Stout v. Limestone County

• Decision Date: 01 May 1924
• Docket Number: 8 Div. 639.
• Citation: 211 Ala. 227,100 So. 352
• Parties: STOUT ET AL. v. LIMESTONE COUNTY.
• Court: Alabama Supreme Court

100 So. 352

211 Ala. 227

STOUT ET AL. v. LIMESTONE COUNTY.

8 Div. 639.

Supreme Court of Alabama

May 1, 1924

Appeal from Circuit Court, Limestone County; Robert C. Brickell Judge.

Petition for condemnation of lands for use as a public road by Limestone County against L. O. Stout and Wressie Boggs. From a judgment for petitioner, respondents appeal. Transferred from Court of Appeals under Acts 1911, p. 449,§ 6. Affirmed.

Tennis Tidwell, of Albany, and S. A. Lynne, of Decatur, for appellants.

Callahan & Harris, of Decatur, for appellee.

MILLER J.

This is a petition filed by Limestone county, a municipal corporation, against L. O. Stout and Wressie Boggs, in the probate court of Limestone county, Ala., seeking to have condemned a strip of land 50 feet wide and about 90 feet long to be used as a public road. It avers that Wressie Boggs owns the land and L. O. Stout has a mortgage on it. The petitioner paid into court $100 as a tender. The probate court, on hearing made an order granting the application, appointed three citizens with the qualifications required by the statute (section 3869, Code 1907), to assess the damages. The commissioners assessed the damages at $500, and the court ordered the land condemned for the use and purposes of a public road, and the rights to the land for that purpose be vested in the county of Limestone, and divested out of the respondents upon the payment of the damages so assessed within the time provided by law. The petitioner Limestone county appealed from the order of condemnation and assessment of damages to the circuit court, and demanded a trial by jury on the assessment of damages and compensation.

The respondents demurred to the petition, which demurrers were overruled by the circuit court. The petition was granted by the court, and a jury duly selected by the parties assessed the damages, and compensation due respondents at $25. This appeal is prosecuted by the respondents from a judgment thereon by the court.

The respondents demur to the petition because the commissioners' court in undertaking to establish the road in question proceeded under a local act (Local Acts 1915, p 349), and this act is violative of and contravenes section 105 of the Constitution of Alabama, which states:

"No special, private, or local law, except a law fixing the time of holding courts, shall be enacted in any case which is provided for by a general law."

The constitutionality of this local act of Limestone county, in Local Acts 1915, p. 349, is not presented for review and consideration by this proceeding.

The only question presented by the petition is the right of Limestone county to condemn this strip of land for the purpose of using it for a public road, and, if it is condemned, then to have assessed the amount of damages the owners of the land will sustain and the amount of compensation they are entitled to receive for it. The land if condemned for road purposes, may never be used for the public road. The statute (section 3883, Code 1907) clearly contemplates if the damages and compensation assessed, after the condemnation of the land appear excessive to the applicant and are not paid by him within the time fixed by this statute, then the condemnation is not effective and the rights of the applicant thereunder shall determine. Sections 3860, 3861, 3865, 3871, 3883, Code 1907.

Sections 13 and 14 of this Local Act 1915, p. 353, authorize the court of county commissioners to secure the right of way for roads by condemnation and give the court the right in the name of the county to condemn land for road purposes under the provisions of article I, c. 79, Code, which embraces section 3860 et seq., Code 1907.

The general statute (section 3312, Code 1907) confers on the court of county commissioners original and unlimited jurisdiction as to establishing new, or changing and discontinuing old, roads; and the general act of 1915, in Gen. Acts 1915, p. 573, § 1, confirms this authority, and states, "To this end they are given legislative, judicial, and executive powers, except as limited herein." Section 3860 of the Code of 1907 provides any county proposing to take lands or easements therein for any uses for which private property may be taken may, if there be no other mode of proceeding prescribed by law, apply to the court of probate of the county in which the land is situated for an order of condemnation thereof to such uses.

The petitioner, Limestone county, filed this petition under authority of that section (3860) in the probate court. It was authorized to do so by the local act (sections 13 and 14, Local Acts 1915, p. 353), and permitted to do so by the general law (section 5, Act 1915; General Acts 1915, p. 574). The petition complies with the requirements of section 3861, Code 1907. This statute (3861) prescribes the nature and form of the petition and what it must state. It is not contended this petition does not comply with this statute. True, it avers the court of county commissioners ordered the condemnation of this strip of land, describing it for the purpose of a public road, and the order was made after the court had determined to establish this road, and "after the county engineer had surveyed and mapped said road and given notice as prescribed by the order of the commissioners' court, by posting at the courthouse door, by publication in the Limestone Democrat, a weekly paper published in Limestone county, Alabama, and posting at each of the terminals of the said road, which notice gave the date when the commissioners' court would meet to hear objections to the classification of said road, or location of the same."

These averments are surplusage; they do not render the petition defective, insufficient, under sections 3860 and 3861, Code 1907. This survey may have been made, and the notices given and published under the local act, the general law, or rules prescribed by the court of county commissioners. The court did not err in overruling the demurrers of the respondents to the petition. Authorities supra.

The respondents filed no objections, plea, or answer to the petition; the facts averred in it were not put in issue. The court upon consideration of the evidence granted the petition and ordered that the lands described in the petition be and are condemned for the use and purposes of a public road for Limestone county, etc. There is no bill of exceptions as to this part of the proceeding. The evidence offered to prove the averments of the petition is not before us. The court in its judgment states "upon a consideration of the evidence offered" the petition is granted, and the order of condemnation was made. Nothing appearing in the record to the contrary, we will presume the evidence offered sustained and supported the averments of the petition and authorized the court to enter this order of condemnation, allowed under the statute. Sections 3865 and 3875, Code 1907.

A jury was selected by the parties to ascertain the damages that will be sustained by the respondents and the compensation they are entitled to receive for the easement in the land for a public road.

Section 235 of the Constitution provides just compensation must be paid for the property taken, injured, or destroyed. Section 3871, Code 1907, provides that the commissioners shall assess the damages and compensation to which the owner of the land is entitled, and on appeal this applies when the jury assesses the damages and compensation.

In Jones v. N. O. & S. R. R. Co., 70 Ala. 227, in defining just compensation, this court stated:

"This includes not only the value of the land which may be taken, but the injury resulting to the remaining lands of the proprietor."

In Commissioners' Court v. Street, 116 Ala. 34, 22 So. 632, this is quoted with approval from 6 Am. & Eng. Ency. of Law, p. 571:

"Where part of a tract is taken the owner is entitled to recover not simply the market value of what is taken, but the difference between the market value of the entire tract and the market value of what is left."

Section 3872, Code 1907, provides the amount of compensation to which the owner is entitled must not be reduced or diminished because of any incidental benefits which may accrue to him or to the remaining lands of the owner in consequence of the uses to which the lands to be taken or in which the easement to be acquired will be appropriated, which is declaratory only.

This strip of land, about 90 feet long and 50 feet wide, sought to be condemned, connects a public highway in Limestone county on the bank of the Tennessee river, down the bank to low-water mark of the river. It is a part of a tract of land containing...