Commissioners Court v. Street , 116 Ala. 28 ( 1896 )

COLEMAN, J.

Upon petition filed and after due and legal notice, and the return of viewers duly appointed, the commissioners’ court of Colbert county established a public road over and across certain lands of Christ Street. The owner of the land appealed to the circuit court. The present appeal is prosecuted from the rulings of the circuit court and the judgment therein rendered.

It is contended that section 1391 of the Code of 1886 (Code of 1896, § 2447) is unconstitutional, and the errors assigned require a consideration of that section, and a determination of that question. Sections 1391 and 1392 of the Code of 1886 (Code of 1896, §§ 2447, 2448) read as follows :

“1391. Vieivers appointed to mark out road and assess damages. — When a new road is to be established, or an old road changed, the court must issue an order to seven disinterested householders of the county, to view and mark out the best route for such proposed road, and to assess the' value of the land of each land-owner that will be taken, if the road is opened over the route marked out.”

”1392. Viewers’ oath, return, etc. — The viewers, before acting, must take, an oath to view and mark out the road described in the order, to the greatest advantage to the public, and with as little prejudice to individuals as possible, and without partiality or favor ; .and to justly assess the value of the land of each land-owner, which will be taken for said road ; and must, after viewing and marking out the route and making the assessment of compensation that each land-owner will be justly entitled to, if his lands are taken for said road, return the same to the court; whereupon the court must cause a notice to be served on the owner or owners of each tract or parcel of land, over which the road has been marked out, showing the route marked out, the quantity of land that will be taken from said owner, if the road is opened, and the amount of compensation that the viewers report should be paid to said owner ; and appointing a day on which the court will hear any objections to said report, or to any valuation therein shown.”

Section 24 of Art. I of the constitution reads as follows: “That the exercise of the right of eminent domain shall never be abridged, nor so construed as to prevent the General Assembly from taking the property and franchises of incorporated companies and subjecting them to public use the same as individuals. But private property shall not be taken or applied for public use, unless just compensation be first made therefor ; nor shall private property be taken for private use, or for the use of corporations, other than municipal, without the consent of the owner ; Provided, however, that the General Assembly may, by law, secure to persons or corporations the right of way over the lands of other persons or corporations, and by general laws provide for and regulate the exercise by persons and corporations of the right herein reserved; but just compensation shall, in all cases, be first made to the owner; And provided, that the right of eminent domain shall not be so construed as to allow taxation or forced subscriptions for the benefit of railroads or any other kind of corporations other than municipal, or for the benefit of any individual or association.”

Section 7 of Art. XIV of the constitution reads as follows : ‘ ‘Municipal and other corporations and individuals, invested with the privilege of taking private property, for public use, shall make just compensation for the property taken, injured or destroyed by the construction or enlargement of its works, highways, or improvements, which compensation shall be paid before such talcing, injury or destruction. The General Assembly is hereby prohibited from depriving any person of an appeal from any preliminary assessment of damages against any such corporations or individuals made by viewers, or otherwise; and the amount of such damages in all cases of appeal shall, on the demand of either party, be determined by a jury according to law.”

