McLemore v. Alabama Power Company , 285 Ala. 20 ( 1969 )

COLEMAN, Justice.

The landowner appeals from a judgment awarding compensation and damages for lands condemned and acquired in connection with the construction, operation, and maintenance of a proposed dam, canal, and electric power plant on the Coosa River in Elmore County.

As we understand it, the owner’s parcel ■of land before the taking contained 178.9 acres and after the taking contained 78.3 .acres. On the basis of these figures, the ■condemnor acquired approximately 100 acres. We understand that about 47 acres of the land taken was woodland and the remainder was open land.

The probate court awarded the owner :$45,441.00. The condemnor appealed to the circuit court. The cause was tried by a. jury which awarded the owner $24,970.-0Í). Judgment was entered accordingly.

The condemnor made bond as provided by statute and took possession of the premises on April 4, 1964. The jury returned their verdict on August 26, 1964. After her motion for new trial had been overruled, the owner appealed to this court.

I.

The owner asserts that the court erred in refusing to give to the jury her requested written charge to effect that the jury should determine the amount of compensation to which she was entitled, then compute interest on the compensation from the date condemnor took possession until the date of the trial, and add the interest so computed to the compensation and bring in a verdict for the total amount.¹

The landowner also asserts that the court erred in charging the jury orally as follows:

“ . . . . the Court charges you, as a matter of Law, the property owners are not entitled to recover interest at all in this particular case, the way it has come up.”

The insufficiency of the verdict for failure to allow interest is also made grounds of the motion for new trial.

Appellant states the proposition of law for which she contends as follows:

“WHEN A CONDEMNOR HAS APPEALED TO THE CIRCUIT COURT AND HAS TAKEN POSSESSION OF THE PROPERTY, THE LANDOWNER IS ENTITLED TO INTEREST ON THE AWARD FROM THE TIME HE IS DEPRIVED OF THE USE OF THE LAND AND AWARD UNTIL THE TIME OF THE AWARD IN THE CIRCUIT COURT.”

By requesting charge 3, appellant properly raised the question.² The question is whether the owner is entitled to interest from the time the condemnor takes actual physical possession of the land until the date of the jury verdict. This court answered this question in the affirmative in 1958 by our decision in Jefferson County v. Adwell, 267 Ala. 544, 103 So.2d 143.

In Adwell, the court determined and fixed the amount of the owner’s compensation and damages without the intervention of a jury. The judgment, as shown in the original record in Adzvell, recites in pertinent part as follows:

“IT IS HEREBY CONSIDERED, ORDERED ADJUDGED AND DECREED by the Court that Roy H. Ad-well, the appellant-landowner herein is entitled to receive of Jefferson County, Alabama, appellee-condemnor, as compensation and damages for the taking of the property hereinafter described, the sum of Forty-six thousand five hundred ($46,500.00) dollars, and

“It is further considered, ordered, adjudged and decreed by the court that the said appellant is entitled to receive of appellee interest at the rate of six (6%) per centum on said sum of $46,500, from the 24th day of March, 1953 until paid, said interest amounting to the sum of $4120.03 as of the date of this decree; and"

Attached to the judgment in Adzvell is the opinion of the learned trial judge which, as here pertinent, recites:

“This court is of the opinion and finds that the reasonable value (and also the reasonable market value) of the Adwell property on December 4, 1952, (that being the date on which the petition was filed) was $46,500.

“This court is of the opinion that air award of just compensation to the landowner in this case requires that he be also awarded interest on $46,500 at the-rate of 6% per annum from March 24,. 1953 (that being the day on which thecondemnor took possession of the property) to the day on which this judgment is being rendered. Although the time for the fixation of the value of the property is, as stated above, the day on which the condemnor, filed the petition for condemnation, yet if the condemnor does-not interfere with the landowner’s possession, use and occupancy of the property until a later time, so that the landowner is allowed to remain in possession and to have the undisturbed use and occupation of the property subsequent to-the filing of the petition, interest should not begin until the condemnor takes-physical possession of the property. This court thinks that the use and occupation of the land by the owner prior to the condemnor’s taking of physical possession of the land should be considered reasonably as having a value equal to the interest.

