Shelby County v. Hatfield

• Decision Date: 21 June 1956
• Docket Number: No. 88-A,7 Div. 318,88-A
• Citation: 264 Ala. 488,88 So.2d 842
• Parties: SHELBY COUNTY v. O. A. HATFIELD et al. (Tract).
• Court: Alabama Supreme Court

Page 842

88 So.2d 842

264 Ala. 488

SHELBY COUNTY v. O. A. HATFIELD et al. (Tract No. 88-A).

7 Div. 318.

Supreme Court of Alabama.

June 21, 1956.

Handy Ellis, Columbiana, for appellant.

Karl C. Harrison, and Wales W. Wallace, Jr., Columbiana, for appellees.

MERRILL, Justice.

Appeal from a judgment of the Circuit Court of Shelby County fixing appellees' damages and compensation in a condemnation proceeding at $3,500.

On March 5, 1954, Shelby County filed a petition in the Probate Court of that county to condemn lands of appellees for highway purposes. From the final order of condemnation in the Probate Court, the appellees appealed to Circuit Court and demanded a jury. After verdict and judgment in favor of the appellees, appellant filed a motion for a new trial which was overruled and Shelby County prosecuted this appeal.

There are twenty-three assignments of error. Numbers 9, 10, 11, 12 and 13 are not mentioned in brief and are not considered; Supreme Court Rule 9, Code 1940, Tit. 7 Appendix. Appellees strenuously insist that appellant's brief does not comply with other provisions of Rule 9. The 'Statement of the Case' is adequate, but the purported 'Statement of the Facts' makes no reference 'to the pages of the transcript' as required by the rule. The 'Propositions of Law' are five general propositions and comply with the rule, but no specific application to the rulings assigned for error is made in brief, and no authority is ever mentioned or cited in the 'Argument' section of the brief in support of any assignment of error. Where there is no citation of, or reference to, an authority in the argument pertaining to any assignment, we think the argument does not "reach the dignity of an insistence upon the grounds of error covering it." Republic Iron & Steel Co. v. Quinton, 194 Ala. 126, 69 So. 604, 607; Suits v. Glover, 260 Ala. 449, 71 So.2d 49, 43 A.L.R.2d 465; 2 A Alabama Digest Appeal and Error k756, 758(1) and 1079. Although Appellant's brief does not conform with Rule 9, we can, in our discretion, consider some of the assignments of error insisted on in brief; Simmons v. Cochran, 252 Ala. 461, 41 So.2d 579, and we exercise that discretion, because most of the assignments are concerned with requested written charges.

Assignments of error 1, 2, 3, 4, 5, 7, 8 and 14 are based upon the refusal of certain requested written charges. All of these charges instructed the jury that the fact adjacent lots may have been filled in with dirt or rock, or that water was caused to flow onto appellees' land, 'cannot be considered by you.' But appellant requested, and the court gave, a written instruction (charge A-1) that the jury should consider the fill and the water. This latter charge was inconsistent and in conflict with the eight refused charges. The appellant, having invoked the ruling of the court in giving charge A-1, will not be heard to complain that the court refused to give written charges inconsistent therewith. Western Union Tel. Co. v. Griffith, 161 Ala. 241, 50 So. 91. Moreover, some of these charges were properly refused because they were not predicated on the evidence. Walls v. Decatur Fertilizer Co., 215 Ala. 426, 111 So. 214; Birmingham Belt R. Co. v. Nelson, 216 Ala. 149, 112 So. 422; Birmingham Baptist Hospital v. Branton, 218 Ala. 464, 118 So. 741; Hammond Motor Co. v. Acker, 219 Ala. 291, 122 So. 173.

Assignment of error 6 is based upon the refusal of charge 6. This charge is elliptical, in that there is no subject for the predicate, and reversible error will not be predicated on its refusal. Sovereign Camp, W. O. W. v. Gay, 217 Ala. 543, 117 So. 78; Jones, Alabama Jury Instructions Sec. 281.

Assignments of error 15, 16 and 18 relate to exceptions taken to parts of the oral charge of the court. The statements of the court were to the effect that in estimating the damages, the jury may take into consideration the acreage or amount and value of the land taken for the right of way. Appellant's discussion of assignment of error 15 includes the following:

'It has been held by this court that where a part of a tract of land is taken for public road purposes, the jury cannot assess damages for the property actually taken, but the true test is the difference between the reasonable market value of the land before taking and at the completion of the work.'

No authority is cited, but, based on the argument, appellant's fifth proposition of law probably is directed at this contention. That proposition is:

'V. When a public right of way is condemned across a tract of land, only a portion of it is taken, the jury cannot award damages for the area of land actually taken. Roundtree Farm Co. v. Morgan County, 249 Ala. 472, 31 So.2d 346; Morgan County v. Hill, 257 Ala. 658, 60 So.2d 838.'

Each of the cases cited contain this statement:

'The final inquiry as to the compensation to be awarded, if any, is the difference between the value of the entire tract immediately before the taking and the value of the part of the tract remaining after the taking, giving effect to any enhancement in value of the part remaining resulting from the construction of the road. If the part remaining is worth as much as or more after completion of the project than the entire tract was worth immediately before the taking, the landowner has sustained no damage and is not entitled to any compensation.'

Each case cites in support of the statement, several cases including the cases from which we now quote. In Pickens County v. Jordan, 239 Ala. 589, 196 So. 121, 123, this court said:

'As to the...