author: BEATTY, Justice.

text:
    ALABAMA PUBLIC SERVICE COMMISSION, etc. et al. v. LANE TRUCKING, INC.
    79-757.
    Supreme Court of Alabama.
    Feb. 20, 1981.

      Euel A. Screws, Jr., Montgomery, for appellants Magic City Trucking Service, Inc., etc., et al.
    Helen Nelson, Montgomery, for appellants Alabama Public Service Commission, etc., et al.
    Terry P. Wilson of Turner, Wilson & Christian, Montgomery, for appellee.
   BEATTY, Justice.

Appeal by the Alabama Public Service Commission and five protesting carriers from a circuit court order which reversed a decision of the Commission. We reverse and remand.

The case began with an application filed with the Commission by Lane Trucking, Inc. (Lane) to extend its existing operations as a common carrier. At that time Lane already had authority to transport a number of commodities, road materials and aggregate, between points south of a line beginning at the point at which U. S. Highway 11 crosses the Alabama-Mississippi boundary line, continuing along that highway to and including the Birmingham commercial zone, then eastward on U. S. Highway 78 to the Alabama-Georgia boundary line. That authority restricts service to “construction contractors and suppliers of construction contractors and construction, building or roadbuilding projects.” In its application to extend its authority Lane sought to: (1) add four commodities to its existing certificate (moss stone, clay, bauxite, and ore fines); (2) increase its existing operating territory by adding the upper orie-third of the state to its certificate;-and (3) remove the service restrictions noted above. Lane’s application was protested by Magic City Trucking Service (Magic City), Alabama Bulk Carriers, Inc. (ABC), Chem Haulers, Inc. (Chem), Weems Hauling, Inc. (Weems), and Coosada Trucking Company, Inc. (Coosada).

Initially the matter was orally heard by a hearing examiner on December 5, 1978, the protestants being present. A continued hearing followed on December 18, and at that hearing ten supporting witnesses testified. Lane did not submit shipper support for “ore fines” or “moss stone.” (The parties instruct us that “clay” and “bauxite” are one and the same commodity.) Briefs were filed with the examiner by the parties.

The examiner’s report, after making findings of fact, contained a recommendation that the application be granted in part, 1. e., that Lane be authorized to have its present commodities, plus “clay,” between points in its present territory and all points north thereof, and that the northern boundary of the existing territory be extended to the boundary of Jefferson County.

Lane and the protestants filed objections to the examiner’s order. The matter was submitted then to the entire Public Service Commission which, on May 23, 1979, entered its report concluding that Lane had failed to carry its burden of showing that the proposed operations were required by public convenience and necessity, and that the examiner’s recommendation was not supported by the evidence. The Commission denied Lane’s application. After considering a petition for reconsideration filed by Lane and a reply to it by the protestants, the Commission again denied Lane’s application, whereupon Lane appealed to the circuit court under Code of 1975, § 37-3-29. Extensive briefs were filed in that court. On June 4, 1980 the circuit court entered an order finding the recommendations of the examiner to be “just and reasonable and supported by sufficient evidence.” That court ordered the Commission to approve the hearing examiner’s recommendations. The Commission and the five protestants have appealed from that order.

Although the parties express the issues before us in different ways, they essentially agree that the controlling issue is whether the Commission erred to the prejudice of Lane’s substantial rights in its application of the law; or whether the Commission’s order was based upon a finding of facts contrary to the substantial weight of the evidence. See Code of 1975, § 37-1-124.

The scope of our review of Public Service Commission orders has been expressed in numerous decisions. We are required by statute to take that order as prima facie just and reasonable. § 37-1-124. That order must be affirmed if it is supported by substantial evidence. Alabama Gas Corporation v. Wallace, 293 Ala. 594, 308 So.2d 674 (1975). A circuit court order based upon a review of the Commission’s order carries no presumption of correctness; we review that court’s order as though the appeal had been directly to this Court, Alabama Public Service Commission v. Chem-Haulers, Inc., 293 Ala. 677, 309 So.2d 453 (1975), and in exercising our review we must be mindful not to substitute our own judgment for that of the administrative authority. Hiller Truck Lines v. Alabama Public Service Commission, 292 Ala. 161, 290 So.2d 649 (1974).

Initially we consider the effect of the hearing examiner’s order upon the Commission’s later review.’ Was the Commission bound to accord to its examiner’s report a presumption of correctness? In Chem-Haulers, supra, the hearing examiner had taken evidence ore tenus and reached a conclusion which the Commission, which had made no findings of fact, later overruled. Following Alabama Public Service Commission v. Perkins, 275 Ala. 1, 151 So.2d 677 (1962), we held that because the examiner saw and heard the witnesses ore tenus and observed their demeanor, his report was entitled to “some favorable presumption.” We point out, however, that in Perkins and in Chem-Haulers, the evidence was conflicting on the issues presented.

In this case, however, we do not perceive any conflict in the evidence which would call the ore tenus rule into play. The two instances of alleged conflict in the evidence cited by the petitioner refer to testimony of Mr. Ben Mathews of Couch Construction Company, a witness for the petitioner. At one point he testified that his company had experienced problems with the service of Coosada; that on numerous occasions his company had asked for a certain number of trucks from Coosada which Coosada had not been able to provide. Mr. William Echols, the dispatcher for Coosada, did not dispute Mathews’s testimony, but did explain what had occurred, disclosing that there was not any conflict with Mathews testimony:

The only one that he would be talking about would be the haul in the past couple of months, just previously, at Dannelly Field, here in Montgomery, and they were resurfacing some of Dannelly Field; it’s on Highway 80 and sometime, I believe, they wanted a certain amount of trucks and, due to, maybe, they had trouble with their organization. They called and said they wanted a certain amount of trucks and another foreman would ask for a certain amount of trucks, and, you know, some communications problem, but the job was complete, I thought, and I thought it was a pretty good job.

The petitioner’s other assertion of a conflict in the evidence deals with the testimony of Mr. William Thornton of R & S Materials, who testified that he had contacted Coosada with regard to shipments to various points in north Alabama. We quote from his testimony:

Q Have you had any problems with motor carrier service?
A Not mainly, really problems. I guess — I don’t know what you call it. You call them and they say, “Well, I just can’t get there today.” I can understand that, you know, but sometimes it seems you get the same answer over and over all the time. And then you have got, you know, even though all you do is sell the material to the people, most of the people you sell do not have their own trucks, so therefore they are expecting you to hunt them up somebody to haul it for them. So, I try to hunt them up somebody and sometimes I am lucky and sometimes I say, “I just can’t find anybody to haul it.” So I just lose a sale on it.
Q Does that happen very often?
A Several times this past year. I had some stuff I could have shipped into Huntsville and I couldn’t get it there.
Q. Have you had other customer requests for service:
A Yes, I had one going to Jasper, Alabama and I couldn’t get it there.
Q Did you attempt to contact carriers?
A Yes. I called one on that. They just couldn’t get around to it.
Q Who did you call?
A Coosada. I know it has been a busy year for everybody.
Q Who have you used on these shipments north of that line thus far?
A You mean to Gadsden? I used Coo-sada — I mean the only one I know could haul it up there.
Q Have you had any problems getting service on that?
A They said they were doing the best they could do ...

Mr. Echols also explained, but did not refute, this testimony:

Q Okay. Now, Mr. Thornton, I think, from R & S Materials was — testified as to a sale that he lost, I believe, in the Gadsden — Rainbow City area, where Coosada was either used to truck the sand up there, or didn’t have trucks available. Are you familiar with that incident?
A Yes, sir, the only thing that I could relate would probably be with one of our concrete customers in that area, who was several months behind with their bill, and we couldn’t haul any more material until they caught up with what they owed us. They have since done that, and we are hauling for them, and, I am sure, they are completely satisfied — no complaints.
Q That customer is who?
A Service Concrete.

We conclude, therefore, that no conflict exists in the evidence which would accord to the examiner’s report an ore tenus presumption. Moreover, and in contra-distinction to Perkins and Chem-Haulers, supra, the Commission in this case made detailed findings of fact, some of which were in addition to those made by the examiner.

Therefore we must determine whether the Commission’s order, which is prima fa-cie reasonable, is supported by substantial evidence.

In support of his application the petitioner presented eleven witnesses: C. B. Lane, Jr., C. T. Thackston, Ben Mathews, Joel Wilson, M. S. Hopper, Roy Asbell, Bill Campbell, Joseph Crocker, William P. Thornton, Jr., Jonathon E. Hightower, and Wayne Wallace. We summarize the relevant portions of their testimonies.

C. B. Lane, Jr., president and general manager of Lane Trucking, Inc., testified that Lane already is providing transportation services for exempt commodities (e. g., fertilizer) to points in north Alabama, although his equipment must “deadhead” (travel empty) from north Alabama to the northern boundary of his present authority. An extension, he testified, would cut down on his deadhead mileage. He also disclosed over 900 clay shipments his firm had handled under a trip-lease arrangement with ABC between January 1, 1978 through October 31,1978. His firm could provide more equipment if it held the authority itself. On cross-examination Lane acknowledged that exempt commodities carried by his firm to north Alabama averaged about ten hauls per month, and that all trucking businesses would experience an empty back-haul. He also conceded that there were at least two other licensed carriers presently possessing authority to haul clay-bauxite if shippers should call upon them.

