Com., Dept. of Highways v. Gisborne
| Decision Date | 11 June 1965 |
| Citation | 391 S.W.2d 714 |
| Parties | COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. T. C. GISBORNE et al., Appellees. |
| Court | United States State Supreme Court — District of Kentucky |
Robert Matthews, Atty. Gen., Wm. A. Lamkin, Jr., Asst. Atty. Gen., Frankfort, Reed D. Anderson, Madisonville, for appellant.
Paul Lewis, Hatcher & Lewis, David D. Jarrett, Elizabethtown, J. Luke Quertermous, Princeton, for appellees.
The Commonwealth of Kentucky, Department of Highways, purchased from T. C. Gisborne and Dorothea Gisborne, his wife, a small amount of their farm in Hardin County for widening to four lanes U. S. Highway 31-W. Paul Young, the Department's resident engineer, staked off the property supposedly obtained by the Department under a deed.
It developed that Young was mistaken about the amount of land embraced in the conveyance from the Gisbornes to the Department. A portion of their property, approximately 300 feet long and from ten to thirty feet in width, which was erroneously believed by Young to have been included as a temporary easement in the deed, was also taken and utilized. The subcontractor, Tom Ferguson Contracting Company, herein called 'Ferguson,' in the course of performing the construction work, proceeded to tear down the fences, clear off the trees and shrubbery and do some grading on the unacquired strip, using the stakes set out by Young as a guide for the acts done.
The Gisbornes sued Ferguson for damages who in turn filed a third-party complaint against Young and the Department. The Gisbornes by amended complaint then made Young and the Department parties defendant, alleging they had wrongfully taken, injured and destroyed their property. At a pretrial hearing the trial court dismissed as to Ferguson and Young. Before a jury the Gisbornes later recovered $1050 from the Department.
The Department has appealed, urging as a basis for reversal: That, as the action was premised upon the negligence of the Department and its employees, the suit of the Gisbornes should have been adjudicated before the Court of Claims, pursuant to KRS 44.070 et seq.; and that, assuming arguendo there was what amounted to a taking, the Department upon payment of the award was entitled to be conveyed the land involved.
The Gisbornes have cross-appealed, contending the trial court erroneously dismissed the action as to the contractor, Ferguson.
Was there an unconstitutional taking of the property in controversy, as the Gisbornes argue, or merely a trespass, as the Department contends? Actually, it makes no difference whether property is condemned and appropriated for a public use, or is 'injured or destroyed' for a public purpose, the owner of the property when any of these conditions occur must be justly compensated. See Section 13 and Section 242 of the Constitution of Kentucky. See also Lehman v. Williams, 301 Ky. 729, 193 S.W.2d 161. It does not matter whether the...
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