness here, justify quoting the following from that case:

'The power to set aside verdicts has been generally regarded in this country as inherent in courts organized upon the principles of common law, though in...