Romano v. Thrower, 4 Div. 769
| Decision Date | 20 May 1954 |
| Docket Number | 4 Div. 769 |
| Citation | 261 Ala. 361,74 So.2d 235 |
| Parties | ROMANO v. THROWER. |
| Court | Alabama Supreme Court |
J. Hubert Farmer, Dothan, for appellant.
W. Perry Calhoun and J. N. Mullins, Sr., Dothan, for appellee.
C. C. Thrower, on December 4, 1950, instituted proceedings in accordance with the terms and provisions of Sections 56-58, Title 19, Code of 1940, to acquire a right of way over land of Frank Romano.
The Sections just referred to read:
Relief was denied Thrower in the probate court and he appealed to the circuit court of Houston County, where the verdict and judgment was for Romano. Thrower, duly filed his motion to set aside the verdict and judgment and to grant him a new trial. The trial court set aside the judgment and granted a new trial to Thrower. From that judgment Romano appealed to this court. We affirmed, Romano v. Thrower, 258 Ala. 416, 63 So.2d 369.
Thereafter the cause came on for a new trial in the circuit court of Houston County. The jury returned a verdict is favor of the petitioner Thrower and fixed the amount to be paid by him to Romano for the 15 foot right of way across the latter's land at the sum of $225. Judgment was in accord with the verdict. Romano's motion for a new trial having been denied, he has appealed to this court.
It is without dispute in the evidence that C. C. Thrower is the owner of a three acre tract of land in Houston County, situated outside the corporate limits of a municipality. It is without dispute that no part of the said three acre tract or body of land is adjacent or contiguous to any public road or highway.
Thrower's land is bounded on the West by land owned by one Kenneth Brown, and on the North by land owned by Lint Morgan. Thrower's land is bounded on the East by land owned by the defendant, Frank Romano. The lands of Thrower and Romano are bounded on the South by lands owned by one Paul Hayes.
The nearest public road or highway to Thrower's land is referred to in the evidence as the Hodgesville highway or road. For our present purpose, it may be said that the Hodgesville road runs North and South. But Romano's land, which is bounded on the East by the said Hodgesville road, lies between Thrower's land and the highway. From Thrower's land across the southernmost part of Romano's land to the Hodgesville highway is a distance of approximately 691 feet. The right of way across Romano's land which Thrower sought, and which has been awarded, is the southernmost fifteen feet of Romano's land for a distance of 691 feet. The defendant Romano on cross-examination admitted that the 'proposed right of way is the nearest way from the Thrower's land to the nearest highway.'
It was conceded that the right of way would not go through Romano's stable lot, stable or gin house.
But in his answer to the petition filed by Thrower, Romano averred in part as follows: 'And for further answer to said petition this Defendant says that the proposed right of way, so sought by the Plaintiff would be established through this Defendant's garden or orchard, and to which he does not consent.'
It was established without dispute in the evidence that the proposed right of way would not go through an orchard, and it was also conceded that at the time the petition was filed the proposed right of way would not go through the defendant's yard.
At the time the petition was filed Romano was using his land primarily as a truck farm. Some of the vegetables which he raised were consumed at his table, but in the main his operation was for commercial purposes. Romano and his wife both testified that at the time Thrower's petition was filed, the strip of land here involved was being used to raise vegetables. But such evidence, in our opinion, would not justify a finding that the said strip of land was a part of a 'garden' as that word is used in Section 57, Title 19, Code of 1940. The strip of land was but a part of a large field where vegetables were grown as a money crop. But, in any event, there was evidence which would amply support a finding that the said strip of land was not in cultivation at all at the time the petition was filed. According to the petitioner's evidence the only growth on the proposed right of way at the time the petition was filed were 'bushes...
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