Appeal from Jefferson Circuit Court. (CV-92-8674). Jack D. Carl, TRIAL JUDGE.
Released for Publication May 3, 1996.
Hooper, C. J., and Maddox, Shores, Kennedy, and Cook, JJ., concur.
Eugene Douglas Reid II sued Jefferson County and the City of Birmingham, relying on § 235 of the Constitution of Alabama of 1901 and seeking damages for the alleged inverse condemnation of certain property. Reid, whose property fronts U.S. Highway 78, contends that the defendants' building of a pedestrian bridge across Highway 78 in Birmingham caused "injury" to his property and that, therefore, the defendants are liable under § 235. The trial court entered a summary judgment for the defendants. Reid appeals. We affirm.
Reid's property is adjacent to the right-of-way of Highway 78 where the pedestrian bridge was constructed. He does not claim that any portion of the bridge was constructed on his property, nor does he claim that any damage resulted from the actual construction of the bridge. He does contend, however, that the pedestrian bridge substantially hampers the exposure of his property and the business sign located on his property to persons traveling on Highway 78. He further contends that the pedestrians using the bridge also use his access drive and that in doing so they interfere with ingress to and egress from his property.
As evidence of damages, Reid claims that the value of his property before the construction of the bridge was $485,000. That value, he claims, was diminished to $245,000 after the construction of the bridge.
Section 235 states, in pertinent part:
"Municipal and other corporations and individuals invested with the privilege of taking property for public use, shall make just compensation, to be ascertained as may be provided by law, for the property taken, injured, or destroyed by the construction or enlargement of its works, highways, or improvements, which compensation shall be paid before such taking, injury, or destruction. ...."
The issue in this case is whether Reid offered substantial evidence that he suffered harm or loss as a result of the construction of the pedestrian bridge and, if so, whether that harm or loss is one contemplated by § 235.
Reid stated in his affidavit, offered in opposition to the motion for summary judgment:
"Your Affiant is the owner of the real property ... located at 1556 Bankhead Highway (U.S. Highway 78 West), Birmingham, Alabama 35214. Your Affiant's property ... has for a long period of time been zoned by the City of Birmingham for commercial use. Over the years your Affiant's property has been used ... for the sale of used automobiles. The property ... is located adjacent and contiguous to the Bankhead Highway. Exposure to U.S. Highway 78 is vital to the operation of a used car sales business. Also, ingress and egress [are] essential to the operation of a used car sales business, as well as any type of commercial activity."
"Defendants, Jefferson County and The City of Birmingham, did on or about November 15, 1992, commence the construction of an overhead walk bridge over and across U.S. Highway 78 at G.W. Scott School. This walk bridge is adjacent and contiguous to your Affiant's property. The overhead bridge has now been completed and substantially reduces the exposure of your Affiant's property to persons traveling in motor vehicles on and over U.S. Highway 78. The overhead bridge also substantially interferes with the ingress [to] and egress [from] to your Affiant's property to and from U.S. Highway 78. Your Affiant's property has been diminished in value by virtue of the overhead bridge. The overhead walk bridge has resulted in a direct physical disturbance of a right, either public or private, which your Affiant enjoys in connection with the said property, and which diminishes the value of your Affiant's property by virtue of such disturbance. Your Affiant has sustained and is sustaining special damage in excess of that sustained by the general public."
"The overhead walk bridge is unsightly and diminishes the desirability of your Affiant's property for business or commercial establishments. The overhead walk bridge has impaired ingress and egress [from and to] U.S. Highway 78. Also, the overhead walk bridge has resulted in pedestrian traffic entering your Affiant's access drive from the walk ...