Franklin County v. Bailey

• Decision Date: 06 October 1933
• Citation: 250 Ky. 528,63 S.W.2d 622
• Parties: FRANKLIN COUNTY v. BAILEY.
• Court: Kentucky Court of Appeals

63 S.W.2d 622

250 Ky. 528

FRANKLIN COUNTY v. BAILEY.

Court of Appeals of Kentucky

October 6, 1933

Appeal from Circuit Court, Franklin County.

Suit by Mrs. Venia Bailey against Franklin County. From a judgment in favor of the plaintiff, the defendant appeals.

Reversed and cause remanded in accordance with opinion.

Marion Rider, of Frankfort, for appellant.

Edward C. O'Rear and Allen Prewitt, both of Frankfort, for appellee.

PERRY Justice.

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 or destroyed thereby, directed the contractor, at the expense of the county, to take such steps as found needed to save it from impairment. Acting upon such instruction, the contractor consulted with Mr. Bailey, appellee's husband, as to the best way to preserve the spring from its threatened injury by the road construction, when it was decided that this could best be done by digging down to the underground stream and tracing the spring water vein to a point beyond about 10 feet distant and outside of the right of way, where he would construct and inclose it in a new spring basin. This he testifies he successfully did in every particular in a proper way, at the county's cost of $472.20. Also, that when the spring was thus preserved, it was turned over to the appellee in the spring of 1929 and accepted and used by her apparently with entire satisfaction, so far as appellant was informed.

Thereafter, in August, 1930, the appellee, without having ever notified the appellant that the spring as relocated was unsatisfactory or making any complaint as to any failure by the county to perform in any respect its agreement made with appellee for the right of way as incorporated in the writing purporting to convey it, filed suit in the Franklin circuit court against appellant, Franklin county, wherein she sought to recover: (1) Damages of $100 for the alleged unlawful taking of the 60-foot strip of her land for the right of way; (2) $340, cost of fencing made necessary; (3) $500 as damages to her tenant house caused by water backing up against it, due to the construction of the road fill; (4) $1,000 as damages for injury done the spring; and (5) $1,500 as consequential damage to her farm through the diminution of its value by reason of the taking of her land for highway purposes--or a total of $3.440.

The appellant county, defendant below, filed demurrers to the petition, which were overruled, and also filed its answer and counterclaim, whereby it traversed all the material allegations of the petition, and by paragraph 2 further affirmatively pleaded that the writing signed by appellee, even if ineffectual as a deed, yet constituted a valid signed memorandum of a contract to convey the land; and further that, even if the writing was void for all purposes, the appellee was estopped by her conduct from claiming damages for the commission's use of her strip of land; also, that appellee could not maintain her action until she returned the $472.20 expended by appellant in performing its contract to preserve the spring; and finally, by counterclaim, sought specific performance of appellee's and husband's written instrument, requiring them to execute a deed conveying the strip of land according to its terms and conditions.

Appellee's demurrer to each of the affirmative defenses thus interposed was by the lower court sustained, when a trial was had upon the issue presented only upon appellant's traverse of the allegations of the petition. The trial court, over appellant's objection, permitted appellee to introduce evidence as to each item of alleged damage, separately fixing the value of the land taken, cost of fencing, damage to the farm caused by the alleged injury to the spring, damage to the tenant house caused by the backing up against it of water, due to the permanent fill, and the damage to the farm as a whole caused by reason of the taking of the strip of land, considering it in relation to the entire tract of which it was a part.

At the conclusion of the evidence, the court overruled appellant's motion for a peremptory instruction and submitted the question of damage to the jury by eight instructions particularizing each item thereof as claimed by appellee in her petition. By instruction No. 9, the jury was directed to separate the items of damage awarded, and also it was orally instructed, by agreement of parties, that nine or more of the jury could make a verdict.

On April 30, 1930, the jury returned the following verdict:

"We, the jury, find for the plaintiff--

Under Instruction #1 for the land used for the right of way,	$ 80.00
Under Instruction #2 for the fencing the sum of	334.00
Under Instruction #3 for the spring the sum of	500.00
Under Instruction #4 no damage.
Under Instruction #5 for the damage to the 7 acres cut off from the rest of the farm the sum of	140.00
	----------
	$1,054.00
Less amount of repairing spring,	472.20
	----------
	$ 581.80"

On May 2 thereafter, the appellee filed a motion non obstante veredicto for judgment of $1,054, upon the ground that the allowance of the credit of $472.20 (expended in preserving the spring) thereon was unauthorized. This motion was sustained by the lower court, and it so adjudged.

From this judgment the appellant has prosecuted its appeal, urging the following grounds for its reversal: (1) That the appellant was entitled to a peremptory instruction, because (a) the writing signed by the appellee and her husband, though ineffectual as a deed, was yet a sufficient memorandum in writing, signed by the parties, to constitute a valid contract to convey the land to the highway commission, and also that since the latter was placed in possession of the land by the appellee and her husband, its use for the purpose for which it was acquired did not constitute an unlawful taking of it, and (b) that even if the writing was void for all purposes, the appellee was yet estopped by her conduct to assert any claim for damages; (2) that the instructions were erroneous; (3) that the lower court erred in sustaining the motion for a judgment notwithstanding the verdict of the jury; (4) that the appellee should have been required to return or account for the benefits she obtained under the deed; and (5) that the verdict is excessive.

We will now address ourselves to the first of appellant's contentions here made, that the signed writing of the parties, if ineffectual as a deed, was yet sufficient as a contract to convey, and that the commission having been put in possession thereunder of the strip of land in question, its use of it for road purposes was not an unlawful taking of appellee's land, authorizing recovery of damages therefor.

We are unable to concur with the appellant in this contention, as we conceive the rule of law is well settled and clearly established in this state, as appears admitted by the appellant, that the failure of the husband's name to appear as a grantor in the body of his wife's deed undertaking to convey her property renders the instrument...