Board of Councilmen of City of Frankfort v. Brammell
| Decision Date | 10 May 1927 |
| Citation | 294 S.W. 1076,220 Ky. 132 |
| Parties | BOARD OF COUNCILMEN OF CITY OF FRANKFORT v. BRAMMELL. |
| Court | Kentucky Court of Appeals |
Rehearing Denied with Modification, June 21, 1927.
Appeal from Circuit Court, Franklin County.
Action by T. A. Brammell against the Board of Councilmen of the City of Frankfort. Judgment for plaintiff, and defendant appeals. Reversed and remanded.
F. M Dailey, of Frankfort, for appellant.
John S Carroll, of Frankfort, for appellee.
In 1925 T. A. Brammell owned in fee a lot fronting 80 feet on Todd street, on which he was conducting a business of buying and selling milk and dairy products. He brought this action in March, 1926, against the city of Frankfort, alleging in his petition that many years prior to his purchase of the property the city had established the grade of Todd street by constructing and improving it, and keeping it in good repair continuously, and that the established grade of the street was such that the surface of his lot was only four or five inches above the surface grade of Todd street, and the entrance thereto was suitable and safe; that by an ordinance approved June 9, 1925, the city directed the improvement of Todd street and the re-establishment of the grade of the street; that the new grade so authorized necessitated the lowering of the street in front of his property from three to five feet; that the contract for the improvement was let to the Andrews Paving Company, who excavated Todd street in front of his property from three to five feet under the direct supervision of the defendant; that, when the improvement was completed, the costs of it was assessed against the adjoining property owners, and $565.52 was assessed against him; that he objected to the improvement and the excavation of the street, and despite his protests and objections the work was done, and as a result the surface of the street is now from three to five feet below the surface of the lot, and ingress and egress is difficult and dangerous, by all of which he was injured in the sum of $3,500.
In the second paragraph he alleged that he was conducting upon the property, in the name of the Sanitary Milk Company, a dairy business; that the defendant blocked off the street and closed the only entrance to his property, and kept it blocked off and closed against his protest for ______ days, during all of which time he was deprived of the free use and enjoyment of his property; that the improvement was negligent, and was done without any regard to his rights of ingress and egress to his property, to his damage in the sum of $1,000.
The defendant demurred to the petition and to each paragraph thereof. The demurrer was overruled. The defendant then filed answer, controverting the allegations of the petition. In the third paragraph it pleaded in substance that Brammell purchased his property after the ordinance providing for the reconstruction of the street had been introduced in the city council and had been laid over to another day for consideration. By the fourth paragraph it pleaded that the sidewalk in front of the plaintiff's property should be reconstructed, and that it was the intention of the defendant to reconstruct it of concrete, after regrading the sidewalk in front of the plaintiff's property, and that it would do this as soon as the weather permitted, but had been unable to do it before by reason of the cold weather; the street having been finished in December and it not being practicable to work on the sidewalk after that. The circuit court sustained the plaintiff's demurrer to the third and fourth paragraphs of the answer. The case came on for trial. A large amount of evidence was heard. The jury found for the plaintiff in the sum of $1,500. The city appeals.
The court, by instruction No. 1, told the jury in substance that if the market value of plaintiff's property was diminished by reason of the lowering of the grade of the street, they should find for him the difference, if any, in the fair market value of the property just before it was generally known that the work would be done, and the fair market value of the property just after the work was done. Instruction No. 2 is in these words:
"The court further instructs the jury that, in making your estimate and arriving at the fair market value of the said property after the lowering of the grade of said Todd street in front of said property, you will not consider any enhancement or increase in the value of said property resulting from the improvement."
This instruction was erroneous and should not have been given. It is held under the Constitution that, when private property is taken for public uses, the owner must be paid the value of his property, and that any enhancement of the remainder of his property from the public improvement cannot be set off against the value of the property taken, but in these cases the jury is allowed to take a survey of the consequential advantages and disadvantages, and set off one against the other, finding for the owner the balance in his favor, if any, on subtracting the consequential advantages from the consequential disadvantages.
In this case the land for the street was taken when the street was made a public highway. The city was authorized to establish the grade of the street. If, after it once established a grade, it made a change in the grade, it is liable to the owner of the adjoining property for the consequential damages he suffers; but in such cases there is only presented the question of consequential advantages and disadvantages. Before the improvement was made the plaintiff had a property of a certain market value. After the improvement was made he had the same property, less what he had been required to pay for the construction of the improvement. He is made whole if he is paid the difference between the fair market value of the property before the improvement was made and its fair market value afterwards, less what he had paid for the improvement under the assessment by the city. To illustrate: If appellant's property was worth $4,000 before and $4,500 after the improvement, and he paid $565 therefor, he is really out $65 (4,000+565-4,500). The court should so have instructed the jury.
The court has held in a long line of cases that, where a city reconstructs a street and lowers the grade, the measure of damages is the difference in the fair market value of the property just before and just after the improvement was made. Louisville v. Hegan (Ky.) 49 S.W. 532; Covington v. Taffee (Ky.) 68 S.W. 629; Henderson v. Winstead, 109 Ky. 328, 58 S.W. 777, 22 Ky. Law Rep. 828; Louisville v. Kaye, 122 Ky. 599, 92 S.W. 554, 29 Ky. Law Rep. 116; Lexington v. Chenault, 151 Ky. 774, 152 S.W. 939, 44 L. R. A. (N. S.) 301; Dayton v. Rewald, 168 Ky. 398, 182 S.W. 931. But in these cases it did not appear that the owner had paid his share of the cost. To same effect, see 13 R. C. L. 108; 28 Cyc. 1074.
There is a fundamental distinction between the taking of property under section 242 of the Constitution and injury to property:
Chicago, St. Louis & N. O. R. Co. v. Sullivan, 24 Ky. Law Rep. 860. "There is a clear distinction under section 242 of the Constitution with reference to compensation to be paid for property taken for public uses and property which a public use injures or destroys." P. Bannon Pipe Co. v. I. C. R. R. Co., 203 Ky. 664, 262 S.W. 1112.
In this case there is no taking of appellee's property. In Broadway Coal Min. Co. v. Smith, 136 Ky. 725, 125 S.W. 157, 26 L. R. A. (N. S.) 565, land was taken in a proceeding to fix its value. The rule there declared applies to the case the court had before it. The question of consequential damages for an injury to property, where no property is taken, was not before the court. In Waller v. Morganfield, 178 Ky. 75, 198 S.W. 559; Id., 180 Ky. 56, 201 S.W. 459, as pointed out in the opinion the plaintiffs under the instructions given below lost entirely what they had paid on the assessment against their property for the cost of the improvement. A new trial was granted. The language of that opinion, in so far as it conflicts herewith is disapproved. The owner is compensated for the land taken when the street is established. If the grade of the street is afterwards changed, the city is only exercising a right given it when the land was taken, and all the owner can ask is that he be made whole. It is not a case of an unwarranted act, but one necessarily incidental to the original taking of the property. The lowering of the grade of the street and the construction of the improved street on the new grade constituted one improvement. The new grade was an essential part of the new street. One is inseparable from the other. The two constituted one whole. The $565.52 which appellee paid included the cost of both.
On the trial of the case a large amount of evidence was taken on the value of the property in the plaintiff's business. In West Virginia P. & T. R. Co. v. Gibson, 94 Ky. 236, 21 S.W. 1055, 15 Ky. Law Rep. 7, the court thus stated the rule:
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