Rudder v. Limestone County , 220 Ala. 485 ( 1929 )

BROWN, J.

(dissenting). The effect of the holding of the majority is that it is within legislative competency to authorize municipal corporations — counties, towns and cities —to take private property for public use as a street, highway, or public road, without compensation other than incidental benefits arising from the establishment and building of such way, if such benefits equal the value of the property actually taken. To state -the substance of the opinion in a different way: If a county, city, or town takes half of one’s property for a'public way, and the value of the half which remains is equal to the value of the whole before the way was established, no compensation need be made. I cannot agree to this view and therefore respectfully dissent.

Section 23 of the Constitution of 1901 provides that “private property shall not be taken for, or applied to, public use, unless just compensation he first made therefor;" and section 235 provides, “Municipal and other corporations and individuals invested with the privilege of taking property for public use, shall malee just compensation, to be ascertained as may be provided by law, for the property talcen, injured or destroyed by the construction or enlargement of its works, highways or improvements, 'which compensation shall he paid before such talcing, injury, or destruction. The Legislature is hereby prohibited from denying the right of appeal from any preliminary assessment of damages against any such corporations or individuals made by viewers or otherwise, but such appeal shall not deprive those who have obtained the judgment of condemnation from a right of entry, provided the amount of damages assessed shall have been paid in the court in money," etc. (Italics-supplied.)

From these provisions, viewed in the light of the history of the Constitution and legislation thereunder, it is clear to my mind that for the property actually talcen just compensation must be ¡made in money. When it comes to the question of injury and damages to what remains, incidental benefits, if not prohibited by legislative act, may and should be considered.

As to the property not taken, if there is no injury or damage, then the property owner has suffered no detriment. But, as to the property actually taken, no matter if the value of what remains is increased to and equals the value of the whole before the taking, still the property owner is forced to contribute his property for the benefit of the public, without any benefit to himself. His status is not improved, yet the property of his neighbors is doubled in value; they and the public gain all the benefits, and the one whose property is taken suffers all the detriment. This is not my idea of justice, nor the purport and effect of the quoted provisions of the Constitution.