
    STATE of Alabama v. Sara H. HOWINGTON et al. State of Alabama v. James E. Hart III et al. State of Alabama v. Jimmie L. Bush et al.
    1000610 to 1000612.
    Supreme Court of Alabama.
    Dec. 20, 2002.
    Opinion Overruling Rehearing Applications April 11, 2003.
    
      Warren C. Herlong, Jr., of Helmsing, Leach, Herlong, Newman & Rouse, P.C., Mobile; and Joseph D. Steadman of Sims, Graddick & Dodson, P.C., Mobile, for appellant.
    Edward T. Hines of Thompson, Garrett & Hines, L.L.P., Brewton, for appellee.
   JOHNSTONE, Justice.

AFFIRMED. NO OPINION.

See Rule 53(a)(1), (a)(2)(E), and (a)(2)(F), Ala. R.App. P.

MOORE, C.J., and SEE, LYONS, BROWN, WOODALL, and STUART, JJ., concur.

HOUSTON and HARWOOD, JJ., dissent.

HOUSTON, Justice

(dissenting).

Our review of the trial court’s summary judgment is de novo.

I doubt if any Alabama judge or Justice has had his or her property acquired by eminent domain as often as I have. The federal government acquired property in which I owned an interest for the im-poundment of Lake Eufaula (Lake Walter F. George) and later to establish a Canadian Goose Fly Way (the Eufaula Wildlife Refuge). The State of Alabama acquired property in which I owned an interest to create the Barbour County Wildlife Refuge and to extend and widen two roads (U.S. Highway 431 and Alabama Highway 165). Because of this personal experience, I am keenly aware of the supreme and plenary sovereign power of eminent domain.

“[T]he sovereign power of eminent domain is inherent in government as such, requiring no constitutional recognition, and is as indestructible as the state itself; and ‘that all private property, tangible and intangible, is held subject to the exercise of the right by the sovereign power

Adirondack Ry. v. New York, 176 U.S. 335, 346-47, 20 S.Ct. 460, 44 L.Ed. 492 (1900).

“Regarding the power of eminent domain, this Court had stated that ‘ “[i]n every government there is inherent authority to appropriate the property of the citizens for the necessities of the State, and constitutional provisions do not confer the power, though they surround it with safeguards to prevent abuse.” ’ ”

State v. Armstrong, 779 So.2d 1211, 1214 (Ala.2000) (quoting Jones v. Nashville Chattanooga & St. Louis Ry., 141 Ala. 388, 394, 37 So. 677, 679 (1904)).

The Takings Clause of the Constitution of the United States (U.S. Const., Amend.V) provides: “[P]rivate property [shall not] be taken for public use, without just compensation.” The Constitution of Alabama of 1901 provides similar safeguards. See Ala. Const. of 1901, Art. I, § 23, and Art. XII, § 235. These constitutional provisions provide the safeguards to prevent abuse.

The condemnation of the three tracts involved in this appeal is sought in connection with the Alabama Department of Transportation Project NHF-96(29) for the expansion and improvement of U.S. Highway 31 in Escambia County from south of State Highway 113 to north of County Road 35, a distance of about 3.5 miles. Project NHF-96(29), which was also the project involved in State v. Armstrong, supra, required the acquisition by the State of 45 tracts. The State has acquired title to 42 of those tracts, leaving only the acquisition of title to the three tracts involved in this appeal as necessary to complete the project.

At least $4,137,000 has been spent on the project thus far. The project was determined to be of public necessity in view of actual and projected increases in traffic volume on U.S. Highway 31, the need for an improved hurricane evacuation route, and safety concerns with the current condition of U.S. Highway 31, a two-lane highway. The project proposes to change U.S. Highway 31 from a two-lane highway to a four-lane divided highway and, in places, a five-lane undivided highway. The undisputed evidence shows that the improved roadway will be used by the public (which will benefit in that the new roadway will provide enhanced safety) and will move increased traffic more efficiently, which will help move people from affected areas in the event of an evacuation for a hurricane.

