Pappas v. Alabama Power Co.

Citation270 Ala. 472,119 So.2d 899
Decision Date21 April 1960
Docket Number4 Div. 987
CourtSupreme Court of Alabama

Christie G. Pappas and Chauncey Sparks, Eufaula, for appellant.

Grubb & LeMaistre and Archie I. Grubb, Eufaula, and Martin & Blakey and Robt. M. Collins, Birmingham, for appellee.

SIMPSON, Justice.

A condemnation proceeding was brought by Alabama Power Company in the Probate Court of Barbour County, Alabama, against Bessie V. Pappas and Gregory H. Pappas to condemn lands for a fifty foot wide right of way on which to erect towers, poles, and wire lines for distribution and sale to the public of electric power. From an order of condemnation granted by the Probate Court and an assessment of damages by commissioners in the amount of $3,780, Bessie V. Pappas and Gregory H. Pappas appealed to the Circuit Court of Barbour County, Eufaula Division, and filed a demand for a jury trial. A trial de novo was held in the Circuit Court pursuant to the statute. The Circuit Court granted the application for condemnation. During the trial the jury, accompanied by the trial judge, was taken to the situs of the Pappas land. The jury returned an award for the condemnees in the amount of $4,999.88, and judgment was thereupon entered. Appellant Bessie V. Pappas has taken an appeal from this judgment and the order overruling her motion for a new trial. Gregory H. Pappas and Christie G. Pappas acknowledged themselves as security for costs on this appeal and Bessie V. Pappas filed a notice of a appeal to this court. Co-condemnee Gregory H. Pappas did not join in the appeal.

Appellee has filed a motion to dismiss the appeal on technical grounds. The motion does not impress us as containing merit, but in view of our conclusion that the judgment should be affirmed, we will not treat the question.

The first assignment of error relates to the ruling of the court in overruling defendant's demurrer to the application of the condemnor. Appellant's brief states as follows: 'This proposition raises the question as to whether land in Alabama can be condemned in proceedings of this kind without alleging that it is for the public use of the people of Alabama. The petition is silent.'

Section 3, Tit. 19, Code 1940, as pertinent requires that 'the uses or purposes for which the land is to be taken' shall be stated with certainty in the application for condemnation. In Rountree Farm Co. v. Morgan County, 249 Ala. 472, 474, 31 So.2d 346, 348, we said:

'Section 3, Title 19, Code of 1940, prescribes the allegations necessary to a petition for condemnation. We have held that a petition which complies with the statute is sufficient. Stout v. Limestone County, 211 Ala. 227, 100 So. 352. And it was expressly held in Dean v. County Board of Education, 210 Ala. 256, 97 So. 741, that it was not necessary to allege that the condemning authority has ordered the condemnation. The allegations here complained of are surplusage, and do not render the petition defective, insufficient or demurrable under section 3, Title 19, supra.'

This proposition was reaffirmed in the case of Lipscomb v. Bessemer Board of Education, 258 Ala. 47, 61 So.2d 112.

Condemnor's application alleges that the uses and purposes for which the said land, rights and interest therein described were to be condemned and taken were for ways and rights of way on which to construct or erect towers, poles, and wire lines, for the transmission, distribution, supply and sale to the public of electric power, and for selling and supplying such power, heat, light and electricity in the manner required by Tit. 10, § 187, Code of Alabama of 1940. This, along with other allegations in the application, constitutes a sufficient compliance with § 3, Tit. 19, Code of 1940, to withstand the ground of demurrer argued.

Under this same assignment of error, appellant contends that the appellee has no right to condemn a right of way to transport electric current into Georgia. We do not find a ground of demurrer which effectually raises this point. Furthermore, it does not appear on the face of the application that the appellee planned to use this right of way for the purpose of sending electric current into Georgia. A demurrer is addressed only to defects apparent on the pleading; otherwise, it is known as a speaking demurrer. Appellant had the right and privilege of presenting this objection by plea. United States Fidelity & Guaranty Co. v. Town of Dothan, 174 Ala. 480, 56 So. 953. But lest the substantive aspect of that objection be left in doubt, we would call attention to the following expression appearing in the case of Columbus Waterworks Co. v. Long, 121 Ala. 245, 25 So. 702, 703:

'It is equally clear, that this right is not to be denied where public uses are to be subserved in the State granting condemnation, because in connection therewith, public uses in another state may be likewise promoted. While a state will take care to use this power for the benefit of its own people, it will not refuse to exercise it for such purpose, because the inhabitants of a neighboring state may incidentally partake of the fruits of its exercise.'

