State v. Abbott, 83-1435
Citation | 476 So.2d 1224 |
Decision Date | 13 September 1985 |
Docket Number | No. 83-1435,83-1435 |
Parties | STATE of Alabama v. L.R. ABBOTT and C.R. Abbott. |
Court | Supreme Court of Alabama |
The original opinion filed in this cause June 21, 1985, is hereby withdrawn, and the following opinion is substituted in lieu thereof:
This case presents the question of whether the State, by failing to record a condemnation order dated December 21, 1939, can be divested of its title to a highway right-of-way under § 6887, Code of 1923 (now, Code 1975, § 35-4-90). We think that it can. Accordingly, the judgment of the trial court is affirmed.
Briefly stated, the facts of this case are as follows:
In 1932, the State of Alabama acquired a 66-foot right-of-way along what is now Alabama Highway No. 35 in Fort Payne, Alabama. In 1939, the State acquired an additional 17-foot right-of-way along each side of the then-existing highway. It is the State's failure to record this second acquisition that is in dispute.
Appellees, L.R. Abbott and C.R. Abbott, constructed a store on part of the State's 17-foot right-of-way, and they contend that because they purchased their property for value and without notice of the condemnation order that their land is free of any encumbrances resulting from that unrecorded order.
The trial court, in its final decree, held as follows:
The Abbotts contend that they fall squarely within the protection of § 35-4-90. We agree.
The crucial question is whether an order of condemnation is a "conveyance of real property" within the meaning of § 6887, which was applicable at the time. 1
We have found sparse authority on the issue, and it was only on application for rehearing that we were furnished, for the first time, with any authority which discussed the specific question. On application for rehearing, our attention has been called to two cases from other jurisdictions which have addressed the issue specifically and have held that the transfer of title by an order of condemnation is not a "conveyance" for the purpose of recordation statutes. See State Highway Commission v. Meeker, 75 Wyo. 210, 294 P.2d 603 (1956); City of San Antonio v. Grandjean, 91 Tex. 430, 41 S.W. 477 (1897).
Black's Law Dictionary 402 (rev. 4th ed. 1968) defines a "conveyance" as follows:
In reaching the decision we reach, we necessarily have considered how the Alabama legislature has addressed the question of providing notice of eminent domain proceedings.
An order of condemnation is a transfer of title to land, and, as we stated earlier, the only question is: Did the legislature intend for § 6887, Code of 1923 (now Code 1975, § 35-4-90), to include orders entered in condemnation proceedings? We think so, even though the State of Alabama and the Alabama Power Company, as amicus curiae, both strongly insist that orders of condemnation have never been considered by them to be transfers of title which have to be recorded. Condemnors may, or may not, have recorded orders of condemnation, but that fact cannot change the meaning of our recordation statutes. We cannot accept the State's argument that the mere entry of an order of condemnation is sufficient notice that title to land has been transferred. In fact, the legislature has, as late as 1971, provided for more notice, rather than less notice, to be given of condemnation proceedings.
In 1971, the legislature enacted Act No. 181, Acts of Alabama, Second Special Session, 1971, pp. 4441-42:
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