Southern Natural Gas Co. v. Ross

• Decision Date: 08 March 1973
• Citation: 290 Ala. 195,275 So.2d 143
• Parties: In re SOUTHERN NATURAL GAS COMPANY, a corporation v. Kenneth ROSS et al. Ex parte Southern Natural Gas Company, a corporation. SC 46.
• Court: Alabama Supreme Court

Page 143

275 So.2d 143

290 Ala. 195

In re SOUTHERN NATURAL GAS COMPANY, a corporation v. Kenneth ROSS et al. Ex parte Southern Natural Gas Company, a corporation.

SC 46.

Supreme Court of Alabama.

March 8, 1973.

Rehearing Denied April 5, 1973.

Huey, Stone & Patton, Bessemer, for petitioner.

Lee Bains, Bessemer, for respondents.

MERRILL, Justice.

Petitioner, Southern Natural Gas Company, filed a petition to condemn a right of way across the Ross property on April 22, 1965. The probate court ordered the condemnation and both parties appealed to circuit court. More than five years later, the cause was tried to a jury and Ross and his wife were awarded $1,600.00 and interest. Petitioner appealed to the Court of Civil Appeals and the judgment was affirmed, 49 Ala.App. 625, 275 So.2d 138. We granted the writ of certiorari and the cause was argued and submitted in this court on February 13, 1973.

The two questions raised in the Court of Civil Appeals were whether the condemnees were entitled to interest, and if so, when it began, and secondly, whether the amount of the award was excessive.

The amount of compensation awarded was within the range of the testimony and we agree with the opinion of the Court of Civil Appeals on that question. We also agree with that court that the condemnees were entitled to interest, but we disagree with the date in the opinion from which the interest is to be computed.

Both the trial court and the Court of Civil Appeals fixed the date for the beginning of interest as June 22, 1965. The opinion we are reviewing does not state what happened on June 22, 1965, but the briefs of all parties and the record show that June 22 was the date of the order of the Probate court condemning the property after showing that the amount of the award had been paid into court.

The opinion of the Court of Civil Appeals states:

'In the case at bar the condemnor obtained the right of entry simultaneously with the order of condemnation by virtue of having paid the amount of the award into court; and, even though condemnor appealed to the Circuit Court, it did not lose the right of entry previously obtained because it filed the bond prescribed by Title 19, Section 18, Code of Alabama 1940, as Recompiled 1958.

'Therefore, condemnor obtained the right to possession of the property condemned on June 22, 1965.'

Title 19, § 16, Code 1940, requires the probate court to 'make orders of condemnation in pursuance thereof (the report of the commissioners) upon the payment of the damages and compensation so assessed and reported or the deposit of the same in court.'

Here, the amount of the award was paid into court and the probate court properly condemned the property for the right of way and properly entered in its judgment that 'the petitioner hereby is given and awarded the right to the immediate possession of the property hereinafter described for the uses and purposes set out in the said petition.'

The trial court and the Court of Civil Appeals treated this probate court judgment as final and said that the 'condemnor obtained the right to possession of the property condemned on June 22, 1965.'

The only times such a probate court judgment becomes final are those where the condemnee accepts the award and no appeal is taken by either party within thirty days. When this happens, the condemnation proceeding is ended and there is no interest, and the question of interest does not arise.

We think the import of Chapter 1, Eminent Domain, Tit. 19, §§ 1--31, is that, except for situations described in the preceding paragraph, the judgment in the probate court is not final or absolute. To illustrate, we cite two sections. Section 17 provides:

'Any of the parties may appeal from the order of condemnation to the circuit court of the county within thirty days after the making of the order of condemnation, by filing in the court rendering the judgment, a written notice of appeal a copy of which shall be served on the opposite party, or his attorney, and on such appeal, the trial shall be de novo, and it shall be necessary to send up the proceedings only as to the parties appearing or against whom an appeal is taken.'

Either party has the right to appeal and the trial is de novo. On appeal under this section, we have held that the court tries de novo not only the question of damages and compensation but also the right to condemn under Tit. 19, § 7; with the question of damages and compensation being a question for the jury, and the right to condemn to be determined by the court without the aid of the jury. Housing Authority of City of Jasper v. Deason, 284 Ala. 431, 225 So.2d 838; Cooper v. State, 274 Ala. 683, 151 So.2d 399; Calhoun County v. Logan, 262 Ala. 586, 80 So.2d 529; City of Birmingham v. Brown, 241 Ala. 203, 2 So.2d 305.

Title 19, § 25, provides:

'The applicant may pay the damages and compensation assessed at any time within six months after the assessment thereof, or, in case an appeal is taken, within six months after the appeal is determined; but if he fails to pay the same within such time, such assessment shall cease to be binding on the owner of the lands or other party interested therein, and the rights of the applicant thereunder shall determine; and, upon such failure, the applicant shall be liable to the owner or other party for all damages the latter may have sustained by the institution of such proceedings, including a reasonable attorney's fee for defending the same.'

It is apparent that condemnation proceedings may go through the circuit court, but if the award has not been paid into court, perhaps because the condemnor considered the award excessive, then the order of condemnation is no longer effective, nor is the amount of the award payable to the landowner.

In Alabama Midland Railway Co. v. Newton, 94 Ala. 443, 10 So. 89, this court, per Coleman, J., the grandfather of Mr. Justice Coleman of the present court, said:

'Under our system, not only must the compensation be paid as a condition precedent to the vesting of the title, but a time is fixed within which it must be paid, or the rights of the applicant will determine. It seems clear from the statute that its purpose was not to give to the verdict of the jury and the order of condemnation the force and effect of an absolute judgment, conclusive for all purposes and time upon the parties. It is conclusive for a period of six months, in so far as it adjudicates the amount of compensation to be paid by the applicant, and his right to the land condemned, upon its payment. It is also conclusive upon the land-owner for the same period of time, so far as it fixes his compensation, and estops him from exercising any rights over or making any disposition of the property in conflict with the order of condemnation. * * *'

To the same effect are Stout v. Limestone County, 211 Ala. 277, 100 So. 352(1), and State v. Pettis, 275 Ala. 450, 156 So.2d 137(2).

We think we have demonstrated that the probate court judgment is not absolute when an appeal is taken, as here, and we have already stated that the award was paid into probate court.

The condemnor appealed from the June 22 judgment on June 29 and the condemnee cross-appealed on July 9, 1965, and this transferred the cause to the circuit court because the appeals were taken within thirty days.

There is no question but that the condemnor went into possession and installed the pipeline long before the hearing in circuit court, and acting pursuant to Tit. 19, § 18, as amended, filed the bond to permit it the right of entry on the land. Section 18, as amended, which is in accord with Section 235, Constitution of Alabama 1901, provides:

'No appeal shall suspend the judgment, or deprive the applicant of the right of entry, provided the amount of the damages assessed for the parties who appeal or against whom an appeal is taken, shall have been paid into court in money, and a bond shall have been given in double the amount of such damage, with good and sufficient surety, to pay such damages as the property owners may sustain. Said amount of damages may be paid into court and said bond in double the amount of such damage, with good and sufficient surety may be given, at the time of taking the appeal or at...