Pike County v. Whittington

• Decision Date: 12 May 1955
• Docket Number: 4 Div. 819
• Citation: 81 So.2d 288,263 Ala. 47
• Parties: PIKE COUNTY v. Fannie Mae WHITTINGTON.
• Court: Alabama Supreme Court

Page 288

81 So.2d 288

263 Ala. 47

PIKE COUNTY v. Fannie Mae WHITTINGTON.

4 Div. 819.

Supreme Court of Alabama.

May 12, 1955.

Rehearing Denied June 23, 1955.

Oliver W. Brantley, Troy, for appellant.

W. R. Martin, Ozark, Gibson & Byars and E. C. Orme, Troy, for appellee.

SIMPSON, Justice.

Appeal from a judgment granting a new trial in a condemnation proceeding.

United States Highway 231 runs through Pike County and in order to straighten the highway it has been relocated at various places in the county. The appellee is the owner of a five-acre tract, the eastern boundary of which was the old Highway 231 prior to its relocation. Facing and abutting the right of way were certain improvements consisting primarily of a combination residence, grocery store and filling station. When the highway was relocated, it traversed the western part of the five-acre tract and the new right of way required eight-tenths of an acre through a sedge field. The appellee could not agree with Pike County officials as to her compensation for the land taken and the County (appellant here) filed condemnation proceedings under the eminent domain statute. The commissioners awarded her the sum of $75 as compensation and she appealed to the circuit court. The jury fixed her compensation and damages at $200. She made a timely motion for a new trial on the ground, inter alia, that the verdict of the jury was inadequate and the court granted the motion 'for the reason that the verdict is contrary to the preponderance of the evidence in the case and the damages inadequate taking into consideration all the evidence.'

The evidence for the appellee, other than pictures and maps, consisted of testimony of six witnesses, who estimated a value of the tract before the taking of from $8,000 to $12,000 and a value after the taking of $2,000 to $4,000. Three of these witnesses estimated the value of the acreage actually taken for the new highway to be $40, $120 and $160. The only disinterested witness for appellee, the former president of a bank, who placed the before and after value at $10,000 and $4,000 respectively, testified as to the decrease in value as follows:

'Q. So it is based upon a lessening of traffic where her business was situated? A. That is correct. Q. That is the sole basis of your assumption? A. Yes.'

While only one other witness, the gas distributor who serviced the gas pumps, testified that his appraisal was based upon a loss of traffic, it is evident that this was the main consideration upon which all of appellee's witnesses based their opinion as to the amount of damages suffered by appellee.

The only other evidence was given by two of the commissioners, who testified for the appellant and stated that the land taken was in their opinion worth $75.

The contention of the appellant is stated in brief as follows:

'The substantive question is whether 'just compensation' for land taken for highway purposes includes damages for diversion of traffic by the new highway from the old highway upon which the owner's improvements are situated. Our view is that 'just compensation' includes the value of the land taken and, where it is an integral part contributing to the usefulness and value of a larger tract, damages to the remainder of the tract resulting from the loss of the parcel taken. But where the land appropriated is not an integral part contributing to the usefulness and value of the whole tract, there is no consequential damage to the remainder resulting from the loss of the parcel. It is the same as if the land taken were a separate tract, for it has no relation to the purpose, the usefulness or the value of the remainder. Its relation is purely physical, not utilitarian.

'There is no property right in the volume of traffic and the state owes no duty to maintain it. It is quite beyond the power of the state to force the public to travel the road in front of appellee's place of business and it owes no duty to encourage travelers to do so by refusing to build better routes. The damages of which appellee complains are suffered in common by her and those whose land was not taken alike. The loss of the particular land is not what causes her damage, but merely the construction of a better route, whether it goes over her land or someone else's.'

Appellee in answer to this contention says in brief:

'We insist that the meat in this present case is the question of compensation for taking part of a tract of land and consequential damages to the remainder of that same tract of land taking into consideration the depreciation in the market value or the enhancement of the market value of the remaining part of such tract, in relation to the use, income, adaptibility of the tract of land before and after the taking and the completion of the project.'