“The condemnor in this case makes no contention that he is entitled to any credits for any rental value of the property, or any profits made by the landowner from his use of the land, during the period between the day of the filing of the petition for condemnation and the day on which the condemnor took physical possession of the property. As respects the landowner’s claim to an award of interest, the condemnor contends that if it is proper that an award of interest should be made, interest should not begin to run until the day on which judgment is rendered in this Circuit Court.

“In accordance with the views expressed above, judgment is being rendered awarding the landowner the sum ■of $46,500 plus interest thereon at the rate of 6% per annum from March 24, 1953 to the day of this judgment (viz. Sept. 14, 1954) the total sum being $50,-620.03.”

The condemnor in Adzvell strenuously objected to the allowance of interest in that case.³ The transcript of evidence in Adzvell closes with the following colloquy between court and counsel, to wit:

“THE COURT: Since the above statement of opinion and colKquy as set forth above had, there has been an additional argument made with reference to the matter of time, the time at which interest should begin. After having reconsidered the question of time as of which the running of interest should begin, I have now come to the opinion that the proper time for interest to begin in this case is March 24, 1953. I am of the opinion that although the time for the fixation of the value of the property is the day on which the petition for condemnation was filed yet if the condemn- or does not interfere with the possession, use and occupancy of the property until a later time, so that the owner is allowed to remain in possession and to have the undisturbed use and occupation of the property subsequent to the filing of the petition, interest should not start until the condemnor takes physical possession of the property. It occurs to me that the use and occupation of the property by the owner prior to the condemnor’s taking possession physically of the property has a value that should reasonably be considered as equal to interest. Of course, it necessarily follows that under this view that the condemnor is not entitled to a credit for any rental value of the property or any profits made by the owner for his use of the property during the period of time between the filing of the petition and the physical taking of possession of the property by the condemnor.

“Therefore, the result of this revised view of the Court will mean that the amount of the award to the property owner will be $46,500.00 plus interest thereon at the rate of 6% per annum from and including March 24, 1953, to the day on which judgment is rendered in Circuit Court, which is August 21, 1954.

“Would you gentlemen like to comment any further on that ?

“I don’t ask you to take any exception, I give you an exception to the judgment.

“MR. BISHOP: I don’t think it is necessary, but of course we do except to it. We except to the opinion, and to every word and every phrase thereof, and assure that the Court will be given the grounds and reasons therefor, and will be frankly well-stated in a brief in due course.”

On original deliverance in Adzvellj June 30, 1956, the majority of this court held that “ . . . . the ‘taking’ for the purpose of fixing the amount of damages and compensation is when the commissioners make their report . . . . ” (267 Ala. at 548, 103 So.2d at 145) Justices Lawson and Spann dissented. On rehearing, the dissenting opinion by Justice Lawson became the majority opinion and fixed the valuation date as “the date of the filing of the application . . . . ” to condemn in the probate court. With respect to the allowance of interest, Justice Lawson said:

“The trial court correctly awarded interest from March 24, 1953, the day on which the property was occupied by the State of Alabama, which was the day on which the land was appropriated by the condemnor and on which it became precluded from abandoning the proceeding. Southern Railway Co. v. Cowan, supra [129 Ala. 577, 29 So. 985]; Morton Butler Timber Co. v. United States, 6 Cir., 91 F.2d 884; Haig v. Wateree Power Company, 119 S.C. 319, 112 S.E. 55.” (267 Ala. at 555, 103 So.2d at 152)

The instant writer was not a member of this court at the time of original deliverance in Adwell, but did participate in the decision on rehearing. So far as the writer recalls, the only question on which the justices expressed different opinions on rehearing was the valuation date. The opinions do not reflect and the writer does not recall that any of the justices disagreed with Justice Lawson’s holding as to the allowance of interest.

The writer concurred in the result on rehearing in Adwell. To lay at rest any doubt as to the holding of the court, we say now that we are' of opinion that the valuation date is the date of filing the application to condemn in the probate court.

We are also of opinion that the rule of Adwell is correct in allowing interest from the day on which condemnor takes possession of the condemned property until the day of the judgment in the circuit court.

Subsequent to Adwell, this court has held and we approve the holding that, under the present statutes, the owner is not entitled to interest, on a judgment of the circuit court, awarding compensation, from the date of the judgment to the date of affirmance by this court on appeal. State v. Moore, 269 Ala. 20, 110 So.2d 635; Southern Electric Generating Co. v. Lance, 269’ Ala. 25, 110 So. 2d 627.

