Corns v. Transportation Cabinet, Dept. of Highways, Com. of Ky., s. 89-SC-452-M
| Decision Date | 29 August 1991 |
| Docket Number | 89-SC-582-DG,Nos. 89-SC-452-M,s. 89-SC-452-M |
| Citation | 814 S.W.2d 574 |
| Parties | Ray CORNS, Judge, Franklin Circuit Court; Robert C. Yount, Margaret R. Yount, Henrietta Yount Penn, Bradley Yount, Kay W. Yount, Cassie Yount Watson, Charles E. Watson, James L. Yount, Thelma W. Yount, Ethel Yount McCray, William D. Yount, Christine M. Yount, Billy Meade, Arthur E. Beard, Rodney R. Ratliff, Frankfort Rock, Inc. (Real Parties in Interest), Appellants, v. TRANSPORTATION CABINET, DEPARTMENT OF HIGHWAYS, COMMONWEALTH of KENTUCKY, Appellee. TRANSPORTATION CABINET, DEPARTMENT OF HIGHWAYS, COMMONWEALTH of KENTUCKY, Movant, v. Robert C. YOUNT, Margaret R. Yount, Henrietta Yount Penn, Bradley Yount, Kay W. Yount, Cassie Yount Watson, Charles E. Watson, James L. Yount, Thelma W. Yount, Ethel Yount McCray, William D. Yount, Christine M. Yount, Billy Meade, Arthur E. Beard, Rodney R. Ratliff, Frankfort Rock, Inc., Respondents. |
| Court | United States State Supreme Court — District of Kentucky |
We are called upon to decide whether or not the Court of Appeals abused its discretion by granting a writ of prohibition in a highway condemnation case prohibiting the Franklin Circuit Court Judge, Hon. Ray Corns, ("the respondent Judge") from enforcing an order requiring the Commonwealth of Kentucky, Transportation Cabinet, Department of Highways, ("the Commonwealth") to deposit with the circuit court clerk, to the credit of those whose land was being condemned, $10,516,217.00 found by a special court-appointed mineral appraiser to be the value of underlying minerals. Also, before us is the question of the dismissal of the Court of Appeals of the Commonwealth's appeal of such order on the ground that it was not final and appealable.
On March 28, 1986, the Commonwealth initiated a condemnation action in Franklin Circuit Court to condemn some 10.2 acres of land in Franklin County, either owned by or in which Robert C. Yount, Margaret R. Yount, Henrietta Yount Penn, Bradley Yount, Cassie Yount Watson, Charles E. Watson, James L. Yount, Thelma W. Yount, Ethel Yount McCray, William D. Yount, Christine M. Yount, Billy Meade, Arthur E. Beard, Rodney R. Ratliff, and Frankfort Rock, Inc., ("the landowners"), had an ownership interest. Commissioners appointed by the respondent Judge appraised the property sought to be taken by the proceedings and filed their report with court awarding the landowners the sum of $112,400.00.
On September 9, 1986, the circuit court entered an interlocutory order and judgment finding the commissioners' report to be in the prescribed statutory form and ordering that the Commonwealth might take possession of the subject property by paying the amount of the commissioners' award, $112,400.00 to the clerk of the court. That same day, the Commonwealth deposited the $112,400.00 with the clerk and took possession of the property.
After the Commonwealth had paid the amount of the commissioners' award and had taken possession of the subject property, the landowners moved to have the circuit court vacate its interlocutory order and judgment on the grounds that the commissioners' award did not take into account the value of the underlying minerals. The respondent Judge overruled the motion to vacate but appointed one Edmund Nosow to appraise the underlying minerals and directed that Mr. Nosow's mineral appraisal report "be filed as a part of the total appraised value of the properties." Mr. Nosow reported to the court that the highest and best use of the subject property was as a limestone quarry and that as a consequence of its taking by the Commonwealth, the landowners had lost profits from the sale of limestone totaling $10,516,217.00.
After the Nosow report was filed, the circuit court entered an agreed order directing that it be submitted to the commissioners for their consideration "in supplementing their previous appraisal accordingly...." The order also directed that the commissioners "tender to the Court a final Commissioner's Award taking into account the value of the entirety of the property taken...." The agreed order provided for the filing of exceptions to the "final" commissioners' award and ordered that the Commonwealth would have 30 days after the filing of the final commissioners' award to pay the amount of the final award to the clerk with credits to be given the Commonwealth for the amounts originally paid into court.
By letter dated March 6, 1988, directed to the respondent Judge, the commissioners reported that they would stand by their original report concerning the value of the "surface rights" to the subject property because of their limited expertise in making such evaluations. Nevertheless, on March 28, 1988, the respondent Judge ordered that the original commissioners' report be "... amended to incorporate the value of the minerals at the amount of $10,516,127.00 as found by Edmund Nosow in his report to the Court and Commissioners dated July 24, 1987." Then, on June 20, 1988, citing the authority of KRS 416.630, the respondent Judge ordered the Commonwealth to deposit the sum of $10,516,217.00 with the clerk. The Commonwealth moved to have the circuit court set aside or reconsider its order of June 20, 1988, but the motion was denied by an order, said to be final and appealable, which recited that the Commonwealth should "forthwith" deposit the money with the clerk.
The Commonwealth appealed to the Court of Appeals the circuit court order directing the Commonwealth to deposit the $10,516,217.00 with the clerk. 88-CA-2746-S. The landowners moved to dismiss the appeal as not being taken from a final and appealable order. At about the same time, the Commonwealth also initiated an original action in the Court of Appeals for writ of prohibition seeking to prohibit the respondent Judge from enforcing the order directing the Commonwealth to deposit the $10,516,217.00 with the clerk. 89-CA-000918-OA. The Court of Appeals dismissed the Commonwealth's appeal for the stated reason that the appeal was not taken from a final and appealable order. However, in the original action for a writ of prohibition, the Court of Appeals granted the Commonwealth's petition and issued an order on May 31, 1989, prohibiting the respondent Judge from enforcing the order directing the Commonwealth to deposit the $10,516.217.00 with the clerk of the court.
The court granted the Commonwealth discretionary review of the Court of Appeals' order dismissing the Commonwealth's...
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