Commonwealth v. Combs

• Decision Date: 24 May 1929
• Citation: 17 S.W.2d 748,229 Ky. 627
• Parties: COMMONWEALTH, by STATE HIGHWAY COMMISSION, v. COMBS et al.
• Court: Kentucky Court of Appeals

17 S.W.2d 748

229 Ky. 627

COMMONWEALTH, by STATE HIGHWAY COMMISSION, v. COMBS et al.

Court of Appeals of Kentucky

May 24, 1929

Appeal from Circuit Court, Perry County.

Condemnation action by the Commonwealth, by the State Highway Commission against A. B. Combs and others. Judgment for defendants, and plaintiff appeals. Reversed, with directions.

John E Campbell, of Hazard, for appellant.

F. J Eversole, of Hazard, for appellees.

THOMAS J.

This condemnation action was filed in the county court of Perry county on April 26, 1928, by appellant and plaintiff below state highway commission, in the name of the commonwealth, against appellees and defendants below, A. B. Combs et al., to condemn a right of way for state highway purposes across a tract of land owned by defendants in Perry county bordering on Kentucky river, and containing 200 acres. The strip sought to be condemned was 60 feet wide and 910 feet long (slightly more than one-sixth of a mile) and contained by actual estimate 1.394 acres. The commissioners appointed by the county court to assess the legal damages to which the landowner is entitled in such cases allowed and reported the total sum of $1,000, divided as the law requires; but, upon exceptions filed by defendants, and a trial of them before a jury, it returned a verdict in favor of defendants for $2,633, from which plaintiff appealed to the Perry circuit court, and upon trial therein the jury returned in favor of defendants a verdict for $7,500, which the court declined to set aside on plaintiff's motion for a new trial, and, to reverse the judgment rendered thereon it prosecutes this appeal.

The grounds urged by plaintiff's counsel for reversal of the judgment are: (1) Error of the court in the admission of evidence offered by defendants; (2) error in the rejection of testimony offered by plaintiff; and (3) that the verdict is flagrantly excessive-all three of which we have concluded are meritorious and should be and are sustained. We will dispose of each of them in the order named.

1. The incompetent testimony objected to under this ground consisted chiefly in (a) that given by defendant relating to the amount he realized from the sale of town lots from a portion of the farm some eight or more years prior to the trial, when the mining town or village of Dolan was laid out, or shortly thereafter, and the prices he had been offered some years prior to the trial for other parcels of land within the village; and (b), testimony as to the amount paid to neighboring landowners for the right of way for the same road over their land. Under subdivision (a), defendant A. B. Combs testified, over the objections and exceptions of plaintiff, that between 1920 and 1922 he divided a strip of his land lying within the limits of the mining town referred to, and near to its business center, into lots 25 by 75 feet, and that he sold them for an aggregate sum of more than $19,000. If it should be conceded that testimony of that character might, under certain conditions, be competent for what it was worth, we are clearly convinced that it was not so under the facts of this case. The sale of the lots was made under conditions entirely different from those existing at the time of this trial in the circuit court or at the time of the filing of this action in the county court. The strip of land sought to be condemned herein was much more removed from the valuable territory of the village than were the lots involved in the complained-of testimony, and the conditions affecting their value were much more favorable to its enhancement than obtained at the time of the filing of this action with reference to the involved strip and consequential damages for its taking. Doubtless the pioneers, including defendants, in the launching of the village and giving it a place in Kentucky's geography, possessed exaggerated dreams of its future outcome, and because thereof defendants were the recipients of the evident boom prices that prevailed for supposed eligible and desirable lots. There was no proof of a convincing nature that the village had grown in recent years, or that the conditions were such that it was reasonably probable that it would ever do so, and it is obviously certain that such testimony had a prejudicial effect on the minds of the jurors. It is a well-known fact of such universal prevalence as to entitle us to take judicial notice of it that under the circumstances and conditions prevailing at the time of the sale of the lots by defendants their price is generally doubled, trebled, and sometimes quadrupled because of their supposed advantageous location, and that the same character of property and not exceeding a block distant would command a much less price.

The prices that defendants had been offered for eligible town sites either for residences or business locations possessed the same demerits and the additional one that its probative value is so remote as to render it incompetent. The offer may not have been genuine, or may have been made by one who was financially unable to perform the terms of his offer if accepted, and other similar contingencies, equally potent, might exist establishing the irrelevancy of such testimony. Moreover, the offeree might be induced to reject the offer, not because of inadequacy of the submitted prices, but for other reasons, sentimental or otherwise, and which furnishes additional grounds for the rejection of that character of testimony, and clearly so in the absence of other proof in the case eliminating the objections pointed out. Indeed in this case defendant A. B. Combs gave a sentimental reason as to why he did not accept the offered price for some lots, the amount of which he was permitted to state to the jury over plaintiff's objections and exceptions. In discussing the same character of testimony, the text in Jones on Evidence, vol. 1, § 168, p. 858, says: "Clearly, evidence should not be received to prove what offers have been made to sell or what prices have been asked or refused." In note 28 to that text cases supporting it from many courts of the country, both state and federal, are cited, with none to the contrary. We therefore conclude, that, under the condition of this record, as presented to us, all the testimony complained of under subdivision (a) of this ground was improperly admitted, and plaintiff's objections thereto should have been sustained.

The testimony complained of under subdivision (b) consisted in proof of the prices that were paid to others in the neighborhood in...