Thackston, treasurer and general manager of C. T. Thackston Sand and Gravel, Inc. of Montgomery, testified that his firm’s plant is in Montgomery County, and ships sand and roofing gravel to Gadsden, Jasper and Huntsville. He sees a potential for additional business in north Alabama and hopes it will be as much as a twenty percent increase. He had thirty-five units of private equipment, and has operated up to one hundred trucks out of Montgomery. Availability of motor carrier equipment is a problem, and on big orders he needs additional service, his own equipment being primarily set up for short hauls serving Montgomery and the surrounding area. On cross-examination Thackston testified that a “substantial portion” of his shipments outside Montgomery County fall within the present area of Lane’s authority, and that approximately ninety-five percent of all of his company’s sand and gravel shipments are delivered within Lane’s present authority. His north Alabama shipments comprised only about five percent of his revenue and “we are hoping that our business will go further north, but we don’t have the business at this time.” He had used Coosa-da in the past and still uses them somewhat, but had never used Magic City to service north Alabama even though he was aware of their authority. He would have no objection to using Magic City, Chem-Haulers or Alabama Bulk for his north Alabama loads.

Ben Mathews, vice-president of Couch Construction Company of Dothan, testified that his company operates ready-mix concrete and asphalt plants. He testified that his company on occasion had to shift raw materials sources during a job from points south of Lane’s authority line to points north of it, and that he foresaw handling future projects in north Alabama and would need dependable motor carrier service if that occurred. On cross-examination he revealed that in 1978 his company had not ordered any materials from the northern third of Alabama, nor had it shipped any materials to that area. His object in supporting Lane was in anticipation of obtaining jobs in north Alabama. He also testified that he would have no objection to using Magic City or Weems for hauling jobs in north Alabama.

Joel Wilson, vice-president of Didier-Tay-lor Refractories of Eufaula, testified concerning shipments of bauxite to Leeds and Ragland through the services of ABC, which in turn make trip-lease arrangements with Lane and Coosada for the actual hauling, with the invoices and paperwork being done by ABC. He stated that initially he had unsuccessfully contacted five or six motor carriers before contacting ABC, and that all of the service provided by ABC had been through the trip-lease arrangement with Lane, which had offered to provide additional service if its application was granted. Wilson understood that Coosada was giving good service in its hauling and he would have no objection to using Coosa-da. Further, on those occasions of difficulty in obtaining a sufficient number of trucks, both with Lane and Coosada, the occasions were based upon “spur of the moment” requests.

M. S. Hopper, president of an Andalusia firm involved in the business of highway paving, testified that his company had two jobs on 1-59 around Gadsden which involved slag shipments, and that he was bidding on additional work in that area. He also foresaw additional business north of the Birmingham area. Testifying about some company slag shipments by rail from Gadsden to a Houston County job, Hopper stated that he did not attempt to find any motor carrier service to haul this commodity even though he knew of several motor carriers which had the authority. He would have no objection to using Magic City, Weems, Coosada, and ABC, for shipments in the northern one-third of the state. He had had good service from Lane and supported its application in anticipation of new business in north Alabama where he hoped to use Lane because of their long business relationship, though he had no objection to using other licensed carriers.

Roy Asbell, sales manager for Wade Sand and Gravel Co., testified that his company produced crushed limestone at its Birmingham plant and sand and gravel from its Jemison quarry. Ninety-five percent of their shipments of stone are transported by truck, and most of this in the Jefferson County area. A small percentage, about one percent, would go to points north of Birmingham. He anticipated an increase in his business in the Jasper area, and would prefer to use Lane in the north Alabama points because of their long business relationship and Lane’s satisfactory service. Most of his customers arrange for their own transportation; however, his company has used Magic City, Weems, and Lane. Concerning the availability of other carriers, Asbell testified:

Q Have you had problems with other, with existing motor carriers?
A No, we have had, you know, we haven’t had any trouble with any of them actually, except sometimes you call them and they don’t have any equipment available.

Yet he added that it was not unusual in the industry for a carrier on occasion to be unable to deliver a truck, and that the services of Coosada, Magic City and Weems have been reasonably satisfactory.

Bill Campbell, president of Southeast Materials, testified that his company had an exclusive contract to sell limestone from the Southern Ready-Mix quarry at Calera. They ship from Calera to a point near the Jefferson-Walker County line and into Greene and Pickens Counties. Southeast, requiring deliveries on a timed basis, has used Coosada, Southern Haulers, Prattville Haulers, and Magic City, and there had been occasions when he would not get enough equipment. His company sells sand and gravel out of Millbrook, and Campbell thought the same market in north Alabama would open in the near future. He added that the service of Coosada, Southern Haulers, Magic City, Weems and Bama Excavating for hauls to points north and west of Calera had been satisfactory, except for occasional needs for extra trucks. His support of Lane’s application was in anticipation of additional future business in north Alabama.

Joseph Crocker, sales representative for Southern Stone, a manufacturer of crushed stone, sand, gravel, and asphalt, testified that his company operated eight quarries in Alabama. The main plant, at Maylene, ships most of its product to South Alabama via Lane, Coosada, M & M, Magic City, Bama, and others. Some shipments were made to Pickens County. Most of their shipments required time deliveries, and his company had experienced some transportation problems from their Cherokee facility. He anticipated a switch from rail service, by which gravel is shipped. He testified that he had no problems with the existing carrier service from any of their locations except possibly the Cherokee location, but he had no problem in using other licensed carriers serving that site.

William P. Thornton, Jr., a sales representative for R & S Materials, a sand and gravel producer in Macon and Montgomery Counties, testified that as a salesman he had difficulty in getting materials hauled to Florence and Gadsden, although he had searched for motor carrier service. He stated that his company probably had lost some sand sales because of the absence of motor carrier service to north Alabama. He later testified that material to Florence was shipped by rail, and that he encountered difficulty on only one instance when he attempted to ship by truck, and the only carrier he contacted for that haul was Coo-sada. He did not know at that time that Magic City had authority. He didn’t remember whether he called M & M Trucking on his Jasper and Huntsville jobs, but he did call Coosada. He stated that he would have no objection to using Magic City, M & M, or any other licensed carrier.

Jonathon Hightower, office manager with Millbrook Sand and Gravel Company, which primarily serves concrete and asphalt customers, testified that his firm had been in business only several months and as yet had not shipped to points north of Birmingham. Nevertheless, Millbrook was preparing bids on two north Alabama projects. Occasionally they require carrier service on short notice. Presently Millbrook is using Lane, Coosada, Keith Williams, and G & S. Millbrook’s dump truck requirements are being substantially satisfied by these present shippers, and if north Alabama orders were forthcoming, Hightower would have no objection to using other carriers.

Wayne Wallace, sales representative with Vulcan Materials, testified to his familiarity with his company’s truck shipments of limestone, aggregate and slag from their Alabama plants, and explained that normally each plant served a given area, although occasionally shipments would overlap due to production problems. He testified that in the materials business the demand for trucks fluctuated, and that on given times there would not be enough equipment available, yet existing motor carriers had been able to supply the needed equipment. Peak and slack periods for trucking demands, he stated, were due in large part to weather conditions. Vulcan’s north Alabama plants are served by “local” haulers who haul in the trade area of those particular plants, while Vulcan’s Calera plant, the crushed stone plant closest to south Alabama, makes more prevalent use of common carriers such as Magic City, Coosada, Weems, Keith Williams, and Southern Haulers. He had no objection to using Magic City, Coosada and some other carriers to haul the slag going south, although on one job Coosada, the only trucker called, could not handle a shipment from Gadsden to Houston County.

The protestants introduced evidence which tended to establish their readiness and ability to provide the necessary service to shippers.

Randy Luffman, director of tariffs and commerce for Chem-Haulers and ABC, testified to the equipment of Chem-Haulers, consisting of eighty truck tractors, as well as to these companies’ investment. Luff-man showed that ABC had authority to haul any commodity within the state, except cement, lime and mortar mix. He also showed by exhibit the revenues from shipments handled by Lane under its trip-lease arrangement with ABC. He noted that Chem’s eighty units are scattered throughout the thirty-two states within its authority, and that ABC operates only four units which are stationed in Birmingham. It was Luffman’s opinion that the grant of Lane’s application would result in a tremendous loss of revenue and greatly harm ABC.

George Roberts, general manager of Weems, testified that his company owned twenty-five trucks and also twenty to twenty-five leased units. He stated that their authority was virtually that applied for by Lane. Weems had occasionally trip-leased with ABC, usually for north Alabama shipments where Weems could operate under their own authority anyway, and also trip-leased with Magic City occasionally. Weems operates eighteen separate dump trucks and trailers. Roberts testified that his company could not handle a request for service from Vulcan Materials at Gadsden to Houston County.

Horace Theriot, the accountant and office manager for Coosada, verified exhibits showing Coosada’s authority and equipment consisting of between ninety and one hundred owned and operator-leased trucks and tractor-trailer units. He also authenticated a summary of Coosada’s sand and bauxite hauling from January 1978 through November 1978 to points north of Highways 11 and 78. Some of these shipments were shown to be within the Birmingham commercial zone which Lane has authority to serve. The exhibit also showed that approximately $200,000 in revenue was subject to diversion by Lane. Theriot’s opinion was that Coosada had sufficient equipment to satisfy shippers’ requirements from points south to north of Highways 11 and 78, although he did not know whether his company was providing service from the northern third of the state to south Alabama.

William F. Echols, Jr., vice-president and dispatcher of Coosada, testified that Coosa-da operated dump trucks throughout Alabama for all points and places, and that its equipment is designed to fill the need of the shipping public for that type equipment, and that Coosada had sufficient equipment to provide such service. He added that it has hauled for and the solicited business from Vulcan Materials, National Cement and Didier-Taylor, Thackston, Millbrook, Wade, Southern Stone, and R & S Materials. Coosada, he stated, rarely failed to provide equipment upon request, except when the call is made at the last minute.

Wallace Harper, secretary and office manager of Magic City Trucking Service of Birmingham, furnished exhibits which disclosed their equipment and accounts receivable. It was shown that the company employed one hundred ninety-four employees, owned and operated thirty-four service trucks, owned and operated eleven tandem-axle dump trucks, thirty tandem tractors, sixty tri-axle dump trucks, thirty-one triaxle dump trailers, had between thirty-five and forty permanently leased units, and had available one hundred additional units. Harper testified that Magic City’s authority covered the entire state, and its authorized commodities included those sought by Lane.