The condemnor relies on Ex parte Lance, 267 Ala. 639, 103 So.2d 753, as authority that the owner is not entitled to interest as was allowed in Adwell. Adwell was finally disposed of June 12, 1958. Ex-parte Lance was finally disposed of June 26, 1958. Five justices, who participated in Adwell, participated in Ex parte Lance in which there was no dissent. The court did not consider whether any party was or was not entitled to interest. Adzvell is not mentioned in the opinion. The court did decide in Ex parte Lance that a landowner was not entitled to a writ ordering the circuit judge to order a distribution of the condemnation award to the owners’ before the appeal to this court had been determined.

The author of the final opinion in Ad-well was one of the five justices who concurred in the opinion in Ex parte Lance. It is hardly reasonable to suppose that five members of the same court, who had concurred in an opinion awarding interest just two weeks before, would concur in an opinion denying such interest two weeks later without making some mention of their reasons for changing their minds. Ex parte Lance is not contrary to Adwell as to the holding on interest.

There are many cases dealing with allowance of interest to the landowner cited in 96 A.L.R. 150 and 36 A.L.R.2d 413. The general rule is stated as follows:

“It appears to be well settled that the courts generally allow interest as part of the damages, or compensation, to which the owner is entitled when property is taken under the power of eminent domain.” (36 A.L.R.2d at 413)

The following Alabama cases are cited: Jones v. New Orleans & S. R. Co. & Im. Asso., 70 Ala. 227; Mobile & Ohio R. Co. v. Hester, 122 Ala. 249, 25 So. 220; Southern Railway Co. v. Cowan, 129 Ala. 577, 29 So. 985; United States v. Goodloe, 204 Ala. 484, 86 So. 546; Hays v. Ingham-Burnett Lbr. Co., 217 Ala. 524, 116 So. 689; Southern R. Co. v. Clark, 220 Ala. 555, 126 So. 855.

The condemnor argues that the cited Alabama cases do not apply here because in those cases the condemnor entered and took possession prior to the institution of condemnation proceedings. The condemnor’s argument is to effect that, where the condemnor enters without a judgment of condemnation, the condemnor should be required to pay interest as a sort of penalty or punitive damages. We do not understand that the opinions of this court or of any other court have made this distinction in awarding interest. The better view seems to be that the award of interest, where the condemnor has occupied the property, is to compensate the owner for his loss resulting during the time and from the fact that, during the interest period, he had been deprived of both his property and his payment in money for the property. The annotator expresses it this way:

“The nature of interest payments made to the owner whose property was taken under the power of eminent domain has been discussed in a number of cases. Generally speaking, such payment is either considered as damages for the detention of the compensation or- as payment necessary to produce a full equivalent of the value of an award paid contemporaneously with the taking.....

“Other cases have held that something in the nature of interest must be included in the award in order to produce the full equivalent of the value of an award paid contemporaneously with the taking.

. . . . ” (36 A.L.R.2d at 418, 420)

A good statement of the reason for allowing interest is as follows:

“ . . . .If, therefore, the allowance of interest upon the amount of the assessment shall be necessary to make the compensation just, we have no doubt of authority in the court to make it; and we think that, generally, it is necessary, to allow interest from the date of the award, to give to the owner just compensation. While the assessed value, if paid at the date taken for the assessment, might be just compensation, it certainly would not be, if payment be delayed, as might happen in many cases, and as did happen in this case, till several years after that time. The difference is the same as between a sale for cash in hand, and a sale on time.” Warren v. First Div. St. Paul & Pacific R. R. Co., 21 Minn. 424, 427.

During the time between the condemnor’s taking actual possession and the jury’s award, the owner is deprived of the use of his land and also of the use of the money due him for the land. The condemnor is also deprived of the use of the money it has paid into court but the condemnor does have the use of the land. When a loss must fall on one or the other of two parties and neither has been guilty of unlawful conduct, it is just that the loss should fall on the party who initiated the proceedings which caused the loss instead of on the party who is wholly without fault and did not initiate the proceedings.

