State v. Goodwyn, 3 Div. 944

• Decision Date: 21 September 1961
• Docket Number: 3 Div. 944
• Citation: 133 So.2d 375,272 Ala. 618
• Parties: STATE of Alabama v. Elizabeth Hill GOODWYN and John L. Goodwyn.
• Court: Alabama Supreme Court

Page 375

133 So.2d 375

272 Ala. 618

STATE of Alabama v. Elizabeth Hill GOODWYN and John L. Goodwyn.

3 Div. 944.

Supreme Court of Alabama.

Sept. 21, 1961.

MacDonald Gallion, Atty. Gen., Geo. B. Azar and Jos. D. Phelps, Sp. Asst. Attys. Gen., for appellant.

Hill, Hill, Stovall & Carter, Montgomery, for appellees.

MERRILL, Justice.

This is an appeal by the State from a jury verdict and judgment of $80,000 as compensation to appellees in a condemnation proceeding in which 8.5 acres of a 33.33-acre tract were taken for an interstate limited or controlled access highway. The commissioners in probate court had awarded $70,000 and both the State and the appellees appealed to the circuit court. The State's motion for a new trial was overruled.

The only question before the circuit court was the amount of damages to be awarded.

Appellant's first argued assignment of error is that the court erred in overruling the motion for a new trial. Such an assignment of error is sufficient to invite a review of the ruling on the basis of any ground well stated in the motion and properly argued by appellant. Grimes v. Jackson, 263 Ala. 22, 82 So.2d 315.

But in the fourteen pages of appellant's brief devoted to this assignment of error, no ground of the motion for the new trial is mentioned or referred to in any way.

Grounds of a motion for a new trial not argued in brief will not be considered on appeal. Chattahoochee Valley Railway Co. v. Williams, 267 Ala. 464, 103 So.2d 762; McClendon v. McKissack, 143 Ala. 188, 38 So. 1020. Assignment No. 1 presents nothing for review. This also applies to assignments of error 2, 3, 4 and 5.

It is difficult to determine just what remaining assignments of error are argued, but it appears that the appellant's main contention is that the court erred in rulings on the admission of evidence as to the actual values of platted lots in the tract or of lots in comparable subdivisions. In answering appellees' contention that the argument in appellant's brief was too general and confusing, appellant stated in its reply brief:

'Each assignment of error argued by Appellant addresses itself to the error of the trial court in continuously allowing Appellee to value the subject property on a lot basis. As Appellee states on page 11 of his brief, there is but one issue presented in the instant appeal. This is the only issue properly argued by either brief. Appellant urges that it is clearly error to allow property which has not been actually physically subdivided to be valued on a lot basis, especially when it was expressly conceded throughout the trial that the highest and best use of the property was for subdivision purposes. The proper unit of valuation in this proceeding was the entire 33.33 acre tract, before and after the taking. The trial court went far beyond justifiable discretion in allowing lot valuations to be vividly and extensively presented through cross-examination, and it was clearly error to allow Appellee's witnesses to testify as to lot valuation on direct examination.'

It is necessary to give a brief summary of the facts relating to the land in question.

Mrs. Goodwyn received the entire tract of 53 acres by deed of gift from her father in 1951. Planning of a subdivision was begun and the Federal Housing Administration suggested a lot layout of the subdivision in 1952, but owing to the absence of sewage the project was delayed until 1956. The overall plan of development was submitted to the Planning Commission of the City of Montgomery and was given preliminary approval in April, 1956. This was necessary as the property was within the city limits.

The south 20 acres was developed first and was known as Section 1. Water and sewage were stubbed to the border of Sections 2 and 3, the 33.33 acres in question here, and the streets in Section 2 and 3 were grubbed out.

By 1958, it was determined that Section 1 had been a successful development and plans were begun to develop Section 2. Final approval for this section was given by the Planning Commission on February 26, 1959. The surveyor reported finding some highway engineering stakes on the north part of Sections 2 and 3 and upon inquiring, the Goodwyns were informed that the Highway Department was considering running an interstate highway through the tract. No further work was done toward the development of Section 2 because, as Mr. Goodwyn testified, 'it looked pretty silly to me to go on and put improvements there, and for the State to have to come along and pay for those improvements.'

Appellees introduced in evidence the overall plat showing the lots in all three sections. It was also shown that Sections 2 and 3 would yield 63 lots before the taking and 39 lots after, resulting in a loss of 24 lots.

The State introduced maps on which the lots and subdivision lines were omitted, but appellees introduced the official right-of-way map of the Highway Department showing that Section 2 was platted as a subdivision and the lots in that section that would be taken by the right-of-way.

It was shown that all the lots in Sections 2 and 3 had been fully laid off on the ground with iron pins placed at the corners, and all engineering work had been completed on both sections. Final approval by the Planning Commission had been given on Section 2 and perliminary approval on Section 3.

In view of appellant's statement quoted from brief, we discuss the testimony of the first witness when the question of lot values arose. Edward Lowder, an expert witness for the State, testified, on direct examination, that he was familiar with the property, that his company had purchased 160 acres in the vicinity of the Goodwyn land for $2,350 per acre and 80 acres for $1,600 per acre, but the Goodwyn subdivision 'was designed for a higher class neighborhood;' that the highest price his company paid for land to be subdivided was $3,000 per acre; and the reasonable value of the 33.33 acres was $2,500 to $3,500 per acre. On cross-examination, after some preliminary objections, the following occurred:

'Q. Did you then, Mr. Lowder, form an opinion as to what these lots would bring if the subdivision was completed?

'Mr. Azar: Your Honor, we just want the benefit of our objection an exception in the Record.

'The Court: Yes.

'The Witness: All right. I am supposed to answer now?

'The Court: Yes.

'The Witness: All right. I would say somewhere in the neighborhood of from $5200 to $7500 a lot. It all depends--I may be way off from what they are getting but I don't know, but there may be some trees--there are areas that don't have trees on them which would not be as desirable and, of course, I am not familiar with the engineering plans nor how large the lots are. I assume from what you have out there, Judge, that the minimum would be somewhere more than a hundred feet and that would be my guess on it and that would be my observation on it.'

Appellant's position at trial and here is that the proper unit for valuation purposes was and is the entire tract of 33.33 acres and any evidence that the 33 acres were divided into 63 lots created an improper unit for valuation.

We agree with the first part of the contention, but cannot agree with the second.

It is settled that one whose property is taken under eminent domain proceedings should receive compensation based upon the use to which the property is adapted or reasonably adapted. Housing Authority of City of Decatur v. Decatur Land Co., 258 Ala. 607, 64 So.2d 594; Alabama Power Co. v. Herzfeld, 216 Ala. 671, 114 So. 49.

It was and is conceded, as stated by appellant's counsel at trial 'that the highest and best use of this property is for subdivision purposes for residential property.'

The 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. St. Clair County v. Bukacek, Ala., 131 So.2d 683; Morgan County v. Hill, 257 Ala. 658, 60 So.2d 838.

Here was an expert witness for the condemnor, testifying that the 33 acres were worth $115,000 before the taking and $92,520 after the taking, making a difference of $22,480. It being conceded that the highest and best use of the tract was for subdivision into residential lots, it was appropriate to ascertin if he had considered its worth if sold by lots.

An appraiser who testifies to his opinion as to the value of property condemned may be interrogated as to the basis of his opinion, and the extent of this examination 'was addressed to the court's irrevisable discretion.' Alabama Power Co. v. Berry, 222 Ala. 20, 130 So. 541, 544. Such facts are considered in...