State v. Hargrove

• Decision Date: 14 March 1968
• Docket Number: 3 Div. 289
• Citation: 208 So.2d 444,282 Ala. 13
• Parties: STATE of Alabama v. William O. HARGROVE.
• Court: Alabama Supreme Court

Page 444

208 So.2d 444

282 Ala. 13

STATE of Alabama v. William O. HARGROVE.

3 Div. 289.

Supreme Court of Alabama.

March 14, 1968.

Goodwyn, Smith & Bowman, Montgomery, for appellant.

Ball & Ball, Montgomery, for appellee.

PER CURIAM.

Appellant filed eminent domain proceedings in the probate court of Lowndes County in furtherance of an interstate road project. That court entered an order of condemnation (not here questioned) for which it awarded the sum of $15,000.00 damages. The condemnor appealed to the circuit court of Lowndes County where a jury, demanded by appellant, fixed the damages at $27,000.00.

The original tract of land, through which the condemned area passed, contained 370 acres. The condemned area was 48.03 acres. The severance left 114 acres in the southeast corner of the tract, while the remaining area of approximately 208 acres was situated on the west side of the condemned area.

Appellant filed and presented a motion for a new trial in the circuit court. This motion was duly continued and overruled. The action of the trial court is the subject of appellant's assignment of error 13.

The other argued assignments contend error on the part of the trial court during the progress of the trial. We will advert to all argued assignment by number.

The first assignment is addressed to argument of counsel for appellee, viz:

'* * * What about the access, the expense of going back and forth, the route to take care of his cows?'

The record shows that this statement was made during the opening statement to the jury.

The time, manner, and character of a party's opening statement to the jury regarding what he expects to prove are within the trial court's discretion, and is subject to review only when abused to the prejudice of the party complaining. Atlanta Life Ins. Company v. Canady, 225 Ala. 377, 143 So. 561(4). Appellee did not offer any evidence as to expense he would incur in going back and forth to take care of his cows. We fail to see that the ruling on the objection was prejudicial error to reverse. This assignment is without merit.

Assignment 2 is predicated upon the trial court's refusal to allow appellant's expert witness to testify in regard to a sale of some comparable land that took place about ten months after the date of the taking here under consideration.

We have held that remoteness of time of the purchase of property by the owner is left to the discretion of the trial court. Thornon v. City of Birmingham, 250 Ala. 651, 35 So.2d 545(2), 7 A.L.R.2d 773. We think this principle applies where, as here, evidence of the purchase price of comparable real estate located within the same area is sought to be introduced. We will not put the trial court in error for refusing admission of such evidence in the absence of an abuse of discretion. We cannot say there was an abuse of discretion in the instant case, although the trial court with propriety could have admitted the evidence. It is to be noted that the witness testified without objection to several other sales of comparable property within the area of the land. The evidence to which objection was sustained was cumulative of this other evidence.

Assignment 3 is addressed to the court's overruling the State's objection propounded by appellee's counsel to the State's witness, Baker Dean, on cross-examination, viz:

'* * * All right, Sir. Now, did you take into consideration, in order for him to use this land down here in conjunction with his cattle operation, how far he has to go to get around over here?'

The evidence shows that the farm in question was adapted to raising cattle.

We have repeatedly held that the scope and intent of cross-examination rests in the sound discretion of the trial court, and his rulings thereon will not be revised on appeal unless it is clearly made to appear that error intervened to the prejudice of the objecting party. Melco System v. Receivers of Trans-America Ins. Co., 268 Ala. 152, 105 So.2d 43(9).

Mr. Baker, to whom the question was propounded, was testifying as an expert witness for the State. It was proper to inquire of him what factors he considered in forming his judgment as to the market value of the property before and after taking.

It is our opinion, and we so hold, that impeded access in getting to and from the severed areas as a result of the severance was a factor that affected the value of the remaining tracts.

The question was properly addressed to the witness as to whether or not he considered that factor in forming his judgment as to value.

Assignment 4 presents appellant's contention that the trial court erred to the prejudice of appellant in overruling his objection to the question propounded to the expert witness, Baker Dean. The question is as follows:

'* * * All right. Your experience as a cattle farmer, you know too, that a farm the size of a 350 to 400 acres is a much more economic type operation than running two farms, one a 114 * * *.'

Here, too the question was propounded to the witness on cross-examination. The same principle of law as to scope and intent of cross-examination that we cited in Melco System v. Receivers of Trans-America Ins. Co., supra, applies here.

The farm here under consideration, as we have already stated, was, according to appellee, adapted to cattle raising. Any interference by severance of the tract was a factor for consideration of the jury in assessing the value of the severed tracts. If the severance disturbed the economy of operating the tract as a whole, and thereby increased the expense of operating the remaining units pursuant to their adaptation as a cattle farm, we are of the opinion that such disturbance would be a factor for the jury to consider along with the other evidence in assessing the market value of the remaining land. This is true, although such expense could not be recovered per se in the assessment of damages for the taking. There was no effort to prove the increased expense in dollars and cents.

Assignments of Error 5, 6 and 7 are argued together and are related. The question presented in Assignment 5 was not answered. We therefore address our observation to assignments 6 and 7. These assignments present rulings of the court adverse to appellant on questions as follows:

6. '* * * How long has this been torn up or in construction there, Bill?'

7. '* * * Did you have any access, or have you had any access between the Eastern tract and the Southwestern tract over here since the start of the construction?'

The record shows that the witness answered each question before objection thereto was made. The objections having been made in each instance after the answer, the ruling of the court was not error. American Casualty Company of Reading, Pa. v. Devine, 275 Ala. 628, 157 So.2d 661(3).

Appellant contends in Assignment 8 that the trial court erred in overruling its objection to a question propounded by appellee's counsel to appellee who was testifying. The question is as follows:

'All right. Now, what are the disadvantages of trying to operate a cattle farm that has been divided down the middle like this, and the small part, a 120 acres over here, and the other 200 acres over there?'

We hold that such disadvantages arising in the use of the remaining land as a cattle farm are factors which the jury could take into consideration in determining the market value of the remaining tracts following the severance. We said in McClendon v. State, 278 Ala. 678, 180 So.2d 273(8), as follows:

'* * * 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. St Clair County v. Bukacek, 272 Ala. 323, 131 So.2d 683, and cases cited; State v. Young, 275 Ala. 648, 157 So.2d 680.'

Assignment...