Com., Dept. of Highways v. Vincent

• Decision Date: 18 May 1962
• Citation: 357 S.W.2d 678
• Parties: COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. R. T. VINCENT et al., Appellees.
• Court: United States State Supreme Court — District of Kentucky

Page 678

357 S.W.2d 678

COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. R. T. VINCENT et al., Appellees.

Court of Appeals of Kentucky.

May 18, 1962.

John B. Breckinridge, Atty. Gen., C. E. Skidmore, Department of Highways, Frankfort, Frank D. Berry, Madisonville, James H. Lucas, Bowling Green, for appellant.

Sam Boyd Neely, Martin, Neely & Reed, Mayfield, for appellees.

WADDILL, Commissioner.

On an appeal to the Graves Circuit Court from a county court award of $9,071, Robert Vincent and his wife recovered a verdict and judgment of $25,000 in a condemnation suit brought by the Commonwealth for construction of a bypass around the city of Mayfield. The verdict fixed the value of 9.24 acres of farm land taken from the Vincents at $15,000 and resulting damages to the remainder of their farm at $10,000. The land condemned was a portion of a 55-acre farm located about 1/2 mile from Mayfield which was shown to be reasonably adaptable for use as a residential subdivision.

Appealing from the judgment entered in the circuit court, the Commonwealth assigns as error: (1) The admission in evidence of a subdivision plat prepared after the condemnation proceeding was filed; (2) the verdict was based on incompetent testimony; (3) the failure of the instructions to state a proper basis for determining damages; and (4) the excessiveness of the verdict.

Over appellant's objections the trial court permitted a plat to be introduced by the Vincents showing their entire 55 acres divided into a residential subdivision, although the property itself was not actually subdivided on the ground. The plat was offered in evidence solely to show the susceptibility of the land for use as a subdivision. For this limited purpose the plat was proper evidence. Commonwealth Dept. of Highways v. Evans, Ky., 361 S.W.2d 766 (decided May 4, 1962). Adaptability for particular uses to which the land may reasonably be put is a proper factor for the jury's consideration in assessing damages. East Kentucky Rural Electric Co-op. Corp. v. Smith, Ky., 310 S.W.2d 535.

Appellant urges that the verdict was based on incompetent evidence. Two witnesses stated, without objection, that residential lots on the Vincent farm would have sold for $1,000 to $1,500 each and they apparently calculated the damages on that basis. While there is a serious question of whether this testimony was competent, it was not preserved for review in this Court by either a specific objection to the testimony or by the scope of the objections made to the introduction of the previously mentioned subdivision plat of the Vincent farm. CR 46; Division of Parks, Department of Conservation v. Hines, Ky., 316 S.W.2d 60. Appellant also claims that the trial court erred in permitting the landowner to testify concerning his intention to sell residential lots on his farm. Since it was shown that the land was adaptable to such use and there was a reasonable expectation that in the near future the farm could have been divided into lots, the landowner was entitled to have this evidence considered by the jury. East Kentucky Rural Electric Co-op. Corp. v. Smith, supra.

An instruction offered by the Commonwealth would have authorized the jury to fix damages at the difference between the fair market value of the Vincent property immediately before it became generally known...