Com., Dept. of Highways v. Slusher

• Decision Date: 25 October 1963
• Citation: 371 S.W.2d 851
• Parties: COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. Roxie SLUSHER et al., Appellees.
• Court: Supreme Court of Kentucky

Page 851

371 S.W.2d 851

COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS Appellant, v. Roxie SLUSHER et al., Appellees.

Court of Appeals of Kentucky.

Oct. 25, 1963.

John B. Breckinridge, Atty. Gen., William A. Lamkin, Jr., Asst. Atty. Gen., Paul E. Hunley, Frankfort, for appellant.

James C. Helton, Pineville, for appellees.

STEWART, Judge.

This is an appeal from a judgment in a condemnation proceeding, awarding appellees, the heirs of John Slusher, deceased, $1000 for the land taken and $2500 for damages to the remainder of the property.

Appellant, Commonwealth of Kentucky, Department of Highways, condemned a 195-foot-wide strip of land belonging to appellees for relocation of Highway 119 in Bell County. A strip also was condemned for use as an approach from old Highway 119 to the new one. A total of 19.08 acres was taken from appellees' holding of 140 acres of mountain woodland located on the north side of the old highway. The two strips so condemned lie in such a manner that appellees' land was severed into three tracts.

Two houses and some outbuildings were situated on the 140-acre tract. A small portion of the land had been used for gardens; the rest is in timber. There is a spring on the land, which supplies the houses thereon; there is conflicting evidence as to whether this spring will be damaged.

Appellees also own a 60-acre tract located south of old Highway 119, which is bottom land. There are two houses on it. This land is in no wise affected by this proceeding, except that the existing road bordering the north side of it will be discontinued. Of all this total of 200 acres owned by appellees, only the 60 acres south of the old highway and only one house on it are listed for taxes, at an assessed valuation of $500.

Appellant first argues it was reversible error to permit appellees' witnesses to testify, over appellant's objection, concerning damages to a noncontiguous tract of land (the 60 acres lying below the existing highway), based on the diversion of traffic from the old to the new road.

The jury awarded $2500 for damages to the remainder, while the Commonwealth's witness testified the remainder was merely damaged in the nominal sum of $100. There is no evidence the 60-acre tract was used as a unit with the 140-acre tract, of which latter tract the 19.08 acres was condemned for the purposes above mentioned. However, the court allowed testimony over appellant's objection concerning estimates of damages to the remainder of the property based upon damage to the 60-acre tract due to the prospective loss of traffic on the old road.

This Court has never dealt directly with the question of noncontiguity of certain land as it affects an award for damages to the remainder of the property in eminent domain cases. The question, however, is exhaustively treated in 6 A.L.R.2d 1197, and at page 1222 the rule is stated with reference to two tracts of land separated by a highway. This statement from Sharp v. United States, 191 U.S. 341, 24 S.Ct. 114, 48 L.Ed. 211, which appears in the annotation, is in point:

'Where there is not only no evidence of unity of use but strong evidence of disunity, the presence of the highway becomes, of course, a deciding factor in preventing physical contiguity. Where one of several farms was taken, and it appeared that each of them had retained its identity by possessing its own house and outbuildings and being separately worked, the fact that the farm which had been taken was separated from the others by a public road was stressed as a factor in concluding that damages could not be assessed for the others as remaining property.'

Even if it is conceded, arguendo, that damages may be assessed as to the 60-acre tract, despite its noncontiguity, the basis of such damages under the proof, i. e., diversion of traffic, is contrary to our decisions and unquestionably resulted in an excessive award. See Department of Highways v. Jackson, Ky., 302 S.W.2d 373, and DeRossette v. Jefferson County, 288 Ky. 407, 156 S.W.2d 165. In the opinion of the DeRossette case the reason discontinuance of public travel past one's land is disallowed as a claim for damages is expressed in this language: '* * * Benefits which come and go with changing currents of public travel...