"Eminent
Domain" is one of the "rights" a sovereign government has - to take private
property for public use. The Alabama Constitution [1901 Ala. Const. Art. 1,
§23] provides that just compensation must be paid to the landowner. The
Alabama Constitution also provides for the exercise of eminent domain by
cities, counties and other corporations and individuals vested with the right
to take property for public use. [1901 Ala. Const. Art. XII, ' 235].
Jurisdiction to condemn privately owned land rests in the Probate Court. The
Judge of Probate receives petitions for condemnation, conducts the necessary
proceedings and issues the final condemnation order. In addition to
condemnation for public uses, this jurisdiction extends to the erection of dams
for mills, gins or factories, and to rights-of-way for private owners.
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PROCEDURE PRIOR TO COMMENCEMENT OF CONDEMNATION
ACTION |
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A. Appraisal
Before beginning a
condemnation action, a condemnor must have the property appraised to determine
the amount that would constitute just compensation for the taking. The owner or
the owner's representative must be given a reasonable opportunity to accompany
the appraiser during the inspection of the property.
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B. Offer
Before
beginning a condemnation action, a condemnor must offer the owner an amount
believed to be just compensation. The condemnor shall provide the owner with a
written statement and a written summary showing the basis for the amount
determined to be just compensation.
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C. Payment Or Deposit
Before Surrender Of Property
An owner is not required to surrender
possession of the property before the condemnor either pays the agreed purchase
price or deposits the amount awarded.
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D. Notice
Except
in an emergency, a condemnor may not require an occupant of the condemned
property to move prior to a 90 day notice of the move.
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E. Uneconomic
Remnant
If the acquisition of part of the property would leave the owner
with an uneconomic remnant, the condemnor must offer to buy the
remnant.
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F. Entry
A
condemnor and its agents may enter the property for a reasonable time to make
suitability studies unless good cause to the contrary is shown.
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G. Offer As
Prerequisite
The condemnor must offer to acquire the property at its
approved offer before commencing the condemnation action.
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| II |
COMMENCEMENT OF CONDEMNATION ACTION |
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A. Filing
Complaint
A condemnation action is begun by filing a complaint in the
Probate Court in the county in which the property is located.
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B. Service of
Process
When the complaint has been filed, the Probate Court must set a
date for the hearing and issue notice to the owner unless notice has been
waived.
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C. Owner's
Response
The owner may respond to the complaint, but is not required to
do so unless he challenges the right to condemn, disputes the area to be
acquired or remain, or wishes to raise preliminary objections to the
condemnor's procedure.
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| III |
DETERMINATION OF VALUE OF PROPERTY/DAMAGES
SUSTAINED BY OWNER - PROCEDURE RELATING TO PAYMENT - APPEAL OF DECISION |
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A. Appointment of
Commissioners
Within 10 days after granting the complaint, the Judge of
Probate must appoint 3 citizens to serve as commissioners. Commissioners must
be eligible to serve as jurors in Mobile County and must be disinterested in
the case. In other words, the commissioners can not have a relationship with
the condemnor or the owners.
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B. Commissioners'
Hearing And Assessment Of Damages
The commissioners must hold a hearing
to receive evidence relating to compensation. Notice of the hearing must be
given to the parties. Once a date is set, the chairman should contact the
attorney of record for the condemnor, so that said attorney can send notice of
the hearing to all other interested parties.
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C. Commissioners'
Report
Within 20 days from their appointment, the commissioners must
make a written report to the Probate Court stating the amount of damages and
compensation ascertained. Within 7 days of receipt of the commissioners'
report, the Probate Court must issue an order recording the report and
condemning the property upon payment or deposit into Probate Court the damages
and compensation assessed.
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D. Payment of Damages
and Compensation
The condemnor may pay the damages and compensation
assessed at any time within 90 days after the assessment thereof, or, in case
an appeal is taken, within 60 days after the appeal is determined. If the
condemnor fails to pay on a timely basis, such assessment shall cease to be
binding on the owner of the lands or other interested parties and the complaint
shall be dismissed, with the condemnor being liable to the owner of the lands
for all damages the latter may have sustained by the institution of the
proceedings, including a reasonable attorney's fee for defending the same.
