Elizabethtown, L. & B.S.R. Co. v. Catlettsburg Water Co.

• Decision Date: 27 February 1901
• Citation: 110 Ky. 175,61 S.W. 47
• Parties: ELIZABETHTOWN, L. & B. S. R. CO. v. CATLETTSBURG WATER CO. [1]
• Court: Kentucky Court of Appeals

61 S.W. 47

110 Ky. 175

ELIZABETHTOWN, L. & B. S. R. CO. v. CATLETTSBURG WATER CO. ^[1]

Court of Appeals of Kentucky.

February 27, 1901

Appeal from circuit court, Boyd county.

"To be officially reported."

Proceeding by the Elizabethtown, Lexington & Big Sandy Railroad Company against the Catlettsburg Water Company to condemn land. Judgment fixing value of land taken, and plaintiff appeals defendant prosecuting a cross appeal. Affirmed.

Wadsworth & Cochran and F. T. D. Wallace, for appellant.

W. H Holt, John F. Hager, and Thos. R. Brown, for appellee.

HOBSON J.

Appellee owns a lot 60 by 120 feet on the bank of the Big Sandy river upon which is its plant for furnishing the city of Catlettsburg with water. On July 23, 1894, appellant filed its petition in the Boyd county court to condemn a triangular piece off of the southwest corner of appellee's lot, 55 feet by 25 feet, containing 687 1/2 square feet. Commissioners were appointed, who on August 10th returned a report assessing the value of the land taken at $1,283, and the damages to the remainder of the tract at $3,521, making a total for the whole of $4,804. Both parties filed exceptions to the report of the commissioners, and a trial was had in the county court before a jury, who returned a verdict fixing the value of the land taken at $500, and the damages to the remainder at $4,500, making a total of $5,000. Appellant prosecuted an appeal from the county court to the circuit court, and the case was there again tried before a jury at the December term, 1895. This jury returned a verdict fixing the value of the land taken at $1,000, and the damages to the remainder of the tract at $6,636, making a total of $7,636. Judgment was entered in the circuit court pursuant to the verdict on January 2, 1896. Both parties excepted and prayed an appeal, but neither took an appeal until December 28 1897, when the appellant sued out an appeal in this court. On January 5th following, appellee sued out a cross appeal.

In the judgment of the county court, after that part of it granting an appeal to the circuit court, and reciting that appellant had paid into court the amount of the judgment, and that the clerk was directed to hold it subject to the orders of the court, the following agreed stipulation was entered: "By consent of parties hereto the clerk of this court is directed to allow the defendant, the Catlettsburg Water Company, to withdraw the sum of $5,000 deposited with him, upon said Catlettsburg Water Company executing bond, with good surety, to be approved by the judge of this court, conditioned to hold same subject to the order of the court herein, and to the order of any court to which these proceedings may be carried by appeal, and if, upon a final determination of this proceeding upon appeal, the damages of the defendant should be adjudged to be less than said sum of $5,000, then it will refund to plaintiff the difference between said sum and the amount so adjudged." Appellee executed bond pursuant to this order, and withdrew the money. The bond, after reciting the order made in the county court, reads as follows: "Now, we, the Catlettsburg Water Company, as principal, and W. A. Patton, William Seymour Edwards, and Thos. R. Brown, sureties, do hereby covenant to and with said Elizabethtown, Lexington and Big Sandy Railroad Company that the said Catlettsburg Water Company, now electing to withdraw said sum of five thousand dollars, as allowed to do by said judgment, will hold same subject to the order of the court in this action, and to the order of any court to which this proceeding may be carried by appeal, and if, upon a final determination of this proceeding upon appeal, the damages of the defendant, Catlettsburg Water Company, should be adjudged to be a less sum than said five thousand dollars so deposited, then and in that event the said Catlettsburg Water Company, together with the said sureties, whose names are signed hereto, will refund and pay to the plaintiff, the Elizabethtown, Lexington and Big Sandy Railroad Company, the difference between said sum of five thousand dollars and the final sum so adjudged on appeal, if any."

In the circuit court, on October 16, 1895, appellant offered to file an amended petition in which it sought to condemn a smaller triangle off of appellee's lot than that described in the original petition. The court refused to allow this amendment to be filed, and appellant earnestly complains of the action of the court in rejecting it. The case had been pending some time, the court has a large discretion as to allowing amendments, and we are not prepared to say that the court abused a sound discretion in refusing an amendment so late in the progress of the cause that might materially affect the issue to be tried, and necessitate a delay of the trial. And, from the whole record, we are by no means satisfied that appellant was materially prejudiced by this ruling.

Appellant also insisted on the trial in the circuit court that appellee, having accepted the $5,000 under the agreed order above quoted, and executed the bond for its return so far as it might be in excess of the final sum adjudged it, was estopped in the circuit court to claim anything more than the $5,000. The statute required the case to be tried anew in the circuit court. This entitled appellee to a verdict at the hands of the jury in the circuit court without regard to the amount adjudged it in the county court. Its accepting the money under the agreed order and bond above referred to was not a waiver of this right. Such were...