Jefferson County v. Bischoff
| Decision Date | 24 March 1931 |
| Citation | 238 Ky. 176 |
| Parties | Jefferson County v. Bischoff et ux. |
| Court | United States State Supreme Court — District of Kentucky |
1. Eminent Domain. — Action against county for damages to property by operation of quarry held maintainable, though damages could not be ascertained and paid before injury (Constitution, sec. 242).
Constitution, sec. 242, requires that compensation for property taken or injured for public use be either paid or secured before injury or destruction.
2. Eminent Domain. — Injury to property, incident to construction or operation of public enterprises, is taking thereof within constitutional provision for just compensation (Constitution, sec. 242).
3. Witnesses. — Both husband and wife cannot testify, if objection is made, though both are plaintiffs and joint owners of property damaged (Civil Code of Practice, sec. 606).
4. Witnesses. — Defendant waived wife's incompetency to testify after husband testified by not objecting (Civil Code of Practice, sec. 606).
5. Witnesses. — Suggestion that wife's testimony after husband testified be confined to facts relating to damage to their property and motion so to instruct jury did not raise question of her incompetency (Civil Code of Practice, sec. 606).
6. Eminent domain. — Measure of damages to property by blasting and rocks thrown from quarry is sum sufficient to restore it to its previous condition.
7. Eminent Domain. — Verdict awarding $800 damages for injuries to property by blasting and rocks thrown from quarry operated by county held not excessive.
There was evidence that roofs of plaintiff's dwelling house, barn, and toolshed were badly damaged, that foundation and chimney of home were cracked and walls of cistern broken, letting water into cellar, that plastering was damaged and wall paper soiled by leaking of roof, and that it was necessary to replace roofs, and that minimum amount of damage was $650 and maximum $705; and the jury was instructed to find not over $400 damages for diminution in value of use of property.
Appeal from Jefferson Circuit Court.
HARRIS COLEMAN, County Attorney, and S.L. GREENEBAUM, Assistant County Attorney, for appellant.
HUBBARD & HUBBARD for appellees.
OPINION OF THE COURT BY STANLEY, COMMISSIONER.Affirming.
The appellees, Ed Bischoff and his wife, Katherine E. Bischoff, have recovered of the appellant, Jefferson county, a judgment for $800 for damage to their jointly owned property and interference with its occupancy as a home by reason of the operation of a rock quarry opened in May, 1929, and operated by the county in connection with the construction and maintenance of its roads. The county asks a reversal of that judgment upon several grounds.
It is argued that the suit cannot be maintained against the county because it is a governmental agency and the provisions of section 242 of the Constitution, which invests the county with the privilege of taking private property for public use upon making just compensation for property so taken or injured, cannot apply and are inoperative, for the reason that the county could not in the nature of things, have complied with the constitutional injunction that payment must be made before such injury is done. It is said that it would have been impossible as a practical matter for the county to have compensated the owners of the property, since the amount of the injury could not have been ascertained in advance, and furthermore the constitutional provision has no reference to property which could not be taken under the power of eminent domain. The arguments, it seems to us, are unsound. Section 242 declares that compensation must be either "paid or secured at the election of such corporation or individual, before such injury or destruction." Why could not appellees have been secured in the payment of just compensation for any anticipated or possible injury? The quarry was just across the road a short distance from their home. Damages might well have been anticipated. If, for the necessary operation of the quarry, it became necessary to...
To continue reading
Request your trial