Their accounts receivable exhibit disclosed Magic City’s customers, materials and destinations for hauls made in 1977, which were comparable for 1978. According to Harper, Magic City was ready, willing and able to serve all needs of the witnesses supporting Lane’s application, and was serving most of them already. In fact, he stated that seventy-five percent of Magic City’s hauling is one-way, i. e., without a back haul. Lane’s application, if approved, would have an adverse economic impact on Magic City which, Harper stated, for at least six months before the hearing had received no complaint from the witnesses for Lane, nor had Magic City turned down business from any of them.

Taking the evidence as a whole we have concluded that there is substantial evidence in the record supporting the Commission’s conclusion that Lane’s proposed operations were not required by public convenience and necessity. The evidence supports the conclusion that there is an overall adequate motor service to the territories sought in the application. Indeed, many of the supporting witnesses apparently had not shipped anything to north Alabama, and there was an absence of proof that any shipper could not get commodities shipped to north Alabama by existing facilities, especially since most of them had not contacted all of the available carriers because they were unaware of their authority. Much of the “need” for expanded service, it appears, was based upon the speculation that the economy would “open up” in north Alabama and ultimately result in additional demands for traffic. To counter this, the protestants established facts concerning transport availability of a substantial nature to the territory now sought by Lane.

The following statement contained in Alabama Public Service Commission v. Perkins, 275 Ala. 1, 4, 151 So.2d 627 (1963), is pertinent here:

Proof of public convenience and necessity requires an affirmative showing that the proposed operations are superior to those presently authorized carriers; or that the proposed operations will serve a useful purpose which cannot or will not be met by existing carriers....

We are convinced by a review of the entire record that the Commission’s assessment of the evidence was correct. Cf. Service Express, Inc. v. Baggett Transportation Co., 281 Ala. 666, 207 So.2d 418 (1968). Accordingly, the judgment of the trial court is reversed, and this cause is remanded to that court with directions to enter an order affirming the order of the Commission of May 23, 1979.

REVERSED AND REMANDED.

TORBERT, C. J., and SHORES and ADAMS, JJ., concur.

JONES, J., concurs in the result.


source: Caselaw Access Project

author: SHORES, Justice.

license: Public Domain

text:
    H. B. McCLENDON and Jewel McClendon v. The CITY OF BOAZ. Christine DICKINSON v. The CITY OF BOAZ.
    79-833, 79-834.
    Supreme Court of Alabama.
    Feb. 20, 1981.

      T. J. Carnes of Carnes & Carnes, Albert-ville, for appellant Christine Dickinson.
    W. D. Wilkes, Jr. of Starnes, Smith & Wilkes, Guntersville, for appellants H. B. McClendon & Jewel, McClendon.
    Philip L. Green, Boaz, for appellee.
   SHORES, Justice.

These appeals are by plaintiffs, neighboring private property owners, from a partial summary judgment for defendant City of Boaz in an inverse condemnation action arising from the digging of a drainage ditch across plaintiffs’ properties by defendants City of Boaz and Housing Authority of the City of Boaz. The grant of summary judgment was based on the grounds that the claims were barred by the two-year statute of limitations for claims against municipalities under § 11-47-23 and §§ 11-47-190, -191, and -192 of the Alabama Code of 1975. We reverse the judgment and remand the cause for trial on the issue of defendant City’s taking of plaintiffs’ property without compensation.

The plaintiffs assert that an official of the Housing Authority persuaded them each to grant a twenty-foot easement to the City of Boaz for the storm sewer and its future maintenance. The City paid them each one dollar “and other good and valuable consideration” for the easement. Plaintiffs assert that they were not paid the value of the property and did not waive further compensation.

Defendants’ workmen first started work on plaintiffs’ properties on October 28,1976. They constructed a large open concrete drainage ditch some twenty feet in width. Plaintiffs allege that the ditch occupied more than the twenty-foot easement and that the defendants severely damaged plaintiffs’ properties, excavating a large depression in each plaintiff’s lawn, damaging trees on both properties, excavating and converting large quantities of plaintiffs’ soil from the twenty-foot strip and from plaintiffs’ lawns, and piling large heaps of dirt and debris on both lawns. The plaintiffs further allege that the defendants’ current use of the ditch damages them. They assert that the ditch is constructed so that it does not drain well; water accumulates which smells foul and permits mosquitoes to breed; and that trash, debris, weeds, and raw human sewage collect in the ditch, causing a foul odor and a health hazard.

Plaintiffs assert that defendants worked on their property more or less continuously until December 10, 1976, returned during March of 1977 to haul off debris and worked on both properties from August 29 to September 1, 1977. At the trial, an official of defendant Housing Authority asserted that the construction was not yet complete.

On February 22, 1978, plaintiffs filed complaints against defendants City, Housing Authority, and S. J. Otinger Construction Company. On July 6, 1979, plaintiffs amended their complaints, setting them out in new form but specifically stating that they were “amendpng] their complaint[s] heretofore filed.” Plaintiffs alleged essentially the same facts, occurrences and damage as they had in their original complaints. They alleged misrepresentation, breach of agreement, trespass, nuisance, and conversion of dirt. On July 9,1979, and February 4, 1980, they further amended their complaints to allege a taking of their property by defendants City and Housing Authority in breach of an implied contract and without just compensation, and to invoke the court’s equity jurisdiction. The court consolidated the two actions and severed the following claims and set them for jury trial: Plaintiffs’ claims against the Housing Authority and Otinger Construction Company, and plaintiffs’ nuisance claim against the City arising out of events “occurring after July 6,1979, and for six months prior thereto.”

After trial, the court entered judgment in accord with the jury verdict for plaintiffs’ claims for trespass and conversion of dirt against Otinger Construction Company and for breach of agreement and implied contract against defendant Housing Authority. The court granted defendant City’s motion for summary judgment as to “all claims asserted against it in tort . .. and ... for implied contract which allegedly arose because of the taking of plaintiff’s property,” on the basis of § 11-47-23, Alabama Code of 1975. The court further found:

... that the City of Boaz and The Housing Authority of Boaz have the right of ingress and egress on plaintiff’s property, which was one of the subject matters of this suit, and the duty to do so, for the purpose of completing construction, removing debris, and for maintenance and operation of the drainage ditch referred to in this suit and, also, for removing dirt if the plaintiffs assert no claim thereto.

The plaintiffs appealed the court’s final judgment granting the City’s motion for summary judgment. After the appeal, the Housing Authority made payment into the circuit court of the damages awarded against the defendants.

In their appeal, the plaintiffs ask us to reverse the judgment and remand the cause for trial on the plaintiffs’ inverse condemnation claim against the City. They assert that their action was not barred by § 11-47-23 as (1) the cause of action did not accrue until the taking was complete and (2) their amendments related back to the original February 22, 1978, complaint, which was filed less than two years after the cause of action accrued. They assert that the court should not have considered the testimony taken at trial as a basis for the motion for summary judgment and that the Housing Authority’s payment of damages is not a satisfaction of the judgment and does not release the City from plaintiffs’ claim.

The first issue presented is whether the statute of limitations has run on plaintiffs’ inverse condemnation claim. Inverse condemnation is the taking of private property for public use without formal condemnation proceedings and without just compensation being paid by a governmental agency or entity which has the right or power of condemnation. Ex parte W. E. Carter, 395 So.2d 65 (1980). Such an action must be brought within the applicable statutory period. When the governmental entity in question is a municipality, an inverse condemnation claim must “be presented to the clerk for payment within two years from the accrual of said claim or be barred,” § 11-47-23, Code of Alabama 1975. At what point does the cause of action accrue? We hold that the cause of action accrues when the taking is complete. If, as here, the City has full knowledge of the owner’s asserted rights in the premises and has proceeded without exercising eminent domain powers in the manner prescribed by law, then the owner’s inverse condemnation claim is timely if instituted before the project is completed, although more than two years after work was commenced.

In this holding, we are following a line of reasoning enunciated by the Supreme Court of the United States in United States v. Dickinson, 331 U.S. 745, 67 S.Ct. 1382, 91 L.Ed. 1789 (1947), and by the California Supreme Court in Pierpont Inn, Inc. v. State, 70 Cal.2d 282, 74 Cal.Rptr. 521, 449 P.2d 737 (1969). Dickinson concerned a taking due to the flooding of plaintiff’s land by a federally-built dam. Pierpont involved plaintiff’s land used for highway purposes. In the instant case, as in Dickinson,

[t]he Government could, of course, have taken appropriate proceedings to condemn as early as it chose both land and flowage easements. By such proceedings it could have fixed the time when the property was “taken.” The Government chose not to do so. It left the taking to physical events, thereby putting on the owner the onus of determining the decisive moment in the process of acquisition by the United States when the fact of taking could no longer be in controversy.... The Fifth Amendment expresses a principle of fairness and not a technical rule of procedure enshrining old or new niceties regarding “causes of action”— when they are born, whether they proliferate, and when they die. We are not now called upon to decide whether in a situation like this a landowner might be allowed to bring suit as soon as inundation threatens. Assuming that such an action would be sustained, it is not a good enough reason why he must sue then or have, from that moment, the statute of limitations run against him. If suit must be brought, lest he jeopardize his rights, as soon as his land is invaded, other contingencies would be running against him — for instance, the uncertainty of the damage and the risk of res judicata against recovering later for damage as yet uncertain. The source of the entire claim — the overflow due to rises in the level of the river — is not a single event; it is continuous. And as there is nothing in reason, so there is nothing in legal doctrine, to preclude the law from meeting such a process by postponing suit until the situation becomes stabilized. An owner of land flooded by the Government would not unnaturally postpone bringing a suit against the Government for the flooding until the consequences of inundation have so manifested themselves that a final account may be struck.

