Tate v. Loper
Decision Date | 11 July 1984 |
Citation | 459 So.2d 892 |
Parties | Robert E. TATE and Suzanne Tate v. Dorothy LOPER and Charlie Howard Loper. Civ. 4040. |
Court | Alabama Court of Civil Appeals |
Lee B. Williams, Grove Hill, for appellants.
S.J. Laurie, Chatom, for appellees.
This is a condemnation case.
Appellants, the Tates, appeal from a judgment of the Washington County Circuit Court condemning a right-of-way across the Tates' land and awarding damages in the amount of $2,471.
The following facts are pertinent.
The appellees, the Lopers, owned certain land which is not adjacent or contiguous to any public road or highway. In accordance with § 18-3-1, Ala.Code (1975), Mr. Loper initiated proceedings to acquire a right-of-way over the Tates' land to the public highway.
Evidence at trial showed that there were three potential routes of access to the Lopers' land. The route ultimately condemned by the trial court goes across the center of the Tates' land and is called the "old woods road." This road had been the primary route of access to the Loper land in previous years. Apparently, the former owner of the Tate land had allowed this road to be traveled. The other two routes are along the east and west boundaries of the Tates' property. These routes are referred to respectively as the "fire-line" and the "swamp road."
The trial court heard evidence presented ore tenus and then made a personal inspection of the property. Thereafter, the trial court condemned a right-of-way down the center of the Tates' property, the road known as "old woods road," and assessed damages. The Tates appeal the condemnation and the assessment of damages.
The dispositive issues on appeal are whether the Lopers had reasonable access to Loper land without condemning a right-of-way and whether the trial court erred in assessing the Tates' damages at $2,471.
In a case such as the one at bar, where the trial court has heard ore tenus evidence and personally viewed the property in question, the trial court's judgment is given great weight. This proposition is succinctly stated in Tenison v. Forehand, 281 Ala. 379, 202 So.2d 740 (1967):
(Cites omitted) 202 So.2d at 742.
The above principle of law is particularly relevant in proceedings involving condemnation under § 18-3-1, Ala.Code (1975), where the trial court must make crucial factual determinations. One of these factual determinations involves the first issue, that is, whether or not the condemnor has reasonably adequate access to and from his land.
Tenison v. Forehand, 281 Ala. 379, 202 So.2d 740 (1967).
As stated above, the trial court must make a factual determination of whether the condemnor has reasonably adequate access to and from his land. McGowin Investment Co. v. Johnstone, 54 Ala.App. 194, 306 So.2d 286 (1974); cert. denied, 293 Ala. 766, 306 So.2d 290 (1975). Given the presumptions accorded the trial court under the ore tenus rule, this court cannot say it was error to condemn the right-of-way granted in the present case. This is particularly so in view of the fact that the trial court personally inspected the property.
The evidence tended to show that the east and west routes to the Lopers' land do not provide "reasonably adequate" access. There was evidence that both the "swamp road" and the "fire line" are low-lying and under water much of the time. There was testimony that these routes, when wet, could not be traveled by a conventional vehicle. There was further testimony that it would cost a rather large sum to prepare either of these roads for regular travel.
Additionally, the "old woods road," the condemned right-of-way, has been used as a means of access to the Lopers' property for many years. This road provides drainage and water does not stand on the road. In other words, the "old woods road" is navigable when wet. There was also evidence that the "old woods road" is the best route from the Lopers' land to the public highway.
In short, considering the presumptions accorded the trial court...
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Brothers v. Holloway
...attendant presumption of correctness of its judgment is only strengthened by its decision to view the property. See Tate v. Loper, 459 So.2d 892, 894 (Ala.Civ.App.1984). We find no reversible error in the trial court's choice of the route of the right-of-way, and we affirm as to this II. Co......
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...DeWitt v. Stevens, 598 So. 2d 849, 850 (Ala. 1992); Brothers v. Holloway, 692 So. 2d 845, 848 (Ala. Civ. App. 1997); Tate v. Loper, 459 So. 2d 892, 894 (Ala. Civ. App. 1984). The ore tenus rule is especially applicable in private condemnation cases under § 18-3-1. See Tate, 459 So. 2d at 89......
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...See DeWitt v. Stevens, 598 So.2d 849, 850 (Ala.1992); Brothers v. Holloway, 692 So.2d 845, 848 (Ala.Civ.App.1997); Tate v. Loper, 459 So.2d 892, 894 (Ala.Civ.App.1984). The ore tenus rule is especially applicable in private condemnation cases under § 18-3-1. See Tate, 459 So.2d at 894; see ......
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