Com., Dept. of Highways v. Davidson
| Decision Date | 16 October 1964 |
| Citation | 383 S.W.2d 346 |
| Parties | COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. Hovious DAVIDSON et al., Appellees. |
| Court | United States State Supreme Court — District of Kentucky |
John B. Breckinridge, Atty. Gen., Wm. A. Lamkin, Jr., Asst. Atty. Gen., Reed D. Anderson, Dept. of Highways, Frankfort, for appellant.
Seth T. Boaz, Wm. H. Parham, Mayfield, for appellees.
DAVIS, Commissioner.
Appellees, Hovious Davidson and his wife, Mary, sued Commonwealth of Kentucky Department of Highways, and Graves County alleging that their property had been damaged by reason of the construction of a highway in front of it. The Davidsons based their claim on the assertions that appellee Graves County and appellant had misrepresented the height of the fill to be constructed in front of their property, thereby inducing them to execute deeds for the right of way.
The jury absolved appellee Graves County, but returned verdict for $2,000 against appellant. The appeal is here pursuant to KRS 21.080 and RCA 1.180.
Appellant presents these points as bases for reversal: (1) The Davidsons are estopped by the deeds granting right of way; (2) KRS 177.060 precludes this action against the Department of Highways; and (3) the evidence was not sufficient to sustain the verdict.
In 1952 the Department of Highways, through an official order of its Commissioner, authorized reconstruction of the Folsomdale-Boaz road in Graves County. The order authorized and directed the Fiscal Court of Graves County to obtain the required right of way for the construction, according to widths and alignments shown by the official plans. This procedure was as prescribed by KRS 177.060; the cited statute, with exceptions not here pertinent, imposes on the county 'all cost of acquiring any necessary land or right of way for primary road purposes.' The same statute states '* * * and all damages incurred shall be paid by the county.'
Graves County appointed a committee to attend the details of acquiring the right of way. The Davidsons stated that representations were made to them by some personnel of the acquisition committee to the effect that the height of the fill in front of their property would not exceed eighteen inches. The Davidsons had operated a rural grocery store on the lot involved. They testified that prior to the new construction access from the road to their store was easy. After the construction, the height of the fill in front of their store ranges from four to five feet. The extent of this fill makes it impracticable (without substantial outlay of money, say the Davidsons) to provide a suitable entranceway from the newly built road to the store.
By deed dated March 10, 1953, the Davidsons conveyed to the Commonwealth, for use of the Department of Highways, the right of way for Parcel 32; the parcel encompassed a strip of land thirty feet from the center line of the road, along the entire front of the Davidson's lot. The deed was executed without any monetary consideration, but recites that it is made 'in consideration of the benefits to be derived' by the grantors from the construction of the road. The deed also contains this language:
'The description of the parcel conveyed by this deed is drawn from the plans of the proposed road on file at the office of the Department of Highways in Frankfort, Kentucky, and this conveyance is made in contemplation of the construction and maintenance of said road according to said plans, which are hereby made a part of this deed.'
A second deed was executed by the Davidsons to the Department, dated February 5, 1957, for which $18 monetary consideration was paid. The second deed transferred title to Parcel 32-A, described as an additional 25 feet in width adjoining Parcel 32, for a portion of its length. The second deed also contained the same language just quoted from the first deed.
Mrs. Davidson testified that she signed the deed (doubtless the first one) and her testimony shows:
It is to be noted that her testimony is not clear as to just who represented to her that the fill would be no more than four feet high at the creek--the western corner. Neither does she say that the actual plans which were presented in evidence by appellant are different from the plans exhibited to her.
Appellant showed by an engineer that the road...
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