State v. Wise Development Corp.

• Decision Date: 27 February 1975
• Parties: STATE of Alabama v. WISE DEVELOPMENT CORPORATION. SC 676.
• Court: Alabama Supreme Court

Page 448

309 So.2d 448

293 Ala. 671

STATE of Alabama v. WISE DEVELOPMENT CORPORATION.

SC 676.

Supreme Court of Alabama.

Feb. 27, 1975.

Jack W. Smith, Special Asst. Atty. Gen., Dothan, for appellant.

W. G. Hardwick and William G. Hause, Dothan, for appellee.

HEFLIN, Chief Justice.

The State of Alabama brought an action to condemn certain private lands in the City of Dothan for use as highway right of way. The Circuit Court of Houston County awarded the landowner, Wise Development Company, judgment in the amount of $53,000.00, based upon a jury verdict in that amount. The State appeals. The judgment is affirmed.

The appellee, Wise Development Company, was the owner of three parcels of land on U.S. Highway 84 East, within the Dothan city limits and one-half to three-fourths of a mile east of the Ross Clark Traffic Circle, which rings the city. In this action the State actually took only a portion of each of the three parcels.

Each parcel fronted on U.S. Highway 84 East, and the three parcels had a total frontage of 3470 feet. Parcel 1 was on the south side of Highway 84 and adjoined the western side of Beverlye Road. This parcel had a highway frontage of 465 feet, and consisted of 3.37 acres, of which the State condemned 1.32 acres. Parcel 3 lay on the south side of Highway 84 and adjoined the east side of Beverlye Road. This parcel had a highway frontage of 1140 feet and consisted of 11.56 acres, of which the State condemned 1.79 acres. Parcel 2 lay on the north side of Highway 84 opposite parcels 1 and 3, and consisted of 15.37 acres, of which the State condemned 3.89 acres. Parcel 3 had a highway frontage of 1865 feet.

Thus, the State actually took 7.00 acres, consisting of three parcels measuring 1.32 acres, 3.89 acres, and 1.79 acres. This left the landowner with 23.30 acres. Each of the three parcels was zoned partially for business and partially for residences, but each portion taken was completely within the business zone. The effect was to take all the highway frontage from each parcel, totalling 3470 feet. While the land remaining will still have highway access, it will be subject to a municipal ordinance requiring a 35-foot front set-back and a 20-foot rear set-back for any building. Another ordinance limits any building to twenty-five per cent of the area of the lot on which it is constructed. There was testimony from expert witnesses that because of these requirements and the configurations of the remaining parcels, the potential uses of these remaining lots were greatly limited.

The State presented evidence of the sales of what it contended were four comparable tracts: 1) 39.63 acres on July 8, 1968, for $1388.00 per acre; 2) 40 acres on March 3, 1971, for.$1000.00 per acre; 3) 13.589 acres on August 6, 1968, for $2575.00 per acre; and 4) 70 acres on August 11, 1969, for.$1000.00 per acre. The State's witness testified that in his opinion (based on these four sales) the value of the property taken, including damages to the remaining land, was $19,000.00. The landowner's expert witnesses testified that for several reasons these four tracts were not comparable to the land taken.

The landowner presented three expert witnesses who testified to a number of sales of what they considered comparable lands in the Dothan area. Based on these supposedly comparable sales, they gave estimates of the landowner's damages (value of the land taken plus damages to the remaining land) which ranged from $112,550.00 to $121,100.00.

The parties agreed that the actual taking occurred on March 16, 1971, and that the only question for the jury was the amount of the landowner's damages. The jury returned a verdict of $53,000.00, and the circuit court entered judgment for that amount. The trial judge denied a motion for a new trial.

The State has appealed, and its assignments of error can all be distilled down to the contentions that 1) the trial judge erred in admitting into evidence the sales used by the appellee's three expert witnesses, because those lands were not in fact comparable to the lands taken in this proceeding, and 2) the verdict was excessive.

It is well established that in a land condemnation proceeding evidence of the sale price of another piece of land is admissible in determining the value of the condemned land, if the sale was voluntary and 'if the conditions surrounding the two tracts of land are similar and if the sale was neither too remote in point of time nor of such a character as to indicate that it did not represent the true value of the property.' Southern Electric Generating Co. v. Leibacher, 269 Ala. 9, 17, 110 So.2d 308, 315 (1959); Knabe v. State, 285 Ala. 321, 231 So.2d 887 (1970); Sayers v. City of Mobile, 276 Ala. 589, 165 So.2d 371 (1964).

There is no general rule regarding the similarity that must exist between two pieces of land before the sale price of one can be offered as evidence of the other's value. See 27 Am.Jur.2d Eminent Domain § 429. In this state the rule is that the question of similarity is left primarily to the discretion of the trial judge. State v. Busby, 293 Ala. 510, 306 So.2d 260 (1975); Popwell v. Shelby County, 272 Ala. 287, 130 So.2d 170 (1960); Southern Electric Generating Co. v. Leibacher, Supra.

The State contends that the 'comparable' sales testified to by the landowner's witnesses 'were too remote in time * * * from the subject property.' The State is in a poor position to argue that the sales testified to by the appellee's witnesses were too remote in time from the date of condemnation (March 16, 1971) to be comparable. None of those sales were as remote in time as the two 1968 sales offered by the State itself.

This question of remoteness in time has been considered by two Alabama writers in their discussions of condemnation proceedings; see M. Bishop, 'Handling Condemnation Cases,' 22 Ala. Lawyer 385 (1961) and B. Nettles, 'Legal Aspects of the Market Approach to Value in Condemnation Cases,' 30 Ala. Lawyer 301 (1969). Both Bishop and Nettles discuss the case of Davis v. Reid, 264 Ala. 560, 88 So.2d 857 (1956), in which one issue was the determination of the 1934 value of a homestead. In that case this court held it properly within the trial court's discretion to admit as evidence the 1941 sales price of adjoining land. In Davis ...