Southern Furniture Mfg. Co. v. Mobile County

• Citation: 276 Ala. 322,161 So.2d 805
• Decision Date: 31 October 1963
• Docket Number: 1 Div. 923
• Parties: SOUTHERN FURNITURE MFG. CO., Inc., et al. v. MOBILE COUNTY.
• Court: Supreme Court of Alabama

Page 805

161 So.2d 805

276 Ala. 322

SOUTHERN FURNITURE MFG. CO., Inc., et al. v. MOBILE COUNTY.

1 Div. 923.

Supreme Court of Alabama.

Oct. 31, 1963.

Rehearing Denied March 26, 1964.

D. R. Coley, Jr., Thos, M. Galloway, Collins, Galloway & Murphy, and David R. Coley, III, Mobile, for appellants.

Maurice F. Bishop, Birmingham, and Jas. E. Moore, Mobile, for appellee.

LIVINGSTON, Chief Justice.

This is a condemnation proceeding instituted by Mobile County to acquire the right to deposit fill material or spoilage excavated from a new highway on two parcels of land of the defendants. Title to the areas was to remain in the defendants and be free of the easement within two years of the date of the taking. The right to condemn was stipulated by the parties and the only question before the courts below was the amount of damages, if any. In late 1940 and early 1950, plans were discussed for a belt-line highway around Mobile. Surveys were made in 1953 and 1954, and these indicated that the highway would go through the 279-acre tract owned by the defendants.

The subject property was acquired in May of 1953 by Delaney Realty Company for $214 per acre. This was conveyed to defendant corporation in November of the same year. Some 45 acres of this land was subsequently conveyed to another corporation for the construction of the Springdale Plaza shopping center.

On October 18, 1955, a deed to about 32.2 acres for the highway right of way was given by the defendant corporation for one dollar and 'the benefits accruing to it and to the public from the construction of a four-lane paved belt line highway leading from U. S. Highway 90 to U. S. Highway 45 running through the lands of the grantor in Mobile County.' Later, certain agreements were reached with the state and the federal government and it was decided to construct a nonaccess highway, bordered by a wire fence.

The lands in question were located almost entirely in what is known locally as 'Wragg Swamp,' a low, marshy area covered with ponds of water and intense vegetation. Because of the condition of the area, it was thought necessary to build a drainage ditch or canal across defendant's property. It was also necessary to remove much of the soil and organic matter in order to have a substantial base on which to construct the highway. It was for a place to dispose of this spoilage that the parcels of land in question were sought to be condemned.

On December 31, 1958, the County of Mobile filed the necessary application for condemnation in the Probate Court of Mobile County, Alabama. On January 28, 1959, pursuant to Title 19, Sec. 7, Code of Alabama 1940, the application was granted and commissioners were appointed under Sec. 11 of that title to assess damages and compensation, if any, to which the landowner was entitled. The commissioners, acting under Title 19, Sec. 13 of the Code of Alabama 1940, filed a report with the probate court assessing damages at one dollar, and on that date that court entered an 'Order Filing Report of Commissioners.'

On March 4, 1959, defendant, Southern Furniture Manufacturing Company, Inc., filed an appeal to the circuit court from that order under Title 19, Sec. 17, Code of Alabama 1940. On March 12, 1959, Mobile County paid the assessed sum into the court and the court entered another order entitled 'Payment of Award Into Court' which appellee insists was the final order of condemnation contemplated by Title 19, Sec. 17, supra.

On May 18, 1960, the county filed in the circuit court a motion to dismiss on the grounds that the purported appeal was premature and not based on the proper order of the probate court. The trial court denied this motion on May 22, 1960.

A jury trial was had which extended from May 30, 1960 to June 23, 1960. A verdict of 'no dollars' was rendered on the latter day, and the order of condemnation was entered in the circuit court. The present appeal is from that order.

The appellee has filed in this Court his motion to strike the transcript of record in this cause, and in the alternative to dismiss the appeal. Inasmuch as we are writing to affirm the case, these motions are unimportant, and we will forego a discussion of them.