It is agreed by both parties to this appeal that the appellee would be entitled to no compensation if the new right of way did not touch her land at any point.

This court has on numerous occasions enunciated the rule applicable to reviewing the propriety of the action of the trial judge in granting a motion for a new trial. We are committed to the rule that decisions granting new trials will not be disturbed unless the evidence plainly and palpably supports the verdict. Cobb v. Malone, 92 Ala. 630, 9 So. 738. Some of the most recent cases supporting this well-settled rule are: Williams v. Birmingham Water Works Co., 230 Ala. 438, 162 So. 95; Romano v. Thrower, 258 Ala. 416, 63 So.2d 369; Morgan County v. Hart, 260 Ala. 418, 71 So.2d 273; German-American Wholesale Optical Co. v. Rosen, 233 Ala. 105, 170 So. 211. We are unable to say that the verdict of the jury in this case was plainly and palpably supported by the evidence. We thus conclude that the order granting the motion for a new trial must be affirmed.

However, appellant in brief and oral argument stated that Pike County now has pending in the circuit court two more cases involving the identical substantive question presented here, which have been continued awaiting this court's pronouncement in this case as guidance in future trials. Both parties to this appeal argued the substantive question and we feel that we should indicate our views as aid to the court below on another trial.

In the case of McRea v. Marion County, 222 Ala. 511, 133 So. 278, 281, this court said:

'While the county may not be under any duty to the property owner to maintain the highway near his residence, store, or other business enterprise, nor through his property, and may change its location through it, it cannot take any of his property to do so without his consent, or the payment of just compensation and damages as required by the Constitution and law. The amount of such compensation under the amended section 7489 and damage are measured by the effect of the project as a whole upon the value of the entire tract. The circumstances that thereby the improvements and business enterprises are made less accessible to the highway, whereas they were situated upon it before the new work, may, or may not, affect the market value of the entire tract. That is not an element of damage but a circumstance to enter into the question of the effect of the improvement upon the entire tract. The circumstance that thereby traffic no longer goes by or near the location of the store and other improvements on the land need not necessarily depreciate the market value of the six hundred and twenty acres. But the jury should be informed of the circumstance and have the question left to their ultimate decision.'

Appellant insists that the McRea case is not in point because there is a question of access which causes it to differ from the instant case, but we have read the original record and we find no such distinction.

In Hatter v. Mobile County, 226 Ala. 1, 145 So. 151, 153, this court said:

'In the McRea Case, supra, this court considered also the question of damage to the owner by the removal of the established highway from in front of buildings used for business purposes, and we may say as likewise applicable, buildings used and rented for residential purposes. It was the opinion of the court in that case that the jury should consider all the facts and circumstances in connection with the depreciation of such property by reason of the changed location. Following, therefore, this line of reasoning, if by such a change a storehouse located on the old highway and which was capable of use, and being rented for such purposes, loses its value as a business house, and becomes vacant, the owner should be permitted to show such fact for the jury's consideration in determining his damage, and by the same logic he should likewise be permitted to show a decreased rental produced by such change of location. Such proof is merely another way of showing damage suffered by depreciation by a change of the use of the road formerly established.'

In Morgan County v. Griffith, 257 Ala. 401, 59 So.2d 804, 806, this court said:

'We think the evidence as to what it would cost to change the front of the house from its east side to the west side is not irrelevant for consideration by the judge or jury as the trier of the facts, not as an element of damage but as affecting the extent of the depreciated value by reason of the layout. That is only a circumstance for consideration in connection with all the other circumstances and opinion evidence of value by the witnesses. There was no reversible error in either respect, as contended for by appellant.'

The rule in this state has been reaffirmed recently in the case of Morgan County v. Hill, 257 Ala. 658, 60 So.2d 838, 840, as follows:

'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...