Franklin County v. Bailey
| Decision Date | 06 October 1933 |
| Citation | 250 Ky. 528 |
| Parties | Franklin County v. Bailey. |
| Court | United States State Supreme Court — District of Kentucky |
2. Husband and Wife. — Written instrument executed by wife purporting to convey her property, where instrument was void as deed because husband did not join as grantor, held ineffectual as contract to convey property (Ky. Stats., secs. 506, 2128).
Written instrument purporting to convey wife's property, where instrument was void as deed because husband did not join as grantor, was ineffectual as contract to convey property because instrument, being void for want of proper execution by husband, was void for all purposes.
3. Eminent Domain. — Where wife executed purported deed conveying property for highway purposes, void because husband did not join in conveyance, and acquiesced in highway construction, wife held nevertheless not estopped from subsequently claiming damages for unlawful taking.
Wife was not estopped, after executing void deed conveying property for highway purposes, from subsequently claiming damages for unlawful taking, where wife, at time, had not been advised that the purported deed was void, and where evidence failed to show that wife's conduct was such as to have actively or fraudulently induced highway commission to proceed with road construction in reliance upon its assumed right under the void instrument, and where void deed was prepared entirely by highway commission, and its failure to convey the property as intended was due entirely to the error or fault of the commission.
4. Trial. — Jury has duty, in arriving at verdict, to follow instructions given, whether right or wrong.
5. Eminent Domain. — Where county took land for highway purposes, without color of title, land was taken for public use without compensation and landowner could maintain action against county to recover damages (Constitution sec. 242).
6. Eminent Domain. — In action against county to recover damages resulting from taking of land for highway purposes, landowner held not entitled to recover damages from water backed up against tenant's house as result of construction of permanent fill.
7. Appeal and Error. — Erroneous instruction on item of damages, in action to recover damages from taking of land for highway purposes, held not prejudicial to county, where verdict showed the jury made no allowance for damages authorized under erroneous instruction.
8. Eminent Domain. — In action to recover damages resulting from taking of land for highway purposes, verdict must be unanimous verdict of jury of 12 members, and instruction authorizing less than 12 jurors to find verdict is erroneous (Constitution sec. 242).
9. Judgment. — In action for damages resulting from taking of land for highway purposes, sustaining motion for judgment notwithstanding verdict, eliminating credit to county for money expended in repairing spring, held proper (Civil Code of Practice, sec. 386).
Sustaining motion for judgment notwithstanding verdict giving county credit for money expended in repairing spring after unlawful taking of property for highway purposes, did not constitute error, where plaintiff's demurrer to answer of county pleading expenditure in preserving spring was sustained, and landowner had not received money expended, and money expended had not inured to her benefit, but was spent by county in carrying out terms of void contract.
10. Appeal and Error. — Where verdict allowing credit against damages awarded for land unlawfully taken for highway purposes was in part due to instruction unauthorized by pleading, such part of verdict was properly set aside and remainder allowed to stand.
11. Eminent Domain. — Damages allowable where land has been taken for highway are such sum as will be just compensation for land taken considered in relation to entire tract, including additional fencing, and compensation for such direct damages, if any, as result to remainder of tract.
12. Eminent Domain. — Damages assessed as compensation for land taken for highway purposes should not exceed difference between actual value of entire tract immediately before and actual value of remainder immediately after taking, excluding any enhancement of or benefit to land not taken arising from opening or use of road.
13. Eminent Domain. — In action for damages resulting from taking of land for highway purposes, instruction should define "market value" as price land will bring when offered for sale by one desiring to sell, and purchased by one desiring to purchase.
14. Eminent Domain. — Landowner, where land is cut in two by highway, is entitled to actual damages to land notwithstanding construction of crossings.
15. Evidence. — Value of land as listed by owner for assessment for taxation held not conclusive on question of market value of land taken for highway purposes, but is admissible as evidence of value.
