Com., Dept. of Highways v. Litteral
| Decision Date | 07 November 1958 |
| Parties | COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. W. T. LITTERAL et al., Appellees. |
| Court | United States State Supreme Court — District of Kentucky |
Jo M. Ferguson, Atty. Gen., Astor Hogg, Dennie Gooch, Jr., Asst. Attys. Gen., for appellant.
Marcus Mann, Benjamin Mann, Salyersville, for appellees.
CULLEN, Commissioner.
The Commonwealth of Kentucky, Department of Highways, has moved for an appeal from a judgment of the Magoffin Circuit Court awarding $1,000 to W. T. Litteral and Faye Litteral, his wife, as damages resulting from highway construction work that removed lateral support from the Litterals' land. Although we are overruling the motion for an appeal we are writing a formal opinion, because a question of importance is presented.
The removal of lateral support was alleged to have occurred when the Department of Highways, in accordance with its construction plans, lowered the grade of the road in front of the Litterals' land.
The question is whether under the deed from the Litterals' predecessor in title, conveying the right of way and reciting that the conveyance was made in contemplation of the construction of the road in accordance with the plans on file in the office of the Department of Highways, the department acquired the right to remove lateral support, and the Litterals were estopped to claim damages for this type of injury. Such deeds have been held to bar recovery for 'consequential injury,' which has been defined to mean such injury as 'hindering ingress and egress because of the elevation or depression of the highway, or the loss of the use of rents or profits of the land, or fencing, or any other damage arising from the proper, prudent, and good-faith exercise of the right to put the land conveyed to the intended use.' Breathitt County v. Hudson, 265 Ky. 21, 95 S.W.2d 1132, 1134.
We have held specifically that interference with ingress and egress constitutes 'consequential injury' for which no recovery can be had. Fallis v. Mercer County, 236 Ky. 315, 33 S.W.2d 12; Meyer v. Jefferson County, Ky., 305 S.W.2d 536. We have made the same holding as to dust injury to crops during construction work. Commonwealth v. Moore, Ky., 267 S.W.2d 531.
In Snyder v. Whitley County, 255 Ky. 741, 75 S.W.2d 373, it was held that removal of lateral support was 'consequential injury'. We are persuaded to question the correctness of that decision.
The Snyder case held in substance that there was no difference between interference with ingress and egress and removal of lateral support. We now think that there is a material difference. If the highway construction plans call for lowering the grade of the road, it is reasonably to be anticipated that there will be an interference with ingress and egress. But it is not reasonably to be foreseen that the lowering of the grade will remove lateral support. Whether lateral support will be removed may depend upon...
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