331 U.S. 747-749, 67 S.Ct. 1384-1385.

Pierpont involved issues closer to the present case, as it was concerned with a construction project. In that case, the California court held that, having voluntarily elected not to condemn the property, the state

may not now urge that respondent’s formal claim was untimely because respondent reasonably awaited completion of the project in order to determine more accurately the exact extent to which its remaining property would be damaged. Certainly it is true that the extent of whatever severance damages were caused by the taking of respondent's land and the construction of the freeway project could be determined more accurately and more satisfactorily after the freeway was complete and in operation than would have been possible from a visualization of the project aided only by description and study of drawings and designs. These considerations contribute to the reasonableness of the rule here adopted quite apart from the fact that until construction had been completed, the plans for the freeway might have been substantially altered, the roadbed relocated or the entire project abandoned.

74 Cal.Rptr. 529, 449 P.2d 745.

This Court has held that in an action for damages for the obstruction of a street by a railroad company, the “claim for damages ... arose from the completion of the work, and the failure [of the complainant] to take steps for the recovery of same within a year enables the respondents to invoke the statute of limitations of one year.” South and North Ala. R. Co. v. Mauter, 202 Ala. 326, 80 So. 408 (1918); Whaley v. Wilson, 112 Ala. 627, 20 So. 922 (1896).

In the present case, the plaintiffs filed suit more than two years after the defendants commenced work on the project. There was testimony at trial by an officer of the Housing Authority that the project was not yet completed and the final judgment gave to the defendants “the right of ingress ... on plaintiff’s property ..., and the duty to do so, for the purpose of completing construction.... ” The project has not yet been completed; thus the statute of limitations has not run on their cause of action against the City.

Because we hold that the statute has not run, it is immaterial to the statute of limitations issue whether the July 9, 1979, amendment relates back to the February 22, 1978, complaint or the July 6, 1979, amendment. However, for any other pertinent issues, the amendment does properly relate back. Under Rule 15(c), ARCP, “[wjhenever the claim ... asserted in the amended pleading arose out of the conduct, transaction or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading.” The claims asserted in the July 9, 1979, amendment arose out of the same events concerned in the February 22, 1978, complaint. That the amendment adds a new theory or revamps the format of the complaint is immaterial. See Rush v. Thomas Duckett Construction Co., 380 So.2d 762 (Ala.1979). When a new theory of liability is based upon the same facts and those facts have been brought to the attention of the opposite party by previous pleading, no prejudice is worked by allowing the amendment. Bracy v. Sippiai Electric Co., 379 So.2d 582 (Ala.1980). We hold that the amendment relates back to the original complaint.

The plaintiffs also assert that it was improper for the trial judge to refer to untranscribed testimony from the trial of the severed issues in considering the defendant City’s motion for summary judgment. We agree. Under Rule 56, ARCP, a judge may consider affidavits, pleadings, depositions, answers to interrogatories, and admissions on file. The thrust of Rule 56 requires that the materials before the trial court for consideration on a motion for summary judgment be written documents. “Summary judgment must be granted or denied on the record which is before the trial court at the time the motion is heard.” Engel Mortgage Co. v. Triple K Lumber Co., 56 Ala.App. 337, 321 So.2d 679, 684 (1975). It is proper on summary judgment for a court to take judicial notice of the record in prior litigation between the same parties in the same court, Ellis v. Cates, 178 F.2d 791 (4th Cir. 1949), or of its own records and of other cases including the same subject matter or questions of a related nature between the same parties, Fletcher v. Evening Star Newspaper Co., 11 D.C.Cir. 99, 133 F.2d 395 (1942). A record is a written memorial of all the acts and proceedings in an action or suit in a court of record. State ex rel. Whatley v. Brewer, 19 Ala.App. 291, 97 So. 160 (1923).

The last issue presented is whether payment of the damages awarded against the Housing Authority releases the City as a joint defendant of the Housing Authority. The City asserts that the Housing Authority’s payments of $8,462.15 for plaintiffs McClendon and $9,899.50 for plaintiff Dickinson to the clerk of the circuit court operates as a discharge. We disagree.

It is well settled in Alabama that while a party is entitled to full compensation for his injuries, there can be only one satisfaction thereof. If a plaintiff recovers judgment against one joint defendant and obtains satisfaction of that judgment, this operates as a discharge of the other defendant. Maddox v. Druid City Hospital Board, 357 So.2d 974 (Ala.1978); Williams v. Colquett, 272 Ala. 577, 133 So.2d 364 (1961). But payment of the amount of the judgment into court without participation by plaintiff and without his acceptance of the same is not such a satisfaction. Bradford v. Carson, 223 Ala. 594, 137 So. 426 (1931); Blann v. Crocheron, 20 Ala. 320 (1852).

To determine the plaintiff’s right to elect [his remedy], he must act. Were he to order execution to issue on the judgment in his favor; or, in case of payment to the clerk, as in this case, were he to accept the money, his election would be considered as having been made; and it might be specially pleaded by a co-trespasser, against whom a suit was then pending, as an estoppel. But to make the plea good, it should aver that the sum so paid in satisfaction was accepted by the plaintiff as such. [Emphasis in original.]

Blann v. Crocheron, 20 Ala. at 321.

The plaintiffs here have not accepted defendant Housing Authority’s payment. There has thus been no satisfaction of the judgment and no discharge of the defendants.

We thus hold that the trial court was incorrect in granting defendant City’s motion for summary judgment. We reverse the judgment and remand the cause of action for trial on the issue of defendant City’s taking of plaintiffs’ private property without just compensation.

REVERSED AND REMANDED.

TORBERT, C. J., and MADDOX, JONES and BEATTY, JJ., concur.


author: MADDOX, Justice.

text:
    I. J. FOSTER v. ALABAMA POWER COMPANY et al. Richard Dale FOSTER, a minor, 15 years of age, by his father and next friend, I. J. Foster v. ALABAMA POWER COMPANY et al.
    79-933, 79-934.
    Supreme Court of Alabama.
    Feb. 20, 1981.

      Charles L. Howard, Jr. of Howard & Howard, Birmingham, for appellants.
    S. Allen Baker, Jr. of Balch, Bingham, Baker, Hawthorne, Williams & Ward, Birmingham, for appellee.
   MADDOX, Justice.

This appeal is from an order of the trial court granting summary judgment in favor of the defendant, Alabama Power Company. Plaintiffs, father and son, filed separate actions against Alabama Power Company alleging that on September 3, 1973, Richard Dale Poster, the 15-year-old son of I. J. Foster, climbed a transmission line tower owned or maintained by Alabama Power Company in the vicinity of Overton, Alabama. Young Foster came in contact with a high voltage line, experienced electrical shock and was caused to fall and suffer severe and permanent personal injury.

In their complaints, as last amended, the plaintiffs claimed: (1) that Alabama Power Company was negligent in and about its trade or business; (2) that the power line was negligently maintained; (3) that the defendant wantonly conducted the trade or business of handling the transmission of electricity and did wantonly maintain the power line; (4) that the defendant negligently or wantonly created circumstances which induced persons to go on the tower; (5) that the defendant negligently or wantonly failed to cause a proper warning; (6) that the defendant negligently or wantonly failed to properly maintain warning devices; and (7) that the defendant negligently or wantonly failed to provide or maintain adequate safeguards or barriersj all in the transmission of electricity, a dangerous instrumentality. j

Alabama Power answered and moved for summary judgment on the grounds that there were no genuine issues of material fact, on the ground that Richard Dale Foster was a trespasser upon the transmission line tower at the time of his injury and that the only duty owed to him by Alabama Power was not to willfully or wantonly injure him. !

The trial court granted Alabama Power’s motion for summary judgment on December 11,1979. Shortly thereafter, the appellants, plaintiffs below, moved to have the court set aside its order and judgment on the grounds that they were not ready for the matter to be submitted to the court for a final order and that they wanted more time in which to perform additional discovery and an opportunity to file a response to the motion for summary judgment before final submission. Thereafter, appellants performed additional discovery and the matter was submitted to the court for a final judgment. Once again, the court found in favor of Alabama Power and issued an order granting summary judgment in its favor on April 16, 1980.

The only issue presented is whether the trial court erred in granting sum'mary judgment in favor of the Power Company. In deciding whether there was a genuine issue as to any material fact which would warrant submission of the case to a jury, we must examine the duty, if any, owed by Alabama Power to Richard Dale Foster, and the applicability of the doctrine of attractive nuisance to these facts in order to determine the appropriateness of summary judgment on these facts.

In examining the applicability of the doctrine of attractive nuisance, we must determine whether the transmission line tower was a dangerous condition or a dangerous instrumentality. An excellent statement of the rationale upon which the attractive nuisance doctrine is based is found in Tolbert v. Gulsby, 333 So.2d 129 (Ala. 1976). The Court stated:

This doctrine offers an exception to the limited duty owed by a landowner to a trespasser. It applies only where trespassing children are involved. Alabama Great Southern Railroad Co. v. Green, 276 Ala. 120, 159 So.2d 823 (1964); see, Fulford, The Tort Liability of Possessors of Property to Trespassing Children in Alabama, 11 Ala.L.Rev. 1, 9-13 (1958). The doctrine evolved from the “turntable” theory pronounced by the United States Supreme Court in Sioux City and P. R. Co. v. Stout, 84 U.S. (17 Wall.) 657, 21 L.Ed. 745 (1873) and was adopted by this court in the case of Alabama Great Southern Railroad Co. v. Crocker, 131 Ala. 584, 31 So. 561 (1901). The turntable doctrine over the years has been narrowly applied and rigorous standards of application have developed around its use. The most important restriction is that the dangerous condition on the landowner’s property must be found to be naturally attractive to small children—thus leading to the “attractive nuisance” terminology.

