Harvey v. Board of Education of City of Harrodsburg

• Decision Date: 15 February 1924
• Citation: 202 Ky. 82,258 S.W. 956
• Parties: HARVEY v. BOARD OF EDUCATION OF CITY OF HARRODSBURG.
• Court: Kentucky Court of Appeals

258 S.W. 956

202 Ky. 82

HARVEY v. BOARD OF EDUCATION OF CITY OF HARRODSBURG.

Court of Appeals of Kentucky.

February 15, 1924

Appeal from Circuit Court, Mercer County.

Condemnation proceedings by the Board of Education of the City of Harrodsburg to condemn certain property leased by W. P Harvey. A writ of possession was awarded the Board, and Harvey appeals. Affirmed.

E. H Gaither, of Harrodsburg, and C. C. Bagby, of Danville, for appellant.

C. E Rankin and J. F. Vanarsdall, both of Harrodsburg, for appellee.

TURNER C.

In December, 1920, appellee, the board of education, began a proceeding to condemn certain real property of W. C. Bell for public school purposes under our statutes. A final judgment was entered in that proceeding in February, 1921. Appellant Harvey, was a party to that proceeding, being at the time a tenant of the property owner, and holding under a lease for the year 1921, and which expired with that year. The judgment in the condemnation proceeding, entered in February, 1921, fixed the damages of the holder of the leasehold at $400. The property owner appealed from that judgment in the circuit court to this court, and on the 4th of November, 1921, that judgment was affirmed. Bell's Committee v. Board of Education, 192 Ky. 700, 234 S.W. 311. The mandate was filed in the clerk's office of the lower court on December 14, 1921.

At the succeeding term of the circuit court in February, 1922, Bell asked for a rule against the board of education to require it to elect whether or not it would take the condemned property at the damages assessed, and, if it so elected, to require it to forthwith pay for same. The board at the time declined to make such election definitely, because it had not sold certain bonds theretofore authorized for the purpose, and which bonds it was then endeavoring to sell. The situation rested thus until the latter part of March, 1922, when the board, having sold its bonds, paid to the property owner the damages assessed, and the property was thereafter conveyed to it. The board, however, declined to pay to the tenant, Harvey, the amount of damages assessed in his favor by the verdict and judgment, upon the ground that his leasehold had not been interfered with during the term of his lease, and he had occupied the leased property without interference for the full term of his lease.

In May, 1922, the board, after notice, asked the court to give it a writ of possession against Harvey. Harvey filed a pleading, alleging he was a tenant from year to year under Bell, and that his landlord had permitted him to hold over for more than 90 days after the expiration of his lease for the year 1921, and that therefore he could not be ousted of possession until the expiration of the year 1922. He further alleged that he had not been paid the damages assessed in his favor by the verdict and judgment in the condemnation proceeding. A demurrer was sustained to this pleading, and a writ of possession awarded the board. Harvey superseded that judgment and prosecutes this appeal. On motion entered in this court the supersedeas has been heretofore discharged. Harvey v. Board of Education, 195 Ky. 630, 242 S.W. 849.

Two questions are presented: First. Has a tenant, who is a party to a condemnation proceeding, in whose favor damages have been assessed therein for contemplated interference with his leasehold, and who, during the pendency of litigation between the condemnor and the property owner, actually occupied the property for the full term of his lease, the right after the expiration of his lease to refuse possession to the condemnor, who has settled with the property owner, because the damages assessed in contemplation of interference with the tenant's leasehold have not been paid? Second. Does the holding over by a tenant from year to year for more than 90 days...