Alabama's two-court condemnation system — from probate-court commissioners to circuit-court jury trial de novo — is both the landowner's first procedural hurdle and the practitioner's primary opportunity to reset the compensation calculus entirely.
I. The Constitutional and Statutory Framework
Alabama's eminent domain power rests on two constitutional provisions. Article I, Section 23 of the Alabama Constitution of 1901 requires that private property shall not be taken or applied to public use without the consent of the owner, or without just compensation being first made to the owner. Article XII, Section 235 extends eminent domain power to cities, counties, corporations, and individuals authorized to take property for public use.
The Alabama Eminent Domain Code, Ala. Code § 18-1A-1 et seq., enacted in 1985, provides the comprehensive procedural framework governing both direct condemnation by the state, counties, municipalities, and authorized private entities, and the calculation of just compensation. The Code's structure is significant for practitioners: it establishes a two-tier adjudication process that begins in probate court and can proceed — on any party's demand — to a circuit court jury trial.
II. Who Has Eminent Domain Power in Alabama
Before tracing the procedural steps, practitioners must confirm the condemnor's authority. In Alabama, eminent domain power extends to:
- The State of Alabama and its agencies;
- Counties and municipalities;
- Public utilities (electric, telephone, water, gas);
- Transportation entities (ALDOT, railroads);
- Private individuals and corporations expressly authorized by statute for specific purposes (mill dams and irrigation, Ala. Code § 18-1A-2).
Some entities — particularly utilities regulated by the Alabama Public Service Commission — must obtain PSC approval before filing a condemnation action. See Ala. Code § 18-1A-270. A condemnation action filed without required prior approvals is subject to dismissal on preliminary objection.
III. Pre-Condemnation Procedural Requirements
A. Appraisal
Under Ala. Code § 18-1A-21, before commencing a condemnation action, the condemnor must cause the property to be appraised to determine the amount that would constitute just compensation for the taking. The property owner — or a representative — must be given a reasonable opportunity to accompany the appraiser during the inspection of the property. This is not merely a formality: a condemnor who denies the owner access to accompany the appraiser may have failed to satisfy the statutory precondition.
B. Written Offer
Following the appraisal, the condemnor must make a written offer to acquire the property at the full amount established by the appraisal. Ala. Code § 18-1A-22. The offer must be accompanied by a written statement showing the basis for the established amount of just compensation.
Practice note: The pre-filing offer is a mandatory condition precedent. A property owner's preliminary objection in probate court — asserting that the condemnor failed to make a bona fide pre-filing offer — is one of the few objections that can result in dismissal of the condemnation action. See Ala. Code § 18-1A-91(b). Practitioners representing landowners should scrutinize whether the condemnor's appraiser complied with the inspection requirements, whether the offer equals the appraised value, and whether the written basis statement is adequate.
C. Entry and Testing Rights
Before condemnation, the condemnor and its agents may enter the property to conduct surveys, examinations, tests, borings, and environmental assessments, with reasonable notice to the owner. Ala. Code § 18-1A-50. This pre-filing entry right does not constitute a taking and does not require compensation unless it causes substantial damage.
IV. Commencement in Probate Court
A. Filing the Complaint
Under Ala. Code § 18-1A-70 and § 18-1A-71, a condemnation action is commenced by filing a complaint with the probate court in the county where the property, or any part of it, is located. Venue follows the property, not the parties. The complaint must:
- Identify the condemnor and its authority;
- Describe the property to be taken;
- State the purpose of the taking;
- Describe any partial taking and the property remaining;
- Identify all persons having a legal or equitable interest in the property, including known mortgage holders, lessees, and lienholders.
All condemnation actions are governed by the Alabama Rules of Civil Procedure. Ala. Code § 18-1A-70. Service of process follows the ARCP's requirements for service on defendants.
B. Preliminary Objections
An owner has the right to respond by answer if challenging the right to condemn or disputing the area to be acquired. Ala. Code § 18-1A-90. The statute limits the viable objections that will prevent the taking from proceeding: primarily, (1) that the condemnor lacks the authority or power to condemn, (2) that the property is not being taken for a legitimate public use, (3) that the condemnor failed to make the required pre-filing offer, and (4) that the probate court lacks jurisdiction or venue. Objections to the amount of compensation do not prevent the taking from proceeding; they affect only how much is paid.
Practitioners should advance all cognizable objections to the right to condemn at the probate stage. Once the probate court grants the complaint and the condemnor deposits the assessed compensation, the condemnor acquires the right to take possession and proceed with its project — appeal to circuit court does not suspend the taking order if the condemnor posts the required bond and deposits the award. Ala. Code § 18-1A-284 and § 18-1A-289.
C. Appointment of Commissioners
Within ten days after granting the complaint, the probate judge must appoint three disinterested citizens of the county to serve as commissioners. Ala. Code § 18-1A-150 (as implemented by the probate court's condemnation procedure rules). The commissioners must be eligible jurors in the county and must be free of any relationship with the condemnor or the owners.
One commissioner is designated chairman. The commissioners physically view the property, then conduct an informal hearing in which both the condemnor and the owner present evidence and testimony regarding the value of the property taken and any severance damage to remaining property.
The standard of compensation is just compensation, defined in terms of fair market value: the price that a willing seller who is not forced to sell would accept from a willing buyer who is not required to buy, for the property at its highest and best use. Ala. Code § 18-1A-172 and § 18-1A-174.
