Com., Dept. of Highways v. Stamper

• Decision Date: 10 March 1961
• Citation: 345 S.W.2d 640
• Parties: COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. Paul STAMPER et al., Appellees.
• Court: Supreme Court of Kentucky

Page 640

345 S.W.2d 640

COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. Paul STAMPER et al., Appellees.

Court of Appeals of Kentucky.

March 10, 1961.

Jo M. Ferguson, Atty. Gen., F. D. Curry, Chief Asst. Atty. Gen., James J. Shannon, Jr., Dept. of Highways, Frankfort, for appellant.

Carlos B. Pope, Barbourville, James S. Golden and Julian H. Golden, Pineville, for appellees.

CULLEN, Commissioner.

Upon trial of this condemnation suit in the circuit court, following an appeal from the county court, the jury returned a verdict awarding $24,000 for the land taken and $1,000 as damages to the remaining tract. Judgment was entered accordingly. The Commonwealth, Department of Highways, has appealed, contending that the verdict is not supported by sufficient evidence, the amount awarded is excessive, and there were errors in the admission of evidence.

The appellees Paul Stamper and wife owned a tract of 45 acres situated on a state highway at a point about a quarter of a mile from Barbourville. The tract had a frontage of 1144 feet of the highway. On the front portion of the tract were a dwelling house, with septic tank and lines, two wells furnishing water to the house, and an unused store building. There also had been at one time a pond on this portion. For the purpose of widening the highway the state condemned a strip around 100 feet in depth along the entire front of the tract, amounting to 3.24 acres. On this strip were all the improvements above mentioned, so they were taken by the condemnation.

For convenience we shall first consider the alleged errors in the admission of evidence.

The landowner in his testimony undertook to ascribe a market value of $1,250 to the pond. While for reasons hereinafter stated this testimony was incompetent, the only basis of objection stated by the attorney for the Commonwealth weas that the pond did not exist and therefore was not being taken. Subsequently two other witnesses for the landower were permitted, without objection, to place a value on the pond. Another witness for the landowner was instructed by the landowner's attorney not to include any allowance for the pond in his estimates of damage. Still another witness did not mention the pond. The whole question about the pond thus was in a state of confusion. If the attorney for the Commonwealth was interested only in the fact that there was no pond, he could have established that fact by suitable evidence; furthermore, the jurors viewed the premises and could determine for themselves whether there was a pond. On the other hand, if the attorney sought to exclude any testimony putting a value on the pond because such testimony was incompetent, we think it was incumbent upon him to seek a clear-cut ruling from the court, particularly at the time the landowner's attorney indicated to one of his witnesses that the pond should not be given a value. It is possible that the jury was confused as to whether or not to give any consideration to the testimony of the witnesses who did put a specific value on the pond, but the attorney for the Commonwealth made no effort to clear up the confusion and we think it is too late to raise the alleged error on appeal.

One of the witnesses for the landowner was asked on cross-examination whether he could give an example of a sale of similar property. He said, 'Oh, I would say there was Mr. Evans, which was something similar to that.' It appears that the Evans' property had been taken by condemnation and that some of the jurors in the instant case had sat on the jury in the Evans case. The court promptly admonished the jury not to consider the reference to the Evans' property for any purpose whatever, and later all of the testimony of this witness was stricken and the jury admonished not to consider it. We do not consider the bare reference to the Evans' property as being so prejudicial that it could not be cured by the admonition.

One of the Commonwealth's witnesses was asked on cross-examination to state the most recent sale of similar property with which he was acquainted. Over objections he answered, 'I know a piece of property that sold along the highway there. I know it sold for $5,000.' If this testimony be considered incompetent it could not have been prejudicial to the Commonwealth, because it tended only to support the low estimate of damages given by this witness.

We shall consider together the two contentions that the evidence is insufficient to support the verdict and the damages are excessive. The simple answer to these contentions is that there was testimony by qualified witnesses placing a value of more than $24,000 on the property taken and estimating the damages to the remainder at more than $1,000. These witnesses stated in detail the bases for their estimates of the value of the property taken and the facts they took into consideration. It is true, as shall hereinafter be discussed, that these witnesses improperly were permitted to place separate 'market' values on each of the improvements in reaching their estimates of total value, and thus were permitted to use an improper measure of damages, but the Commonwealth made no objection to this and therefore is in the position of having consented to it. It is true also that most of the witnesses gave no specific bases for their estimates of the damages to the remaining tract, but there was evidence there would be a fill some 12 to 14 feet in height constructed across part of the frontage with a ditch between it and the remaining tract, and we think this was sufficient to support the allowance of $1,000...