In A dwell, the award for compensation and damages was fixed by the court and in the instant case by the jury. There is no other difference. If the landowner is entitled to interest when the award is fixed by the court, the landowner is equally entitled to interest when the award is fixed by the jury. There is no sound reason to award interest in the one case and deny it in the other, or vice versa.

We are of opinion that the owner is entitled to interest from the date condemnor takes actual possession until the date of the jury’s verdict and that the court erred in refusing the owner’s requested charge 3 and in giving the oral charge to which the owner excepted.

II.

Appellant’s assignment 43 recites:

“43. The Trial Court erred in sustaining the objection of the Plaintiff to the offer of the Defendant to show by the witness, W. E. Collier, the value of the timber and pulpwood on the whole tract of land involved in the condemnation and on the tract of land actually taken, the offer to show by the Defendant being as follows:

“ 'If your honor please, if we propose to show by this witness, first, as to the value of the timber and pulpwood, and second, we propose to show by him the value, the fair market value of the timber and pulpwood on the 100 acres taken by the Power Company as of February 4, 1964, the time of the taking.’ ”

The court sustained objection as follows:

“THE COURT: I, I sustain the objection to that, then, to those questions, in that form.”

We think it is clear beyond question that the landowner had the right to show the value of the timber and pulpwood on the land taken. Long Distance Telephone & Telegraph Co. v. Schmidt, 157 Ala. 391, 47 So. 731.

We are not persuaded, however, that defendant had a right to show the value of timber and pulpwood on the remaining land unless the owner proposed also to show that the trees on the remaining land would be damaged or destroyed by the taking. We do not understand appellant to say that the trees on the remaining land would be damaged, destroyed, or diminished in value by the taking.

The court pointed out that objection was sustained to the showing “in that form.”

“When legal is united with illegal evidence, the court is not bound to separate the good from the bad — but may reject the whole. — Smith v. Zauer [Zaner], 4 Ala. 99.” Dryer v. Lewis, 57 Ala. 551, 556.

We will not put the court in error for sustaining objection to an offer to-show jointly admissible and inadmissible evidence.

III.

In assignments 41 and 42, appellant assigns for error the action of the court in sustaining objections to two questions propounded to the witness Collier asking him to describe his experience in buying and selling timber and pulpwood.

Collier is the witness by whom appellant proposed to prove the matters offered to be shown in assignment 43. Appellant had the right to qualify this witness in order to show the value of the timber and pulpwood on the land taken. As we have already said, however, the court did not err in sustaining objection to the offer to show. Appellant makes the same argument to support assignments 41 and 42 as she makes to support 43. For the same reason we will not reverse on 41 and 42.

IV.

In assignments 40 and 49, appellant assigns for error the action of the court in sustaining objection to admission in evidence of an aerial photograph. Appellant undertook to lay a predicate for its introduction by two witnesses. The testimony of the witness Till is as follows:

“Q Mr. Till, I’ll show you Plaintiff’s Exhibit Number Two, Defendant’s Exhibit Number Two; I show you Defendant’s Exhibit Number Two, and ask you if you can identify that?

“A You mean the McLemore place?

“Q Well, do you recognize--do you recognize what this is a copy, or map, of?

“A Yes, sir.

“Q. Does this accurately portray the McLemore lands that are involved in this condemnation proceeding?

“MR. JESSE S. VOGTLE: I am going to object to that question, Your Honor, because it is not tied down to any specific time.

“MR. WILLIAM B. DUNN, (CONTINUING.)

“Q As of the time that the application was filed, as a part of the Mc-Lemore land?

“A Yes, and I--

“THE COURT REPORTER: What, what’s his answer ? Was it yes ?

“MR. WILLIAM B. DUNN: Yes. We offer this in evidence.

“MR. JESSE S. VOGTLE: Your Honor, I object to this. This has not been--he’s offered it in evidence. It’s not been properly shown to be a-there’s been no authenticity of the photograph itself, which has been tied down. There’s been no proper predicate laid to show that the lands on that aerial photograph were, at the time of the taking, in the same condition as on that date, and I submit that it has not been properly proved, for use in this case, as evidence.

“THE COURT: Let me see it, Mr. Dunn.

“MR. WILLIAM B. DUNN: All right, Your Honor.

“MR. C. T. RENEAU: Or when it was taken.

“MR. JESSE S. VOGTLE: There’s been no showing what the date of that map is.

