Com., Dept. of Highways v. Evans

• Decision Date: 04 May 1962
• Parties: COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. Jimmie P. EVANS, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 766

361 S.W.2d 766

COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. Jimmie P. EVANS, Appellee.

Court of Appeals of Kentucky.

May 4, 1962.

Rehearing Denied Dec. 7, 1962.

John Breckinridge, Atty. Gen., H. D. Reed, Jr., Asst. Atty. Gen., Lawrence L. Pedley, Dept. of Highways, Frankfort, for appellant.

William C. Clay, Jr. Mt. Sterling, for appellee.

PALMORE, Judge.

The state, through its Department of Highways, appeals from a judgment of the Montgomery Circuit Court entered pursuant to a jury verdict awarding Jimmie P. Evans $62,454 for land taken and damages resulting from the condemnation of 26.82 acres of the Evans farm incident to the construction of Interstate Highway No. 64 (I-64). It appeals also from a supplemental judgment of the circuit court requiring it to bear the cost of relocating a private gas connection.

Immediately prior to the taking the farm in question was a 433-acre tract fronting 2893 feet on the west side of U. S. Highway 460 one mile north of Mt. Sterling, the county seat of Montgomery County. It extended westwardly to a depth of about 1 1/2 miles from U. S. 460 and was bordered on the south by an intersecting county road called the Country Club road. Since easy access from U. S. 460 to the rear or westward reaches of the property was afforded via this county road it had never been necessary that the owner construct an eastwest passway within the farm itself.

I-64 is a limited access highway. It enters the Evans place from the south, closing off the Country Club road about half a mile west of U. S. 460, and runs northeastwardly to U. S. 460, severing a 32-acre triangle in the southeast corner from the rest of the farm. The right-of-way of I-64 is 300 feet wide until it approaches within 1100 feet of U. S. 460, and over this distance of 1100 feet it flares outward, so as to accommodate interchange ramps, to a width of approximately 925 feet at its intersection with U. S. 460. In addition to this right-of-way, which embraces 24.94 acres, the condemnation also included a strip 859 feet long and 55 feet wide bordering the west side of U. S. 460 to the north of the ramp area and a similar strip 738 feet long and 50 feet wide bordering the same side of U. S. 460 to the south of the ramp area. These strips, aggregating 1.88 acres, were taken for the purpose of 4-laning U. S. 460 on each side of the intersection, and although the landowner has taken the position throughout this litigation that by virtue of acquiring corporeal title rather than a highway easement the state may at any time shut off his access to U. S. 460 along these strips, the judgment of the county court specifically provides that he shall have such access. (Hence we need not consider whether the character of title acquired by the state has, of itself, anything to do with the right of access.) Thus his frontage on U. S. 460 has been reduced by 925 feet, that being the width of the I-64 right-of-way and ramp area, and not by the additional 1597 feet taken for the widening of U. S. 460. There is, however, the likelihood of some limitation of access in that the plans for 4-laning U. S. 460 contemplate a median strip, which may or may not be broken for cross-over at such point or points as the owner may desire.

The county court judgment made an award of $55,215 and directed the condemnor to make 'the necessary arrangements for the continuation of the water and gas utility service to this farm.' The report of commissioners is not before us, but the documents in the record reveal that it awarded $25,815 for the 26.82 acres taken and $29,400 for damages to the remainder. Both parties appealed to the circuit court.

Prior to the eventual trial of the case, and in response to a motion by the landowner showing that his gas utility service had been disrupted, the circuit court entered an order directing the condemnor to make necessary arrangements for the continuance of this service and reserving 'the right to modify the judgment of the Montgomery County Court in this and in all other respects upon the trial of this action in the Montgomery Circuit Court.' During the trial there was no reference to utility services, but thereafter a supplemental judgment was entered showing that counsel for the respective parties had argued the matter before the court and directing the condemnor, in effect, to install a connection between the gas line built by it under I-64 and the service line entering the owner's premises.

Witnesses for the state appraised the 26.82 acres taken at a value of $17,928. The owner's evidence on this item ranged from $62,142 to $62,465. None of the witnesses on either side figured any damages to the remainder of the farm by reason of the taking except necessary refencing and the construction of a 3/4-mile rock roadway for access to the back portion of the farm. The state experts estimated $780 for 130 rods of fence and $7,500 for the road. The landowner's evidence included estimates of $600 to $1,200 for fencing and $7,500 to $8,000 for the road. The jury awarded $54,204 for land taken and $8,250 for 'other damages.'

The record before us divulges very little with respect to the disputed gas connection. Apparently, however, it was located within the right-of-way of U.S. 460, and no determination was made until after the trial as to whether it existed there by sufferance of the state or by virtue of an implied easement or other right retained by the landowner's predecessor in title when he conveyed that particular right-of-way to the state. Appellee, in defending the supplemental judgment, points to the rule that if some of the proceedings are not reflected in the record this court 'will indulge the presumption that the absent evidence supported the facts pleaded and the decision of the trial court thereon.' Willis v. Davis, Ky., 1959, 323 S.W.2d 847. This is but another way of saying that when the evidence is not before us we can do no more than determine whether the pleadings support the judgment. Marcum v. Brock, Ky., 1953, 257 S.W.2d 55. In this case there is nothing in the record, by pleading, evidence, or otherwise, to support the supplemental judgment. Moreover, the only relief the court was authorized to give was compensation in money, and that was exclusively a jury question. KRS 177.087.

If in disrupting the gas connection the state infringed a property right of the condemnee, the resulting damage should have been considered in exactly the same manner as other damages to the remainder, such as the necessary cost of fencing. Cf. Commonwealth Dept. of Highways v. Farris, Ky., 1961, 351 S.W.2d 526, 528; Greenup County v. Redmond, Ky., 1960, 335 S.W.2d 335; Commonwealth v. Conatser, Ky., 1959, 329 S.W.2d 48, 50. It was not proper for the trial court to reserve the question from the jury.

In its appeal to the circuit court the state excepted 'to the award of the commissioners for land taken and damages to the remainder on the grounds that the award is excessive.' The owner contends that this language was insufficient to embrace that portion of the county court judgment requiring the state to provide for a continuation of the utility services. Under KRS 177.083 and KRS 177.086 the authority of the county court is limited to determining the petitioner's right to condemn and awarding the owner the value of the property taken and any damages resulting to his adjacent lands. There is no provision for equitable relief in such a proceeding. But if we should assume that the particular type of relief granted by this direction of the county court judgment were properly within the scope of the statutes, as 'damages resulting to the adjacent lands of the owner,' then necessarily it would fall also within the state's exception to the award for 'damages to the remainder.'

We hold, therefore, that the controversy with respect to the utility service was essentially a question of damages and was included in the state's appeal to the Montgomery Circuit Court.

The next assignment of error is that the trial court declined to instruct the jury to set off benefits against the damages to the remaining portions of the Evans farm. See KRS 177.083. Though no specific grounds for objection to the instructions given by the court were stated, the condemnor's rights in this respect were preserved by tender of instructions clearly setting forth its theory on the point in question. See Commonwealth Dept. of Highways v. Farris, Ky., 1961, 351 S.W.2d 526, 528. The obvious answer to this contention is that since the court had refused to permit any of the evidence offered by the state to...