Com., Dept. of Highways v. Gearhart
| Decision Date | 06 November 1964 |
| Citation | 383 S.W.2d 922 |
| Parties | COMMONWEALTH of Kentucky, DEPT. OF HIGHWAYS, Appellant, v. Ted GEARHART et al., Appellees. |
| Court | United States State Supreme Court — District of Kentucky |
John B. Breckinridge, Atty. Gen., Wm. A. Lamkin, Jr., Asst. Atty. Gen., Frankfort, Walter Mobley, Flemingsburg, J. G. M. Robinson, Caldwell & Robinson, Ashland, for appellant.
John T. Diederich, H. David Hermansdorfer, Ashland, J. W. Blackburn, Louisville, for appellees.
DAVIS, Commissioner.
The appellant Department of Highways is condemning a portion of appellees' land for highway right of way incident to construction of non-access Interstate Highway 64. The jury awarded verdict to appellees for $65,000; this was itemized as $50,000 for the land taken, plus $15,000 resultant damages to the remaining property. (Trial was had before Com., Dept. of Highways v. Sherrod, Ky., 367 S.W.2d 844.)
The appellant presents asserted errors in the admission of evidence and excessiveness of the verdict as its bases for this appeal.
Before the taking, the appellees owned a boundary of land containing approximately 154 acres. The property was being (and for many years had been) used for grazing a small amount of livestock. The land lies about ten miles from Ashland, with about 2300 feet of frontage on Terrapin Road. The frontage along Terrapin Road is not disturbed by the instant taking. The right of way taken embraces about 61 acres; the nature of the taking also effectively severs an additional ten acres, more or less. The parties tried the case on the agreed premise that the severed land is included with the right of way taking, so that for practical purposes the total taking is of 71 acres.
The land taken is a strip running generally east and west along the entire southern portion of the farm. Embraced within the taking were the somewhat meager improvements on the place. (Appellees' witness Alexander placed an aggregate value of $3,254 on all the improvements.) Numerous photographs depicting the improvements and the condition of growth on the surface confirm the description of the land as steep and hilly, except for a garden plot and about two acres of bottom land. The garden area is taken but the bottom land remains.
Near the southwestern corner of the original tract, at a jutting point, the western side of the farm abutted Kentucky Highway 180; the latter was 'hardtop' road, whereas Terrapin Road is gravel surface. After the taking the remaining land will not abut Highway 180. It appears that the general farm use of the property had been to and from Highway 180.
The Department offered six evaluation witnesses whose respective estimates are thus summarized:
Before Value After Value Difference
$15,000 $11,000 $4,000
14,900 7,715 7,185
11,900 4,800 7,100
14,200 7,900 6,300
14,041 7,951 6,090
31,763 17,267 14,495
It is appropriate to point out that the appellant's witness who furnished the highest and last listed figure based his evaluations on his estimates of the presence of some recoverable #7 coal.
In sharp contrast, the appellees offered four witnesses who gave evaluation testimony as follows:
Before Value After Value Difference
$129,000 $16,400 $112,600
134,610 26,600 108,010
120,363 26,290 94,073
118,378 20,800 97,578
For the appellant it was shown that the entire property had been reported to the county tax assessor at the value of $2,345 for the two years next before the taking date.
The extremely wide variances in the values stem from the differences as to whether the land is underlain with recoverable coal in economically significant quantity and quality. For the Department there was evidence of three core drills, two of which were within the original boundary, and one just south of the tract. The Department's witness stated that the #1 core drill reflected a vein of #7 coal, eight inches thick, at a point 139 feet, 3 inches below the surface. The coal experts for each side concede that an 8-inch vein could not be mined economically.
The #2 core drill was on the Brumfield property, just south of the southwestern portion of appellees' farm. This core drill revealed a vein of #7 coal, 2 feet, 10 inches thick; the bottom of the vein was found 64 feet under the surface. The Department's witness expressed the view that strip or auger mining could not be feasibly done in areas having overburden in excess of 40 feet on the back side of the stripping pit.
The #3 core drill was within the original farm boundary, at the northeast corner of the right of way strip. This drill disclosed three veins of #7 coal, varying in thickness from three inches to 30 1/2 inches; the veins are separated by bone shale, and in the aggregate total 42 inches of workable coal.
The same witness for the Department expressed the view that none of the coal under appellees' farm could be deep mined within economic limits.
Two of the appraisal witnesses offered for appellees based their evaluations upon the accuracy of a mining engineer's report as to the quantity and quality of the coal. The mining engineer had prepared a detailed report, but the trial court did not permit the report to be introduced before the jury; the report was made part of the record by avowal. However, the mining engineer testified in person to the essential matters contained in his report. The engineer also had inspected one of three old drift mine openings on the property; he had observed a seam of #7 coal having thickness of 36 inches in that old opening. Additionally, the engineer had examined a fourth core drill, which had been obtained at the instance of appellees. The latter drill, referred to as hole #4, revealed a seam of #7 coal twenty-five inches thick.
The engineer for appellees explained that he had studied the land, its coal outcroppings, and the pertinent history of the area as it pertains to coal productivity. He gave as his estimate that 200,869.24 tons of recoverable coal are under 69.04 acres of the land taken. Of this total, he reckoned that only 7.82 acres could be recovered by strip or auger mining--that 61.22 acres of it would have to be deep mined.
The same engineer said that the coal under the remaining land could be mined, but that it is not as desirable as the coal underlying the taken land. He explained his reasoning as based on the factors that the remaining land would be too small to be attractive to buyers, that the height of the coal in the remaining land is not as adequate, and loss of accessibility to a 'much better road.' The engineer admitted that he could not foretell just what areas would be mineable, nor what the exact thickness of the vein would be until the mining process is actually undertaken.
The appellees presented a topographical map upon which are indicated numerous strip and auger mining operations in the general vicinity of the instant land. Some significance may be given to the fact that the map fails to reflect any deep mining operations.
Appellees' witness Seaton expressed the view that before the taking the coal could have been deep mined. It was the opinion of the witness that by reason of the taking the 'coal value' to the remaining land was lost. He ascribed much of his reasoning for this to the premise that access to the 'hard road' (Ky. Highway 180) will be lost. This witness gave it as his judgment that the best, and indeed the only, feasible place to make a coal mining opening was in Ford Hollow, near the southwest portion of the farm--a...
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