Section 11-47-172

Procedure for condemnation and appeal; asssessment of value, etc.

(a) Whenever the proprietor or proprietors or any of them of any of the lands necessary for any of the purposes provided in Section 11-47-171 or necessary for opening new streets or widening old streets and the mayor or other chief executive officer cannot agree on a price of said lands or cannot agree as to the amount to be paid for changing the grade of any street, sidewalk, or public place and whenever the proprietor or proprietors thereof shall be an infant, non compos mentis, a nonresident, or unknown, then the mayor or other chief executive officer shall apply to the clerk of the circuit court of the county for a writ of ad quod damnum to be directed to the sheriff of the county, commanding him to summon three freeholders of the county to appear before the sheriff on a day named, not less than two days from the date of the writ, and to proceed under his direction to assess a value of the lands of such proprietor for the use thereof or damages or injury which may be done to any property by the change in the grade of any street, sidewalk, or public place named in the application for the writ and in the writ, which shall describe the lands required for the use of the city or town, the use for which said lands are desired, the grade intended (in case of change desired in grade of any street, sidewalk, or public place) and the name of the owners, respectively, if known, and the said persons thus selected shall be sworn by the sheriff to faithfully perform their duty under such writ and, after viewing the premises, enter a verdict, which verdict shall be endorsed on the writ by them and shall assess the damages to each proprietor severally.

(b) The sheriff shall thereupon return the writ so endorsed to the clerk of the circuit court, and the verdict so entered shall be entered on the records of the court of the next session thereof after its return, unless an appeal shall have been taken, in the manner prescribed in this section. The same jury may render a verdict upon all matters contained in the same application.

(c) On the return of the verdict and the payment to the clerk of the damages assessed, the land so assessed shall inure to the public use for the use specified in the application and the council or other governing body may take the property condemned or proceed to change the grade of any such street, sidewalk, or public place, unless the council or other governing body or some proprietor or proprietors shall, within 30 days, take an appeal to the circuit court of the county by filing a written notice of appeal, a copy of which shall be served on the opposite party or his attorney. On such appeal being taken, the assessment of damages shall be tried de novo in such court and, upon such trial, either party may demand a jury.

(d) On the suing out of a writ, the mayor or other chief executive officer shall pay to the clerk of the court three dollars ($3) for his or her fees, two dollars ($2) per day for each juror on the preliminary assessment and three dollars ($3) for the sheriff, to be paid by a warrant drawn by the city or town clerk on the order of the mayor or other chief executive officer.

(e) When any owner of lands, which lands or the use thereof are desired for the city or town or for any of the purposes mentioned in Section 11-47-171 or subsection (a) of this section, is an infant, non compos mentis, a nonresident, or unknown, the clerk of such court must give notice of the filing of such application by publishing a copy for three successive weeks in some newspaper published in said city or town, before he issues the writ to the sheriff, and, in all other cases, five days' notice of the filing of the writ shall be given by the clerk of the court to the owners of the property by service upon the owner personally by the sheriff or by leaving a copy thereof at the owner's residence or place of business, and the mayor or other chief executive officer of such city or town must deposit with the clerk the advertising fee, to be paid by warrant drawn by the city or town clerk on an order of the mayor or other chief executive officer as other warrants are drawn.

(f) For purposes of the assessment of value, damages, or injury pursuant to subsection (a) and the trial of the assessment of damages pursuant to subsection (c), if lands, or rights, easements, or interests in land, lying seaward of the construction control line then in effect under the regulations of the Alabama Department of Environmental Management, the ordinances of a coastal municipality, or both, are taken for use by a coastal municipality in the construction and maintenance of a beach project permitted pursuant to Section 9-15-56, the assessment of damages for the taking of the lands, or rights, easements, or interests in land, lying seaward of the construction control line shall take into consideration the value of the enhancement to the remaining lands of the proprietor that the beach project may cause as the result of the placement of sand directly on and directly seaward of the lands, or rights, easements, or interests in land so taken. To the extent, and only to the extent, that sand is placed directly on, and directly seaward of the lands, or rights, easements, or interests in land so taken, it may be presumed:

(1) That the value of the remaining lands of the proprietor will exceed the value of all affected lands, rights, easements, and interests of the proprietor prior to the taking as a result of the enhancement in value resulting from the beach project.

(2) That the proprietor has sustained no damage or injury and is entitled to no compensation as a result of the taking.

(g) The presumptions under subsection (f) shall be rebutted only by substantial evidence adduced by the owner.

(Code 1907, §1441; Code 1923, §2297; Code 1940, T. 37, §509; Act 2000-676, p. 1365, §2.)