State v. Holloway

307 So. 2d 13, 293 Ala. 543, 1975 Ala. LEXIS 1083
CourtSupreme Court of Alabama
DecidedJanuary 16, 1975
DocketSC 891
StatusPublished
Cited by9 cases

This text of 307 So. 2d 13 (State v. Holloway) 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.

Bluebook
State v. Holloway, 307 So. 2d 13, 293 Ala. 543, 1975 Ala. LEXIS 1083 (Ala. 1975).

Opinion

*545 BLOODWORTH, Justice.

The State of Alabama appeals from a judgment awarding damages of $30,000 to landowners in a condemnation proceeding. Judgment was in accordance with a jury verdict. We affirm.

Three assignments of error are argued in brief.

The first assignment of error charges that the trial court erred in sustaining landowners’ objection to the following question propounded by the State to one of its own expert witnesses:

“Q All right, does this chicken plant in your opinion have a detrimental effect on the property in the general neighborhood?
“MR. TORBERT: Now we object to that, if the Court please.
“THE COURT: I sustain the objection.
“MR. BURNS: Well, he has been qualified as an expert on appraising value, the value of certain residential lands.”

Immediately after the trial court sustained the objection, the following occurred :

“Q All right, as general rule — well, let me ask you this. Does the value of one tract of land, is the value of that land determined generally by the value or the characteristics of the adjacent property that surrounds it?
“A Yes sir.
“Q Does it directly affect it ?
“A. It has a determination, yes, sir.
“Q All right, would a processing plant, one of this nature have an effect on land to be used as a residential area ?
“A Y es, sir.
“Q Would it have a good or bad effect?
“A My opinion, it would have a bad effect for residential use.
“THE COURT: Did you consider that in your appraisal ?
“THE WITNESS : Yes, sir.
“MR. BURNS: Your witness.”

It is self-evident that error, if any, in sustaining objection when the question was first posed was not prejudicial because the same evidence was admitted thereafter without objection.

Assignment of Error Two arose when, over objection by the State, the trial court admitted in evidence an unrecorded subdivision map of the condemned land. The record reflects the following, viz.:

“Q (By Mr. Torbert) All right, state your name, you are Mr. R. R. Holloway?
“A Yeah.
“MR. TORBERT: This is the property owner that we have in this case.
“A That’s right.
“Q I’ll ask you if that Defendants’ Exhibit 2 was prepared under your direction?
“A Yes, sir.”
“Q All right, sir, now let me ask you this, Mr. Holloway. Notice the lay — notice the road as shown on this, the roads as shown on this.
“A Yes, sir.
“Q Does this map, this Defendants’ Exhibit 2 actually depict the property owned by you out there before the State *546 of Alabama took part of your property on October 25th 1973?
“A Yes, sir.
“Q And these are the lots that you had laid out by this Mr. Alexander, a survey- or?
“A That’s right.
“Q And this is the map that was drawn for you at your request ?
“A That’s right.
“MR.TORBERT: We again offer it, your Honor.
“MR. BURNS: We object to it, your Honor, because there is no even approximate time or date when this thing was drawn up has been given and Mr. R. R. Holloway is ambiguous about even where Mr. Alexander — when Mr. Alexander drew it up, and where he was working.
“THE COURT: Is that recorded?
“MR. TORBERT: No, sir.
“THE WITNESS: No, sir.
“MR. TORBERT: But he has testified that it’s his land and that the map accurately shows the land that existed out there prior to the State taking it on October the 25th 1973. I don’t know how you can get any better authentication than that.
“MR. BURNS: The proper way to introduce it is to do what I think anybody should: there is no date, no time or any authentication of it or certification of it.”
* * * * * *
“THE COURT: ‘Overruled.’”

The stated grounds of objection, argued on this appeal, are that the map was not recorded and not authenticated by the surveyor. It is contended that it is inadmissible, being hearsay evidence, not within any exception thereto, citing Tit. 56, § 7, Code of Alabama 1940 (Recompiled 1958) and Golden v. Rollins, 266 Ala. 640, 98 So.2d 409 (1958).

Tit. 56, § 7, supra, provides:

“A survey or plat of land made by a county surveyor, signed by him officially, and stating the contents, courses, distances, and designation at the land office, of any land surveyed by him, is presumptive evidence of the facts stated, if the opposite party has notice that such survey is to be made.”

In construing this statute, this Court said in Golden v. Rollins, supra:

“As to an ex parte survey made without notice as provided by statute to the objecting party, or his privies, the rule is different when the surveyor is not personally present for cross-examination. The rule has been stated as follows:
“ ‘* * * Generally, private or statutory surveys are not admissible against one who, or whose privies, took no part therein, or had no notice thereof; * * *.’ (Citation omitted.)”

It is important, however, to note that Golden, supra, was a suit in ejectment with suggestion of a boundary line dispute and the map in that case was offered to establish, with detailed accuracy, the boundary line between the parties. On the other hand, the instant case is a condemnation proceeding and the map in question was not introduced for the purpose of accurately establishing a boundary line. The landowner simply testified that he commissioned the making of the map and that it accurately depicted the general layout of his property.

Thus, we hold that Tit. 56, § 7, supra, and Golden, supra, are inapposite and that the map was not inadmissible for the grounds stated in the objection.

Moreover, the case of Cooper v. State, 274 Ala. 683, 151 So.2d 399 (1963), is a *547 condemnation case and is directly in point. There, this Court held:

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Bluebook (online)
307 So. 2d 13, 293 Ala. 543, 1975 Ala. LEXIS 1083, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-holloway-ala-1975.