Pearson v. Central of Georgia Ry. Co.

• Decision Date: 17 June 1926
• Docket Number: 5 Div. 936
• Citation: 110 So. 5,215 Ala. 239
• Parties: PEARSON v. CENTRAL OF GEORGIA RY. CO.
• Court: Alabama Supreme Court

110 So. 5

215 Ala. 239

PEARSON v. CENTRAL OF GEORGIA RY. CO.

5 Div. 936

Supreme Court of Alabama

June 17, 1926

Rehearing Denied Nov. 11, 1926

Appeal from Circuit Court, Tallapoosa County; S.L. Brewer, Judge.

Condemnation proceeding by the Central of Georgia Railway Company against C.L. Pearson. The probate court condemned the land, and the commissioners assessed the damages, from which decrees defendant appealed to the circuit court, which granted the application for the condemnation, and a jury assessed the damages. From the judgment, defendant appeals. Affirmed.

Jas. W Strother and Geo. C. Douville, both of Dadeville, for appellant.

Barnes & Walker, of Opelika, for appellee.

MILLER J.

This is a condemnation proceeding by the Central of Georgia Railway Company, a corporation, against C.L. Pearson, seeking to condemn 85.07 acres of his land, being a strip varying in width from 100 to 250 feet, for a distance of 5.51 miles through the body of his land in Tallapoosa county. This strip is desired, and alleged by petition under oath to be necessary, for its railroad purposes, permitted by the statute. Sections 7016, 7018, and 7204, Code of 1923. There were two original applications filed; one was amended, and by agreement of the parties the two proceedings were joined and tried as one in the circuit court. This strip of land described in the applications was condemned for the purposes mentioned by the probate court, and commissioners assessed the damages, and from these decrees the defendant, Pearson appealed to the circuit court.

The defendant admitted and agreed in open court that the petitioner is entitled to an order granting its application as amended as against the said C.L. Pearson, and as to the lands of the said C.L. Pearson, described in said application as amended except as to the lands described therein as being in excess of 100 feet in width and as to the lands therein as being condemned for "borrow pits"; and issue was joined as to whether the said railroad company is entitled to an order of condemnation as to said lands described in said application as being in excess of 100 feet in width and described as being condemned for borrow pits.

The court by decree on the evidence granted the application as amended for the condemnation of the lands of the defendant as described therein. Thereupon a jury was duly selected and sworn to assess the damages and compensation, and on the evidence they returned a verdict fixing the same at $6,375 in favor of the defendant, and from a judgment therefor against the petitioner this appeal is prosecuted by the defendant.

The appellant insists the court erred in condemning the lands described in the applications, in excess of 100 feet in width, and the land for borrow pits, because there was no evidence tending to show a necessity for it for the purposes mentioned. The statute (section 7018, Code of 1923) provides:

"Railroad companies may by condemnation acquire real estate for ways and rights of way, not exceeding one hundred feet in width throughout the entire length of its lines, *** and such other lands as may be necessary in making heavy excavations or embankments, or for the purpose of wasting material from excavations, or for borrowing earth or other material for the construction of embankments, or protecting, making and keeping safe, and perfecting its roadway, *** and may relocate any portion of its line for purpose of straightening or otherwise improving the same, and for that purpose may acquire by gift, purchase, or condemnation all necessary rights of way over lands, and abandon its original or constructed line, but it shall not change its termini; or make an entire departure from its original line between such termini."

The two applications for this condemnation, as amended, with the exhibits attached, showing the width and length of the strips of the land desired and the purposes and necessities for it, were introduced in evidence by the petitioner without objection by defendant. Each is verified by affidavit, and the affiant states therein under oath "that the statements in the foregoing application are true and correct as therein alleged," and both applications contain in substance this allegation:

"That where the land sought to be condemned, as shown by the particular description hereinafter set out, exceeds in width 100 feet, applicant avers that such additional land over and above said 100 feet is necessary in making heavy excavations or embankments in relocating said railroad as above set out, except the land described in paragraph B hereof, which is necessary for the purpose of borrowing earth or other material for the construction of embankments in so relocating its railroad, and such additional lands are sought to be condemned for such uses and purposes. That the right, easements, ways, and rights of way herein sought to be condemned and taken are necessary for the uses and purposes hereinabove specified."

Two civil engineers of experience in railroad work were examined by the petitioner, and their testimony tended to show this land in width in excess of 100 feet and this land for borrow pits were all necessary for making heavy excavations or embankments, or borrowing earth or protecting, making, or keeping safe or perfecting its roadway. The defendant offered no evidence on this issue. There was some evidence tending to show a necessity for this extra width in the right of way of this land, and for this land for borrow pits by this railroad for the purposes permitted...