Rudder v. Limestone County

• Decision Date: 05 December 1929
• Docket Number: 8 Div. 122.
• Citation: 220 Ala. 485,125 So. 670
• Parties: RUDDER v. LIMESTONE COUNTY.
• Court: Alabama Supreme Court

125 So. 670

220 Ala. 485

RUDDER
v.
LIMESTONE COUNTY.

8 Div. 122.

Supreme Court of Alabama

December 5, 1929

Rehearing Denied Jan. 25, 1930.

Appeal from Circuit Court, Limestone County; James E. Horton, Judge.

Condemnation proceeding by Limestone County against George Rudder. From a judgment fixing damages, defendant appeals. Transferred from Court of Appeals. Affirmed.

Brown, J., dissenting.

J. G. Rankin, of Athens, and E. W. Godbey, of Decatur, for appellant.

R. B. Patton, of Athens, and S. A. Lynne, of Decatur, for appellee.

THOMAS, J.

This was a proceeding brought by a county to condemn a right of way through certain lands of appellant for a public highway. Commissioners were appointed and made the assessment of damages; the probate court confirmed the return of the commissioners and ordered the lands condemned. An appeal was taken to the circuit court and the cause there tried de novo; the [125 So. 671] issue of such trial being the amount of damages to be awarded the landowner.

On the trial in the circuit court, over objection of appellant, witnesses for the petitioner appellee were allowed to testify to the value of appellant's farm or tract of land before the taking and appropriation, and to its value after the road was constructed, and to testify that the fact that a wider and better highway as that to be constructed through the property increased the value of all of appellant's land in said tract. Appellant showed by several witnesses the value of his land actually taken, and introduced evidence tending to show that his remaining contiguous lands of the tract were decreased in value of reason of the use and construction of the road along the lands actually taken.

The court gave written instructions to the jury that, in fixing the amount of compensation to be awarded to the owner for his lands actually taken, the jury could take into consideration the value of the enhancement, if any, to the remaining lands of appellant that such road or highway may have caused, and refused written instructions requested by appellant, that as to the damages for lands actually taken they could not consider special benefits to the remaining lands of said tract and of appellant by reason of the improvement.

Appellant's counsel states in his brief that the principal errors assigned and argued raise the question of whether or not the act of the Legislature approved August 30, 1927, amending section 7489 of the Code of 1923 (Acts 1927, pp. 492, 493), is in contravention of sections 23 or 235 of the Constitution of Alabama of 1901, and submits in support of this insistence of unconstitutionality, the following decisions: Ala. & Fla. R. Co. v. Burkett, 42 Ala. 83, 89; Jones v. N. O. & S. R. Co., 70 Ala. 227; Commissioners' Court v. Street, 116 Ala. 34, 22 So. 629; M., J. & K. C. R. Co. v. Riley, 119 Ala. 260, 24 So. 858; Ala. Central R. Co. v. Musgrove, 169 Ala. 424, 428, 53 So. 1009; Stout v. Limestone County, 211 Ala. 227, 100 So. 352.

We shall consider the same at the outset. The case of Alabama & Florida R. Co. v. Burkett, supra, was rendered during the time the Constitution of 1867 was in force. Under this Constitution (article 13, § 5), it is provided: "No right of way shall be appropriated to the use of any corporation, until full compensation therefor be first made in money, or secured by a deposit of money to the owner, irrespective of any benefit from any improvement proposed by such corporation," etc. (Italics supplied.) For an understanding of the Burkett Case, it is necessary to follow the provisions of the two subsequent Constitutions, 1875 and 1901, respectively.

For the purpose of drawing the distinction under the Constitution of 1868 (applied in the Burkett Case) to that of the Constitution of 1875 and 1901, note that the last two Constitutions made a decided change in the provisions for construction. In article 13, § 7, Constitution of 1875, the provision is made that corporations invested with the privilege of taking private property, for public use, "shall make just compensation for the property taken, injured, or destroyed," etc. (Italics supplied.) This section was further changed by the Constitution of 1901, in this: "Municipal and other corporations *** invested with the privilege of taking property for public use, shall make just compensation, to be ascertained as may be provided by law, for the property taken, injured or destroyed," etc. (Italics supplied.) Section 235, Constitution 1901. That is to say, it will be thus noted that the Constitution of 1875 made radical changes from the Constitution of 1867, by eliminating the words "full compensation therefor be first made in money, or secured by a deposit of money," and substituting "just compensation for the property taken," etc., and that the Constitution of 1901 enlarged upon the Constitution of 1875 by inserting the words "to be ascertained as may be provided by law."

With the provisions of these several Constitutions before us, we note that the construction and holding in Ala. & Fla. R. Co. v. Burkett, 42 Ala. 83, 88, as defining "full compensation," has no application; nor is it binding under the Constitution of 1901, § 235, as defining "just compensation, to be ascertained as may be provided by law," etc. Ala. & Fla. R. Co. v. Burkett, supra; City of Huntsville v. Goodenrath, 13 Ala. App. 579, 588, 68 So. 676; Town of Eutaw v. Botnick, 150 Ala. 429, 43 So. 739.

The case of Jones v. N. O. & S. R. Co., 70 Ala. 227, was an application of the provisions of the Constitution of 1868, and followed the decision in Ala. & Fla. R. Co. v. Burkett, 42 Ala. 83; Hays v. Ingham-Burnett Lumber Co., 217 Ala. 524, 527, 116 So. 689. The case of Commissioners' Court of Colbert County v. Street, 116 Ala. 28, 34, 22 So. 629, was under the Constitution of 1875, and was under a petition for the purpose of opening a public road. This case does not hold that compensation for damages to the owner should be made in money, without a consideration of the benefits in ascertaining that damage. It is declared:

"In the case of Hooper v. Savannah & Memphis R. R Co., 69 Ala. 529, it was said: 'Just compensation included not only the value of the parts of the lots actually taken and appropriated to the use of the company but the injury to the remaining lots or parts of lots, and if the ways of ingress to and egress from the lots were obstructed or interrupted, such obstruction or interruption formed a part of the injury, for which compensation should have been made.' In Jones v. N. O. & S. R. R Co., 70 Ala. 227, which was a proceeding to [125 So. 672] ascertain the value of the compensation to be paid to the owner of lands, which had been taken and appropriated by the railroad corporation, it was said (page 232): 'In this proceeding it is only "just

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