Commonwealth v. Kelley
| Decision Date | 06 February 1951 |
| Citation | 314 Ky. 581 |
| Parties | Commonwealth et al. v. Kelley et al. |
| Court | United States State Supreme Court — District of Kentucky |
Circuit Court, Magoffin County, E.B. Beatty, Special Judge, rendered judgment for plaintiffs and defendants appealed. The Court of Appeals, Cammack, C.J., held that the proceeding was for taking of property rather than trespass, and therefore a unanimous jury verdict was required.
Reversed and remanded with instructions.
1. States. — Immunity from suit is an attribute of state sovereignty.
2. States. — Under constitutional provisions requiring payment for private property taken for public use, where there is a trespass amounting to such taking, state's immunity from suit is waived. Const. secs. 13, 242.
3. Eminent Domain. — Under constitutional provisions requiring payment for private property taken for public use, an interference with the legally protected use of land, which destroys use or places substantial additional burden on owner to maintain that use, is a "taking" of land. Const. secs. 13, 242.
4. Eminent Domain. — If State Highway Department negligently managed and operated ditches, sidewalks and culverts, causing overflow of water which rendered plaintiffs' residential property unfit for occupancy and severely damaged buildings, there was a trespass amounting to a "taking" under constitutional provisions requiring payment for private property taken for public use. Const. secs. 13, 242.
5. Eminent Domain. — A subsequent purchaser may not recover damages resulting from a permanent structure built on adjoining land because it is presumed that damages were deducted from the purchase price.
6. Eminent Domain. — Even though highway had been constructed before plaintiffs' purchase of property, if improper maintenance of ditches and culvert by the State Highway Department occurred during plaintiffs' ownership or damage became apparent during that time, and plaintiffs' property was so damaged that to maintain its use would require considerable expense, there would be a taking of the property within constitutional provisions requiring payment for private property when taken for public use. Const. secs. 13, 242.
7. Trial. — Where property owners brought action against State Highway Department for injury to land due to overflow of water allegedly caused by negligent management and operation of highway and culverts, action was basically for payment for taking private property for public use and not action in trespass, and therefore unanimous jury verdict was required. Const. secs. 13, 242.
8. Appeal and Error. — In property owners' action against State Highway Department for injury to land due to overflow of water allegedly caused by negligent management and operation of highway and culverts, erroneous instruction that nine jurors could return verdict was not cured where only 11 jurors returned the verdict.
A.E. Funk, Attorney General, and C.J. Waddill, Jo M. Ferguson, Assistant Attorney General, for appellants.
Williams & Allen, G.C. Allen, and T.J. Arnett for appellees.
Before E.B. Beatty, Special Judge.
Reversing.
This appeal presents a situation in which the Commonwealth is sued by an individual property holder for injury to his land. In 1944, J.V. Kelley bought a house and lot in Salyersville, Kentucky, on the south side of Highway 460. Mr. Kelley conducted a funeral home on the premises, and also resided there. On the north side of the highway, opposite Kelley's house, there is a ditch or drainway. Water drains from a hill, which slopes to this ditch opposite Kelley's home. A culvert runs under the road and empties on the south side of the highway at about the corner of Kelley's lot. When there are heavy rains the water overflows on the north side of the highway and crosses the road onto Kelley's property. There is conflicting evidence as to the exact cause of this flooding. There is evidence that the culvert has become choked with stones, branches and other materials. A concrete bridge has been built over the ditch and there is testimony that this narrows the water carrying capacity of the ditch. The water deposits mud on Kelley's land and there is evidence that the foundation of his house has been damaged.
Kelley complained of this situation to employees of the Highway Department several times. On their advice, he changed a branch ditch near his garage in an attempt to alleviate the situation. He testified that this only aggravated the condition. After more complaints Kelley filed this action in the Magoffin Circuit Court against the Commonwealth and the Highway Department and recovered a $1000 judgment. The Commonwealth and the Highway Department are appealing.
It may be observed at the outset that this is an action against the Commonwealth and a governmental agency thereof. Immunity from suit has always been an attribute of state sovereignty. However, Section 13 of the Constitution declares that no man's property shall be taken or applied to public use without the consent of his representatives, and without just compensation being previously made to him. In Kentucky State Park Commission v. Wilder, 260 Ky. 190, 84 S.W. 2d 38, 39, a distinction between this section and Section 242 of the Constitution was noted. In that case we said:
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