City of Elizabethtown v. Caswell

• Decision Date: 09 October 1953
• Citation: 261 S.W.2d 424
• Parties: CITY OF ELIZABETHTOWN v. CASWELL.
• Court: United States State Supreme Court — District of Kentucky

Page 424

261 S.W.2d 424

CITY OF ELIZABETHTOWN v. CASWELL.

Court of Appeals of Kentucky.

Oct. 9, 1953.

Floyd K. Hollan, Elizabethtown, for appellant.

Faurest & Montgomery, Elizabethtown, for appellee.

MOREMEN, Justice.

This appeal presents a record wherein appellee, Clint Caswell, recovered a judgment entered upon a verdict in the sum of $4000 against appellant, City of Elizabethtown, which herein will be called City.

The facts are these: Representatives and officers of City negotiated with appellee for the purpose of obtaining a sewage line right-of-way across his land. Appellee was told that the pipe was to be placed below plow depth and the only interference with the cultivation of his land, after the pipe line was laid, would be from several manholes which would extend four or five feet above ground level. Appellee relied upon this statement, and thereafter, with his wife, executed a deed of easement to a strip of land which traversed his farm. The consideration was $1000. The strip's dimension was 1451 feet by 20 feet. The deed conveyed 'an easement or right-of-way for sewer line through, over and across the real estate hereinafter described, with the right and privilege to construct, repair, renew, operate and maintain a sewer line with all the necessary manholes and with the right of ingress and egress at all times * * *,' and contained this clause: 'The said party of the second part (city) by its acceptance of this conveyance agrees and binds itself, its successors and assigns to pay to the parties of the first part all damages that may be caused by the negligent construction, operation and maintenance of said sewer line and to pay all damages caused to fences, livestock, growing crops or other property, provided notice in writing is given to second party within six months after such damages occur, and the parties of the first part reserve to themselves, their successors in title, the right to cultivate and pasture the land embraced in said right-of-way and to otherwise enjoy the use and occupancy thereof as they and their successors in title may desire.' The pipe line was laid in such a way that the first section of 432 feet was 'back to its original ground.' The next 90 foot section extended 6 inches above the original ground level. The succeeding 372 foot segment was 8 inches above ground and the final 602 feet of pipe were encased in concrete and protruded from 2 to 8 inches from the level of the original terrain. This protuberance not only rendered it impossible to plow the land in this vicinity, but also obstructed the natural flow of water with the result that a portion of the land failed to drain properly and diminished in value. Appellee filed a petition for damages resulting from misrepresentations made to induce him to execute the deed of easement. After trial, the above mentioned judgment was entered.

Appellant assigns as error: (a) the appellee was bound by the written conveyance which gave a right-of-way 'through, over and across' the real estate, because all conversations and statements made by agents and officials of City and by appellee were merged into contract of deed, and the parties are bound solely by its written terms; (b) the trial court should have defined the term 'market value' as used in the instruction; and (c) the verdict was excessive.

We are not convinced that the written deed gives to City, by explicit language, the right to lay the pipe line itself 'over' the land. If the deed had stated simply that the conduit might be placed above surface level of the land, the question of merger of prior...