Keeney v. Com., Dept. of Highways

• Decision Date: 03 February 1961
• Parties: Huleon KEENEY et al., Appellants, v. COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellees.
• Court: United States State Supreme Court — District of Kentucky

Page 481

345 S.W.2d 481

Huleon KEENEY et al., Appellants, v. COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellees.

Court of Appeals of Kentucky.

Feb. 3, 1961.

As Modified on Denial of Rehearing May 12, 1961.

John G. Prather, Somerset, for appellants.

F. D. Curry, Dept. of Highways, Frankfort, for appellees.

STANLEY, Commissioner.

This is a proceeding to condemn 1.64 acres of land for the widening of a highway.

The judgment in the Pulaski County Court entered May 22, 1958, confirmed an itemized award of commissioners of $2,202. The Department of Highways seasonably filed exceptions and an appeal to the circuit court. KRS 177.087. On June 10 the property owners, Huleon Keeney and wife, filed an 'Answer and Counterclaim' in which they asserted that the county court award was fair and reasonable and prayed that the Commonwealth's appeal be dismissed. On July 16 the owners filed an 'Amended Answer and Counterclaim' in which they alleged that $8,690 was the fair value of the land taken and incidental damages to the remainder of their property. They prayed judgment for that sum. On the trial in the circuit court the verdict was for $1,770. The landowners seasonably filed notice of an appeal to this court, which they have prosecuted as being an appeal of right. KRS 21.060(1).

The appellees moved to dismiss the appeal for want of jurisdiction because the amount involved is the difference between the county court judgment of $2,202 and the circuit court judgment of $1,770, i. e., $432, and the appellants had no motion for an appeal, as required by KRS 21.060(2). The contention rested upon our ruling that where the condemnee does not appeal or cross-appeal from the county court judgment, he cannot claim more than was awarded in the lower court. See Bullitt v. Commonwealth, Ky., 298 S.W.2d 290; Bennett v. Commonwealth, Ky., 322 S.W.2d 706; Commonwealth v. Mayo, Ky., 324 S.W.2d 802. We have overruled the appellees' motion to dismiss since the judgment should be considered with the pleadings, Rutherford v. Modern Bakery, Ky., 310 S.W.2d 274, and the appellants had pleaded a right to recover $6,483 more than the county court judgment in their favor.

Should the pleading styled 'Amended Answer and Counterclaim' be regarded as tantamount to a cross-appeal and exceptions to the award made by the commissioners, it was filed 85 days after the county court judgment. The statute permits and requires such an appeal to be made within thirty days after the judgment. KRS 177.087. See Commonwealth, Dept. of Highways v. Clarke, Ky., 340 S.W.2d 442. The circuit court should have stricken or disregarded the pleading or attempt to cross-appeal because it was too late, with the result that the landowners were not entitled to claim more than $2,202, the amount of the county court judgment. See cases cited above.

We come to the question of whether there was error in the trial or the verdict was inadequate by $432.

The statute prescribing proceedings for condemnation of property for public highways, KRS 177.087, provides that the jury, upon the application of either party, 'shall be sent by the court, in the charge of the sheriff, to view the land and material.' See Commonwealth, Dept. of Highways v. Farra, Ky., 338 S.W.2d 696.

After the evidence was concluded, the court told the jury he was having them view the premises and stated 'there will be a man accompanying you who is an engineer, and who knows the measurements, the cuts and fills, knows the location of these entrances and approaches into the various parts of the tract, the approaches made necessary by the building of this four lane highway. Now, you won't be allowed to talk among yourselves at all about the case. This engineer will be confined solely to showing you the vital points, the points that have been developed in this evidence, that is for the purpose that you may better understand the evidence and measurements, the reasons of the evidence offered, anything for that purpose. * * * Now, if any juror--if there is any point of the evidence, any part of the premises that you desire to see or any cuts or any fills or the approaches or any particular characteristic of the land described, the swamp land, why then you can ask this engineer to show you and you will be limited to that, asking him to show you that point as shown in the evidence.'

The record recites, 'Mr. Forrest Roark is sworn by the court.' The terms or purpose of the oath are not revealed. Mr. Roark had testified that he was 'senior right of way agent' of the Department of Highways in the district. He defined the plans for the widening and construction of the highway over the property being condemned and described its characteristics, terrain and effect of the drainage to be made.

The defendants' attorney entered an objection to the directions of the court that the jury might receive information and evidence from Mr. Roark 'outside the presence of the court and counsel for the parties.' The objection was overruled.

Under the provision of KRS 29.301 (formerly Civil Code of Practice, Sec. 318), which is of general application, the court in its discretion may order the jury as a body to be conducted to real property which is the subject...