Dancy v. Ratliff , 201 Ala. 162 ( 1917 )

It is urged upon rehearing that this court erred in applying the rule that if the benefits to the complainants exceeded the damages resulting from the improvements in question they were not entitled to relief, for the reason that the results complained of amounted to an actual taking of property rather than mere consequential damage thereto as covered by section 235 of the Constitution. In other words, that the complainants claim protection under section 23, instead of section 235 of the Constitution. It is sufficient to say, in reply to appellants' argument upon rehearing, that the foregoing opinion treated the case upon the theory, as we understand the brief, that was argued by counsel for appellants. That protection was sought under section 235 of the Constitution and not for an actual taking of property as the principal cases cited deal with section 235 and not 23. In fact, the brief quotes at length from the case of Dallas Co. v. Dillard, 156 Ala. 354,17 So. 135, 18 L.R.A. (N.S.) 884, which discusses the purpose for which said section 235 was put in our Constitution and wherein it differs from what amounts to an actual taking of property as protected by other provisions of our Constitution. So if we failed to decide that the things complained of amounted to an actual taking of property and as against which the benefits could not be set off, it was because we did not then, and do not now, understand the original brief as invoking this doctrine.

We may now, however, concede that the change of the surface water so as to cause it to overflow or injure the complainants' land would amount to a taking, though the authorities are not harmonious on this point, and that, if there was an actual taking as distinguished from resulting or consequential damages, the value of the improvements could not offset the value of the property so taken. Eutaw v. Botnick, 150 Ala. 429,43 So. 739. Still, under the former decisions of this court the decree of the trial court would have to be affirmed. The trial court did not rest its decision upon the idea that there was a taking or injury and the general benefits exceeded same, but found that the complainants showed no injury to their land and in effect held that there was no taking or injury. It may be that there was some slight evidence tending to show that the complainants' spring might be slightly injured; but, as stated in the original opinion, the trial court had data, not now before this court, and concluded that the complainants' property would not be injured at all, and, under the well-established rule of this court, where such is the case the conclusion reached by the trial court will not be disturbed. Hale v. Tenn. Co., 183 Ala. 507, 62 So. 783. As previously noted, there were maps and photographs used and often referred to by the witnesses and the inspection and consideration of same by the trial court may have been a material factor in forcing the conclusion that there was no injury to complainants' property.

The application for rehearing is overruled.