Town of Tarrant City v. Pope, 6 Div. 676.
| Decision Date | 23 October 1930 |
| Docket Number | 6 Div. 676. |
| Citation | 221 Ala. 662,130 So. 390 |
| Parties | TOWN OF TARRANT CITY v. POPE. |
| Court | Alabama Supreme Court |
Appeal from Circuit Court, Jefferson County; Roger Snyder, Judge.
Action for damages, resulting from the construction of a ditch in front of plaintiff's property, by A. L. Pope against the Town of Tarrant City. From a judgment for plaintiff defendant appeals. Transferred from Court of Appeals.
Reversed and remanded.
Miller Graham & Wingo, of Birmingham, for appellant.
G. M Edmonds, of Birmingham, for appellee.
In making street improvements of permanent character, the cost of which may be assessed against abutting property not exceeding the special benefits accruing to such property, consequential injury, that is to say, injury from such improvements which depreciates the value of the property, is, by force of section 235 of our Constitution 1901, made a demand for which compensation shall be paid under the law of eminent domain.
In fixing a local assessment against abutting property, the ascertainment of the increased value of the property, by reason of the special benefits derived from such improvements under section 235 of the Constitution 1901, involves, as a necessary part of such inquiry, all elements of appreciation or depreciation.
If, on the whole, the value is not increased by the improvements, no assessment can be made. If, on the whole, the property is decreased in value, the property owner has his remedy for such damage.
It follows that assessment proceedings, conducted in all respects as provided by our statutes, affording due process of law (including notice, with opportunity to be heard in objection to the making of the proposed improvement, and again on the specific issue heard after the improvements are made, as to whether the value of the property has been thereby increased, and including provision for trial by jury on appeal), are conclusive upon the property owner as to that issue.
In the present action the property owner seeks to recover consequential damages to abutting property from the construction of a large open drainage ditch, some ten feet wide and five feet deep. Depreciation of the value of the property by cutting off ingress and egress thereto, and in causing overflows of surface water during times of heavy rainfall which did not theretofore pass over plaintiff's lands, is the basis of the suit.
This ditch was constructed in connection with the improvement of Sloan avenue in Tarrant City, under an improvement ordinance looking to grading and surfacing the Avenue, and installing sidewalks,...
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