East Kentucky Rural Elec. Co-op. Corp. v. Smith

• Decision Date: 21 February 1958
• Citation: 310 S.W.2d 535
• Parties: EAST KENTUCKY RURAL ELECTRIC COOPERATIVE CORP., Inc., Appellant, v. D. H. SMITH et al., Appellees.
• Court: United States State Supreme Court — District of Kentucky

Page 535

310 S.W.2d 535

EAST KENTUCKY RURAL ELECTRIC

COOPERATIVE CORP., Inc., Appellant, v. D. H. SMITH et al., Appellees.

Court of Appeals of Kentucky.

Feb. 21, 1958.

Cecil C. Wilson, Glasgow, Chas. R. Richardson, Munfordville, for appellant.

Stokes A. Baird, Davis Williams, Munfordville, for appellees.

STANLEY, Commissioner.

The appeal is from a judgment for $4,000 rendered in a proceeding to condemn a right of way for an electric transmission line of 69,000 volts on and over the property of the appellees, D. H. Smith and his wife, Annie Smith.

In the beginning of the trial the court ruled: 'that incidental damage to the remainder of the property cannot be offset by advantages to the remainder of the property by reason of the construction of the proposed line or the taking of said easement.' The appellant objected to the ruling and now contends that it is a reversible error.

There is no clear line of demarcation as to when benefits to portions of land remaining after an easement is taken may be set off against resulting damages thereto. But within certain limits it is generally held in this jurisdiction that special consequential benefits to remaining land by reason of the improvement of the land taken may be offset against incidental damages shown to have resulted to the land not taken if the benefits are capable of being estimated in money value, as by the enhancement in the market value of the remaining land. Music v. Big Sandy & K. R. R. Co., 163 Ky. 628, 174 S.W. 44; Board of Councilmen of City of Frankfort v. Brammell, 220 Ky. 132, 294 S.W. 1076; Louisville & N. R. Co. v. Hargis, 230 Ky. 806, 20 S.W.2d 991. However, the appellant is not in a position to have this court review the ruling excluding all evidence with respect to any consequential benefits. There was no offer to introduce such evidence or any avowal or other showing as to what the appellant could or would prove if permitted. CR 43.10. It is a consistent rule of appellate practice that the court will not review a question of error in rejecting evidence in the absence of such a disclosure. Fremd v. Gividen, 233 Ky. 38, 24 S.W.2d 915.

We turn our attention to the question of an excessive verdict.

The appellees' property, consisting of 193 acres, is on the south side of Kentucky Highway No. 218 and abuts the eastern boundary of the city of Horse Cave. The power line right of way is a 100 foot strip through the middle of the farm for a distance of 3,945 feet, the area taken being computed as a little over nine acres. The land appears not to be very productive as a farm and seems to have been in a low state of cultivation. But it is reasonably adaptable as a subdivision of town lots. The city has built up to the line, and its water and gas mains and electric service lines extend to the edge of the property. Similar property across the highway had been divided into 25-foot lots and sold two years before this easement was condemned for the equivalent of $3,282 an acre. There is also a small subdivision adjacent to the appellees' property on the east, which is on the far side from the city, and another larger such development a quarter of a mile farther out the road upon which a number of residences have been erected.

The evidence, in general, was directed to proving that the appellees' farm for a distance of about 1,300 feet back from the highway is adaptable and desirable as a subdivision of Horse Cave. This area was estimated to contain about 30 acres and the 100 foot easement through it at about three acres. Several witnesses valued this part of the land at $1,500 to $2,000 an acre before the power line had been built across it. This seems to have been computed at about $300 a building lot. Some of the 25-foot lots across the road had been sold for $325, and others farther out the highway from $150 to $200 each. A parcel of six-tenths of an acre adjacent to the appellees' farm, referred to above as a small subdivision, had been sold two or three years before for $1,000. Witnesses expressed the opinion that the front 30-acre portion of the farm had been rendered worthless because the easement had practically destroyed its salable value since no building could be erected on the 100-foot strip and the existence of the easement and presence of the electric power line would make other lots much less desirable and therefore worth less on the market. The evidence is that instead of $1,500 to $2,000 an acre, this area would be worth $200 to $400 an...