L. & N.R. Co. v. Burnam, Trustee

• Decision Date: 18 December 1925
• Citation: 214 Ky. 736
• Court: United States State Supreme Court — District of Kentucky
• Parties: Lousiville & Nashville Railroad Company v. Burnam, Trustee, et al.

Page 736

214 Ky. 736

Lousiville & Nashville Railroad Company v. Burnam, Trustee, et al.

Court of Appeals of Kentucky.

Decided December 18, 1925.

1. Eminent Domain — Testimony that it was More Expensive to Maintain Fence Along Railroad than Between Farms and Along Curve than Along Straight Line Held Competent. — In proceedings by railroad company to condemn land, testimony that it was more difficult to maintain fence along right of way than ordinary fence between farms because trains often burn posts, and coal, ashes, and soot have bad effect on fence, and that it was more difficult to construct and more expensive to maintain fence along curve than along straight line, was competent to show cost of building and maintaining fences, if it was necessary for landowner to maintain fences.

2. Eminent Domain — Admission of Testimony that Strip of Land Cut Off by Railroad from Main Body of Farm Would Not be as Valuable for Grazing Purposes with Trains Passing Held Error. — In proceedings by railroad company to condemn land, admitting testimony that strip of land cut off by railroad from main body of farm would not be as valuable for grazing on account of animals being frightened by passing trains was error; such damages being too remote, imaginary, uncertain, and speculative.

3. Eminent Domain — All Injuries which May Result from Prudent Operation of Road Must be Included in Recovery for Condemnation of Land. — In proceedings by railroad company to condemn land for right of way, all injuries which may result from prudent operation of railroad must be included in recovery.

4. Eminent Domain — Scope of Evidence in Proceedings by Railroad to Condemn Land Stated. — In proceedings by railroad company to condemn land for right of way, evidence about market value of land injured, but not taken, includes every element arising from construction and prudent operation of road which in appreciable degree affects market value of property left, and is capable of ascertainment and estimation, but remote, imaginary, uncertain, and speculative damages should be disregarded.

5. Eminent Domain — Admission of Evidence as to Depth of Cuts and Height of Fills as Affecting Drainage of Land Not Condemned Held Proper. — In proceeding by railroad company to condemn land for right of way, admitting evidence as to depth of cuts and height of fills which might affect drainage of remaining land and so change its market value was proper.

6. Eminent Domain — Everything that Affects Market Value of Land Left, Resulting from Taking of Right of Way and Construction of Railroad on it, Should be Considered by Jury. — In proceedings by railroad company to condemn land for right of way, everything that affects market value of land left, resulting from taking of strip and construction of railroad upon it, should be considered by jury.

7. Eminent Domain — Matters Affecting Value of Land Not Taken for Railroad Right of Way Proper to be Considered in Estimating Damages Stated. — In proceedings by railroad company to condemn right of way, manner in which remainder of land in question must be plowed, its drainage, accessibility of various pieces to roads and to each other, and construction and maintenance of any fences, bridges, or other improvements made reasonably necessary to enable owner to have thereafter as reasonable use and enjoyment of remainder as he had before taking, are proper elements to be considered by jury.

8. Eminent Domain — Proper Instructions in Proceedings by Railroad Company to Condemn Land for Right of Way Stated. — Proper instructions as to measure of damages in proceedings by railroad company to condemn right of way stated.

9. Eminent Domain — "Market Value" of Land Defined. — In proceedings by railroad to condemn land for right of way, "market value" of land is price it will bring if offered for sale by one who desires, but is not compelled, to sell, and bought by one who desires to purchase, but is not compelled to have it.

10. Eminent Domain — Jury in Proceedings to Condemn Right of Way Should State Separately in Verdict Amount Awarded for Land Taken and for Damage to Remainder of Tract, if Any, and for Cost of Fence, if Any. — In proceedings by railroad company to condemn right of way, jury should state separately in verdict amount awarded for land taken, for damage to remainder of tract, if any, and for cost of fencing, if any.

11. Eminent Domain — Owner of Land Taken for Right of Way Should be Compensated for Fencing Necessary to Afford him as Reasonable Use of Remainder of Land as he had Before Taking. — Under Constitution, owner of land condemned for railroad right of way should be compensated for fencing necessary to afford him as reasonable use and enjoyment of remainder of land as he had before taking.