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E. Appeal To Circuit
Court
Within 30 days of the order of condemnation, any party may appeal
the order to the Circuit Court for a new trial.
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F. Amount of
Damages
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1. |
"Fair Market Value"
The
term "fair market value" has been defined "as the price the property would
bring when offered for sale by a willing seller who is not forced to sell and
which is sought by a willing buyer who is not required to buy."
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2. |
Before And After Value
In a partial
taking, the owner is entitled to the difference between the fair market value
of the entire property before the taking and the fair market value of the
remainder after the taking.
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3. |
Incidental Benefits
The amount of
compensation a landowner may be entitled to receive may not be reduced because
of any incidental benefits which may accrue to the remaining land. However, in
condemnation of lands for rights-of-way for public highways, water or sewer
lines, the value of the enhancement to the remaining lands of the landowner may
be considered in fixing the amount of compensation to be awarded the
owner.
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4. |
Highest And Best Use
The owner is
entitled to consideration for condemnation on the basis of the highest and best
use to which the property could be put, even though not presently being so
used.
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5. |
Taking
An owner is not required to
surrender possession of property before the condemnor: (a) pays the agreed
purchase price; or (b) pays or deposits the amount awarded by the condemnation
order together with interest thereon as prescribed in the order. |
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| IV |
PROCEDURE UTILIZED BY COMMISSIONERS IN DISCHARGE
OF THEIR DUTIES |
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A.
Appointment
The Probate Court appoints the
commissioners. The appointment is made on a rotational basis from a list
prepared by the Judge of Probate.
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B. Chairman of
Commission
The Probate Court will appoint one of the commissioners to
serve as chairman of the commission. The Chairman is responsible for making the
arrangements with the other commissioners and advising the condemnor (or its
attorney of record), concerning the date, time and location for the viewing of
the property and the time and date of the commissioners' hearing.
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C. Viewing Of
Property
The commissioners will physically go to the property in
question and view it prior to their hearing.
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D. Commissioners'
Hearing
The commissioners will conduct an informal hearing in a
conference room at the Probate Court. All interested parties should be afforded
an opportunity to make their presentation to the commissioners in the presence
of the other interested parties.
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E. Format Of
Commissioners' Meeting
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1. |
Chairman of Commission calls
the meeting to order and introduces the other commissioners to all interested
parties. |
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2. |
The lawyer for the condemnor presents
expert testimony as to the property to be taken, the estimated value of the
property and whether any uneconomic remnant exists. At this time the
condemnor's damage award offer is disclosed. The commissioners and the
interested parties may ask questions of the testifying witnesses. |
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3. |
The owner or the lawyer of the owner
presents testimony as to the property to be taken, the estimated value of the
property and whether an uneconomic remnant exists. The owner or his lawyer can
comment about the condemnor's damage award offer. |
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4. |
After all evidence and testimony is
obtained, all parties exit and the commissioners meet in private to determine
the award to be given to the owner. |
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5. |
The condemnor (or its attorney of record)
prepares and furnishes a written report for the commissioners to use in
reporting to the Probate Court their findings and decision as to the
award. |
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6. |
The commissioners present their report to
either the Judge of Probate or the Chief Clerk and are "sworn out." The oath
utilized is: "In the matter of [style of case], each of you have been
previously sworn as commissioners; you now render unto the Court your report of
money damages due to the defendants (or parties) which is based upon the
evidence and testimony presented to you; that such damages are (state each
parcel or tract by name or number and the amount entered in the report); so say
each of you? (each commissioner should respond affirmatively)." |
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7. |
At the time the report is submitted to the
Judge of Probate or Chief Clerk, the commissioners will advise as to how much
time they have expended with regard to that particular matter. The current rate
utilized is $80.00 per hour with a $200.00 minimum fee. If the commissioners
have any extraordinary expenses (such as attorney's fees), they should present
written documentation to support the same to the Judge of Probate or Chief
Clerk. The commissioners' fee is paid by the condemnor as a part of court
costs. |
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