City of Ashland v. Kittle
| Citation | 347 S.W.2d 522 |
| Parties | CITY OF ASHLAND, Kentucky, a Municipal Corporation, Appellant, v. Barger KITTLE et al., Appellees. David W. PHIPPS et al., Cross-Appellants, v. CITY OF ASHLAND, a Municipal Corporation, Cross-Appellee. |
| Decision Date | 23 June 1961 |
| Court | United States State Supreme Court (Kentucky) |
Arthur T. Bryson, Jr., Asst. Corp. Counsel, A. W. Mann, Corp. Counsel, Ashland, for appellant and cross-appellee.
John L. Smith, Catlettsburg, Robert T. Caldwell, J. G. M. Robinson, B. S. Wilson, Jr., Caldwell Robinson & Wilson, P. H. Vincent, Ashland, for appellees and cross-appellants.
This action was instituted in the Boyd Circuit Court by City of Ashland to condemn certain improved real estate for use in connection with the expansion of its municipal water system. At a trial before a jury Barger Kittle and Verna Kittle, his wife, the owners of the fee, were awarded $25,000. David W. Phipps and Ann P. Phipps, his wife, and William H. Culbertson and Imogene Culbertson, his wife, the owners of a leasehold interest in the property, were given $20,000 as damages.
The city has appealed, and its chief ground for reversal is that the lower court erred when it instructed the jury to find and return separate verdicts for the values of the land and leasehold interests taken, respectively, it being contended that but one award could properly be allowed for the condemned property, as a whole, which award should then be apportioned among the different parties according to their respective rights. At the trial the city offered instructions it claimed followed this concept.
The Kittles owned two lots fronting 80 feet upon Winchester Avenue in Ashland and extending back 115 feet therefrom. They agreed to and did erect a concrete block building upon these lots to meet the requirements specified by the Phippses and Culbertsons, their prospective tenants. In this building certain machinery was housed which manufactured ice cream; and the surface of these lots not occupied by the building was blacktopped for purposes of egress from and ingress to the building.
The lease contract entered into between the owners and the tenants was for a term of five years with the privilege to the tenants of renewing the contract at the same rental for two additional five-year terms. This provision was also in the contract: 'During the life of this lease or any renewal thereof should the Lessor desire to sell the leased premises he shall first submit to the Lessees for their refusal or acceptance the price and terms offered to him for a deed of general warranty for a free and unencumbered title to the lots and improvements thereon and the subject of this lease.'
The commissioners appointed to appraise the property fixed the fair and reasonable market value of the land at $13,200, and the improvements thereon at $11,000, a total of $24,200. In their report, they estimated the damages for the taking of the leasehold at $1,939.60. We have heretofore set forth the amounts the jury awarded the owners of the fee on the one hand, the tenants of the property on the other.
In Korfhage v. Commonwealth, Ky., 296 S.W.2d 476, and in the fairly recent case of City of Ashland v. Price, Ky., 318 S.W.2d 861, 862, in considering the valuing of property taken by condemnation which was impressed with a lease agreement, we recognized the general rule to be '* * * 'that, where there are several interests or estates in a parcel of real estate taken by eminent domain, a proper method of fixing the value of, or damage to, each interest or estate, is to determine the value of, or damage to, the property as a whole, and then apportion the same among the several owners according to their respective interests or estates, rather than to take each interest or estate as a unit and fix the value thereof or damage thereto separately."
As pointed out in the Price case the quoted excerpt was taken from the prefatory note which appears in 69 A.L.R. at page 1263. Many other authorities upholding this same rule are mentioned in the Korfhage and Price cases.
The lower court did not follow this rule, but, on the contrary, erroneously submitted instructions which allowed the jury 'to take each interest or estate as a unit and fix the value thereof or damage thereto separately.' In such a situation it is impossible to determine whether the separate awards should be added or the one subtracted from the other.
Also, the instruction given which told the jury to find the value of the tenants' claim under the leasehold did not set forth the proper standard for their guidance. It reads: 'The jury...
To continue reading
Request your trial
-
Kaiser Dev. Co. v. City and County of Honolulu, Civ. No. 84-0389.
...condemnation award. 633 P.2d at 1329, citing Robroy Land Co. v. Prather, 95 Wash.2d 66, 622 P.2d 367 (1980). See also City of Ashland v. Kittle, 347 S.W.2d 522 (Ky.1961) (mere right of first refusal not a compensable Turning to the development agreement, Kaiser's interest is more like a rig......
-
Manufactured Housing Communities v. State
...(1988) (right of first refusal not a "future interest" and, therefore, not subject to rule against perpetuities); City of Ashland v. Kittle, 347 S.W.2d 522, 524 (Ky.1961) (right of first refusal is a contract right not compensable in eminent domain 22. As the majority notes, petitioners wai......
-
Manufactured Housing Communities of Wash. v. State
...F.Supp. 926, 937 (D.Haw.1986) (right of first refusal not a compensable interest in regulatory taking challenge); City of Ashland v. Kittle, 347 S.W.2d 522, 524 (Ky.1961) (right of first refusal not compensable in eminent domain proceeding); Greenfield Country Estates Tenants Ass'n, Inc. v.......
-
County of San Diego v. Miller
...v. United States (6th Cir. 1949) 177 F.2d 967; Cullen & V. Co. v. Bender Co. (1930) 122 Ohio St. 82, 170 N.E. 633; cf.: City of Ashland v. Kittle (Ky.1961) 347 S.W.2d 522; Phillips Petroleum Co. v. City of Omaha (1960) 171 Neb. 457, 106 N.W.2d 727.) Similarly, courts now allow compensation ......