For partial takings, the compensation standard is the before-and-after rule: the difference between the fair market value of the entire property immediately before the taking and the fair market value of the remainder immediately after the taking. Ala. Code § 18-1A-170. Severance damages — the diminution in value of the remaining parcel caused by its proximity to the project — are compensable. Business losses and relocation costs generally are not compensable as part of just compensation unless separately provided by statute.
D. Commissioners' Report and Order of Condemnation
Within twenty days of appointment, the commissioners must file a written report stating the amount of compensation awarded. Ala. Code § 18-1A-210. Within seven days of receipt, the probate court issues an order recording the report and condemning the property — contingent on the condemnor paying or depositing the awarded amount within ninety days.
V. Right to Demand Jury Trial on Compensation
This is the most important provision in the Alabama Eminent Domain Code for practitioners representing landowners. Any party may appeal the probate court's order of condemnation to the circuit court for a full trial de novo. Ala. Code § 18-1A-283. The appeal must be filed within thirty days of the order of condemnation.
On appeal, the circuit court conducts an entirely new trial — it does not review the probate court's determination; it makes its own. Any party may demand trial by jury on the question of compensation. Ala. Code § 18-1A-151. In the circuit court, twelve jurors determine the compensation amount by unanimous verdict. The Alabama Constitution guarantees this jury trial right for eminent domain compensation. Commissioners at the probate level serve the function of a small, informal tribunal; the circuit court jury is the real trial.
The tactical significance is substantial. Commissioners are often local residents without appraisal expertise who may be inclined to accept the condemnor's expert-appraiser testimony uncritically. The circuit court jury of twelve — selected through the full voir dire process, exposed to competing expert testimony, and instructed on the before-and-after rule — is a materially different adjudicatory body. Experienced practitioners typically use the probate stage primarily to understand the condemnor's valuation theory and preserve the appeal, then try the case de novo to a circuit court jury.
VI. De Novo Appeal to Circuit Court: Practice Notes
A. Timing
The notice of appeal from the probate court order must be filed within thirty days of the order. Ala. Code § 18-1A-283. This deadline is jurisdictional; missing it forfeits the right to de novo review. Calendar the deadline immediately upon receipt of the probate court order.
B. The Deposit and Possession
Filing an appeal to circuit court does not stay the condemnor's right to take possession if the condemnor has paid or deposited the commissioners' award into the probate court and has given a bond in twice the amount of the award. Ala. Code § 18-1A-284 and § 18-1A-289. The property owner may withdraw the condemnor's initial offer amount from the deposited funds at any time without prejudicing the right to demand greater compensation at circuit court. Ala. Code § 18-1A-110. Withdrawing the deposit does not constitute acceptance of the offered amount as full compensation.
C. Evidence Standards in the Circuit Court
Evidence in condemnation actions in circuit court is governed by the Alabama Rules of Evidence applicable in other civil actions. Ala. Code § 18-1A-190. Expert opinion testimony on value is governed by Ala. R. Evid. 702 (the Alabama equivalent of Daubert). Appraisers must qualify as experts and must use recognized appraisal methodologies; the sales comparison approach, income approach, and cost approach are all recognized. Comparable sales evidence is the typical battleground.
Highest and best use is a jury question. Ala. Code § 18-1A-174. If the owner believes the condemned land has development potential that the condemnor's appraiser ignored, the owner's expert should present evidence of highest and best use as the foundation for the compensation claim.
D. Severance Damages
Partial takings generate the most complex valuation disputes. The before-and-after rule requires valuing the remainder after the taking accounts for: access changes caused by the project; proximity effects (noise, aesthetics, traffic); and any affirmative enhancement to the remainder from the project. The Alabama Supreme Court has held that incidental benefits from the taking that particularly benefit the remainder — as distinguished from general benefits to the community — may be set off against severance damages. Ala. Code § 18-1A-171. Practitioners should engage an appraiser who has analyzed the project's effect on the remainder and can rebut any benefit offset claim by the condemnor.
E. Costs and Attorney's Fees
If the condemnation action is ultimately dismissed for failure to satisfy statutory prerequisites (e.g., failure to make the required pre-filing offer), the probate court must award litigation expenses including attorney's fees to the property owner. Ala. Code § 18-1A-293. If the action proceeds to judgment, costs generally follow the judgment, but attorney's fees are not automatically awarded to a prevailing property owner in a contested valuation case. Practitioners should evaluate whether fee-shifting statutes or the condemnor's conduct support a fee application.
VII. Common Traps and Practical Guidance
Do not waive the jury trial demand. Jury trial demand must be expressly made. Ala. Code § 18-1A-151 specifies that compensation is determined by jury "only if a party entitled to participate in the trial of the issue expressly demands trial by jury." Failure to timely demand waives the right.
Investigate all interests before filing or answering. The condemnation complaint must name all persons with legal or equitable interests. Practitioners representing landowners should check: mortgage liens, mechanics' liens, easements, leasehold interests, and any equitable interests held by family members or co-owners. Persons not named in the condemnation action cannot be bound by it and may separately assert their interests — which can create post-condemnation title problems that affect the landowner's recovery.
The uneconomic remnant. If the partial taking leaves a remnant that is too small or isolated for practical use, the condemnor must offer to purchase the entire parcel. Practitioners should raise the uneconomic remnant claim in the probate court if the facts support it; failure to do so risks waiver.
Talk to Yates Anderson
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Informational only. Not legal advice. No attorney-client relationship is created by reading this post. Consult a licensed attorney in your jurisdiction.