16. Eminent Domain. — Jury, in determining market value of land taken for highway purposes, need not accept, as of equal value, testimony of all witnesses on question.
Jury is not required to accept as of equal value the testimony of all witnesses on the question, since the opinion of witnesses as to land value is competent evidence in such cases, but value of their testimony depends upon facts on which opinions are based.
17. New Trial. — Where opinions of witnesses as to market value of land taken for highway purposes are not based on sufficient facts, probative weight of testimony is weakened, and court may set aside verdict based thereon as being against weight of evidence more readily than where there is conflict of evidence based upon primary facts.
18. Eminent Domain. — Where highway right of way cuts off land from main tract, everything affecting market value of land cut off, resulting from taking of right of way and construction of road, should be considered in arriving at damages.
19. Eminent Domain. — In determining damages to strip of land cut off from main tract by highway right of way, manner in which remaining tract must be plowed, accessibility, construction and maintenance of fences, held proper elements to be considered.
20. New Trial. — Where verdict appears so excessive as at first blush to show influence of passion or prejudice, or is so based on estimates unsupported by physical facts or so extravagant as to carry with it improbability of their occurrence, court is empowered to set aside its findings.
21. Eminent Domain. — Verdict awarding $1,054 damages for 60-foot right of way for highway purposes, including $80 for 1.4 acres of land taken, $334 for 167 rods of fencing, $500 for damages to spring, and $140 damages to 7 acres of land cut off from main tract, held excessive under evidence.
22. Trial. — Jury had duty to return verdict in accordance with instruction, notwithstanding it was erroneous, and failure to do so constitutes error.
Appeal from Franklin Circuit Court.
MARION RIDER for appellant.
EDWARD C. O'REAR and ALLEN PREWITT for appellee.
Reversing.
Mrs. Venia Bailey instituted suit in the Franklin circuit court for the recovery of damages for a 60-foot right of way taken by Franklin county across her farm for a public road, in which action she recovered a verdict and judgment thereon for $1,054, interest, and costs.
To reverse this judgment, the defendant, Franklin county, prosecutes this appeal.
Mrs. Venia Bailey is the owner of a small farm situated in Franklin county on the old Bald Knob pike and containing 43.07 acres. In 1927, the state highway commission determined to reconstruct and relocate this Bald Knob pike as a part of its State Primary System extending between Frankfort and New Castle. Its relocation of this highway, according to its survey, was made to leave the course of the old county road at this Venia Bailey farm, where it shifted from the left to the right of the creek and so extended across her farm, as a 60-foot right of way thereover, as to divide her farm, leaving a strip of some 7 acres on its one side, with the remainder of some 35 acres of her land on the other.
Pursuant to such relocation of this road, the highway commission prepared deeds calling for the conveyance to it of the right of way lands along this route that were required for the construction of this road, which it forwarded to the appellant county to secure due execution thereof by the property owners.
As became the appellant county's duty, under section 4356t-7 of the Statutes, upon the receipt of these deeds, it proceeded to procure the required conveyance of this desired right of way, and after some negotiations looking to this end with the appellee, Venia Bailey, and her husband, they signed and acknowledged a deed conveying this 60-foot strip of land across Mrs. Bailey's farm to the commission, for the recited consideration of the benefits to be received from the construction of the new road thereover and upon the further terms, also incorporated in the deed, that the farm spring shown located on said right of way thereby undertaken to be conveyed was not to be injured or impaired in any way, and, further, that the grantor, Mrs. Bailey, was to be paid for any fencing thereby rendered necessary in case any one else was paid therefor.
While this deed executed by Mrs. Bailey, purporting to convey this right of way to the commission, was also signed and acknowledged by her husband, A.A. Bailey, he was not mentioned in its nominating clause or in the body of the deed as joining therein with his wife, Venia Bailey, as a grantor.
After deeds to the desired right of way were acquired, construction work upon the road was begun, when the appellant county, finding that appellee's spring, located within the right of way, would be injured...
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