333 So.2d at 132. Thus, the Court noted that the doctrine only applies where “trespassing children” are involved and where the landowner’s property is found to be “naturally attractive to small children.”

In the instant case, the doctrine of attractive nuisance cannot apply because Richard Dale Foster was 15 years old at the time of his injury and the evidence presented in connection with the motion for summary judgment shows that he was a boy of intelligence. For example, he was an Eagle Scout. In Central of Georgia R. Co. v. Robins, 209 Ala. 6, 95 So. 367 (1923), this Court first discussed a number of cases which held that someone over 14 years of age cannot recover under the doctrine of attractive nuisance and then stated:

We think this is the correct view of the matter, deducible from the nature of the duty prescribed, and from the necessities of the class for whose benefit the law has raised the duty. Certainly it is in accord with the general consensus of judicial opinion, and it is almost conclusively significant that among all the reported cases we do not find a single instance in which the doctrine of the turntable cases has been applied to, or even invoked by, a child who has passed the age of 14; for the absence of such instances would seem to indicate either a general implicit understanding that youths of 14 and over are not children of “tender years,” or else that at that age they are no longer subject to the domination of childish instincts, and do not need the protection of the rule—so far, at least, as turntables are concerned.

209 Ala. at 8, 95 So. 367. Further, this Court, in Abbott v. Alabama Power Co., 214 Ala. 281, 107 So. 811 (1926), citing Robins, stated:

[T]he plaintiff could not recover, as for an attractive nuisance, as he was a boy of intelligence and over 15 years of age. Central R. R. of Ga. v. Robins, 95 So. 367, 209 Ala. 6, 36 A.L.R. 10.

Appellants further contend that the Alabama Power transmission line tower with its high voltage power line is a dangerous instrumentality. The maintaining of a dangerous instrumentality on one’s property creates “straight negligence” liability. Tolbert v. Gulsby, 333 So.2d 129 (Ala.1976). This doctrine, like that of attractive nuisance, depends upon the status of the injured party in relation to the defendant’s land.

In Tolbert v. Gulsby, this Court, commenting upon the duty owed to persons upon another’s land, stated:

Under a negligence count, the duty owed by a landowner depends on the status of the injured party in relation to the defendant’s land. See Mullins v. Pannell, 289 Ala. 252, 266 So.2d 862 (1972); Autrey v. Roebuck Park Baptist Church, 285 Ala. 76, 229 So.2d 469 (1969). If the injured party is determined to have been a trespasser, the landowner owes only the duty not to wantonly or intentionally injure him. City of Dothan v. Gulledge, 276 Ala. 433, 163 So.2d 217 (1964); Alabama Great Southern Railroad Co. v. Green, 276 Ala. 120, 159 So.2d 823 (1964). “Under ordinary conditions trespassing children, or children on the land of another as bare licensees, occupy the same position as trespassing adults.” Alabama Great Southern Railroad Co. v. Green, supra; Mullins v. Pannell, 289 Ala. 252, 266 So.2d 862 (1972), If plaintiff is found to have been on defendant’s property with his consent or as his guest, but with no business purpose, he attains the status of licensee and is owed the duty not to be willfully or wantonly injured or not to be negligently injured after the landowner has discovered his peril. Autrey v. Roebuck Park Baptist Church, 285 Ala. 76, 229 So.2d 469 (1969).
“Wantonness” has been defined by this court as
“the conscious doing of some act or the omission of some duty under the knowledge of the existing conditions, and conscious that from the doing of such act or omission of such duty injury will likely or probably result. Britton v. Doehring, 286 Ala. 498, 242 So.2d 666; Westbrook v. Gibbs, 285 Ala. 223, 231 So.2d 97; Tucker v. Cox, 282 Ala. 489, 213 So.2d 222; Culpepper & Stone Plumbing & Heating Co. v. Turner, 276 Ala. 359, 365, 162 So.2d 455. Wantonness may arise from knowledge that persons, though not seen, are likely to be in a position of danger * * *. Lewis v. Zell, 279 Ala. 33, 181 So.2d 101; Graves v. Wildsmith, 278 Ala. 228, 177 So.2d 448. Wantonness may arise after discovery of actual peril, by conscious failure to use preventive means at hand. Godfrey v. Vinson, 215 Ala. 166, 110 So. 13. Knowledge need not be shown by direct proof but may be shown by adducing facts from which knowledge is a legitimate inference. Britton v. Doehring, supra; Lewis v. Zell, supra.Kilcrease v. Harris, 288 Ala. 245, 251, 259 So.2d 797, 801-02 (1972).

333 So.2d at 131-132.

Thus, if the injured person is found to be a trespasser, the only duty owed to him by the landowner is not to wantonly or intentionally injure him. The duty owed is the same, whether the trespasser is an adult or a child. As stated in Alabama Great Southern Railroad Co. v. Green, 276 Ala. 120, 159 So.2d 823 (1964):

Under ordinary conditions trespassing children, or children on the land of another as bare licensees, occupy the same position as trespassing adults. Highland Avenue & Belt R. Co. v. Robbins, 124 Ala. 113, 27 So. 422. A landowner is not required to anticipate that children will go where they have no right to be. Sheffield Co. v. Morton, 161 Ala. 153, 49 So. 772.

The duty of one who maintains a power line has been stated as follows:

“The duty of an electric company, in conveying a current of high potential, to exercise commensurate care under the circumstances, requires it to insulate its wires, and to use reasonable care to keep the same insulated, wherever it may reasonably be anticipated that persons, pursuing business or pleasure, may come in contact therewith. This statement of the rule implies that, in the absence of statute or municipal ordinance, it is not necessary to insulate wires which are so placed that no one could reasonably be expected to come in proximity to them.” Curtis on Law of Electricity, § 510. Alabama Power Co. v. Mosley, 294 Ala. 394, 318 So.2d 260 (1975); Alabama Power Co. v. Smith, 273 Ala. 509, 142 So.2d 228 (1962); Alabama Power Co. v. Irwin, 260 Ala. 673, 72 So.2d 300 (1954). Electric companies are not insurers of the public’s safety; and the law does not impose strict liability for all accidents involving their power lines. Alabama Power Co. v. Tatum, 293 Ala. 500, 306 So.2d 251 (1975); Alabama Power Co. v. Berry, 254 Ala. 228, 48 So.2d 231 (1950).

Alabama Power Co. v. Alexander, 370 So.2d 252, 254 (Ala.1979).

The Power Company is responsible to trespassers only for a wanton or intentional injury to the trespasser. As stated in Alexander, 370 So.2d at 254, the Power Company must have either actual or constructive notice of the presence of the person who is likely to be injured and “absent this notice, the Power Company [has] no duty to insulate the wires or take precautionary measures unless under the totality of the circumstances, the Power Company should have reasonably anticipated that persons, pursuing business or pleasure, might come in contact with the power lines.”

In this case, while there was at least a scintilla of evidence that the Power Company might have had reason to know that people were in the area and might be near the tower, there was no evidence from which a factfinder could infer that the Power Company had any reason to know that people might be climbing the tower. In his deposition, Young Foster stated that the reason he climbed the tower was “to get a better view of the countryside.” In Ryckeley v. Georgia Power Company, 122 Ga.App. 107, 176 S.E.2d 493 (1970), the Georgia Court of Appeals had the opportunity to consider a fact situation which is very similar to the present case. In Rycke-ley, an eleven-year-old boy was killed when he climbed approximately 40 feet up an electrical transmission line tower, came into contact with a high voltage wire, was shocked and fell to the ground. There Georgia Power had knowledge that people had been shooting at the insulators on the tower and had posted a sign, which had rusted and become illegible, that stated “Danger High Voltage, Do Not Shoot at Insulators.” The Court stated:

In the case of a trespasser, liability arises only where the injury has been occasioned by the wilful and wanton negligence of the owner. No duty of anticipating his presence is imposed, even as to an infant trespasser, as was pointed out in Charleston & W. C. Ry. Co. v. Johnson, 1 Ga.App. 441, 57 S.E. 1064 and the duty to use ordinary care to avoid injuring him after his presence and danger are actually known, is, in point of fact, merely the duty not to injure him wantonly and wilfully. Cook v. Southern Railway Co., 53 Ga.App. 723, 726, 187 S.E. 274, 277. The evidence in the present case shows that the defendant had actual knowledge that people had been coming into the right of way and had been shooting at the insulators on the tower. The evidence further shows that a sign was put on the tower for the dual purpose of discouraging people from shooting at the tower insulators and to warn that climbing it was dangerous because of the high voltage wires atop it. It could be said that the presence of people had been anticipated. But there is absolutely no evidence that the defendant had any knowledge that people had actually ever been climbing up this tower or, more pertinent, that the defendant had any knowledge of the decedent’s presence on the tower which, if so, would have invoked a duty in the defendant not to wilfully or wantonly injure him.

122 Ga.App. at 112, 176 S.E.2d 493.

Plaintiff contends that a material issue of fact was presented on the question whether the Power Company could have reasonably anticipated that plaintiff would climb its transmission line tower. Ordinarily, this would be a fact question, which would preclude entry of a summary judgment.