“MR. WILLIAM B. DUNN: Judge, he has testified that it accurately portrays the McLemore land, at the time the condemnation was filed.

“(WHEREUPON, MR. WILLIAM B. DUNN HANDED THE AERIAL PHOTOGRAPH MAP TO THE COURT.)

“(WHEREUPON, THE COURT LOOKED AT THE AERIAL PHOTOGRAPPI MAP, WHICH WAS HANDED TO IT BY MR. WILLIAM B. DUNN.)

"THE COURT: All right

“MR. JESSE S. VOGTLE: Your Honor, as further grounds, we’d like to state that the admission in evidence of this map would by highly prejudicial.

“THE COURT: Well, I sustain the objection to it.

“MR. WILLIAM B. DUNN: Your Honor, Judge, would you state the reason for the Court’s ruling ?

“THE COURT: Huh?

“MR. WILLIAM B. DUNN: Because it’s prejudicial, or improper predicate?

“THE COURT: No, that’s not the reason. The reason for my ruling is because the map, on its face, shows that it’s not like it was at the time of the taking. From all of the evidence, undisputed evidence, in the case. So let’s proceed.

“MR. WILLIAM B. DUNN, (CONTINUING.)

“Q Does this map accurately portray -- ?

“THE COURT: Well, now, Mr. Dunn, let me call something to your attention now. I think it’s undisputed by both parties, in this suit, so far, that this land was not cultivated this year in which it was taken. I don’t think there’s any dispute about that, is there, by anybody? It’s undisputed.

“MR. WILLIAM B. DUNN: Well, Judge, part of it, I think, is what the evidence shows.

“MR. GEORGE P. HOWARD: Would you hear me on the other, that is as to the part of it that was? Part of it was, Your Honor, I think, is the way 'it was.

“THE COURT: Well, that’s my ruling on it, gentlemen. Like it is, I sustain the objection to the map, at this point.’’

The testimony of the witness Storrs is as follows:

“Q Defendant’s Exhibit Number Two, and ask you if you can recognize what that is?

“A Yes, sir, this is the, what I know as the McLemore place. The creek, Calloway Creek here is the boundary to the Booth property. The Booth property is bounded over in here approximately to the river, and then the river bounds it over to where they join Weaver, and then it comes up Weaver’s line, and joins Randolph in here. (Indicating) This here, this land in here is on the North side of the Randolph land. (Indicating)

“Q All right, now. Just in general what is this piece of paper, a map, or photograph, or what kind of a photo.graph, or what is it ?

“A Well, it’s an aerial photograph.

“Q Aerial photograph ?

“A Yes, sir.

“Q Are you familiar with the lay of the land insofar as the fields, open .areas, woods areas, and improvements, such as buildings, and so forth, on this land, as of the 4th. day of February, 1964, before the Power Company took .any part of it?

“A Yes, sir. I am thoroughly familiar with it. I’ve been over the whole works since ’56, and then.-during that date I hunted all over the place. • I’ve hunted--I’ve been all over it hunting since that date. Let’s see you said--the squirrel season closed the twentieth. You said February the 4th. Yes, I hunted on it along in the last few days of the hunting season, all over every bit of it.

“Q All right. State whether or not this is a true and accurate representation aerial photograph of the scene it purports to portray?

“A Well, it’s a, it’s a--

“MR. JESSE S. VOGTLE: Your Honor. I object to that, principally, because the question just asked if that photograph is true and correct, according to what it purports to portray.

“THE COURT: I sustain the obj ection to that.

“MR. GEORGE P. HOWARD: Reserve an exception.

“THE WITNESS: Now, what’s the question now?

“MR. GEORGE P. HOWARD: He sustained the objection to it.

“THE COURT: Now, Mr. Howard.

“MR. GEORGE P. HOWARD: Yes, sir.

“THE COURT: Let me clarify that for you.

“MR. GEORGE P. HOWARD: All right, sir.

“THE COURT: Unless you’re in a position to have the person here who made that map, and show when it was made, and what section, township, and range it covers, I’m not going to allow it in evidence, and I’ll give you an exception to my ruling.

“MR. GEORGE P. HOWARD: All right, sir.

“THE COURT: Because it’s not, it hasn’t been identified, properly.

