Com. v. Mayo
| Decision Date | 22 May 1959 |
| Citation | 324 S.W.2d 802 |
| Parties | COMMONWEALTH of Kentucky, Department of Highways, Appellants, v. Nellie MAYO, Widow et al., Appellees. |
| Court | United States State Supreme Court — District of Kentucky |
Edward A. Marye, Jr., Asst. Atty. Gen., for appellants.
W. A. Johnson, J. K. Wells, Paintsville, for appellees.
CLAY, Commissioner.
This is an appeal by the Commonwealth from part of a judgment entered in the circuit court in a highway condemnation case. It is contended the judgment improperly allowed the landowners $3,290 for new fencing which would be required along the right-of-way. The problem is a procedural one.
Under the provisions of KRS 177.081 to 177.089, the Department of Highways filed suit in the Johnson County Court to condemn approximately 17 acres of right-of-way through the property of appellees. Commissioners were appointed, and filed a report awarding appellees $8,500 for land taken and $3,290 as 'direct' damage for 'new fence necessary'. Judgment was entered on this award.
Under the provisions of KRS 177.087 appellees appealed to the circuit court, filing a 'Statement of appeal and exceptions' wherein they listed as grounds of appeal (1) the fair and reasonable market value of the land taken was at least $50,000 and (2) incidental damage, for which the commissioners had allowed nothing, was at least $10,000. No mention was made of the item of fencing. After a trial, the circuit court jury returned a verdict of '$18,000 for the land taken, $2,000 for damages'. In the judgment the circuit court added to this award the item of $3,290.
It is the Commonwealth's contention that since the trial in the circuit court was de novo on the question of damages, the former award of the commissioners was vacated in toto, and the award of the jury included all damages to which the landowners were entitled. The landowners' position, accepted by the circuit court, was that the trial de novo was limited to items of damage put in issue by the appeal, and the award of the commissioners with respect to uncontested items was properly included in the judgment.
KRS 177.086(3) provides as follows:
'Any appeal from such judgment (of the county court) by either party or both parties shall be confined solely to exceptions to the amount of compensation awarded by the commissioners.'
KRS 177.087(1) establishes the procedure on appeal from the county court to the circuit court. It refers to 'exceptions' to the award made by the commissioners and also refers to 'grounds of appeal'. It then provides:
'The appeal shall be tried de novo, but shall be limited to the questions...
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...awarded in the lower court. See Bullitt v. Commonwealth, Ky., 298 S.W.2d 290; Bennett v. Commonwealth, Ky., 322 S.W.2d 706; Commonwealth v. Mayo, Ky., 324 S.W.2d 802. We have overruled the appellees' motion to dismiss since the judgment should be considered with the pleadings, Rutherford v.......
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...considered by the circuit court. KRS 177.087(1). Davis v. Commonwealth, Dept. of Highways, Ky., 374 S.W.2d 513 (1964); Commonwealth v. Mayo, Ky., 324 S.W.2d 802 (1959). Moreover, without an objection or offer of instructions based on the jurisdictional fact of negotiation, the submission of......
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