12. Eminent Domain — If Verdict in Condemnation Case is Excessive, Motion for New Trial Should be Sustained. — In proceedings by railroad company to condemn land for right of way, if verdict is excessive, motion for new trial should be sustained.

13. Eminent Domain — Award for Taking Land for Right of Way Held Excessive. — In proceedings to condemn land for railroad right of way, where land was taken from farm of 193 acres; assessed for taxation at $19,200, award of $24,700 for condemning 13 acres thereof was excessive and will be set aside on appeal.

Appeal From Madison Circuit Court.

WOODWARD, WARFIELD & DAWSON and G. MURRAY SMITH for appellant.

BURNAM & GEENLEAF for appellees.

OPINION OF THE COURT BY DRURY, COMMISSIONER.

Reversing.

The appellant will be referred to as the plaintiff, and has appealed from a judgment awarded against it in favor of the appellees, who will be called the defendants, for $24,700.00 for land taken in condemnation proceedings. The plaintiff sought to relocate its railroad in order to get better grades and easier curves. Unable to purchase from the defendants, it instituted condemnation proceedings to obtain the land desired. Commissioners were appointed, and assessed the damages thus:

                    Value of land taken ______________________  $5,300.00
                    Cost of fencing __________________________   1,175.00
                    Resulting damages ________________________  20,700.00
                                                              ___________
                                Total ________________________ $27,175.00
                

Exceptions were filed to the commissioners' report and in the county court the following was assessed against plaintiff for the taking:

                    Value of land taken _____________________ $3,162.50
                    Cost of fencing _________________________  1,700.00
                    Resulting damages _______________________ 20,700.00
                                                            ___________
                        Total ______________________________ $25,562.50
                

Plaintiff paid that sum into the county court and took possession of the land. It then appealed to the circuit court, where there was assessed against it for this taking:

                    Value of land taken ____________________  $2,980.00
                    Cost of fencing ________________________   2,500.00
                    Resulting Damages ______________________  19,220.00
                                                             __________
                         Total _____________________________ $24,700.00
                

From the judgment entered upon this verdict of the jury, it has appealed to this court.

This case was practiced well, and is remarkably free from errors. The plaintiff complains of the evidence: First, because the defendant Burnam was permitted to testify that it was more difficult to maintain a fence along a railroad right of way than an ordinary fence between farms, because the trains often burn the posts and the coal, ashes and soot have a very deteriorating effect on fencing, and that it is more difficult to construct and more expensive to maintain a fence along a curve than it is a straight fence. There is no contradiction that these things were true with the most prudent operation of the railroad, and if it is necessary for the defendant to build and maintain fences, this testimony was clearly competent to show the cost of building and maintaining these fences. The other testimony of which plaintiff is complaining is that defendant Burnam was permitted to testify that a strip of land cut off by a railroad from the main body of the farm would not be as valuable for grazing purposes with trains going back and forth beside it. This strip of ground is of varying widths. It is about 400 feet wide at the widest part, and perhaps 150 feet at the narrowest. Its average width will not exceed 275 feet. The defendant shows that probably 40 trains a day will pass this place, and that cattle do not graze well near a railroad track on account of passing trains. Since there can be but one assessment of damages, all injuries that may result from the prudent operation of this road must be included in this recovery. L. & N.R.R. Co. v. Scomp, 124 Ky. 330, 98 S.W. 1024, 30 R. 487; Hanger v. L. & N. R.R. Co., 193 Ky. 419, 236 S.W. 568; Cin. N.O. & T.P. R. Co. v. Sadieville Milling Co., 137 Ky. 568, 126 S. W. 118.

In view of this, the evidence in condemnation cases about matters affecting the market value of land injured, but not taken, takes a very wide range, and generally speaking, every element arising from the construction and prudent operation of the road, which in an appreciable degree affects the market value of the property left, and is capable of ascertainment and estimation in dollars and cents, is properly to be taken into consideration, but remote, imaginary, uncertain and speculative damages should be disregarded. The evidence about cattle not grazing well on this strip falls within this exception and should not have been admitted. L. & N.R.R. Co. v. Hall, 143 Ky. 497, 136 S.W. 905.

Witnesses were asked about the height of the fills proposed and depth of cuts that would be made. It was proper to admit this evidence as the changes made in the surface of the strip taken may affect the drainage of the remaining land, and if it does, it will change the...