Davidson v. Com. ex rel. State Highway Com'n

• Decision Date: 02 June 1933
• Parties: DAVIDSON et ux. v. COMMONWEALTH ex rel. STATE HIGHWAY COMMISSION.
• Court: Kentucky Court of Appeals

61 S.W.2d 34

249 Ky. 568

DAVIDSON et ux. v. COMMONWEALTH ex rel. STATE HIGHWAY COMMISSION.

Court of Appeals of Kentucky

June 2, 1933

Appeal from Circuit Court, Pulaski County.

Proceeding by the Commonwealth, on the relation of the State Highway Commission, against G. Y. Davidson and wife, to condemn land. From a judgment awarding damages, defendants appeal.

Affirmed.

B. J Bethurum, of Somerset, for appellants.

Bailey P. Wootton, Atty. Gen., and Gardner K. Byers, Asst. Atty Gen., and Gladstone Wesley and E. T. Wesley, both of Somerset, for appellee.

THOMAS Justice.

This is a condemnation proceeding, instituted in the Pulaski county court by the commonwealth of Kentucky on relation of its state highway commission against defendants and appellants G. Y. Davidson and wife, for the purpose of condemning 8.31 acres of land on the banks of Cumberland river located in the outer edge of the corporate limits of the city of Burnside Ky. and to be used and appropriated in the construction of the southern approach to a toll bridge to be built across Cumberland river at that point. The right of way of the approach requires only 1.25 acres, and the remainder of the amount sought to be condemned, consisting of slightly more than 7 acres, is necessary, and to be used for the digging of borrow pits to obtain earth to construct the levy of the elevated approach to the bridge. It is not denied but that it is necessary for that purpose if the approach is to be constructed in that manner. Neither is the necessity for the amount of land sought to be condemned for the right of way denied. The viewers appointed by the county court reported the total amount of damages to the owners of the land by the taking at $1,800, which was apportioned to each of the three small parcels sought to be condemned, allowing $1,500 for the seven and a fraction acres for borrow pit purposes.

Defendants filed exceptions to that report which the county court overruled, and they prosecuted an appeal to the Pulaski circuit court. Upon trial therein before a jury it returned a verdict in favor of plaintiffs in the sum of $2,500, for which judgment was rendered. Defendants' motion for a new trial was overruled, and they prosecute this appeal. In seeking a reversal of the judgment, their counsel argue as grounds therefor: (1) Error of the court in permitting the commonwealth to introduce in the manner it did the assessment list for taxation purposes made in the year preceding the trial; (2) that the verdict is flagrantly against the evidence; (3) that the necessity for the taking of borrow pits was not properly shown; and (4) error of the court in hearing the evidence of the necessity for the taking before the court and in the absence of the jury. They will be considered and determined in the order named.

1. It is the settled rule in this jurisdiction that in actions of this nature, and others involving damage to real estate, the assessment list for taxation made by the owners for immediately preceding years is competent evidence on the amount of damage sought to be recovered, but its weight and effect is to be determined entirely by the jury trying the case. Louisville & N. R. R. Co. v. White Villa Club, 155 Ky. 452, 159 S.W. 983; Sandy V. & E. R. Co. v. Bentley, 161 Ky. 560, 171 S.W. 178, 180; Louisville & N. R. R. Co. v. Calloway, 213 Ky. 235, 280 S.W. 966; Commonwealth, by, etc., v. Combs et al., 229 Ky. 627, 17 S.W.2d 748; Davisworth v. S. T. & J. M. Wright, 229 Ky. 572, 17 S.W.2d 756. Other cases and authorities are referred to in those opinions. But it is insisted that such evidence was rejected by this court as incompetent in the case of Louisville & N. R. R. Co. v. Vandiver, 238 Ky. 846, 38 S.W.2d 965, where the owner, at the date of the assessment list sought to be introduced, was a nonresident of the state and the list was made and executed by another without the owner possessing any knowledge thereof; but the question in that case, even in that form, was not presented in the manner that it was in this one. The trial court therein under such circumstances declined to admit the evidence, and the appellant, railroad company, therein was complaining of that ruling on appeal. We declined to reverse the judgment because of that alleged error, but in doing so we held that under the circumstances it was an erroneous ruling of the trial court, but it was not of sufficient materiality to alone authorize a reversal. But, if we should accept the brief unqualified statement contained in that opinion as universally applicable under similar facts, it would not follow that the same evidence was incompetent in this case, in view of the circumstances under which it was introduced.

The proof showed that the father of appellant G. Y. Davidson purchased the land in controversy in 1926 and had it conveyed to his son, the appellant, the consideration paid therefor being $2,500. It was then and is now vacant land and used for no purpose except cultivation. It frequently overflows from a shallow depth to as much as 14 feet, and for which reason it could not be used for permanent business purposes, nor was it shown that any such business is being conducted anywhere near it. Perhaps some of plaintiff's witnesses may have intimated to the contrary, but such a contention is overwhelmingly disproven by other witnesses in the case. Appellant himself did not testify at the trial, but he introduced his father, who not only paid for the land in controversy, and listed and paid the taxes on it, but seems to have been the general supervisor and manager of it since it was purchased. He it was who made out the list that was introduced and verified it as the agent of his son. He placed therein the valuation of all the property sought to be condemned at $1,150, but he testified at the trial that it was worth $50,000; whereupon on cross-examination attorneys for the commonwealth confronted him with the verified assessment he had made, and under the circumstances it is perfectly clear that it was competent and relevant, if for no other purpose than to contradict the witness and to impeach his testimony. This ground, therefore, is overruled.

2. In disposing of ground 2 we cannot refrain from observing that this case presents the widest divergence of opinions of the witnesses who testified in the case concerning the value of the land sought to be taken than any case that has ever come before our observation. One witness for defendants placed the valuation at $60,000, and his other witnesses fixed it at different descending amounts down to the...