Southern Natural Gas Co. v. Ross, 6 Div. 96

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

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.

Page 139

[49 Ala.App. 626] 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, [49 Ala.App. 627] 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

Page 140

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

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.

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 [49 Ala.App. 628] 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...