“MR. GEORGE P. HOWARD: If Your Honor please, I think I can show all of that, except who made it, and if a part of your ruling is that I must show who made it, I guess I’ll just have to--

“THE COURT: When it was made; the elevation of it; how high the airplane was, and all of that. All of that has a bearing on the accuracy of the map.

“MR. GEORGE P. HOWARD: But, but unless I can show who made it, you won’t let it in evidence ?

“THE COURT: No, sir.

“MR. GEORGE P. HOWARD: I’m going to reserve an exception, then.

“THE COURT: And how it was made, and when it was made.

“MR. GEORGE P. HOWARD: But if I showed all the other things, and still couldn’t show who made it, you wouldn’t let it in?

“TPIE COURT: Who made it; when it was made, and how high the airplane was when it was made, and all of that.

“MR. GEORGE P. HOWARD : Well, we reserve an exception, then.”

Appellee appears to recognize that the reasons stated by the court were not sufficient to sustain objection to the photograph, but says it “was not properly shown to illustrate the condition of appellant’s lands as of the date of taking,” and the photograph showed land under cultivation whereas the undisputed evidence was that the “land zvas not cultivated in the year in zvhich it zsuas taken."

The witness Till testified that the photograph accurately portrayed the McLemore land “As of the time that the application was filed.”

When counsel for appellant asked the reason for the court’s ruling, and ir the reason was because “it’s prejudicial, or improper predicate,” the court said “No, that’s not the reason. The reason for my ruling is because the map, on its face,, shows that it’s not like it was at the time of the taking.”

The witness Till testified that the photograph did portray the land “As of the time-that the application was filed.” It was for the jury to decide whether Till or the other witnesses spoke the truth.

Sustaining objection to the appellant’s Exhibit 2 was error.

“Photographs identified by a party having personal knowledge of the location as true photographs of the scene,, and showing the road, the tree, and other permanent objects in their relation to-each other, are properly admitted in evidence. It is not necessary to produce the photographer or other person present who saw the location of the camera,, where this is reasonably apparent from the photographs, or where the photograph discloses matters of importance regardless of where the camera was. placed. Louisville & N. R. R. Co. v. Hall, 91 Ala. 12, 8 So. 371, 24 Am.St. Rep. 863.” Strickland v. Davis, 221 Ala. 247, 252, 128 So. 233, 237.

Appellant has argued a number of other assignments of error but those matters will probably not arise on another trial.

For the errors pointed out, the judgment is reversed and the cause remanded.

Reversed and remanded.

LIVINGSTON, C. J., and LAWSON, SIMPSON, MERRILL, HARWOOD, and' BLOODWORTH, JJ., concur.

1 . The landowner’s requested charge recites :

“Defendant’s Charge No. 3

“Gentlemen of the Jury, the landowners ■are entitled to just compensation by reason of their land being taken. In order to arrive at the just compensation in this case, you should, based on all the evidence, .award the landowners the fair market value of the land actually taken plus the decrease in value, if any, to the remaining lands. Those values should be determined from all the evidence as of the time when the application for condemnation was filed by the condemnor. Then you should compute interest at the rate of 6% per annum on the sum of said values, from the time of the actual appropriation of the land by the condemnor until the present time and add such interest to said values in order to arrive at one lump sum as a just compensation.

2 . This court has said :

“If it should be thought that interest is a proper element of compensation, the trial court should be requested to so instruct the jury. In that way a clear-cut issue would be presented as to the propriety of the jury considering interest as an element of compensation, thus avoiding any doubt as to whether the jury, in any particular ease, did or did not include interest in their award.” State v. Jones, 271 Ala. 227, 228, 229, 123 So.2d 107, 109.

3 . The appellant (condemnor) in Achoell made the following assignments of error:

“19. The Court erred in awarding any interest on the amount of the award in-eminent domain proceedings prior to the date of the order of condemnation in the Circuit Court where the trial was de novo by statute (R. 16-19).

“20. The Court erred in retroactively awarding interest on an award in eminent domain proceedings from a date prior to tbe order of condemnation in tbe Circuit Court (R. 16-19).

“21. The Court erred in awarding and ordering to be paid any interest on an award in eminent domain proceedings (R. 16-19).

“22. The Court erred in awarding interest as a part of the damages and compensation to which the owner was held to be entitled in eminent domain proceedings (R. 16-19).”