Jefferson County v. Adwell

Supreme Court of Alabama

Jefferson County v. Adwell

103 So. 2d 143, 267 Ala. 544, 1958 Ala. LEXIS 355

CourtSupreme Court of Alabama

DecidedMarch 6, 1958

Docket6 Div. 809

StatusPublished

Cited by23 cases

This text of 103 So. 2d 143 (Jefferson County v. Adwell) is published on Counsel Stack Legal Research, covering Supreme Court of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Jefferson County v. Adwell, 103 So. 2d 143, 267 Ala. 544, 1958 Ala. LEXIS 355 (Ala. 1958).

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PER CURIAM.

A majority of the Court concur in the opinion of Justice LAWSON, which appears below, except in the following particular.

The difference of opinion is as to the time when the value of the land taken and the injury to other lands of the owner should be subject to ascertainment on condemnation under section 235 of the Constitution and enabling statutes. We agree that the correct formula for fixing that time is stated in Jones v. New Orleans & S. R. Co., 70 Ala. 227, as follows: “The value of the land when taken, before the construction of the road, and before any injury to the land taken resulting from construction, and the injury, the diminution in value of the contiguous lands, is the true and just measure of the compensation”. This principle has been adhered to by later cases as pointed out in the opinion of Justice Lawson.

We do not agree with his conclusion that the time of taking is the occasion of the filing of the petition to condemn. It was however so stated in Smith v. Jeffcoat, 196 Ala. 96, 71 So. 717. But that statement was not material to any issue in that case. It was apparently not argued and no apt citation of authority appears. It was evidently a feature of the Court’s argument to prove something else, for there was no argument to prove that statement. We believe the current of the argument in the Jones case, supra, and the other cases cited by Justice Lawson do not support that conclusion stated in Smith v. Jeffcoat.

The difficulty involved in the inquiry is to fix the time of the “taking” for the purposes now under consideration. Other purposes are not here important. Section 3, Title 19, [548]*548provides for filing in the prohate court an application to condemn. Such application may include different tracts of land owned by different persons, all of which are “proposed” to be taken. Section 4, Title 19, provides for setting a date for hearing the application and requiring notice. But by section 8, Title 19, the court is not required to treat the proceedings as a “joint action” as to the separate tracts. By section 10, Title 19, a hearing must be had and conducted and evidence taken as in civil cases at law.

By section 11, Title 19, if the application is granted, the probate judge shall appoint three citizens of the county as commissioners. By section 13, Title 19, the commissioners are directed to assess separately the damages and compensation to which the several owners and others interested in each tract are entitled. The commissioners may view the land to be subjected and receive all legal evidence offered by any party touching the amount of damages the owners and others interested are entitled to receive. By section 16, Title 19, the commissioners are directed to report within twenty days as to the damages and compensation ascertained and assessed by them for the owners of each tract and others interested. Thereupon the probate court must order the report recorded and make orders of condemnation in pursuance thereof effective upon the payment of the damages and compensation so assessed and reported, or a deposit of same in court. That is the first order of condemnation by the probate court. But the condemnation is not complete until payment of the damages and compensation or deposit of it is made. If no appeal is taken that completes the court procedure. If an appeal is taken by section 17, Title 19, it is triable de novo in the circuit court. Without regard to the time when or whether the petitioner actually enters upon the land, either without an appeal, or pending the appeal under sections 18 and 24 of Title 19, we think the “taking” for the purpose of fixing the amount of damages and compensation is when the commissioners make their report, on which the probate court shall order the condemnation.

' The rulings of the trial court were not in afccord with this -view: Therefore the judgment should be’ reversed and the cause remanded.

Reversed and remanded.

LIVINGSTON, C. J., and SIMPSON, STAKELY, GOODWYN and MERRILL, JJ., concur. LAWSON and SPANN, JJ., dissent.

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PER CURIAM.

A majority of the Court concur in the opinion of Justice LAWSON, which appears below, except in the following particular.

The difference of opinion is as to the time when the value of the land taken and the injury to other lands of the owner should be subject to ascertainment on condemnation under section 235 of the Constitution and enabling statutes. We agree that the correct formula for fixing that time is stated in Jones v. New Orleans & S. R. Co., 70 Ala. 227, as follows: “The value of the land when taken, before the construction of the road, and before any injury to the land taken resulting from construction, and the injury, the diminution in value of the contiguous lands, is the true and just measure of the compensation”. This principle has been adhered to by later cases as pointed out in the opinion of Justice Lawson.

We do not agree with his conclusion that the time of taking is the occasion of the filing of the petition to condemn. It was however so stated in Smith v. Jeffcoat, 196 Ala. 96, 71 So. 717. But that statement was not material to any issue in that case. It was apparently not argued and no apt citation of authority appears. It was evidently a feature of the Court’s argument to prove something else, for there was no argument to prove that statement. We believe the current of the argument in the Jones case, supra, and the other cases cited by Justice Lawson do not support that conclusion stated in Smith v. Jeffcoat.

The difficulty involved in the inquiry is to fix the time of the “taking” for the purposes now under consideration. Other purposes are not here important. Section 3, Title 19, [548]*548provides for filing in the prohate court an application to condemn. Such application may include different tracts of land owned by different persons, all of which are “proposed” to be taken. Section 4, Title 19, provides for setting a date for hearing the application and requiring notice. But by section 8, Title 19, the court is not required to treat the proceedings as a “joint action” as to the separate tracts. By section 10, Title 19, a hearing must be had and conducted and evidence taken as in civil cases at law.

By section 11, Title 19, if the application is granted, the probate judge shall appoint three citizens of the county as commissioners. By section 13, Title 19, the commissioners are directed to assess separately the damages and compensation to which the several owners and others interested in each tract are entitled. The commissioners may view the land to be subjected and receive all legal evidence offered by any party touching the amount of damages the owners and others interested are entitled to receive. By section 16, Title 19, the commissioners are directed to report within twenty days as to the damages and compensation ascertained and assessed by them for the owners of each tract and others interested. Thereupon the probate court must order the report recorded and make orders of condemnation in pursuance thereof effective upon the payment of the damages and compensation so assessed and reported, or a deposit of same in court. That is the first order of condemnation by the probate court. But the condemnation is not complete until payment of the damages and compensation or deposit of it is made. If no appeal is taken that completes the court procedure. If an appeal is taken by section 17, Title 19, it is triable de novo in the circuit court. Without regard to the time when or whether the petitioner actually enters upon the land, either without an appeal, or pending the appeal under sections 18 and 24 of Title 19, we think the “taking” for the purpose of fixing the amount of damages and compensation is when the commissioners make their report, on which the probate court shall order the condemnation.

' The rulings of the trial court were not in afccord with this -view: Therefore the judgment should be’ reversed and the cause remanded.

Reversed and remanded.

LIVINGSTON, C. J., and SIMPSON, STAKELY, GOODWYN and MERRILL, JJ., concur. LAWSON and SPANN, JJ., dissent.

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103 So. 2d 143, 267 Ala. 544, 1958 Ala. LEXIS 355, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jefferson-county-v-adwell-ala-1958.

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