The trial judge, in an opinion, discussed the evidence submitted by plaintiffs which they contend presented a material question of fact. The trial court opined:

Plaintiffs have also submitted the affidavit of I. J. Foster, in which he states that there was a road alongside the transmission tower upon which he has observed people traveling in cars, motorcycles and other vehicles; that he has also observed that there was a drive around the tower itself for a long time and that the surface of the ground indicated a worn way making a roadbed where vehicles had driven around and about the tower. In another affidavit verified by Ida Poole Foster, she states under oath that the transmission tower was a common place for people to go and to park and spend time; that she saw sparks run down the tower to the ground lots of times and on one occasion, her brother, Wayne, sustained an electrical shock just by leaning against the tower.
None of the statements made in the affidavits alter the fact that Richard did not have permission to climb the transmission tower and was therefore a trespasser rather than an invitee or a licensee at the time he was injured. As the Court noted in its earlier opinion, the only duty owed Richard by Alabama Power Company was not to intentionally or wantonly injure him. Earnest v. Regent Pool, Inc., 288 Ala. 63, 257 So.2d 313 (1972); City of Dothan v. Gulledge, 276 Ala. 433, 165 So.2d 217 (1964).
Our Supreme Court has acknowledged that it is the duty of an electric company to use reasonable care to keep its wires insulated where it may be reasonably anticipated that persons, pursuing business or pleasure may come in contact with the same. Alabama Power Company v. Mosley, 294 Ala. 394, 318 So.2d 260 (1975); Dwight Mfg. Co. v. Word, 200 Ala. 221, 75 So. 979 (1970). However, in the present case, there is no evidence that Alabama Power should have reasonably anticipated that Richard would climb Alabama Power’s electric transmission tower.

Plaintiff essentially argues that the Power Company was under a duty to adopt some means to prevent people from climbing the tower or at least post appropriate warnings so that persons attracted to the tower by curiosity would have some understanding of the danger which would surround them if they attempted to go upon the structure.

Under all the facts presented in connection with the motion for summary judgment, we conclude that the trial judge did not err in granting summary judgment in this case. His judgment is due to be affirmed.

AFFIRMED.

TORBERT, C. J., and SHORES and BEATTY, JJ., concur.

JONES, J., concurs in the result.

      . There was a sign located on the tower which witnesses testified read: “Danger” and “Do Not Climb.” The sign was rusted. The injured boy, at his deposition, testified about the sign:
      Q Well, did you see any signs at ail.
      A I think there’s a sign on there.
      MR. HOWARD: Are you talking about before or since this happened that—
      A I’m talking about during the time.
      MR. BAKER: I’m talking about before, any time before, I’m not even — like a week before or right before you climbed the tower, did you notice any signs on the tower?
      A There’s a sign hanging there.
      Q Well, did you read that sign?
      MR. HOWARD: He didn’t say he saw it before, he said there’s one hanging there now, or was. What he’s asking you is what you saw before you fell—
      MR. BAKER: What you saw before you climbed — before this accident happened?
      A I — you know, not noticing any signs, you know, like I said, all this come up really—
      Q Well now, I’m just saying — I’m not talking about how well you could read it, did you notice a sign before the accident?
      A No, I didn’t.
      Q Did you see anything on that tower that looked like it might have been a sign, that had been rubbed out or rusted over, or anything like that?
      MR. HOWARD: He’s talking about before you fell, young man.
      A Well, I didn’t — if I’d noticed one or something like that.
      MR. HOWARD: Not what you would have done but—
      MR. BAKER: Did you notice anything that looked like it might have been a sign before the accident?
      A No, no, not to catch my sight, no.
      Q In other words, you didn’t see anything?
      A No.
      Q You didn’t see any kind of sign right there near the ladder?
      A I seen — it would be a sign.
      Q There was a sign near the ladder?
      A Right. If it was wrote out, if you could see it better, you could probably — I didn’t, like I said—
      MR. HOWARD: You didn’t see it, did you say?
      A Seen it, maybe glanced at it, I didn’t really see it. I’m saying what I said was maybe, you know, look at it over, overlook it because it was nothing to catch your eye, that’s what I’m saying.
      MR. BAKER: But you did see something that looked like it might be a sign? You weren’t curious as to what that sign might say?
      A Well, it wouldn’t, it wasn’t visible enough to really read it.
      Q Did you, any attempt to read this sign to try to figure out what it said?
      A No, 1 made the judgment in my mind to where, you know, thinking the wires and everything would be safe, so I just went up to see what I could see.
      MR. BAKER: You made a judgment in your own mind that those wires were safe, is that correct?
      A Yes, sir.
      Q And you couldn’t — you didn’t read the sign, did you read any part of the sign?
      A Not that I can remember.
      Q Not even a letter?
      A No. I mean — I’m not saying, I didn’t read it at all myself, no.
      Q All right. You just made your own independent judgment those wires above were safe, is that correct?
      A Right.
      Q All right. Now, after you saw that sign that you couldn’t read, did you climb up the ladder, or climb up the tower?
      A Yes.


author: FAULKNER, Justice.

text:
    Henrietta S. TRIPP v. J. Revis HALL et al.
    79-381.
    Supreme Court of Alabama.
    Feb. 26, 1981.
    Jerome Tucker of Newton & Tucker, Birmingham, for appellant.
    Donald B. Sweeney, Jr., of Bishop, Sweeney, Colvin & Johnson, Birmingham, for appellees.
   FAULKNER, Justice.

This is an appeal from a judgment of the circuit court dismissing Henrietta Tripp’s bill for declaratory judgment against the Jefferson County Board of Education. We affirm.

Henrietta Tripp was employed by the Jefferson County Board of Education on December 28, 1973, as a non-tenured clerk-typist, pursuant to an oral agreement. She was informed by Mr. Pugh, the Director of Employee Relations, Jefferson County Board of Education, by letter dated September 19, 1978, that because of budgetary cutbacks the position was being terminated. He offered to help her find other work within the organization. In fact, three days later, Tripp was offered a comparable job having the same income, and the same responsibilities. On September 27, she was advised that she must indicate to the Board whether she would accept the job by September 28. She ignored the offer, and the Board filled the position by hiring another person. On September 29, Tripp, through her lawyer, informed the Board that she had decided to accept the position. When informed that it had been filled, she brought suit alleging that she had been wrongfully fired.

Tripp contends that her oral contract and the laws of Alabama created a property right which was unlawfully taken from her. We disagree. She was an employee whose duties could be terminated at will. Hence, she could have no property interest in continued employment. But, be that as it may, Tripp’s “lay-off” did not result from anything that she ought to have done, or anything that she ought not to have done. It resulted from lack of funds. Here, the Superintendent, in the best interest of the school system recommended that the position of clerk-typist should be abolished because of budget cuts. This action, as well as the action to terminate the position held by Tripp, was approved on recommendation by the Superintendent to the Board. Thus, we can find no violation of § 16-8-23 and § 16-9-23, Code 1975. Cf. Hembree v. Jefferson County Board of Education, 337 So.2d 9 (Ala.Civ.App.1976).

From the record, it appears that the Board did everything within its power to continue Tripp’s employment, by transferring her, yet she refused its aid until it was too late. Her not having employment with the Board results from her own inaction at the time of the Board’s offer to transfer. She cannot complain that she was wrongfully dismissed.

AFFIRMED.

TORBERT, C. J., and ALMON, EMBRY and ADAMS, JJ., concur.

      . The letter to Tripp read as follows:
      Dear Mrs. Tripp:
      As I mentioned in my letter to you dated September 19, 1978, there has been a budget cutback in the Textbooks Department. On that date I informed you with regret that your last day on the payroll would be September 30, 1978.
      It has been our' intent to find another position for you within the school system. On September 22, 1978, you were offered a position in the Guidance Department with no loss in pay or benefits. On September 25, 1978, you declined to accept the position. As I said to you in our telephone discussion yesterday, I am hopeful you will reconsider the position offered. Unfortunately, we cannot hold this position for you indefinitely because other employees similarly situated must be placed in new positions. Furthermore, the testing of students in the system cannot be delayed without affecting educational services.
      I urge you to reconsider your decision not to accept the job offered. 1 must have a decision by September 28, 1978.


author: EMBRY, Justice.

text:
    Kathryn GLOVER v. LIBERTY NATIONAL LIFE INSURANCE CO.
    79-709.
    Supreme Court of Alabama.
    Feb. 26, 1981.

      Michael L. Murphy, Centreville, for appellant.
    Ollie L. Blan, Jr., Spain, Gillon, Riley, Tate & Etheredge, Birmingham, for appel-lee.
   EMBRY, Justice.

This is an appeal from a final judgment in favor of Liberty National Life Insurance Company, entered upon a jury verdict, in an action by Kathryn M. Glover seeking to recover benefits under policies of insurance, in which she was the named beneficiary, on the life of her husband, Wilfred Glover, payable on account of accidental death. We affirm.

Liberty National had issued several policies of insurance on the life of Wilfred Glover, two of which had been in effect for less than two years. Each of those two policies contained the following provision:

5. SUICIDE — If the insured within two years from the effective date of this policy shall commit suicide, whether sane or insane, the amount payable under this policy shall be a sum equal to the premiums thereon which have been paid to and received by the company less any indebtedness to the company.

The other policies provided double indemnity if the death of the insured resulted, directly and independently of all other causes, from bodily injury effected solely through external, violent, and accidental means.

On 6 April 1979, Wilfred D. Glover was found dead in his mobile home located on Route Two, West Blocton, in Bibb County. At the request of the Sheriff of Bibb County, Sergeant Charles Graham, a criminal investigator of the Department of Public Safety, Alabama Bureau of Investigation, went to Glover’s mobile home and conducted an investigation and examination. This included, among other things, the taking of numerous photographs and examination of certain pieces of physical evidence, including two rifles, a spent cartridge, a shell casing, ammunition, gun cleaning rods, and other materials.

When Liberty National refused to pay the additional monies representing double indemnity on the policies which had been in effect for more than two years, and refused to pay the accidental death benefits on the policies in effect less than two years, Mrs. Glover filed this action seeking all those benefits. Liberty National answered that it was not liable because Wilfred Glover had committed suicide. It tendered to the clerk of the circuit court the premiums which had been theretofore paid on the two policies in effect less than two years. The action was tried to a jury which resolved the issues in favor of Liberty National. Judgment was entered accordingly, whereupon Mrs. Glover perfected this appeal.

