City of Louisville v. Kaye

• Decision Date: 17 April 1906
• Citation: 122 Ky. 599,92 S.W. 554
• Parties: CITY OF LOUISVILLE v. KAYE.
• Court: Kentucky Court of Appeals

92 S.W. 554

122 Ky. 599

CITY OF LOUISVILLE v. KAYE.

Court of Appeals of Kentucky.

April 17, 1906

Appeal from Circuit Court, Jefferson County, Common Pleas Branch Second Division.

"To be officially reported."

Action by Kate E. Kaye against the city of Louisville. From a judgment in favor of plaintiff, defendant appeals. Reversed.

A. E Richards and A. B. Bensinger, for appellant.

Wallace A. McKay and Isaac T. Woodson, for appellee.

BARKER J.

The appellee, Kate E. Kaye, is the owner of a lot of ground in Louisville, Ky. situated on the northeast corner of Catalpa and Woodland avenues. In making Woodland avenue the city changed the grade of the street theretofore existing, and made a cut of 4 1/2 to 5 feet along the entire length of appellee's lot. To recover damages for this alleged injury, this action was instituted. A trial was had before a jury, and a verdict and judgment rendered in favor of appellee for the sum of $200, of which the city is now complaining.

Upon the trial of the case the court gave the following instructions: "(A) The city of Louisville had the right to have Woodland avenue improved along and adjacent to the plaintiff's property described in the petition, but it had no right, in so doing, to diminish the value of said property; and if you believe from the evidence that said property was diminished in value by reason of the construction of said street, as it was constructed along and adjacent to plaintiff's property, then the law is for the plaintiff and you should so find." "(2) But, unless you believe from the evidence that said property was diminished in value by reason of the construction of said street as it was constructed, the law is for the defendant and you should so find. (3) In making your estimate, you should consider the fair market value of plaintiff's property just before it was known that said street would be made as it was made, and the fair market value after the making of said street was completed, as shown by the evidence; and if there is a decrease or diminution in value caused by the making of the street as it was made, you should award the difference in value so found to plaintiff as the amount of the damage to her property by reason of the construction of said street, not exceeding $700, the amount claimed in the petition. (4) If there has not been any decrease in the value of plaintiff's property by reason of the making of said street as in these instructions above submitted, you should find for the defendant. (5) If you believe from the evidence that the property generally on the square in which plaintiff's property is situated was increased in value by reason of the construction of the said street, you should not consider the increased value of plaintiff's property, if any there was, which was common to the other property on the said square, by reason of the said construction, in determining whether or not plaintiff's property was diminished by the construction of said street." The only error seriously relied upon for reversal of this action is the giving of instruction No 5.

The case of City of Henderson v. Winstead, 109 Ky. 328 58 S.W. 777, is identical in principle with that at bar. There the court, in instructions 1 and 2, gave to the jury the principle as announced in instruction No. 5 under consideration; that is, "in estimating the damages they should not diminish the amount on account of any enhancement of the property in value by the change of the grade of the street, unless it received some special benefit not in common with other property along the line of the work." Instruction A in the case cited fixed the measure of damages as in No. 3 here. In the opinion, written for the court by Judge Hobson, it is said: "The measure of damages is the diminution in value of the property by reason of the lowering of the grade of the...