The question is, whether the foregoing provision of section 1391 does not fix and limit the amount to be paid to the owner to less than “just compensation,” as provided in the constitution. In the case of Hooper v. Savannah & Memphis R. R. Co., 69 Ala. 529, it was said: “Just compensation included not only the value of the parts' of the lots actually taken and appropriated to the use of the company, but the injury to the remaining lots or parts of lots, and if the ways of ingress to and egress from the lots were obstructed or interrupted, such obstruction or interruption formed a part of the injury, for which compensation should have been made.” In Jones v. N. O. & S. R. R. Co., 70 Ala. 227, which was a proceeding to ascertain the value of the compensation to be paid to the owner of lands, which had been taken and appropriated by the railroad corporation, it was said (p. 232) : “In this proceeding it is only ‘just compensation’ which may be awarded to the owner of the lands. This includes not only the value of the land which may be taken, but the injury resulting to the remaining lands of the proprietor.” In 6 Am. & Eng. Encyc. of Law, p. 571, it is said : “Where part of a tract is taken the owner is entitled to recover not simply the market value of what is taken, but the difference between the market value of the entire tract and the market value of what is left.” It will be seen from the foregoing references that “damages” and “just compensation” include more than the mere value of what is taken, and if we were confined to sections 1391 and 1392 in determining the question, there ■would be great force in the argument of counsel for appellant ; but when construed in connection with other sections of the Code, bearing upon the same question, we feel justified in coming to a different conclusion. Section 1393 of Code of 1886 (Code of 1896, § 2449) is as follows: “On the day appointed (that is, to hear objections to the report of the viewers) the court must hear any objections made to the route marked out, or the amount of compensation which the viewers have reported should be paid any land-owner for the land which will be taken up by said road,” etc. This section indicates that the land-owner is to receive ‘ ‘compensation for the land taken.” So in section 1394 of the Code of 1886 (Code of 1896, § 2450) it is provided that “the owner of the lands, if dissatisfied with the assessment of damages made by the jury, is entitled, as of right, to an appeal therefrom to the circuit court,” etc. This section indicates that the owner is to be paid “damages” for taking the land. Section 1436 of the Code of 1886 (Code of 1896, § 2492) provides for the establishment of other public roads than those provided for under section 1391 supra. Section 1437 of the Code of 1886 (Code of 1896, §2493) then reads as follows: “The person applying for the establishment'of a road under the preceding section shall, when the damages are assessed to the owner of the lands over which it is to pass, in the manner provided by law,” etc. Here the word “damages” is used to indicate the compensation to be paid to the owner, and the manner provided by law is provided in sections 1391 and 1392. Other sections might be mentioned, in which the compensation to the owner is designated by the use of the word ‘ ‘damages.” In construing the word •“damages” as here used, this court has held, it was the equivalent of “just compensation.” — Commissioners’ Court v. Bowie, 34 Ala. 461; Jones’ Case, 70 Ala. 227, supra. When considered > in connection with the other statutes, relating to the same subject, we are of opinion the phrase “the value of the land that will be taken” as used in sections 1391 and 1392 was used in the sense of ‘ ‘damages sustained’ ’ or ‘ ‘just compensation for the lands taken.” The phrase will admit of this interpretation, and seems to have been that intended by the legislature. When an enactment will fairly admit of two constructions, one of which is in harmony with the constitution, and the other obnoxious to it, courts always favor that which will sustain the constitutionality of the statute.

On the trial the plaintiff, against objection, introduced evidence tending to show that the establishing of the proposed new road over his premis'es would necessitate the construction of fences alongside the road for the protection of his crop from stock, and also offered evidence of the cost of erecting a fence. Evidence of this character was competent to be considered by the jury in arriving at and assessing the “damages” or “just compensation but the cost of building and maintaining fences would not be the proper measure of compensation in this proceeding. We do not understand that the road in question falls within sections 1436 and 1437 of the Code, which provides for the payment of erecting and maintaining fences, but under sections 1390 and 1391. The proper compensation is the difference between the value of the tract, as compared with its value after the establishment of the road. If the owner was not damaged, if his premises were in every respect as valuable after the establishment of the public road, as before, then the owner would not have sustained any damage. We are of opinion, however, that under the facts and return of the jury he was entitled to the value of the lands appropriated to public use iii any event. The first charge given for the plaintiff was not in accordance with these principles and should not have been given.

We are of opinion the judgment rendered can not be sustained. By the judgment, the plaintiff recovered of the commissioners court the sum of one hundred and sixty-two and 50-100 dollars. We know of no principle or statute which subjected the court as such to a judgment. The judgment should have only declared the amount of compensation assessed by the jury. It may be that the court will never establish the road. After the compensation due the land-owner has been legally assessed and declared, the court would have no authority to open the road, until the same has been paid, but the ascertainment of the damages imposes no obligation upon the court to pay them, or to establish the road.

Eeversed and remanded.