The evidence found in the record unmistakably shows that the land being taken here was to be used in the construction of transmission lines to distribute electric power to users in the City of Eufaula and other surrounding areas in Alabama.

Two grounds of appellant's demurrer were directed to the fact that the petition failed to aver that the construction of the proposed utility had been approved by the Planning Commission of the City of Eufaula as required by § 794, Tit. 37, Code of 1940. This failure presents no demurrable defect, since, in line with the authorities cited earlier in this opinion, there is generally no requirement that such an averment be made in the petition for condemnation. Any such averment would be mere surplusage. And furthermore, there was nothing on the face of the petition to indicate that a planning commission had any involvement in the matter.

This court will presume that the appellant waived the other grounds of demurrer not insisted on and argued in brief. Conner v. State ex rel. Perry, 211 Ala. 325, 100 So. 474.

The third assignment charges error in the refusal of the lower court to grant appellant's motion for a new trial. The only argument which appellant apparently advances in her brief in support of this assignment proceeds upon the theory that the award of damages by the jury was insufficient. Since Assignment of Error No. 6 is a duplicate of this proposition, we shall consider both at this point. And with respect to Assignment No. 3, this court will not search for error not specifically assigned and argued in brief but merely touched upon in general propositions and without specific application. Suits v. Glover, 260 Ala. 449, 71 So.2d 49, 43 A.L.R.2d 465; Schneider v. Southern Cotton Oil Co., 204 Ala. 614, 87 So. 97. Therefore, grounds of the motion other than the inadequacy of damages awarded will be considered waived. Grimes v. Jackson, 263 Ala. 22, 82 So.2d 315.

The testimony of the witnesses as to value of the land taken revealed figures ranging from $2,827.50 to $28,000. The right of way sought to be condemned was estimated to contain 3.78 acres. Some of this land was said to be flat, useful land, but part of it was described as gully or lost land. One witness stated that the flat land had a present use of pasture land and stacking of lumber but that the gully land had no present use. Another witness testified that this property was most adaptable for a colored subdivision. The respective tendencies of the evidence were at great variance. Because of practical considerations in trying cases of this type, keeping in mind that the jury hearing the issue must analyze the evidence in the light of its common knowledge and must arrive at its verdict by reconciling the various opinions as best it can, it is generally recognized that the conclusion of the original trier of fact, the court or the jury, who saw and heard the witnesses and observed their conduct and demeanor on the stand is entitled to great weight. Rountree Farm Co. v. Morgan County, supra. The governing rule which is applied in such reviews is most apposite here. As stated in Thornton v. City of Birmingham, 250 Ala. 651, 35 So.2d 545, 549, 7 A.L.R.2d 773:

'The verdict of the jury and the ruling of the trial court refusing to set it aside on such ground will not be overturned unless it clearly appears that the verdict was the result of inadvertence or intentional or capricious disregard of the evidence, or was infected with bias, passion, or other improper motive, and that the excessiveness of the verdict was the result thereof. In other words, unless the amount is so large or so small as to carry internal evidence of intemperance in the minds of the jury the verdict must stand. * * *

'On this issue the courts approve the principle that when the presiding judge refuses to grant the new trial, the favorable presumption attending the verdict of the jury is thereby strengthened. Birmingham Electric Co. v. Howard, supra.'

If further authority is needed, Dorroh v. Jefferson County, 264 Ala. 335, 87 So.2d 619, should suffice.

The jury viewed the premises during the trial of the case, which serves to further strengthen the correctness of the verdict rendered. State v. Carter, 267 Ala. 347, 101 So.2d 550. A review of the record in the instant case, when carefully considered in the light of the principles enunciated, cannot but force a conclusion that the lower court committed no error to reverse in refusing to grant appellant's motion for a new trial on the ground of inadequacy of damages.

The fourth assignment of error takes exception to the court's refusal to grant appellant's requested Charge No. 2, which reads:

'In arriving at just compensation it is proper for you to use not only the value of the land taken, but also any injury or...

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