Summary
In Wiggins v. Alabama Power Co., 214 Ala. 160, 107 So. 85 (1926), this court held the right to cut danger trees in the future could be condemned at the same time the right of way itself was acquired by condemnation.
Summary of this case from Thompson v. Alabama Power CompanyOpinion
6 Div. 559.
January 14, 1926.
Appeal from Circuit Court, Walker County; R. L. Blanton, Judge.
Chas. R. Wiggins, of Jasper, for appellant.
The demurrer, taking the point that the right of way strip and timber on adjacent lands may not be condemned in the same application, and that the timber sought to be condemned outside the right of way must be described, should have been sustained. Code 1923, §§ 7196, 7199.
A. F. Fite, of Jasper, and Martin, Thompson, Foster Turner and C. J. Durr, all of Birmingham, for appellee.
The statute does not require a separate proceeding for the condemnation of danger timber. Code 1923, §§ 7018, 7019, 7020, 7196; Acts 1903, p. 365, § 8; Worthen v. State, 189 Ala. 395, 66 So. 686. The description in an application to condemn is sufficient, if it enables a skillful person to locate the property. London v. Sample Lbr. Co., 91 Ala. 606, 8 So. 281; N.C. St. L. v. Hobbs, 120 Ala. 600, 24 So. 933; Lewis, Eminent Domain (3d Ed.) § 549.
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 servitude upon the adjacent lands; applies not only to trees standing at the time of condemnation, but to such as grow in the future. The measure of damages is the injury to the value of adjacent lands by reason of this continuing easement, as well as by the cutting of trees presently standing.
The commissioners, upon a view of the premises and legal evidence offered, may assess the compensation to be allowed for this as in other cases of injury to the adjacent lands to be included in the general award of compensation for the property taken for public use under the law of eminent domain.
The rulings of the trial court were in accord with these views.
Affirmed.
ANDERSON, C. J., and SOMERVILLE and THOMAS, JJ., concur.