Board of Ed. of Louisville v. Com. Dept. of Highways
| Decision Date | 25 April 1975 |
| Citation | 528 S.W.2d 657 |
| Parties | BOARD OF EDUCATION OF LOUISVILLE, Kentucky, Appellant, v. COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, et al., Appellees. |
| Court | United States State Supreme Court — District of Kentucky |
Henry A. Triplett, Henry V. B. Denzer, Hogan, Taylor, Denzer & Bennett, Louisville, for appellant.
Jack M. Lowery, Jr., Louisville, Robert A. Becht, Dept. of Highways, Frankfort, for appellees.
CULLEN, Commissioner.
For the purposes of right-of-way for an expressway and an entrance ramp, the Department of Highways condemned the major portion of the playground area of an elementary school operated by the Louisville Board of Education. Upon the trial of the condemnation proceeding in the circuit court the jury fixed the damages at $238,418, and judgment was entered awarding the board of education that amount. The board has appealed from the judgment, maintaining that the damages are grossly inadequate and that there were procedural errors on the trial.
The board of education took the position throughout the trial, and still argues, that by reason of the taking of substantially all of the playground area, and the high level of noise that will result from traffic on the expressway and the ramp in close proximity to the school, the usability of the property for school purposes has been completely destroyed; therefore, the measure of damages is the cost of acquiring a new site and constructing a new building, less any salvage value of the present school property. The damages on that theory, according to the board's evidence, would be close to one million dollars.
The contention of the Department of Highways was and is that the existing school can be restored to its former condition of usefulness, or to even a better condition, by the acquisition by the board, through purchase or condemnation, of private land adjoining the school, for a new playground, and by sound-proofing and air-conditioning the present school building to eliminate the noise problem. The department offered evidence that this all could be accomplished at a cost of $238,418 (the figure which the jury accepted).
The trial judge submitted the case to the jury under instructions that if the jury believed that the existing school could be restored to the same or reasonably equal utility for school purposes through the acquisition of other land to replace the land taken and through the sound-proofing and air-conditioning of the building, the jury should award the cost of such restoration; but if the jury believed the existing school could not be so restored to usefulness, the jury should award the cost of acquiring a new site and constructing a new building, less depreciation and less salvage. As hereinbefore indicated, the jury found that the existing property could be restored, and awarded damages on that basis.
The board of education argues that under the 'substitute facilities' rule...
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