We are writing on a clean slate; therefore, I would hold that the State’s power of eminent domain is not so fragile that the subject lands are ipso facto released from liability to the public use (no matter how great a necessity may arise) because a lawyer, in attempting to appeal a probate court’s order, failed to timely file the notice of appeal in the probate office, but filed it instead in the circuit court’s office. The State’s right of eminent domain cannot be forever terminated by the failure to adhere to a procedural rule promulgated by this Court.

I would reverse and remand; therefore, I dissent.

On Applications for Rehearing

JOHNSTONE, Justice.

APPLICATIONS OVERRULED.

MOORE, C.J., and SEE, BROWN, WOODALL, and STUART, JJ., concur.

LYONS, J., concurs in case no. 1000611 and dissents in case nos. 1000610 and 1000612.

HOUSTON and HARWOOD, JJ., dissent.

LYONS, Justice

(concurring in case no. 1000611 and dissenting in case nos. 1000610 and 1000612).

In 1997, the State filed in the Escambia County Probate Court two separate petitions to condemn a total of 26.85 acres of land owned by Jimmie L. Bush and Georgia Hart. Sara H. Howington, James E. Hart III, and John Webb Hart are appel-lees in this action by virtue of their having inherited Georgia Hart’s lands. The probate court consolidated the two actions and on August 14, 1997, in a single judgment, denied the petitions filed by the State. The probate court held that the proposed condemnation of Georgia Hart’s real property left an “uneconomic remnant or remnants.” The State failed to file a timely appeal.

The State filed three new petitions to condemn the property on May 10, 2000. The petition seeking to condemn the property owned by Bush deleted almost an acre of property from the scope of the previous petition to condemn. As a result, the Bush home would be 82 feet from the right-of-way line of the improved highway, as opposed to 52 feet from the right-of-way line in the 1997 petition. The petition seeking to condemn Howington’s property sought to condemn a .95-acre uneconomic remnant. The record does not reveal whether this is the same property considered by the probate court in 1997 when it referred to an “uneconomic remnant or remnants.” The petition seeking to condemn the property owned by James Hart and John Hart was objected to based upon the State’s alleged failure to acquire an uneconomical remnant.

The trial court granted motions for a summary judgment filed by the con-demnees based upon the defense of res judicata. This Court affirmed, without an opinion. Justice Houston filed a dissenting opinion. Howington v. State, 859 So.2d 1093 (Ala.2002). On application for rehearing the State asks for guidance as to the basis upon which this Court affirmed the trial court’s judgment.

I would grant the application for rehearing in ease no. 1000612 to recognize the right of the State to proceed with respect to condemnation as to Bush’s property because, by moving the right of way so that the Bush home is 30 feet further from the right of way, the second petition does not merely attempt to relitigate identical issues based upon identical factors.

I am unable to say, one way or the other, whether the petition to condemn the Howington property relates to the “uneconomic remnant or remnants” referred to in the 1997 probate court order. That fact is not material because the attempt to take an additional acre of property considered to be an uneconomic remnant sufficiently departs from the previous petition so as avoid the charge that the new proceeding is merely an effort to relitigate identical issues based upon identical factors. I therefore would grant rehearing in case no. 1000610 as to the Howington property.

The new petition as to the condemnation of James Hart and John Hart’s property apparently was subject to the same objection as before — -the failure to acquire an uneconomical remnant. The State attempted to cure the omission by an offer to purchase. Had the uneconomical remnant been included in the new petition I would not be inclined to uphold the defense of res judicata. However, I cannot say that the defense can be avoided merely upon the State’s tender of compensation for the taking, independently of the taking contemplated by the new petition. Consequently, I concur in denying the application for rehearing in case no. 1000611 as to James Hart and John Hart’s property. 
      
      . Georgia Hart’s will divided her property into two parcels. Sara Howington inherited one parcel; James Hart and John Hart inherited the other.
     