Southern Natural Gas Co. v. Ross

• Decision Date: 16 February 1972
• Docket Number: 6 Div. 96
• Citation: 49 Ala.App. 625,275 So.2d 138
• Parties: SOUTHERN NATURAL GAS COMPANY, a corporation, v. Kenneth ROSS and Evelyn Ross.
• Court: Alabama Court of Civil Appeals

Page 138

275 So.2d 138

49 Ala.App. 625

SOUTHERN NATURAL GAS COMPANY, a corporation, v. Kenneth ROSS and Evelyn Ross.

6 Div. 96.

Court of Civil Appeals of Alabama.

Feb. 16, 1972.

Rehearing Denied March 29, 1972.

Huey, Stone & Patton, Bessemer, for appellant.

Lee Bains, Bessemer, for appellees.

BRADLEY, Judge.

The appellant, Southern Natural Gas Company, on April 22, 1965 filed a petition in the Jefferson County Probate Court, Bessemer Division, seeking to have condemned a right-of-way across the property of the appellees, Kenneth Ross and his wife Evelyn. The Probate Court appointed three commissioners to ascertain the amount of compensation that should be awarded to the appellees for the taking of their land. A report was made to the Probate Court by the commissioners recommending an amount of $1,150 be awarded to the property owners as compensation for the taking of their property, which sum was paid into court by the condemnor. By this same order the condemnor was given the right to immediate possession of the property. From the Probate Court's decree, appellant on June 29, 1965 appealed to the Jefferson County Circuit Court for a trial de novo. Thereafter, on July 9, 1965, appellees cross-appealed. Then, on July 26, 1965, appellant filed a supersedeas bond in double the amount of compensation awarded so that it might have right of entry pending appeal to the Circuit Court.

In the Circuit Court there was a stipulation filed whereby the parties agreed that the only issue before the court was the amount of damages due the property owners as compensation for the taking of their property.

After a jury trial there was a verdict for $1,600, with interest thereon from April 23, 1965, returned in favor of the property owners. Judgment was rendered in accordance with the verdict.

There was a motion for new trial with appellants contending that the verdict was excessive and that no interest was due the property owners.

Motion for new trial was overruled with the proviso that the date from which interest was to be computed be changed from April 23, 1965 to June 22, 1965, and remittitur of the appropriate amount of interest be made. Appeal to this court is from the order overruling the motion for new trial.

There are two assignments of error. One contends that the trial court erred in charging the jury that the condemnees were entitled to interest on their award, and two, that the verdict of the jury awarding compensation in the amount of $1,600 was excessive.

Appellant says that the appellees are not entitled to interest on the award made to them in the Circuit Court for the reasons that there is no evidence in the record as to when or if condemnor took actual possession of the premises in question, and that the condemnees appealed from the final order of condemnation and Appellant relies on the case of McLemore et al. v. Alabama Power Co., 285 Ala. 20, 228 So.2d 780, as authority for its position.

award of the Probate Court to the Circuit Court for a trial de novo.

In McLemore, the Probate Court had condemned certain property to the use of the condemnor and had awarded a certain sum to the condemnee as damages for the taking.

The condemnor, apparently being dissatisfied with the award, appealed to the Circuit Court, filed a bond in double the amount of the Probate Court award, and then took actual possession of the property condemned. The jury later returned a verdict for a much smaller amount due as compensation for the taking.

The condemnee requested, but the Circuit Court refused to give to the jury, a requested charge directing them to assess interest computed on the basis of 6% Of the amount of the award from the date of the actual possession of the property.

The Supreme Court reversed the trial court and said:

'We are also of the opinion that the rule of Adwell (Jefferson County v. Adwell, 267 Ala. 544, 103 So.2d 143) is correct in allowing interest from the day on which condemnor takes possession of the condemned property until the day of the judgment in the circuit court.

'. . . The better view seems to be that the award of interest, where the condemnor has occupied the property, is to compensate the owner for his loss resulting during the time and from the fact that, during the interest period, he had been deprived of both his property and his payment in money for the property.

'During the time between the condemnor's taking actual possession and the jury's award, the owner is deprived of the use of his land and also of the use of the money due him for the land. The condemnor is also deprived of the use of the money it has paid into court but the condemnor does have the use of the land. When a loss must fall on one or the other of the two parties and neither has been guilty of unlawful conduct, it is just that the loss should fall on the party who initiated the proceedings which caused the loss instead of on the party who is wholly without fault and did not initiate the proceedings.'

Appellant contends that the Supreme Court in McLemore lays down a hard and fast rule that for a condemnee to be entitled to interest on his award, there must be actual possession of the property by the condemnor and that he appealed the case to the Circuit Court.

And appellant says further that the facts of the case at bar do not bring it within the rule of McLemore.

It is true that in McLemore there was evidence that the condemnor took actual possession of the property apparently shortly after it obtained the right of entry, and that the condemnor appealed to the Circuit Court the award made by the Probate Court.

It should be pointed out that McLemore follows the rule laid down in Jefferson County v. Adwell, 267 Ala. 544, 103 So.2d 143. In Adwell the condemnee appealed to the Circuit Court, not the condemnor. Furthermore, the condemnor took actual possession only after it had posted the required bond. It would seem that the Supreme Court does not place any great significance, in deciding whether the condemnee is entitled to interest as a part of the damages due him, on which party appeals to the Circuit Court from the Probate Court award.

In the case at bar the condemnor obtained the right of entry simultaneously with the order of condemnation by virtue Therefore, condemnor obtained the right to possession of the property condemned on June 22, 1965.

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.

We are of the opinion that the rationale underlying the rule adopted in Adwell and McLemore applies with equal force to the facts in the case at bar.

It is said in McLemore...