Com., Dept. of Highways v. Stocker

• Decision Date: 12 January 1968
• Parties: COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. Alma W. STOCKER, widow et al., Appellees.
• Court: United States State Supreme Court — District of Kentucky

Page 510

423 S.W.2d 510

COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. Alma W. STOCKER, widow et al., Appellees.

Court of Appeals of Kentucky.

Jan. 12, 1968.

Robert Matthews, Atty. Gen., H. C. Smith, Asst. Atty. Gen., Dept. of Highways, Frankfort, D. G. Lynn, Boehl, Stopher, Graves & Deindoerfer, Lexington, Phillip K. Wicker, Somerset, for appellant.

George T. Ross, John W. Palmore, Richmond, for appellees.

STEINFELD, Judge.

The Commonwealth condemned 11.75 acres and a temporary easement of the Stocker farm for the construction of a portion of the limited access Interstate Highway 75. In county court the appellees were awarded $24,550.00 and both parties appealed. The circuit court jury found that the owners were entitled to recover $76,425.00. This appeal is from the judgment entered pursuant to that verdict. We reverse.

The Stockers were the owners of a gently rolling and all-cleared farm containing 197 acres. The principal improvements were a two-story frame residence, a tenant house, a silo, five barns, several small buildings and ponds.

There were 100 feet of frontage on the south side of Tate's Creek Pike. The northeast boundary was contiguous for approximately 1,500 feet to Baker Heights, a residential development within the city limits of Richmond, Kentucky. From there the farm extended generally westwardly over one mile to Goggins Ferry Road on which it fronted for approximately 1,450 feet.

The Commonwealth took a strip which ran in a north-south direction, was 300 feet wide and approximately 1,500 feet long. This divided the farm so that the tract adjoining Richmond and which fronted on Tate's Creek Pike then contained 120 acres and the western tract with frontage along Goggins Ferry Road then had 65.25 acres. No crossing of the new highway was provided. Almost all of the major improvements were on the 120 acre tract. On the part taken were a pond and small barn and on the 65.25 acre portion was a small barn. The evidence is conflicting as to the distance of travel between the remaining tracts. The Stockers say four miles but the Commonwealth claims only 2.75 miles.

Witness for both sides agreed that at least a major part of the farm was suitable for development as a residential subdivision. Com., Dept. of Highways v. Rollyson, Ky., 415 S.W.2d 838 (1967). They stated their opinions concerning values:

                                         For The Commonwealth
                ----------------------------------------------------------------------
                Witness            Before Taking Value  After Taking Value  Difference
                R. W. Crabtree          $122,250             $116,000         $6,250
                M. L. Garrison           146,000              136,900          9,100
                                           For the Stockers
                ----------------------------------------------------------------------
                Witness            Before Taking Value  After Taking Value  Difference
                James W. Stocker        $591,000             $385,780        $205,220
                Earl Baker               591,240              452,500         138,500
                Caperton Burnam          591,000              392,000         199,000
                Ballard Luxon III        591,240              444,960         146,280
                Frank Congleton          471,000              355,700         114,300
                Harry McCord        $2,500 to $3,000     $3,500 per acre        NO
                                        per acre         east side, $500      FIGURE
                                                        to $600 per acre
                                                            west side
                

The jury was instructed and returned its verdict according to the procedure directed in Com., Dept of Highways v. Sherrod, Ky., 367 S.W.2d 844 (1963) as follows:

                      Before Taking Value  After Taking Value  Difference
                Jury       $375,000             $298,875        $76,425
                

Within the verdict was the value of the temporary easement in the amount of $300.00 which is not in dispute.

The Commonwealth claims the verdict of $76,125.00 is palpably excessive and should not stand, that it was for taking not quite 1/16 or less than 6% of the farm and represents over 20% of the $375,000.00 before value fixed by the jury. It notes that the only improvements taken were a pond and small barn while the remaining tracts retained the same access to and frontage on the roads that existed before the taking. It says that the 120 acres adjoining the Baker Heights Subdivision were not disturbed, that the least valuable part of the farm was that taken and that which remained on the far side of the new highway was substantially as before.

Although the owners admit that the value of the 120-acre tract was not adversely affected, they counter that a highway without a crossing will cut through the farm and that there will be a great distance of travel to get from one part to the other. They note that practically all of the improvements are on the 120-acre side and virtually none on the 65.25 acre tract. They forcefully argue that their witnesses were knowledgeable with respect to values and that their appraisals were accurate.

