Jefferson County v. Clausen
| Decision Date | 05 May 1944 |
| Parties | JEFFERSON COUNTY v. CLAUSEN et ux. |
| Court | Kentucky Court of Appeals |
Appeal from Circuit Court, Jefferson County, Common Pleas Branch Fourth Division; Eugene Hubbard, Judge.
Condemnation proceedings by Jefferson County against John D. Clausen and wife, to acquire a strip of land belonging to defendant in order to widen right of way of county road. From an adverse judgment, the county appeals.
Judgment reversed for consistent proceedings.
Lawrence S. Grauman and Harry F. Malone, both of Louisville, for appellant.
Robt. E. Hogan, of Louisville, for appellees.
STANLEY Commissioner.
To widen the right-of-way for a short section of a county road Jefferson County has condemned a strip of land belonging to John E. Clausen and wife. It is 30 feet wide and 769 feet long. The commissioners appraised the property to be of the value of $260. The same sum was awarded by a jury in the County Court for the land taken. The jury finding that the remainder of the property would not be damaged. A trial on appeal in the circuit court resulted in a verdict for $234. The defendants' motion for a new trial was sustained. On another trial the verdict and judgment were for $600 as the value of the land taken and $200 for damage to the remaining property. The County perfected the record of the first trial and moved that the verdict be substituted for the second one. That as well as its motion for a new trial being overruled the County prosecutes an appeal from the order setting aside the first verdict and from the judgment.
The particular ground upon which the first verdict was set aside was conceded by the court to be technical, but he believed that the law under which the power to take private property for public purposes is exercised should be fully complied with and that 'when the court considers this case as a whole and all the facts and the trial of the case', he was of the 'opinion that the ends of justice will better be served by another trial, free from technicalities.' We examine the record and the law to determine whether this was error, confining our consideration to the points presented on the appeal and disregarding whatever other ground there may have been which would justify the action of the court.
The proceeding was instituted under KRS 178.120, which authorizes the fiscal court of any county, whenever it deems it to be in the best interest of the county to construct or alter any public road, to condemn land for such purpose in accordance with KRS 416.100 et seq., constituting with modification a part of the general condemnation statutes, if the fiscal court shall be unable to contract with the owner. KRS 416.110(1) provides that the fiscal court shall adopt a resolution ordering the condemnation, which resolution shall set forth the facts contemplated by KRS 178.120; describing the land, with the name of the owner, and directing the county attorney to institute the proceeding. Subsection 2 of KRS 416.110 provides
The exceptions are not material in this case.
The petition filed in the county court alleged that the property 'is required by Jefferson County and is necessary for the construction and reconstruction of Mellwood Avenue Extension of a public road in Jefferson County, Kentucky, which is part of the county road system,' and that the county had been unable to contract with the owners of the land for its use. It also alleged that in accordance with the statutes (specified), 'the Fiscal Court of Jefferson County has adopted a resolution showing the need of said land for use in the reconstruction of Mellwood Extension, and ordered the condemnation of said land and directed the County Attorney to proceed with the condemnation of said land and a certified copy of said resolution is filed herewith as part hereof, marked 'Exhibit A." No copy of the resolution was in fact filed with the petition.
To sustain the action of the court in setting aside the verdict, it is argued (1) that the adoption of the resolution was jurisdictional, and that as the Fiscal Court can speak only through its records a copy thereof must have been filed, or (2) the failure to file it imposed upon the County the burden of proving the necessity for the taking of the land.
We agree that the adoption of the resolution by the Fiscal Court is a condition precedent to the right of the County to condemn land. But it is alleged in the petition that that had been done and this was not denied. Condemnation proceedings rest solely on constitutional and legislative provisions, and the petition or application must comply with the statute state all jurisdictional facts and disclose the right to condemn the property. Royal Elkhorn Coal Co. v. Elkhorn Coal Corporation, 194 Ky. 8, 237 S.W. 1083; Kendall v. Commonwealth, 286 Ky. 59, 149 S.W.2d 787. But the same strictness of pleading is not required as in an ordinary action. 29 C.J.S., Eminent Domain, § 254, p. 1223. Other pleadings, such as demurrers and an answer, are permissible and in some instances necessary (Cf. City of Owingsville v. Ulery, 260 Ky. 792, 86 S.W.2d 706, 707), but under our usual practice issues are joined by specific exceptions to the report of the commissioners appointed by the county court to award compensation and damages. KRS 416.050. General principles of pleading may be appropriately resorted to except in so far as a statute might otherwise require. 29 C.J.S., Eminent Domain, § 250, p. 1222. As our statute indirectly prescribes the practice of filing exceptions to a report of commissioners in condemnation proceedings, we may look to the construction given similar practices in the treatment of exceptions to reports of master commissioners and other like officers of the court. The purpose of exceptions to such reports is...
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