Summary
In Chapman, a highway condemnation case, the verdict of the jury was $1,200 for the taking of a strip of land thirty-five feet by two hundred feet alongside a dirt road leading to a cemetery.
Summary of this case from State v. SmithOpinion
6 Div. 550.
August 14, 1969.
Appeal from the Circuit Court, Jefferson County, E. L. Ball, J.
A. Vincent Brown, Bessemer, for appellant.
Where there is evidence on both sides or some evidence to support the verdict, it should not be set aside, because it may not correspond with the opinion of the Court as to the weight of testimony, or because it is against the mere preponderance of the evidence. Cobb v. Malone Collins, 92 Ala. 630, 9 So. 738; Natl. Security Ins. Co. v. Elliott, 276 Ala. 353, 162 So.2d 449; Ala. Fuel Iron Co. v. Andrews, 215 Ala. 92, 109 So. 750; Mobile Ohio R. R. Co. v. Brassell, 188 Ala. 349, 66 So. 447. Cases once fairly tried will not be reopened except on convincing grounds showing injustice. Fulwider v. Jacob, 221 Ala. 124, 127 So. 818. For one to recover damages to residue where part of tract is taken, direct connection must exist between damages and severance, or construction of improvement. People v. Gianni et al., 130 Cal.App. 584, 20 P.2d 87.
Huey, Stone Patton, Bessemer, for appellees.
Our Supreme Court is committed to the rule that decisions granting new trials will not be disturbed unless the evidence plainly and properly support the verdict. Pike County v. Whittington, 263 Ala. 47, 81 So.2d 288; City of Tuscaloosa v. Townsend, 274 Ala. 268, 147 So.2d 824; Hunter v. Schembs, 273 Ala. 304, 139 So.2d 614; Morgan County v. Hart, 260 Ala. 418, 71 So.2d 278. It is the duty of trial court to grant new trials for inadequate damages, where, after making all due allowances, the verdict is clearly unjust. Yarbrough v. Mallory, 225 Ala. 579, 144 So. 447; Allen v. Harper, 277 Ala. 691, 174 So.2d 331; Pike County v. Whittington, supra; City of Tuscaloosa v. Townsend, supra; Hunter v. Schembs, supra; Morgan County v. Hart, supra. Where a part of a parcel of land is taken in a condemnation proceedings, the final inquiry is the difference between the value of the property before and after the completion of the project. This will include, (1) the value of the property taken; (2) Damage to the remainder, and the damage, if any, as a direct or indirect result of the project when it is completed. McRea v. Marion County, 222 Ala. 511, 133 So. 278; Blount County et al v. Campbell, 268 Ala. 548, 109 So.2d 678; McClendon et al v. State, 278 Ala. 678, 180 So.2d 273; St. Clair County v. Bukacek, 272 Ala. 323, 131 So.2d 683; State v. Hargrove, 282 Ala. 13, 208 So.2d 444.
This is an appeal from a judgment granting a a motion for new trial in a condemnation case.
The appellees in this case own 10 acres of land upon which their home is situated, which land is located approximately 5 1/2 miles west of the city limits of Bessemer, and approximately 650 feet from the left side of U.S. Highway 11 as that road proceeds from Bessemer to Tuscaloosa. The property of appellees fronts some 661 feet east and west on a dirt road. This dirt road leads to a paved road running roughly north and south. About 1,200 feet west of the dirt road in front of appellee's property is a colored cemetery which abuts on U.S. Highway 11. To give the cemetery an access road, a right of way 70 feet wide is being acquired, which includes the property of appellees, a strip 35 feet by 200 feet. The access road to the cemetery, when completed, will be a double lane chert road, 26 feet wide, which intersects the dirt road near the driveway into the appellee's tract. It was contended by the owners below that if and when the access road to the cemetery is completed, the processions (which take place on Sundays and sometimes last from 10 A.M. until after dark) will back up beyond the driveway into their property and that they will be without ingress and egress thereto for several hours at a time.
The case was tried to a jury which returned a verdict in the amount of $1,200. The State's witnesses testified that the value of the land taken with damages to the remainder was $160; another witness testified that the value plus damages to the remainder was $200.
Witnesses for the owners testified that the value of the land before and after the taking would be as follows:
Witness Before After
Smith $35,000 $5,000 Parsons $40,000-$50,000 $20,000 Chapman $35,000 $17,500
These figures compared with those of the State placing the value at $160 and $200.
At the conclusion of the trial and upon motion, the trial court ordered a new trial on the ground that the award made by the jury was inadequate; thus we have for consideration only the question of whether the court erred in granting the motion for new trial.
As so often stated, "We are committed to the rule that decisions granting new trials will not be disturbed unless the evidence plainly and palpably supports the verdict." Pike County v. Whittington, 263 Ala. 47, 81 So.2d 288, and cases there cited.
We have read the evidence in this case and cannot conclude that it "plainly and palpably supports" the verdict of the jury. Thus we cannot reverse the judgment granting the new trial.
Although we need not, and probably should not, consider the merits here, we do note that under the authority of St. Clair County v. Bukacek, 272 Ala. 323, 131 So.2d 683, and cases there cited, "In determining the value of the property after the taking, the jury should consider any factor or circumstance which would depreciate the value in any way, and this includes any effect that the completed project for which the land is condemned may produce on the remaining tract. Certainly this is so if it affects the ingress and egress to the useful portions of the property from the highway".
That case went on to note that authorities in this state hold that "when the ways of ingress and egress to a public highway are obstructed or interrupted, such obstruction or interruption forms a part of the injury to the land".
We find no error to reverse.
Affirmed.
COLEMAN, HARWOOD and BLOODWORTH, JJ., concur.