8 Div. 227, 228.
June 30, 1920.
Appeal from Circuit Court, Colbert County; C. P. Almon, Judge.
Erle Pettus, U.S. Dist. Atty., and Ralph W. Quinn and James Q. Smith, Asst. Dist. Attys., all of Birmingham, for appellant.
The enhanced value of the land by virtue of the location of plant 1 could not be taken into consideration in condemnation for lands for plant 2. 147 U.S. 282, 13 Sup. Ct. 361, 37 L.Ed. 170. The court erred in instructing the jury that they were not bound by the opinion of experts, nor by the apparent weight of evidence, but might reach their own conclusions. 200 Ala. 560, 76 So. 918; 147 U.S. 282, 13 Sup. Ct. 361, 37 L.Ed. 170. Counsel discuss other assignments of error, but without further citation of authority.
London, Yancey Brower, of Birmingham, for appellees.
Interest may be added to value from the time of taking to the date of condemnation. 70 Ala. 227. Anything that adds to the value of land may be shown in evidence for condemnation proceedings.
The property of appellees, of which the federal government took possession in 1917, was selected to be used in connection with the building of a nitrate plant in accordance with the act of Congress of June 3, 1916 (U.S. Stat. at Large, vol. 39, p. 215). The government took possession of the property here in controversy in December, 1917, and condemnation proceedings, under the provisions of section 2413 et seq., Code 1907, were not begun until two years thereafter.
The property here involved was to be used in connection with plant No. 2, which was determined upon and located some two months after the location of plant No. 1. The evidence tends to show that the location of a second plant was unexpected, and was not at all a part of the general scheme when the first plant was designated. The evidence also tends to show an increase in property valuations in that community after the location of the first plant.
Counsel for the government requested numerous charges — one of which will appear in the statement of the case — to the effect that the jury were not to consider this enhanced value due to the location of the first plant.
We are of the opinion that such charge, under the tendencies of the evidence, was properly refused. The property was not used in connection with plant No. 1, and the establishment of this plant was but an improvement which had the effect of enhancing the value of property generally in that community, and no good reason is made to appear why these defendants would not have been entitled to this enhanced valuation. The case of Shoemaker v. U.S., 147 U.S. 282, 13 Sup. Ct. 361, 37 L.Ed. 170, has been very carefully examined, and, in our opinion, is easily distinguishable from the instant case. There a public park was to be located within a certain defined area and in a certain manner, and it was held that in fixing the valuation the commissioners were not to consider the value of the property by the establishment of the park. So in the instant case the jury could not consider, in fixing the valuation of the property here in question, that it was to become a part of the site for plant No. 2; but under the evidence above indicated this reasoning would have no application as to the location of plant No. 1, of which this property was not a part, and which, from this testimony, was not considered at that time.
Counsel for appellant very strenuously insist there was reversible error in giving the charge at the request of the defendants, to the effect that the jury will not be bound by the opinion of experts, which charge will appear in the report of the case. It is to be noted that the evidence in this case was confined solely to opinion testimony dealing entirely with the valuation of the property, and that it related to a matter as to which the jury are presumed to have some general knowledge. Under the decisions of this court this opinion evidence as to value was not conclusive and binding on the jury. Andrews v. Frierson, 144 Ala. 470, 39 So. 512; Sellers v. Knight, 185 Ala. 96, 64 So. 329; Tyson Arrington v. Thompson, 195 Ala. 230, 70 So. 649; Robinson v. Crotwell, 175 Ala. 194, 57 So. 23. See, also, note to Fowle v. Parsons, 45 L.R.A. (N.S.) 181; Cleveland v. Wheeler, 8 Ala. App. 645, 62 So. 309; 38 Cyc. 1760. If the plaintiff was of the opinion that the charge might be construed by the jury as authorizing a capricious disregard of all the testimony, and a verdict rendered upon their personal knowledge or observation, then an explanatory charge should have been requested as a matter of precaution. We do not so construe the charge, however, but entertain the view that if any criticism is to be directed thereto it could only be as to any misleading tendency.
Appellant also complains of the charge given for the defendants, which authorized the calculation of interest upon the amount ascertained as compensation from the date of the taking of the property. It has been previously noted that possession was taken by the government on December 1, 1917, and condemnation proceedings begun two years thereafter. Under these circumstances it would seem, under the authority of Jones v. N. O. Selma R. R. Co., 70 Ala. 227, that interest was properly allowed. This question, however, is not here presented, for the reason that the record discloses that the trial court reached the conclusion that this interest should not be allowed, and deducted the same from the judgment rendered upon the motion for a new trial, and rendered judgment for the amount so reduced. Clearly, therefore, there is nothing in this action of the court of which appellant can complain.
There was no error in sustaining the objection to the question asked the tax assessor concerning the amount at which one of the defendants assessed her property during the year 1917. It appears not to have been the duty of the property owner to fix the amount of valuation of his property in the assessment of same under the law as it then existed (Acts 1915, pp. 386-406); and the question assumes (with nothing in the record to sustain such assumption) that said defendant so assessed the valuation, although not so required.
One or two other questions of evidence appear which we do not consider need separate treatment. They have been carefully examined in consultation, and we find nothing in them calling for a reversal or discussion.
The contention on the part of the appellant that the valuation of $250 per acre, as fixed by the jury, is excessive, has been given painstaking consideration. The evidence was, as is usually the case in matters of this character, in considerable conflict as to the value of this property. The rule governing here in reviewing the action of the trial court and refusing to disturb the verdict for excessiveness was well stated in Cent. of Ga. R. R. Co. v. White, 175 Ala. 60, 56 So. 574, which has been subsequently followed in numerous decisions, and need not be here repeated. Suffice it to say that after a careful consideration of this record, and in the light of this rule — by which we are to be guided — we are unwilling to disturb the action of the trial court in this respect.
It results that we find no reversible error in the record, and the judgment appealed from will be accordingly affirmed.
ANDERSON, C. J., and McCLELLAN and THOMAS, JJ., concur.