Appellant has filed 56 assignments of error in this case. The first of these is to the order of the trial court granting the county's motion for the court to make available for examination certain documents. These were documents, letters, agreements, leases, etc., in the possession of E. E. Delaney and/or the corporation which erected Springdale Plaza and those of D. H. Roberts, the realtor who handled the Springdale Plaza project, which would tend to show the value of that property. The information sought was to include the minimum and average percentage of income rate, the length of the property leases, the names of the lessees, etc. We see no reason to hold the trial court in error for granting the motion. Title 7, Sec. 474(1) et seq., Code of Alabama 1940, Recompiled 1958 (commonly known as Act 375) provides that '[a]ny party may take the testimony of any person, including a party, by deposition upon the oral examination for the purpose of discovery, or for use as evidence in the action or for both purposes.' This statute was held constitutional and applicable in civil cases in Ex Parte Rice, 265 Ala. 454, 92 So.2d 16. Due to the fact that the Springdale Plaza shopping center was located on adjoining property which had once been a part of the original tract in question and the additional fact that it had recently been sold and was under development, information concerning its income seems highly pertinent. In a case of this nature, the trial judge must, of necessity, be vested with a certain amount of discretion. In National Bondholders Corporation v. McClintic, 4 Cir., 99 F.2d 595, a case construing the Federal Rules of Civil Procedure from which the Alabama statute in question was substantially adopted, the court held:

'The new rules wisely provide for flexibility of administration, and with regard to the taking of depositions for discovery or otherwise a discretion is vested in the district judge to measurably control the otherwise freedom of the taking of depositions * * *.'

Clearly, there was no abuse of discretion in the instant case.

The pivotal question in the case is whether or not the trial court correctly charged the jury, in effect, that it could take into consideration the enhanced value of the 202 acres of land in assessing the damages, if any, by the depositing of the spoilage material on the two tracts of land, one of 22 acres and one of 14 acres, and the cutting of drainage canal or ditch across a portion of the said 202 acres.

As stated by the appellant:

'The defendant asserted that in determining the amount of damage it was entitled to receive in the cause as compensation for the taking of the land described in the petition for condemnation for the purposes described therein, the court could not offset as against said damage any enhancement to the remaining land of the defendant, of which the lands involved in the cause constituted a part.'

We think that a given written charge for the appellee and a refused written charge to the appellant point up the errors complained of.

Written Charge F, given for appellee, is as follows:

'I charge you, gentlemen of the jury, that in determining the issue whether there has been enhancement to the property involved in this proceeding, you are to consider the entire 202 acre tract of the respondents. You should then arrive at an opinion, based on the evidence, of the value of this 202 acre tract before any taking which before value must exclude any enhancement in value brought about by reason of the proposed improvements. You should then determine from the evidence the reasonable market value of the 202 acre tract after the taking and after the fill material has been placed on the 36 acre fill easements and after the highway and drainage canal have been completed, giving effect in the after value to any enhancement in value to the 202 acre tract brought about by reason of the construction of the new highway, the construction of the drainage canal, and the nature of the material placed on the fill easement. If you are reasonably satisfied from the evidence that the amount or value of such enhancement exceeds any damages and the value of the use of the fill easement for a 2 year period, then the respondents are not entitled to any payment or compensation in this proceeding, and the amount of your verdict should be no dollars.'

Appellant's refused written Charge 11 reads as follows:

'The Court charges the Jury that in considering the amount of damages to which the Defendant is entitled in this case, if any, you cannot take into consideration the enhancement of value, if any, resulting from the construction of the improvements contemplated as to any property not described in the petition.'

After the jury had retired, they returned to the courtroom for further instructions and propounded the following question to the trial judge:

'Yes, sir, it means that if this enhancement is more than the damage he gets no dollars is what the Court is charging us to find?'

The trial court then stated:

'That is based on the entire charge. In other words, you've got to consider all of the elements that are in this Charge F. In other words, the Court in this the Court charged you:

'I charge you gentlemen of the Jury to determine the issue whether there has been enhancement to the property involved in this proceeding you are to consider the entire 202 acre tract, you would then arrive at an opinion based on the evidence of the value of the 202 acre tract, before any taking. The date of the taking is fixed by agreement. Not by agreement but by the filing of the, by the law as the 3lst day of December, 1958, which before value, that is the value before the taking must exceed any enhancement to the...