Pickens County v. Jordan, 6 Div. 571.

• Decision Date: 16 May 1940
• Docket Number: 6 Div. 571.
• Citation: 239 Ala. 589,196 So. 121
• Parties: PICKENS COUNTY v. JORDAN.
• Court: Alabama Supreme Court

196 So. 121

239 Ala. 589

PICKENS COUNTY v. JORDAN.

6 Div. 571.

Supreme Court of Alabama

May 16, 1940

Appeal from Circuit Court, Pickens County; J. Q. Smith, Judge.

Condemnation proceeding, commenced in probate court of Pickens County and appealed to circuit court, by Pickens County against James B Jordan. From a judgment fixing compensation for the land condemned, plaintiff appeals.

Reversed and remanded.

Curry &amp Curry, of Carrollton, W. A. Davis, of Aliceville, and Jack M Pratt, of Carrollton, for appellant.

D. D. Patton, of Carrollton, for appellee.

THOMAS Justice.

The proceeding was for condemnation of land for a public highway. The only question presented is as to the amount of damages as compensation for the land taken for such right-of-way.

On appeal to the circuit court from an order of the probate court condemning land for a right-of-way the trial is de novo. Code, § 7492; Alabama Power Co. v. Henson, 237 Ala. 561, 187 So. 718.

The proper rule for the admeasurement of damages and compensation for taking of land for right-of-way to construct a public highway is the value of the land actually taken and consequent damage to adjoining lands and the commissioners or court in fixing the amount to be allowed the land owner must take into consideration the value of the enhancement to the remaining lands of such owner by reason of the construction of said highway. Code, § 7489; Acts of Alabama 1927, p. 492; Conecuh County v. Carter, 220 Ala. 668, 126 So. 132; McRea v. Marion County, 222 Ala. 511, 133 So. 278.

The court will take judicial knowledge of the location of the Town of Gordo and the population thereof as recorded by the Federal census. State v. Western Union Telegraph Co., 208 Ala. 228, 94 So. 466; Hodge v. Joy, 207 Ala. 198, 92 So. 171; Ex parte Fowler, 203 Ala. 98, 82 So. 112; Jackson Lumber Co. v. Trammell, 199 Ala. 536, 74 So. 469.

Pickens County acquired no absolute fee simple title to, but only the right to use the land for the purposes stated in its application. The compensation must be made for the value of the "land taken" under the statute. Michie's Code,§ 7489. In estimating such value, as to an easement, it has been held if anything would be left to the land owner of value consistent with the enjoyment of the easement, such use should also be considered. Stout v. Limestone County, 211 Ala. 227, 100 So. 352.

In the ascertainment of the value of the lands taken under and within the limitations of the statute there is no stereotyped form of question to be addressed to a witness shown to have knowledge of the value of the land, to enable the witness to express his judgment, in order that the value of the land may be ascertained by the jury. Alabama Power Co. v. Henson, 237 Ala. 561, 187 So. 718. In other words, whatever an intelligent buyer with a foreknowledge of the facts would estimate as an element of value of the land taken at the time of its condemnation may be considered. Alabama Power Co. v. Henson, supra; Ensign Yellow Pine Co. v. Hohenberg, 200 Ala. 149, 75 So. 897; Alabama Central R. R. Co. v. Musgrove, 169 Ala. 424, 53 So. 1009.

In the ascertainment of compensation to be awarded on condemnation of lands under § 7489, Michie's Code, it has been held that it is improper to admit evidence of the amount of damages assessed or paid on condemnation to owners of other adjoining or adjacent lands.

The Constitution requires that "just compensation" first be made before lands are condemned. Constitution 1901, Art. 1, § 23, Art. XII, § 235. The compensation required by statute is thus stated:

"§ 7488. The commissioners thus appointed, or a majority of them, shall assess separately the damages and compensation to which the several owners and other parties interested in each of the several tracts of land are entitled, and they shall be sworn as jurors are sworn. The commissioners may view the lands to be subjected, and must receive all legal evidence offered by any party touching the amount of damages the owners of the lands and other parties interested therein will sustain and the amount of compensation they are entitled to receive.

"§ 7489. 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 enhancement to the remaining lands of such owner that such highway may cause. (1927, pp. 492, 493.)" Thus the owner of each tract of land must be justly compensated for the taking of the land as of the time when taken, without regard to the effect of the condemnation of lands of other owners or its values at such time. Birmingham-Trussville Iron Co. v. Allied Engineers, Inc., 225 Ala. 522, 144 So. 1; Mobile County v. Barnes-Creary Supply Co., 225 Ala. 127, 142 So. 72.

In Rudder v. Limestone County, 220 Ala. 485, 125 So. 670, 675, 68 A.L.R. 776, which was a case under the amended statute involving public roads, it was held that, "There is nothing in the Constitution of this state, nor of the United States, prohibiting a consideration of benefits in estimating the just compensation to be paid. There being no such prohibition, none can be implied. Therefore the Legislature, in the exercise of the right of eminent domain, could direct that, when a part or parcel of land is appropriated for public use indicated, in ascertaining the amount of just compensation, there may be taken into consideration the benefits caused thereby. The framers of our last Constitution had the foregoing provisions in mind when they made the significant changes from section 5 of the Constitution of 1868 to that of 1901, as section 235. This section took the place of section 7 of article 14 of the Constitution of 1875. While the two sections are similar, the 1901 Constitution carried this new specific provision: 'To be ascertained as may be provided by law.' This is apparent that the intent was to leave to the Legislature the right to fix the measurement and method of proof in such cases, so that 'just compensation' could be made. And compensation, to be just, must be just compensation to the owner and just to the public."

As to the ascertainment of value, it is declared in Rudder v. Limestone County, supra, as follows: In the case of "Alabama Cent. R. Co. v. Musgrove, 169 Ala. 424, 53 So. 1009, condemnation sought was under the statutes and the Constitution of 1901; just compensation was said to include (1) the value of the land taken; (2) any injury to the remaining part of the tract of land; (3) as an element in assessing damages for the taking of land, the adaptability of the land taken for a special purpose, affecting its value, must be taken into consideration; (4) damages to other lands of the landowner limited to the tract, a portion of which is taken, may extend to recovery for damages to the entire tract; (5) that the proper way to arrive at diminution in value of the remaining land of said tract is the difference in the market value just before and just after the taking."

And in the said case of Rudder v. Limestone County, supra, it was further said that the important question recurring for decision, is the "correct interpretation of the words 'just compensation to be ascertained as may be provided by law,' under the Constitutions having application. The Fifth Amendment to the Constitution of the United States contains the words, 'Nor shall private property be taken for public use, without just compensation,' and this is the same in effect as section 23 of the Alabama Constitution."

The summarization of the subject by Judge Freeman (Symonds v....