Mrs. Glover states the issue for review as error in allowing a witness to give his opinion to an ultimate issue of fact in the case (thus invading the province of the jury).

Each allegedly erroneous ruling is claimed to have occurred in the course of the testimony of Sergeant Graham. At the outset, let it be noted that the evidence is ample to show that he was properly qualified to testify as an expert. As a matter of fact, in her brief, Mrs. Glover does not take issue with Liberty National about the qualifications of Sergeant Graham and makes no statement in it that he was unqualified to give opinions about the matters concerning which he was questioned. She urges that he was erroneously permitted to answer the following questions, in the manner shown, following the objections as they appear:

Q. Now, if you would, Sergeant Graham, show the ladies and gentlemen of the jury how you go about loading and firing that rifle.
MR. BOGGS: Your Honor, we’re going to object to his demonstration because there’s no proof that the gun was loaded other than it had one shell in the magazine or any evidence that the deceased pumped the gun or anything else. There’s no eyeball witnesses to this death.
THE COURT: Overruled.
Q. Go ahead, please sir, and show us how that is done.
A. Normally, this would be loaded from a cord here in the magazine chamber; it would drop in with the shiney part or the bullet part up. You close it. And lock it. And you apply pressure to it. If the bolt were closed at the time it was loaded and nothing in the chamber this lever here you’d push it and pull it back and shut it and that would put one round in the chamber and every time it was fired you could continue firing until it was empty. It can also be that one round may be inserted through the—
MR. BOGGS: Your Honor, this is unresponsive to the question.
THE COURT: No, sir, he asked him to operate the gun and he’s continuing his answer; overruled.
* * * * * *
Q. Now, please sir, tell us whether or not you have a judgment — Well, let me ask you this. Do you know, please, sir, what causes these trauma marks?
MR. BOGGS: Your Honor, we’re going to object to his answer as it would be an opinion and he’s not qualified; he’s not a medical expert nor is he a pathologist or a toxicologist. He’s not qualified to answer.
MR. BLAN: He’s had a lot of experience in the field of forensic sciences.
THE COURT: Overrule the objection. I think from this man’s training and experience he can give an answer.
MR. BOGGS: We except.
Q. From your reading and studying and knowledge Sergeant Graham, do you know what causes trauma marks around a gunshot wound?
A. Yes, sir.
Q. Tell the ladies and gentlemen of the jury what that is.
A. When a gunshot wound to the body is fired and the barrel is in contact with or near contact with or loose contact with the gases from the projectile or that send — sends the projectile forward go into the wound; the wound is actually— the skin is blown back against the gun barrel which leaves a trauma mark or a bruise. It will actually take on the shape of the end of the barrel.
* * * * * *
Q. Now, based on your observation and your training and what you saw down there on Mr. Glover, Sergeant Graham, do you have an opinion as to whether or not the gun barrel or the gun which fired that bullet into his head was in contact or against his head at the time it was fired?
MR. BOGGS: Your Honor, we object. This takes it out of the province of the jury.
THE COURT: Overruled.
Q. Do you have an opinion?
A. Yes, sir.
MR. BOGGS: We except.
Q. What is your judgment, please, sir?
A. The gun barrel was in contact with the head.

Mrs. Glover says the rulings shown above were injurious in that the answers invaded the province of the jury because those answers constituted the witness’s opinion of the ultimate fact in issue in the case: Glover was a suicide. One will instantly observe that in only one instance, either specifically or implicitly, was that reason made the basis of any of the objections. In that single instance the question in no way could be construed as calling for an answer regarding the ultimate fact in issue: suicide.

We noted earlier that there was no question of the witness’s qualifications to render expert opinions in the area of inquiry of the questions put to him. From an examination of the record, we do not hesitate to opine that it would have been an abuse of discretion upon the part of the trial judge had he sustained proper objections to the questions set out. Cf. Trans-Southern Life v. Johnson, 287 Ala. 620, 254 So.2d 321 (1971); Glaze v. Tennyson, 352 So.2d 1335 (Ala.1977); Sharp v. Argo-Collier Truck Lines Corp., 356 So.2d 147 (Ala.1978); Dyer v. Traeger, 357 So.2d 328 (Ala.1978).

Finding no error in the record of the trial of this case, we find it appropriate that the judgment below be affirmed; therefore, it is hereby affirmed.

AFFIRMED.

MADDOX, FAULKNER, ALMON and ADAMS, JJ., concur.


author: ALMON, Justice.

text:
    STATE of Alabama v. Charles L. WALLER, Jr., Allyce K. Waller, Chas. Waller Advertising, Inc. and Ralph W. Havard, Tax Collector.
    79-284.
    Supreme Court of Alabama.
    Feb. 27, 1981.

      William H. McDermott, Sp. Asst. Atty. Gen., Mobile, for appellant.
    Ray G. Riley, Jr. of McFadden, Riley & Parker, Mobile, for appellees.
   ALMON, Justice.

This is an appeal from a judgment in a condemnation proceeding. We affirm.

Charles Waller Advertising, Inc., appel-lee, owned two parcels of land which abutted Interstate 10 in Mobile County. A billboard owned and maintained by Waller was located on Parcel 1; Parcel 2, situated on the opposite side of Interstate 10, was vacant. In 1976, five years after the billboard was erected on Parcel 1, the State of Alabama, appellant, acquired both parcels by eminent domain. Waller appealed the Probate Court award to the Circuit Court, wherein a jury awarded compensation in the amount of $29,500.00.

The State raises six issues on appeal, four of which relate to the admission of appraisal evidence based upon the income or capitalization approach to valuation. The other issues focus upon an allegedly misleading charge, and the failure to set aside the verdict as excessive and/or grant a new trial.

The State contends evidence of rental income and valuation by the income approach is inadmissible as a matter of law in a condemnation proceeding when the income is generated by a single signboard. We pretermit discussion of this issue. The existence of the income approach as a method of appraising property and the calculations involved in that approach was first injected into the trial during direct examination of the State’s expert witness, James Thames:

Q. All right. Will you tell us briefly the general approaches for the appraisal of real estate in your profession?
A. Well, the three basic approaches to the evaluation of real estate are the cost approach, which is where the appraiser uses the reproduction costs of the building improvements and depreciates those improvements for whatever age and condition might be at the time of appraisal, and then you add the land value, estimated land value to that figure, and you come up with a total value for the property through the cost approach. The second accepted approach is the market data approach where the [appraiser] goes into the market area, generally the subject property being located within, and you find sales of vacant land or either improved properties, to which you make a comparison to your property that you are appraising, and you make various adjustments to those sales, differences in location, construction quality and features, size of utility, if it’s vacant land, and etc., to finally determine what your adjusted value of the subject property would be, based on your analysis of your comparable sales. The third approach we use is the income approach, and this method is used where generally we have income producing properties such as commercial buildings and we take the gross income the property produces and generally we deduct normal allowances for vacancy and credit loss and we come up with what we call effective gross income and from appropriate gross income we normally deduct all items and expenses that are necessary to the operation of the real estate, in order to arrive at what we call net income, and the net income figure is what we use to capitalize by a sufficient rate to determine what the overall value of the property would be through the income approach.

After reviewing the two alternate methods of valuation and the results reached thereby, counsel for the State returned to the income approach:

Q. Now, Mr. Thames, did you arrive at an opinion of a fair market value of the property under an income approach here?
A. I did.
Q. In your opinion did it fairly demonstrate the fair market value of the subject property?
A. I think it did.
Q. The income approach?
A. Yes, sir.

This testimony was developed a few moments later:

Q. All right, ... Mr. Thames, will you tell us how you approached and analyzed the income approach?
A. Well, based upon my readings of [a publication promulgated by the American Institute of Real Estate Appraisers], normally, outdoor advertising signs are not bought and sold on an individual basis. They are generally bought and sold on their total income productivity from the whole operation of the company, and in doing that they have found in the market within larger metropolitan areas other than this area, that outdoor advertising sign companies have sold on what they call a gross income multiplier of one and a half to three times their gross collectible income. So, what I generally did was, I just took the income estimated on this particular sign board, which was $300.00 a month, and deducted a normal figure for vacancy and credit loss of fifteen percent to arrive at an effective gross income in the amount of $3,060.00, and—
THE COURT: $3,060.00?
A. Yes, sir.

Mr. Thames detailed this analysis at the request of the trial judge:

WITNESS: All right, sir. O.K. I estimated the monthly rent to be $300.00, and then times twelve months would be an annual income of $3,600.00, of which I deducted 15% for vacancy and credit loss, to arrive at a net effective gross income of $3,060.00, and then I used a multiplier of two times the effective gross income to arrive at a value through the income approach in the amount of $6,100.00.

The attorney for the State continued:

Q. Well, now, so you did apply the multiplier to an individual sign board?
A. Yes.
Q. I had understood you to say that that isn’t done. That individual signs are not bought and sold.
A. They are not normally done that way, no sir.
Q. In your opinion, is the income approach followed by you a reliable approach in this case?
A. No, sir.
Q. And tell us why?
A. Well, I have no basis to judge what the — judge expenses primarily. I had no way to allocate expenses necessary to the operation of this individual sign. And number two, I had no basis for arriving at a — appropriate capitalization rate to apply to the net income to arrive at the value through the income approach. Because these signs are not bought and sold on an individual basis on the open market. They are not mortgaged. You can’t borrow money against them, and so I couldn’t — I really couldn’t derive an effective rate to apply to the net income, and foremost, I couldn’t judge what expenses would be — could be accurately ascertained] to this particular individual sign board without knowing what the total expenses of the whole operation of this particular company would be.
THE COURT: And the number of sign boards they have.
THE WITNESS: Yes, sir. It would be very speculative on my part to try to determine that.
[BY THE ATTORNEY FOR THE STATE]:
Q. So, you consider the income approach to be an unreliable approach in this case?
A. Yes, sir.

