Com. Dept. of Finance ex rel. Dept. of Fish & Wildlife Resources v. Day
| Citation | 499 S.W.2d 587 |
| Court | United States State Supreme Court — District of Kentucky |
| Decision Date | 15 June 1973 |
| Parties | COMMONWEALTH of Kentucky, DEPARTMENT OF FINANCE, ex rel. DEPARTMENT OF FISH & WILDLIFE RESOURCES, Appellant, v. Mabel DAY, Appellee. |
G. E. Reams, Harlan, for appellant.
James S. Greene, Jr., Greene & Forester, Harlan, for appellee.
CULLEN, Commissioner.
The Commonwealth of Kentucky, Department of Finance, ex rel. Department of Fish and Wildlife Resources, appeals from a judgment awarding $35,520 to Mable Day as damages in the condemnation by the appellant of a flowage easement over lands of the appellee bordering on Cranks Creek Lake.
In 1964 the Department of Fish and Wildlife Resources created Cranks Creek Lake by erecting a dam across Cranks Creek and impounding its waters. The lake was created for recreational purposes. The normal level of the lake was at an elevation of 1430 feet. The department acquired ownership of the land covered by the lake at that level. In 1966, in a period of heavy rainfall, the water level of the lake rose substantially and land in private ownership bordering the lake was overflowed. Following that experience, the department made surveys designed toward avoiding future overflow problems, and as a result of those surveys changes were made in 1971 in the dam structures, so as to reduce the normal level of the lake to 1420 feet and to accelerate the flow of water out of the lake in times of heavy rainfall. While these changes were calculated to prevent overflow of bordering lands under normal conditions the department anticipated that extraordinary rainfalls on rare occasions might cause the lake to overflow bordering lands up to a level as high as 1440 feet. Therefore, the department undertook to acquire flowage easements over the bordering lands up to the contour level of 1440 feet. The department was unable to negotiate a purchase from Mrs. Day, so the instant condemnation suit was brought.
There is a major argument over the question of just what rights the flowage easement was intended to embrace, so it will be necessary for us to discuss that question in some detail.
In the petition for condemnation filed in the county court it was alleged that a flowage easement was needed over the lands of Mrs. Day and that:
(our emphasis)
The attached exhibits referred to acquiring land for 'flowage easement rights only' but did not define such rights.
The petition further alleged, in paragraph (4):
'Further that it is necessary for the plaintiff to acquire the permanent right to overflow, flood and/or cover from time to time, the hereinafter described lands with the flood, slack, or backwater created by or which shall be resulted from the erection and operation of Cranks Creek Dam across Cranks Creek in Harlan County, Kentucky; the right to enter upon said lands, from time to time, and clear, destroy or dispose of any trees, bushes or other natural growth and any obstruction, accumulation, trash, filth or other thing which would in any way interfere with navigation during any flood or period of high water or flood control or tend to render inaccessible, unsafe, or unsanitary either the lake created by said dam or the margin thereof; together with the right to prevent the draining or dumping into said lake of any refuse, sewage, or other material, which might tend to pollute it.'
Finally, at a third point in the petition, this statement was made:
'Plaintiff further says that it seeks to condemn hereby only a flowage easement over the lands as described herein.'
The county court judgment awarded to the condemnor the right to 'take possession of the lands described in the petition * * * for flowage easements for the purposes set forth in the petition.'
The judgment in the circuit court, after trial of the case on the appeal to that court, contained a similar provision, that the master commissioner convey to the condemnor 'a permanent flowage easement, for the purposes set forth in the condemnation petition * * *'. However, the judgment in its final paragraph, in stating that the 'easement shall grant to' the condemnor specified rights, repeated verbatim the description of rights set forth in paragraph (4) of the petition, hereinbefore quoted, which made no mention of camping, recreational park use, etc.
Throughout the trial in the circuit court, the trial judge controlled the admission of evidence on the basis of his interpretation of the petition as seeking easement rights that included camping, recreational park use, etc. The instructions did not define what rights were being acquired, but merely referred to the 'permanent rights of easement to overflow said parcels of land.' No objection was made to the instructions on the ground of a failure to define the extent of the easement rights, and no instruction was offered making such a definition.
Although the instructions did not define the extent of the rights, the jury had before it the evidence of appraisal witnesses, ruled by the trial court to be admissible, estimating the 'after' value on the basis that camping rights, etc., were being acquired, and there had been read to the jury, several times, the language of the petition with reference to the rights sought to be acquired, including the initial language referring to camping rights, etc. It appears, therefore, that the jury, in making its award of damages, considered that the easement included the camping rights, etc.
This is an important matter, because obviously the 'after' value of the land depended upon the extent of the uses to which it was to be subjected, which involved not only the kinds of uses to be exercised but the probable frequency of their exercise. If only pure flowage rights, as defined in paragraph (4) of the petition, were being acquired, the damages awarded might possibly be found excessive, on the ground that there was evidence requiring the conclusion that the probable frequency of flooding would not be enough to sustain the jury's apparent finding that the easement took substantially all of the value of the...
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Com. Dept. of Finance ex rel. Dept. of Fish & Wildlife Resources v. Browning
...of flowage easements for Cranks Creek Lake) that was involved in Commonwealth, Department of Finance, ex rel Department of Fish & Wildlife Resources v. Day, Ky., 499 S.W.2d 587 (this day decided). Reference is made to the opinion in that case for a description of the project In the instant ......