Commissioners of Sewerage of Louisville v. Reisert
| Decision Date | 26 April 1932 |
| Citation | 49 S.W.2d 324,243 Ky. 494 |
| Parties | COMMISSIONERS OF SEWERAGE OF LOUISVILLE v. REISERT. |
| Court | Kentucky Court of Appeals |
Appeal from Circuit Court, Jefferson County, Common Pleas Branch First Division.
Proceedings by the Commissioners of Sewerage of the City of Louisville against William A. Reisert to condemn a portion of a tract of land for sewerage purposes. From the judgment rendered, the Commissioners of Sewerage appeal.
Reversed for a new trial.
Rowan Hardin, of Louisville, for appellant.
R. P Hobson and Woodward, Hamilton & Hobson, all of Louisville for appellee.
The commissioners of sewerage of Louisville filed a petition against William A. Reisert to condemn a portion of a tract of land for sewerage purposes. The defendant was awarded the burden of proof and the closing argument to the jury. The jury found the value of the land taken to be $3,750, and fixed the consequential damages to the residue of the tract at $6,250. A judgment was rendered accordingly, and the commissioners of sewerage have prosecuted an appeal.
The first question to be determined concerns the correctness of the ruling of the trial court respecting the burden of proof. The commissioners of sewerage is a municipal corporation authorized to condemn land needed for sewerage purposes. The procedure for the condemnation of property is the same as that provided for condemnation for municipal purposes by cities of the first class. Section 8, C. 72, Acts of 1928, p 247, section 3037a-8, Ky. St. 1930. The charter of cities of the first class respecting condemnation for municipal purposes adopts the same procedure provided by law for the condemnation of property for park purposes. Ky. St. § 2831. The procedure for condemnation for park purposes requires a petition to be filed in the Jefferson circuit court upon which a summons must be issued and served upon the defendant or defendants, and the subsequent proceedings must conform as nearly as may be to ordinary actions at law. Section 2852, Ky. St.; Board of Park Commissioners v. Du Pont, 110 Ky. 743, 62 S.W. 891, 23 Ky. Law Rep. 106. The statutes do not define further the particular procedure, and the burden of proof in such proceedings must be determined by the rules prevailing under the Civil Code. The burden of proof in the whole action rests upon the party who would be defeated if no evidence were given on either side. Civ. Code Prac. § 526. The party having the burden of proof must first produce his evidence and is entitled to conclude the argument to the jury. Civ. Code Prac.§ 317, subsecs. 3 and 6.
It is correctly conceded that an error of the trial court in assigning the burden of proof in a condemnation case requires a reversal of the judgment. Louisville & N. R. Co. v. Hargis, 230 Ky. 806, 20 S.W.2d 991. Under the Constitution of Kentucky property cannot be taken or applied to public use without just compensation being made (section 13), and municipal or other corporations or individuals invested with the privilege of taking private property for public use must make just compensation for property taken, injured or destroyed. Such compensation shall be paid before the taking, or paid or secured at the election of such corporation or individual before the injury or destruction (section 242).
The purpose of the proceeding by the commissioners of sewerage is to ascertain what constitutes a full and adequate compensation for the taking or injury to the land desired and, before any land can be taken, the amount of compensation to be paid must be ascertained and determined according to law. Under the Civil Code of Practice, which prevails in proceedings of this character, allegations concerning value or amount of damages, although not denied, must be proved. Civ. Code Prac. § 126. Hence, if the petitioner fails to produce evidence of the value of property proposed to be taken, no relief can be awarded and the proceeding would have to be dismissed. Seattle & M. Ry. Co. v. Murphine, 4 Wash. 448, 30 P. 720. An essential and indispensable part of the burden resting upon the plaintiff is to show the value of the land sought to be appropriated to public use. In proceedings by a railroad corporation to condemn land, and in certain other instances affected by similar statutes, a condemnation proceeding is instituted in the county court, where viewers are appointed to value the land and a report is made to the court showing the value of the land to be taken and the damages to the remainder. If no exceptions are filed to such a report, the court is authorized to render a judgment according to the valuation there made. Section 838, Ky. St. And if exceptions are filed by one party only, the burden is upon such party to produce evidence to sustain the exceptions. If that burden is not met, the report of the commissioners is confirmed. If both parties file exceptions to the report, the burden is then on the condemnor. Waller v. Lee County, 187 Ky. 848, 220 S.W. 1071; Shelbyville & E. Turnpike Co. v. Louisville & N. R. Co., 51 S.W. 805, 21 Ky. Law Rep. 548; Calor Oil & Gas Co. v. Franzell (Ky.) 122 S.W. 188; Saulsberry v. Ky. & W.Va. Power Co., 226 Ky. 75, 10 S.W.2d 451; Louisville & N. R. Co. v. Hargis, 230 Ky. 806, 20 S.W.2d 991. But in proceedings like the present one, there is no report of the appraisers, and nothing upon which to predicate a judgment if no evidence of value is offered. The rule is not the same in the different states. 20 C.J. § 386, p. 982, § 404, p. 1011; Alloway v. Nashville, 88 Tenn. 510, 13 S.W. 123, 8 L. R. A. 123. The divergence among the...
To continue reading
Request your trial