Louisville & N.R. Co. v. Burnam

• Decision Date: 18 December 1925
• Parties: LOUISVILLE & N. R. CO. v. BURNAM ET AL.
• Court: Kentucky Court of Appeals

284 S.W. 391

214 Ky. 736

LOUISVILLE & N. R. CO. v. BURNAM ET AL.

Court of Appeals of Kentucky.

December 18, 1925

Rehearing Denied June 25, 1926.

Appeal from Circuit Court, Madison County.

Proceeding by the Louisville & Nashville Railroad Company against Paul Burnam, trustee, and others, to condemn land for right of way. From a judgment for defendant, plaintiff appeals. Reversed and remanded, with directions.

Woodward Warfield & Dawson, of Louisville, and G. Murray Smith, of Richmond, for appellant.

Burnam & Greenleaf, of Richmond, for appellees.

DRURY C.

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 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 commissioner's 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. Co. v. Scomp, 124 Ky. 330, 98 S.W. 1024, 30 Ky. Law Rep. 487; Hanger v. L. & N. 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. 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 market value of it. Everything that affects the market value of the land left that results from the taking of this strip, and the construction of the railroad upon it, should be considered by the jury. The manner in which the remainder of the land must be plowed, its drainage, the accessibility of the various pieces to roads and to each other, and the construction and maintenance of any fences, bridges, or other improvements made reasonably necessary in order to enable the landowner to have thereafter as reasonable use and enjoyment of the remainder as he had before the taking, are all proper elements for the consideration of the jury. Other witnesses gave like testimony, which was properly admitted for the same reason.

Plaintiff complains of the instructions given. We have carefully examined them, and find very little merit in plaintiff's objection; but, upon the retrial of this case, the court will give the following instructions, No. 3 being given before because the plaintiff asked it, and the defendant did not object, and, if such an instruction is asked again, it should be given, though we see no particular necessity for it.

"(1) You are instructed that the plaintiff had, under the law, a right to take and has taken from the defendants, the two strips of land aggregating 13.21 acres, described in the evidence--one being taken for a passway for the benefit of this and the Ramsey land, and the other for a right of way on which plaintiff proposes to construct and operate a double-tracked steam railroad. You are to consider the value of the land taken in relation to the entire 193.47 acres of which it was a part, and as it was before the taking, considering all the purposes for which you may believe from the evidence this 193.47 acres was adapted. You are to consider the damage, if any, to the 180.26 acres remaining after this 13.21 acres is taken and prudently used for the purposes taken, the shape of the pieces left, their condition, connection with, and relation to, each other, and to the highway, and the added burden, if any, of erecting and thereafter maintaining any additional fencing or other improvements that you may find from the evidence, will, after and because of the taking, be reasonably necessary to afford defendants such reasonable use and enjoyment thereof as was had before the taking, and, considering these things, you will award the defendants such a sum as you may believe from the evidence is the fair and reasonable value of the 13.21 acres of land taken, and in addition such sum as will reasonably compensate defendants for the damages, if any, done to the 180.26 acres of land remaining. The entire amount of your finding should not exceed the difference between the actual market value of the entire tract immediately before, and the market value of what is left immediately after the taking, excluding from both these estimates any enhancement, if any, in the value of the remainder by reason of the construction and prudent operation of the road.

(2) The market value of property is the price which it will bring when it is offered for sale by one who desires to sell, but is not compelled to do so, and is bought by one who desires to purchase, but is not compelled to have it.

(3) You will find, and state separately in your verdict, the amount awarded for the land taken, for the damage to the remainder of the tract, if any, and for the cost of fencing, if any."

On the trial, the plaintiff asked the court to instruct the jury not to consider as an element of damage the cost of maintaining fencing, but only the cost of the original construction of additional fencing when made necessary by the taking, but this court has said, in the case of Louisville, St. Louis & Texas R. Co. v. Barrett, 91 Ky. 487, 16 S.W. 278, 13 Ky. Law Rep. 57:

"If, in view of the probable future use of the land, additional fencing will be necessary, of which the jury or commissioners are to judge, and the owner must construct the fence if he has it, then the land is depreciated in proportion to the expense of constructing and maintaining such fencing. Nothing can be allowed for fence as fence. The allowance should be for the depreciation of the land in consequence of the burden thus cast upon it."

This court said again, in the case of Hanger v. L. & N. R. Co., 193 Ky. 419, 236 S.W. 568:

"As the railroad condemned a right of way through the land in question, and paid the former owner damages, in the estimation of which the cost of fencing was taken into consideration, it follows that the railroad company is under no obligation to contribute to the cost of maintaining the fences. That being true, the demurrer to the petition was properly sustained."

With these two expressions of this court before it, the trial court properly overruled the instruction as to maintaining fence, offered by the plaintiff, for, when the strip of land is taken, it may be necessary that fencing be done in order to afford the owner as reasonable use and enjoyment of the...