Wiggins v. Alabama Power Co.
| Decision Date | 14 January 1926 |
| Docket Number | 6 Div. 559 |
| Citation | 214 Ala. 160,107 So. 85 |
| Parties | WIGGINS v. ALABAMA POWER CO. |
| Court | Alabama Supreme Court |
Appeal from Circuit Court, Walker County; R.L. Blanton, Judge.
Condemnation proceeding by the Alabama Power Company against Muriel Painter and others. From the judgment, Charles R. Wiggins, as guardian ad litem for the named defendant (a minor), appeals. Affirmed.
Chas R. Wiggins, of Jasper, for appellant.
A.F Fite, of Jasper, and Martin, Thompson, Foster & Turner and C.J. Durr, all of Birmingham, for appellee.
The right of a hydroelectric company to acquire by condemnation a right of way 100 feet in width upon which to erect tower pole, or wire lines (Code, § 7196), and the right "to remove outside of said rights of way such timber as may injure or endanger by shading, falling, or otherwise, any of its works" (Code, § 7199), relate to one right of way carrying the rights and privileges defined in the two sections. Two separate condemnation proceedings are not required.
A similar right to condemn and remove trees outside the right of way of 100 feet is conferred upon railroads (section 7018), upon mining and manufacturing companies (section 7019), and under the general statute relating to public utilities (section 7029). In each of these statutes the right to remove danger trees from adjacent lands is included in the same section defining the right of way to be acquired by condemnation.
The final clause of section 7199, viz. "for that purpose may acquire such timber by condemnation," does not imply a separate proceeding after the right of way proper has been acquired, but is to make clear that this right to remove danger trees from adjacent lands, as incident to the enjoyment of the right of way and appurtenant thereto, is a servitude upon the adjacent lands, which must be acquired and paid for as part of the right of way condemned.
In the petition for condemnation and further proceedings, it is sufficient to define the right to remove danger trees in the language of the statute. It is not needful to identify each standing tree proposed to be cut, nor the number thereof; neither is it necessary to further define the width of the zone within which the trees may be cut. The location of the right of way and the limitation to trees which endanger the lines and works located thereon identifies such trees with sufficient certainty.
The right in question is a continuing...
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...864, 36 N.W.2d 261, 7 A.L.R.2d 355; State ex rel. Polson Logging Co. v. Superior Court, 11 Wash.2d 545, 119 P.2d 694; Wiggins v. Alabama Power Co., 214 Ala. 160, 107 So. 85; Baucum v. Arkansas Power & Light Co., 179 Ark. 154, 15 S.W.2d 399; Weeks-Thorne Paper Co. v. City of Syracuse, 139 Ap......
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...taken into account in awarding compensation.' 29A C.J.S. Eminent Domain § 173; 27 Am.Jur.2d, Eminent Domain, § 279; Wiggins v. Alabama Power Co., 214 Ala. 160, 107 So. 85; City of Mobile v. McClure, 221 Ala. 51, 127 So. 832; Hicks v. United States, 266 F.2d 515, 6th While the case of Alabam......
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