St. Clair County v. Bukacek

Citation131 So.2d 683,272 Ala. 323
Decision Date23 March 1961
Docket Number7 Div. 447
PartiesST. CLAIR COUNTY v. James A. BUKACEK et al.
CourtAlabama Supreme Court

Starnes & Holladay, Pell City, and Maurice F. Bishop, Birmingham, for appellant.

Beddow, Gwin & Embry, Birmingham, for appellees.

MERRILL, Justice.

This is an appeal from the Circuit Court of St. Clair County, from a jury verdict and judgment thereon in an eminent domain (condemnation) proceeding awarding appellee $4,000, instituted by St. Clair County to acquire land for a public highway. The condemned right-of-way for this controlled access highway ran through a forty acre tract where no highway had ever been built.

The main question presented is whether the jury is entitled to consider, in assessing damages, the deprivation or limitation of access to a controlled access highway when the highway is constructed on a new right-of-way, and whether the landowner had no previous access rights to this highway.

The question is raised by the refusal of written charges two through eight and certain parts of the oral charge. In essence, these written charges enunciated the principle that whether a new controlled access highway is constructed on a new right-of-way, the landowner had no previous right of access and no right was taken away from him which required compensation.

The court's oral charge was to the effect that access to a highway is a property right, and if the landowner is deprived of this right, then the jury should consider that loss or interference with that right in arriving at the just compensation to be awarded the owner.

Appellant cites the following cases holding that the landowner has no access rights to a new highway built under the facts prevailing here: City of Los Angeles v. Geiger, 94 Cal.App.2d 180, 210 P.2d 717; State, By and Through State Highway Commission v. Burk, 200 Or. 211, 265 P.2d 783, 794; State v. Calkins, 50 Wash.2d 716, 314 P.2d 449; State ex rel. Rich v. Fonburg, 80 Idaho 269, 328 P.2d 60; State ex rel. State Highway Commission v. Clevenger, 365 Mo. 970, 291 S.W.2d 57. But those jurisdictions have different constitutional provisions and statutes than do we. Other cases are listed and considered in 43 A.L.R.2d 1072.

In McEachin v. City of Tuscaloosa, 164 Ala. 263, 51 So. 153, 154, it is stated that the only two states with the same language as Sec. 235 of our Constitution are Alabama and Pennsylvania. That section states that the condemnor in eminent domain proceedings 'shall make just compensation, to be ascertained as may be provided by law, for the property taken, injured or destroyed by the construction or enlargements of its works, highways, or improvements, * * *.' Most constitutions merely provide for just compensation for property taken by condemnation.

Title 19, § 14, Code 1940, states that '* * * in the condemnation of lands for ways and rights of ways for public highways, the commissioners may, in fixing the amount of compensation to be awarded the owner for lands taken for this use, take into consideration the value of the enhancement of the remaining lands of such owner that such highway may cause.' We have held the word 'may' is construed as 'must.' Conecuh County v. Carter, 220 Ala. 668, 126 So. 132.

The underlying theory of all the cases cited by appellant is that there can be no detriment to a right which never existed and no compensation for a loss not sustained. And this theory is based upon the claim that an abutting landowner has no rights in a newly constructed highway until it is opened for travel, and the owner should not be compensated for the loss of a right of access which he never had.

By the same reasoning, it is clear that no benefits and no enhancement to the remaining lands occur until the highway is opened for travel.

We cannot conceive that the Legislature intended that an owner's compensation should be reduced by consideration of benefits that might accrue only after the highway was opened, and not consider any damage to the right of access which would accrue when the highway is opened for travel. And we have approved holdings in highway condemnation cases where no damages were awarded for lands taken. Posey v. St. Clair County, 270 Ala. 110, 116 So.2d 743; Bates v. Chilton County, 244 Ala. 297, 13 So.2d 186; Conecuh County v. Carter, 220 Ala. 668, 126 So. 132.

The legislative intent is emphasized by the Controlled Access Facilities Act, 1956, 1st Ex. Session, No. 104, approved February 9, 1956, and listed as Tit. 23, §§ 141-148 in the Recompiled Code of 1958. Section 5 of the Act provides for the acquiring of property and property rights, 'including rights of access, air, view, and light, by gift, devise, purchase or condemnation.' This is a legislative recognition that the abutting landowner does have a property right of access which is subject to condemnation.

