Crittenden County v. Towery

• Decision Date: 02 June 1936
• Citation: 95 S.W.2d 233,264 Ky. 606
• Parties: CRITTENDEN COUNTY v. TOWERY.
• Court: Kentucky Court of Appeals

95 S.W.2d 233

264 Ky. 606

CRITTENDEN COUNTY v. TOWERY.

Court of Appeals of Kentucky

June 2, 1936

Appeal from Circuit Court, Crittenden County.

Action by Aaron Towery against Crittenden County and others. From a judgment for plaintiff against the County, the County appeals.

Affirmed.

Charles Ferguson, of Smithland, and Ed D. Stone, of Marion, for appellant.

A.C Moore, of Marion, for appellee.

CREAL Commissioner.

This is the second appeal of this case; the opinion on the former appeal reversing the judgment of the lower court being found in Postlethweighte v. Towery, 258 Ky. 468, 80 S.W.2d 541. Reference is made to that opinion for a statement of all that went before the filing of the mandate in the lower court.

Thereafter plaintiff filed a second amended petition whereby the county was made a party defendant and wherein it was alleged in substance that the state highway commission accepted the lands of plaintiff as described in his original petition and in the deed filed therewith as an exhibit and caused the land to be constructed and built into a state highway which had long since been completed and continuously used by the state and by the public as one of its highways and arteries of traffic; that the land was taken and accepted by the state highway commission, and was being used and applied to public use without just or any compensation being made to him, and that under and by virtue of the provisions of section 4356t-7, Kentucky Statutes, the cost of the right of way should be paid by Crittenden county, which county was and is legally liable and responsible to him for the value of the land so taken as well as all direct damages resulting therefrom; that the land thus taken, accepted, and applied to the purposes indicated was of a reasonable market value of $1,000, considering its relation to the entire tract of which it was a part, and plaintiff had been further damaged in the sum of $1,000 in diminution of the reasonable market value of the remainder of his farm resulting directly from the situation and position in which it is placed by the taking of the right of way containing 10 acres; and that he had been damaged in the further sum of $1,000 for additional fencing made and required to be made by reason of the construction of the highway. He prayed for judgment against the county for such sums, aggregating $3,000.

Crittenden county entered a motion to dismiss the action as to it and also a demurrer to the second amended petition, and all the defendants filed a joint answer to the second amended petition, the first paragraph of which was a traverse; but in the second paragraph it is alleged in effect that Crittenden county did not in any way take, accept, or appropriate any lands of plaintiff for road purposes or otherwise; that the land mentioned in the petition was taken and appropriated by the state highway commission without any contract, agreement or obligation on the part of the county to pay therefore any sum whatever; that the land was taken, accepted, and constructed into a highway by contract and agreement between the commission and plaintiff by and through a deed which he executed to the highway commission for the right of way, and for this and other reasons enumerated he was estopped to complain or to assert any claim for damages or for the value of his property against the county.

The issues were completed by a traverse of the affirmative allegations of the answer. The cause was submitted to the court without intervention of a jury, and, after hearing oral testimony in addition to that heard on the former trial, a memorandum opinion was rendered, and it was adjudged that plaintiff recover of defendant, Crittenden county, the sum of $1,003.25 and costs, except such costs as were made by reason of the appeal from the former judgment which had been paid by him. The opinion was made a part of the record and a statement of various items making up the aggregate amount awarded to appellee; one item being for the 10 acres of land taken at $25 per acre or $250; the other items being the cost of labor and material for the erection of additional fencing made necessary by reason of the construction of the highway. Following this itemized statement in the opinion, it is said:

"The court finds from the evidence that the value of plaintiff's land taken for said road purposes is 10 acres worth $25.00 per acre, or $250.00 in the aggregate, and that said sum of $250 is the difference between the fair market value of plaintiff's entire tract of land of 350 acres, immediately before and the reasonable and fair market value of the remainder of said 350 acres immediately after the taking of the 10 acres from the 350 acres, and in so holding the court has taken into consideration the fair and reasonable cash value of the land taken considering its relation to the entire tract of 350 acres of which said 10 acres is a part. The court is further of the opinion from the undisputed evidence that $753.25 is the amount representing the fencing and other improvements rendered necessary to be constructed by plaintiff, for and on account of said road, which when added to the $250.00 for land taken gives the aggregate sum of $1003.25 tabulated above."

A number of grounds are urged for reversal, but as a matter of convenience we shall treat them in an order other than that appearing in the brief. It is argued that by the second amended petition, appellant attempted to convert an action ex contractu into an action ex delicto and that this constitutes a departure not permissible under our system of civil procedure. In discussing this question pro and con, we find counsel for...