53 So. 1009 | Ala. | 1910
This is a proceeding to condemn a. right of way for a railroad. It was instituted in the probate court of Walker county, and from the judgment assessing the landowner’s damages in that court she appealed to the circuit court of that county. Thence the cause came here by appeal taken by the railroad company.
There are numerous assignments of error, and many of them relate to the same questions raised for consideration, and are grouped in brief and argument by counsel. We therefore deem it unnecessary to treat them seriatim; and, since the judgment must be reversed, we will consider only such questions as are vital and material, and likely to arise upon another trial.
The first question presented for consideration is: Which of the parties, plaintiff or defendant, was entitled to the opening and conclusion in the trial of the cause in the circuit court? That court, over the objection of the railroad (petitioner), allowed the landowner to open and conclude. In this ruling the court committed reversible error. It has been decided by this court that the party instituting the proceeding should be allowed the opening and conclusion — Montgomery So. Ry. Co. v. Sayre, 72 Ala. 443. This case is recognized by the appellee; but her counsel insist that the denial of the right to appellant deprived it of no constitutional, statutory, or common-law right. Whatever may be the rule in this respect in other jurisdictions as to the right in question judgments have been reversed for the refusal of the trial court to allow it, and we cannot avoid a re
In respect to damages which should be awarded in this character of proceedings, “just compensation” is the prime question of consideration, the one to be always held in view. — Commonwealth, etc., v. Street, 116 Ala. 28, 22 South. 629; Hooper v. S. M. R. R. Co., 69 Ala. 529. According to this rule, not only the value of the land actually taken should be estimated, but injury, if any, to the remaining parts. — M., J. & K. C. Co. v. Riley, 119 Ala. 260, 24 South. 538; Jones v. N. O. & S. R. R. Co., 70 Ala. 227. Then, too, the adaptability of the property taken and injured, for a special purpose affecting its value, is an element for the consideration of the jury in assessing the damages for the taking. As was aptly said .by the Mississippi court in the case of Louisville, etc., R. R. Co. v. Ryan, 64 Miss. 399, 8 South. 173: “If the land has a peculiar value for certain determinate purposes, even though it is not then used for any of such purposes, and no one intends at the time to so use it, its adaptability to such purposes, or any of them, forms an element to which the owner is entitled • for its taking.” This does not include possible or imag
The propriety of tbe rule that just compensation, which tbe landowner is entitled to receive for bis land and damages thereto, must be limited to the tract a portion of which was taken, is apparent. It is solely by bis ownership of the tract of land that he is entitled to incidental damages. His ownership of other lands is without. legal significance. “Within the tract thus owned his rights are twofold: (1) He is entitled to be paid the value of the land included in the petition of the condemning agent; and (2) he is entitled to an award of such damages as result to the residue of his tract. In the application of this rule no practical difficulty can arise, where the tract is bounded by the lands of others. The difficulty, in so far as it has arisen hitherto, is in those cases in which the owner of several blocks of land, separated by each other by public highways, has claim
The present case, however, does not call for a decision on this point. The question presented by this record is, not what would be the rule of damages where the owner’s tract is actually divided by public highways, but whether the delineation of the supposed subdivisions upon a map shall have the effect of limiting incidental damages to a particular block shown upon such map; for while the proof tends to show the land has been platted into blocks, and the blocks have been subdivided into lots, yet it shows the landowner is in possession of the whole of it, and that it is under one fence, except, perhaps block 187. The owner’s residence is upon the ground, and there is nothing constructively in the conduct of the owner to break the previous unity of her title over the entire tract. The fee in the lands marked “streets” upon the map, which would have remained in her, even if an easement had attached, is yet in her, un,subjected to any burden which an invading corporation can set up as the legal limit of the territory over which the rule of resulting damages may extend. To hold that the owner’s damages must be limited to a particular block delineated upon.the map, unless there could he shown by evidence an actual user contra to that of the owner, would be giving to the mere act of platting the land upon paper an effect in excess of its rightful impo.rt. But while this is true, and the damages recoverable extend, not only to the land actually
According to what has been said and decided above, it must be held that the special charges requested by the defendant in regard to the element of damages and the property to be considered in assessing the same are either misleading or bad in substance, and were properly refused. According to what has. been said above, special charges designated O and G, requested by the petitioner, should have been given. The remaining special charges refused to the petitioner were either of a misleading tendency or bad in substance, and consequently properly refused. It may be that some-of the special charges, designated by letters A, B, C, etc., and found on pages 69 and 70 of the transcript, given at the instance of the defendant, were misleading and might have been refused for that reason, yet the giving of them would not constitute reversible error.
We think what has been already said will prove a sufficient guide upon another trial as to proper instructions
The court erred in allowing the witness B. Musgrove, over the objection of the defendant that the question asked called for a conclusion, to be asked the question, “Is the property on the lots aboAre described damaged by the construction and operation of the railroad along there on the west side of it over this right of way?” This question was asked in reference to several blocks in the platted survey introduced in evidence and untouched by the right of Ava.y sought to be condemned, and, of course, could only refer to the consequential damages in the taking of other and different lots. While, under the principles above laid dOAvn, the question is not likely to arise on another trial, still it is not improper to state that this question, under the circumstances, clearly called for an opinion and conclusion of the witness. Hames v. Brownlee, 63 Ala. 277; Bragan v. Ry., L. & P. Co., 163 Ala. 93, 51 South. 30.
It results from what has been said, and from the errors pointed out, that the judgment of the court must be reversed, and the cause remanded.
Reversed and remanded.
