Com., Dept. of Highways v. Widner

• Decision Date: 26 March 1965
• Citation: 388 S.W.2d 583
• Parties: COMMONWEALTH of Ky., DEPT. OF HIGHWAYS, Appellant, v. William H. WIDNER et al., Appellees.
• Court: United States State Supreme Court — District of Kentucky

Page 583

388 S.W.2d 583

COMMONWEALTH of Ky., DEPT. OF HIGHWAYS, Appellant, v. William H. WIDNER et al., Appellees.

Court of Appeals of Kentucky.

March 26, 1965.

John B. Breckinridge, Atty. Gen., Wm. A. Lamkin, Jr., Asst. Atty. Gen., Frankfort, Phillip K. Wicker, Somerset, for appellant.

Logan E. Patterson, Patterson & Berger, Pineville, for appellees.

DAVIS, Commissioner.

The appellees instituted this action against the appellant, Commonwealth of Kentucky, Department of Highways, seeking to recover damages alleged to have occurred by reason of a landslide. The action is prosecuted as a so-called 'reverse condemnation' suit. The jury awarded $5,000 to appellees; the Department seeks to reverse the judgment, and presents these contentions: (1) The circuit court had no jurisdiction, as the asserted cause of action sounds in negligence, so that jurisdiction is exclusively vested in the Board of Claims; (2) incompetent evidence was admitted; (3) the court failed to instruct the jury concerning appellant's theory of defense; and (4) in event recovery is allowed, then a deed from appellees to appellant should be required.

The appellees acquired the subject property in 1952. It consisted of a lot on the slope of Log Mountain, on the east side of U. S. Highway 25-E, about two miles south of Pineville. Some years before appellees bought the property there had been a relocation of Highway 25-E; the old roadway formed the rear or east boundary of appellees' lot. There was a driveway leading from appellees' seven-room residence down to existing Highway 25-E. A masonry wall was located between the residence and the old road, and this stood about four feet behind the house.

In 1957 the appellant caused U. S. Highway 25-E to be widened as it passed in front of appellees' property. The 1957 project consisted of construction of a slow traffic lane on the west side of the highway, across the road from appellees' lot. According to evidence for appellees (sharply disputed by appellant), some of the earth and some large rocks were disturbed and removed from the east side of the highway incident to the 1957 construction. Appellees offered evidence (again denied by appellant) that on numerous occasions, after the 1957 construction, employees of the Highway Department had 'cleaned out' the drainage ditch on the east side of the highway. It is contended by appellees that in so doing, the ditch was repeatedly deepened and widened, so as to remove lateral support from the sloping grade upon which appellees' residence was situated.

Evidence for appellees reflects that during the spring following the 1957 construction the bank in front of the residence began to show signs of slippage, and the bank has continued to slide ever since that time. In 1960 some locust trees on the slope in front of the residence began to lean toward the roadway, and large cracks began to appear in the surface of the soil. In late February, 1962, the sliding of the earth became so extended that appellees found it necessary to evaluate their residence. It is plain, from the evidence and photographs in the record, that a substantial landslide has occurred, and that the residence has been rendered uninhabitable in the present state of affairs.

There was evidence for appellees from qualified witnesses who expressed the view that the removal of rocks from the slope, coupled with digging away of earth at the toe of the slope (activities ascribed to appellant and denied by appellant) had so diminished the requisite lateral support as to ultimately precipitate and cause the landslide and its consequent damaging effect. Appellees testified that they saw appellant's employees, using appellant's equipment, removing rocks and earth from the toe of the slope; furthermore, appellees professed to have made complaint to the appellant's employees as to this work, and claimed to have pointed out that such procedure was producing damage.

Appellant's witnesses flatly denied that any rocks or dirt had been disturbed on the appellees' (east) side of the road, either during the 1957 construction or in maintenance of the highway thereafter. For appellant it was shown that coal mining activities had been in progress (presumably during all of the pertinent period) within one thousand feet of appellees' property, and that this mining could have induced the landslide. Further expert testimony was presented in appellant's behalf that the residence was built on a thalus slope. It was explained that a thalus slope is one formed especially by an accumulation of rock debris at the foot or base of a cliff. Core tests made for appellant indicated that the thalus material was underlain with shale. It was explained that when surface cracks admit water through the thalus material onto the shale, the latter becomes as slippery as wet soap, and a condition occurs making a landslide very likely. There was evidence that rains in excess of an inch per day had fallen for the three or four days immediately preceding the last stages of the landslide. Countering this was evidence of many other heavier rainy seasons during several years prior to the slide; no ostensible damage followed the earlier heavy rains.

Appellees offered competent proof that the market value of their property before the slide was $7,500 to $8,000 and no more than $200 to $300 afterward. By instruction to the jury, the trial court limited the amount of recovery to $7,400; as noted, the jury awarded $5,000, and no complaint is made that the sum is excessive.

Appellant earnestly and ably argues that the circuit court had no jurisdiction. This contention is pitched on the theory that the cause of action necessarily sounds in negligence, and thus is one within the exclusive jurisdiction of the Board of Claims under KRS 44.070, et seq. The appellant confronts the matter in its brief by posing the issue: 'The question is, can appellant ever in the maintenance or construction of its highway remove the lateral support of an adjacent owner except through negligence?' It is our view that the answer to that question must be in the affirmative. Indeed, we have substantially so held. See Com., Dept. of Highways v. Litteral, Ky., 319 S.W.2d 458, wherein the following discussion appears respecting removal of lateral support: '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 unknown geological conditions.' op. cit., at p. 459.

In 38 Am.Jur., Negligence, Sec. 24, p. 669, it is said: 'Generally speaking, no one is bound to guard against or take measures to avert that which, under the circumstances, a reasonably prudent person would not anticipate as likely to happen.' This is an enunciation of the accepted premise that foreseeability of harm is an important factor in determining whether any conduct is negligent. Cf. Long v. Louisville & N. R. Co., 128 Ky. 26, 107 S.W. 203, 32 Ky.Law Rep. 774, 13 L.R.A.,N.S., 1063, 16 Ann.Cas. 673; Mann v. Kentucky & I. Terminal R. Co., Ky., 290 S.W.2d 820; Union, Light, Heat & Power Co. v. Blackwell's Adm'r, Ky., 291 S.W.2d 539, 87 A.L.R.2d 264.

In City of Newport v. Rosing, Ky., 319 S.W.2d 852, we said of an action against a municipality for damages claimed as resulting from removal of lateral support: 'Negligence is not the basis of recovery and the allegations of the complaint with respect thereto were surplusage.' ibid., p. 854. We adhere to that view. We think it is apparent that lateral support could be removed willfully rather than negligently. In any event, we do not perceive that the presence or absence of negligence is necessarily dispositive here.

Our cases which have approved the so-called 'reverse condemnation' theory are premised on the constitutionally guaranteed 'just compensation' for taking of private property. Ky.Constitution, Secs. 13 and 242. The $10,000 limitation of recovery as prescribed by KRS Chapter 44 in negligence actions would offend the Constitution of construed as an effort to place a limitation upon the ultimate amount of 'just compensation' as vouchsafed by the Constitution.

Appellant candidly recognizes that the decisions of this court which have allowed recovery in reverse condemnation cases foreclose its argument on this point, but ably urges that we should reconsider those...