Mr. Stocker and other witnesses for the landowners using several sales in the vicinity as 'comparables' stated that before the taking all of the land had an average value of $3,000.00 per acre and that afterwards the 120-acre portion on the east side of the new highway retained that same or acquired a greater value, but the land on the west side of that highway 'was worth $500.00 an acre'. The 'comparable sales' ranged from $1,100.00 per acre to over $6,000.00 per acre. Earl B. Baker, Caperton Burnam and Frank Congleton, qualified experts (Commonwealth, Dept. of Highways v. Slusher Ky., 371 S.W.2d 851 (1963) and Bennett v. Com., Dept. of Highways Ky., 417 S.W.2d 143 (1967)) said that after the taking the 65.25-acre tract (sometimes referred to as the 67 acre tract) was worth $500.00 an acre, a total of $32,500.00. Ballard Luxon III told the jury that the land on the west side of 'the barrier is worth $500.00 an acre, or $33,955.00.'

Courts, including ours, have used various formulas for determining whether an award should be disturbed as excessive or inadequate. It has been said that the record must show that the award was made as a result of bias, passion or prejudice. Com., Dept. of Highways v. Riley, Ky., 414 S.W.2d 885 (1967); Mississippi State Highway Commission v. Strong, Miss., 240 Miss. 756, 129 So.2d 349 (1961). In Riley we said:

'Nevertheless, jury verdicts on disputed questions of fact are not final or unassailable. The verdicts may be reviewed and upset where, as in the present case, the amount at first sight appears excessive and to have been rendered as a result of passion or prejudice.'

Pennsylvania stated that it will not interfere unless the verdict is so excessive or so inadequate that the review of the trial court on motion to grant a new trial is a clear abuse of discretion or is shocking to the sense of justice. Vaughan v. Commonwealth, 407 Pa. 189, 180 A.2d 12 (1962). A Texas court held that the verdict must be so against the great weight and preponderance of the evidence as to be manifestly unjust. Roberts v. State of Texas, Tex.Civ.App., 350 S.W.2d 388 (1964). Jayson v. United States, CCA 5, 294 F.2d 808 (1961) decided that the ruling of the trial court will not be disturbed in the absence of a clear abuse of discretion in considering and passing upon the motion for a new trial. Com., Dept. of Highways v. Tyree, Ky., 365 S.W.2d 472 (1963) announced '* * * our power of review is limited under this record to determining whether the testimony of the landowners' witnesses had sufficient probative value to support the verdict rendered.' Also see Com., Dept. of Highways v. Doolin, Ky., 411 S.W.2d 44 (1967); and Neighborhood Oil Company v. Com., Dept. of Highways, Ky., 418 S.W.2d 424 (1967). We decided in Com., Dept. of Highways v. Dennis, Ky., 409 S.W.2d 292 (1966); Com., Dept. of Highways v. Brumfield, Ky., 418 S.W.2d 231 (1966) and Com., Dept. of Highways v. Osborne, Ky., 417 S.W.2d 530 (1967) that the testimony did not support the award and in Com., Dept. of Highways v. Collins, Ky., 409 S.W.2d 506 (1966) that based upon mathematical computations an award should not stand. In East Kentucky Rural Electric Co-operative Corporation v. Rand, Ky., 357 S.W.2d 890, 891 (1962) we wrote 'There being no two cases alike, it is often said that 'there is no definite yardstick which a court may apply in deciding whether damages are excessive in a given case.' East Kentucky Rural Electric Co-op. Corp. v. Erwin, Ky., 1958, 310 S.W.2d 554; Tennessee Gas Transmission Co. v. Teater, Ky., 1952, 252 S.W.2d 674.' We have used expressions that the verdict of the jury may not stand if the amount 'shocks our conscience', or 'at first blush' or 'at first sight' is so excessive as to appear to have been rendered under passion and prejudice. Com., Dept. of Highways v. Muir, Ky., 412 S.W.2d 231 (1967); Com., Dept. of Highways v. Shirley, Ky., 409 S.W.2d 522 (1966); Com., Dept. of Highways v. Riley, supra; Com., Dept. of Highways v. Blincoe, Ky., 418 S.W.2d 731 (1967); Com., Dept. of Highways v. Hester, Ky., 421 S.W.2d 840 (decided December 15, 1967). Whitesburg, etc. v. Bates, Ky., 412 S.W.2d 225 (1967) said:

'A verdict will not be disturbed as excessive, unless it is given under the influence of passion or prejudice or in disregard of the evidence or the instructions of the court. CR 59.01. Commonwealth of Ky., Dept. of Highways v. Gearhart, Ky., 383 S.W.2d 922; Salt River Rural (Elec.) Co-op. Corp. v. Thurman, Ky., 275 S.W.2d 780; Commonwealth, Dept. of Highways v. Rankin, Ky., 346 S.W.2d 714; Commonwealth, Dept. of Highways v. Tyree, Ky., 365 S.W.2d 472, and authorities there cited.'

There has been no uniform standard. See cases cited in Kentucky Digest Volume 8, Eminent Domain, k150.

Discussing the problem now before us it was said in Orgel, Valuation under Eminent Domain, Volume 1, Section 130, page 558 that:

'The limits of reasonableness are usually fixed by the estimates...