Direct examination of the State’s second expert witness yielded the same opinion, i. e., that the income approach to valuation is not applicable to an individual billboard.

During direct examination of Charles Waller, the president of Waller Advertising, Waller's attorney proffered into evidence a copy of the contract between Waller Advertising and the company which contracted to have its advertisement displayed on Waller’s billboard. Counsel for the State objected on the ground that the contract and the terms contained therein would have relevance only to appraisal under the income approach, which he contended was “inapplicable, and irrelevant.” This objection, as well as an objection to the admission of an exhibit (Exhibit F) which set forth the computations and results reached under the income approach, was overruled by the trial judge. An objection to a similar chart (Exhibit E) offered during direct examination of another expert witness, Mr. Courtney, was also overruled. Testimony concerning the computations on the chart followed its admission:

Q. Okay. Would you explain to the ladies and gentlemen of the Jury, your computations as shown by the exhibit?
A. Yes, sir. The sign board was earning $300.00 a month, that’s $3,600.00 a year. I used a loss of rent and vacancy of two percent. I understand from Mr. Waller that the sign board had never been vacant, but I still think you ought to use some type of vacancy ratio which was — gives us a net rent less before expenses of $3528.00. I used the management fee of $176.00; Taxes — $20.00, which is what the taxes are. Utilities— that’s the lights, the sign board runs about $96.00; Maintenance, which I got from Mr. Waller, and also checked out with Lamar Advertising, said this is about right on this type of sign of $180.00. This gives the total expenses of $472.00. This gives a net rent of $3,056.00, and that particular time I thought it a capitalization rate of ten percent was what the market indicated; capitalized that then percent into $3,056.00, gives a total value of $30,560.00 for the property or rounded off to $30,600.00.

The foregoing excerpts from the record make clear that the State first introduced evidence of both the income approach to valuation and the rental income generated by the property. Even if this evidence were inadmissible, the State cannot be heard to complain of its admission in this case. Peterson v. Jefferson County, 372 So.2d 839 (Ala.1979); State Farm Mut. Auto. Ins. Co. v. Boyer, 357 So.2d 958 (Ala. 1978); Southeast Contractors, Inc. v. H. & R. Construction Co., 284 Ala. 712, 228 So.2d 463 (1969). The State is not free to introduce evidence of a method of valuation, follow that with expert testimony that the theory is inappropriate to the facts at hand, and then object when Waller offers identical evidence in an attempt to show that the approach to valuation is in fact a proper method of calculating or establishing the property’s fair market value. The fact that the State’s expert opined that the income approach was unreliable in this circumstance because certain information was unavailable to him in no way forecloses Waller’s right to controvert that opinion by other expert testimony showing that the necessary information was available and that the approach, utilizing that information, was reliable.

The State argues that the admission of Exhibits E and F was in error because they were “secondary evidence ..., merely cumulative and clearly serving to unfairly emphasize, but not add to, the witnesses’ testimony ... [and which] should have been excluded even if evidence of the [income approach] were properly admissible.” Because counsel for the State did not raise this specific objection at trial, but instead objected that the exhibits were relevant only to the income approach which he contended was inadmissible, the State is deemed to have waived this objection and cannot predicate error upon the specific ground raised for the first time on appeal. Mahone v. Birmingham Electric Company, 261 Ala. 132, 73 So.2d 378 (1954); C. P. Robbins & Associates v. Stevens, 53 Ala. App. 432, 301 So.2d 196 (1974); Alabama Casket Company v. Castleberry, 47 Ala. App. 117, 251 So.2d 372 (1971). See also Rule 46, ARCP; Gamble, McElroy’s Alabama Evidence § 426.01(11) (3rd Ed. 1977).

The correctness of the jury charge is questioned in the State’s statement of issues. Although not developed in brief, the record indicates counsel for the State objected to both the oral and written charges. Specifically, objections were raised to the instruction that the jury could consider the income approach as well as rental income generated by the property when determining its fair market value. The Defendant’s written charge to which counsel objected provided:

Ladies and Gentlemen of the Jury, the Court charges you that to determine the just compensation to be paid to the landowners for the property described in the Petition to Condemn, that you must determine the fair market value of the defendant’s property as of the date of the taking, that is, November 12, 1976. In making such determination you may consider all of the evidence presented including any rent being paid to the landowner for the commercial use of the property being taken, so far as such rental income contributes to the market value of the landowner’s property.

The State objected to the following instructions in the trial judge’s oral charge.

[Y]ou are entitled to consider in arriving at what the fair and reasonable market value of that property was on November 12, 1976, . .. that a piece of property that’s bringing in an X amount of dollars in rent per year is certainly more valuable than a piece of property that’s not bringing in anything....

Without deciding whether evidence of the income approach is properly admissible, we find no error in this aspect of the charge. The rule is that, while evidence of the property’s rental value may be in certain circumstances admissible in a condemnation proceeding, evidence of the profits derived from the business conducted on the property is not. State v. Woodham, 288 Ala. 608, 264 So.2d 166 (1972). The trial judge went to great lengths to make this point clear to the jury.

I want to make it clear to you, and it may be hard and difficult for you to separate some of the figures that you have heard here today, from what I’m telling you the law is, but the law in Alabama is clear that the owner of personal property being taken is not entitled to compensation for the loss of business. He’s not entitled to compensation for loss of profits. The law in Alabama just strictly says that you can’t award compensation for that and you can see the reason for that because a business that’s profitable today might not be profitable tomorrow. A business that’s operated by one person at a profit might with another person go broke in the same location. So, that’s the law. You might ask yourself, Well, Judge, if that’s true then why did you let these people come in here , and testify as to the rental value of this sign and how much Mr. — uh—the Wallers were making from this sign. For this purpose, the law says that they are entitled to the fair and reasonable market value of their property at the time it was taken. And I say, as Judge, that to arrive at the fair and reasonable market value of those two pieces of property, you’ve got a right to consider the rental value or what income those pieces of property had, but don’t get in your mind that you are under any obligation because I’m telling you that the law is exactly opposite, that you can’t go back there and say, now, the Wallers, we’ve got to give them the compensation for the business they lost, and for the profits they lost, when this property is taken, because that’s not the law, but you are entitled to consider in arriving at what the fair and reasonable market value of that property was on November 12, 1976, you’re entitled to consider that a piece of property that’s bringing in an X amount of dollars in rent per year is certainly more valuable than a piece of property that’s not bringing in anything, and that’s the reason that evidence was let in for you to consider.

The State also objected to the giving of Defendant’s Written Charge Number Eight because the charge did not instruct the jury that the most profitable use of the property was limited to legal use. This objection stemmed from the fact that the Waller’s billboard was located within 660 feet of Interstate 10 and thus did not conform to the requirements of the Highway Beautification Act. Code 1975, § 23-1-270, et seq. When counsel for the State raised this objection, the trial judge overruled and informed the parties that he would orally instruct the jury to limit its consideration to the legal use of the property. The State contends that although the judge’s oral charge was correct, error was restored when the judge read the faulty written charge to the jury.

We disagree. The charge of which the State complains was as follows:

Ladies and gentlemen of the jury I charge you that real estate tends to gravitate toward the highest, best and most profitable use to which it may be put and its value tends to be set by the most profitable use to which the property will be put in the reasonable near future.

The trial judge clearly instructed the jury, during this oral charge the day before the written charges were given, that their consideration was limited to the legal use of the property.

I charge you that the rule that you can consider the value of the subject property for its highest and best use, contemplated a lawful use, not one prohibited by law, such as zoning regulations, or restrictive covenants. It would be improper to arrive at the market value of subject property based entirely on a prohibited or illegal use.

This charge was reinforced when, the next day, the judge prefaced the giving of the written charges by stating:

As I told you yesterday, ladies and gentlemen of the jury, I’m going to give you now some written instructions which are to be presented along with the oral charge of the Court I gave you yesterday afternoon. Understand that these written instructions are not in contradiction of anything that I’ve already told you, but they may explain more fully some of the things I’ve told you and I give them for the reason that they are correct statements of the law and they may be a value to you along with what I told you orally in ... deliberating on and deciding this case.

Viewed in the worst possible light, these instructions have only a tendency to mislead — not necessarily mislead — and, thus, do not constitute reversible error. Humphrey v. Boschung, 47 Ala.App. 310, 253 So.2d 760, affirmed 287 Ala. 600, 253 So.2d 769 (1970); Russell v. Thomas, 278 Ala. 400, 178 So.2d 556 (1965); Thompson v. Magic City Trucking Service, 275 Ala. 291, 154 So.2d 306 (1963); Mahone v. Birmingham Electric Company, 261 Ala. 132, 73 So.2d 378 (1954).

Finally, the State contends the trial judge erred by refusing to set aside the verdict as excessive and/or grant a new trial. Again, we must disagree. The property taken by the State was unique; there was expert testimony that the highest and best use of the property — if not its only use — was limited to commercial outdoor advertising. The jury had the benefit of hearing the testimony and appraisals of several expert witnesses in addition to the landowner’s valuation of the property. They were apprised of the various methods of valuation, the flaws of each, and the results reached under the different approaches. The appraisal testimony ranged from a low of $5,200.00, to a high of $115,-740.00 given by Waller. We cannot say, under these circumstances, that the award of $29,500.00 was excessive, nor can the trial judge be put in error for refusing to set aside such an award.

For the foregoing reasons, the judgment appealed from is due to be affirmed.

AFFIRMED.

TORBERT, C. J., and FAULKNER, EM-BRY and ADAMS, JJ., concur.