Furthermore, if the abutting owner had no right of access, there was no reason for that right to be specifically condemned in the eminent domain proceedings filed in this cause.

We have recently decided two cases involving controlled access highways. In Blount County v. McPherson, 268 Ala. 133, 105 So.2d 117, the new controlled access highway followed the course of the old highway, to which the abutting landowner had access. Additional land was taken to widen the right-of-way and the right of access to the new highway was condemned. We held that the landowner was entitled to be compensated for his loss of access to this controlled access highway when his access rights had been condemned along with his land for the new right-of-way.

In Blount County v. Campbell, 268 Ala. 548, 109 So.2d 678, 682, the new controlled access highway went through his property where no highway had ever been. His access rights to this new highway condemned. His property did not abut on the old highway but one of the roads to the old highway was sealed off. We held that the taking of the land, the closing of one of the roads to the old highway, his loss of access to his remaining property, and the 'inconvenience to the remaining tract resulting from the condemnation' were circumstances to be considered by the jury.

Surely, if the loss of indirect access is a factor or circumstance to be considered, then the denial of direct access by condemnation should be considered by the jury in determining the damages.

The well-established rule of compensation in a condemnation proceeding in this state where only a part of a tract is taken is that the owner is entitled to the difference between the value of the entire tract immediately before the taking and the value of the part remaining after the taking, giving effect to any enhancement in value to the part remaining in case the condemnation was for a public highway, as provided in Tit. 19, § 14, Code 1940. Morgan County v. Hill, 257 Ala. 658, 60 So.2d 838; Pryor v. Limestone County, 222 Ala. 621, 134 So. 17. In determining the value of the property after the taking, the jury should consider any factor or circumstance which would depreciate the value in any way, and this includes any effect that the completed project for which the land is condemned may produce on the remaining tract. Certainly this is so if it affects the ingress and egress to the useful portions of the property from the highway. Hooper v. Savannah & M. R. Co., 69 Ala. 529; Pike County v. Whittington, 263 Ala. 47, 81 So.2d 288; Hatter v. Mobile County, 226 Ala. 1, 145 So. 151; McRea v. Marion County, 222 Ala. 511, 133 So. 278.

The authorities cited in the preceding paragraph hold that when the ways of ingress and egress to a public highway are obstructed or interrupted, such obstruction or interruption forms a part of the injury to the land. And the compensation must be fixed by the valuation of the property as of the time of the taking, whether the time of the taking reverts to the filing of the petition for condemnation, or when the commissioners make their report, on which the probate court shall order the condemnation. Jefferson County v. Adwell, 267 Ala. 544, 103 So.2d 143.

It is, therefore, contemplated that the landowner's damages are to be assessed before the highway is built and that any benefits to his property are considered before the highway is ever built, much less opened for travel. Once again, this demonstrates that the principle stated in the cases cited by appellant that an abutting landowner has no rights in a newly constructed highway until it is opened for travel is not applicable under the statutes and decisions in Alabama.

In Blount County v. McPherson, 268 Ala. 133, 105 So.2d 117, 119, we said:

'The overwhelming weight of authority is that the owner of land abutting on a street or highway has a private right in such street or highway, distinct from that of the public, which cannot be taken or materially interfered with without just compensation. Access to the highway is one of these private rights and is a property right, and the interference with the right of access of an abutting owner is an element of damage. 29 C.J.S. Eminent Domain §§ 105, 122 and 167; 39 C.J.S. Highways § 141, p. 1081. We have held that 'access to a public highway is an incident to the ownership of land abutting thereon,' City of Bessemer v. Brantley, 258 Ala. 675, 65 So.2d 160; and interference with such access is an element of damages. Hooper v. Savannah & Memphis R. Co., 69 Ala. 529.

'Certain it is that appellee was entitled to have compensation for his loss of access rights to this limited access highway when those rights were sought to be condemned along with his land for the right of way of the highway.'

The general rule of right of access is stated in 25 Am.Jur., Highways, § 154, p. 448:

'The right of access to and from a public highway is one of the incidents of the ownership or occupancy of land abutting thereon. Such right is appurtenant to the land, and exists when the fee title to the way is in the...

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