Louisville & N.R. Co. v. Hargis

• Decision Date: 08 October 1929
• Citation: 20 S.W.2d 991,230 Ky. 806
• Parties: LOUISVILLE & N. R. CO. v. HARGIS et al.
• Court: Kentucky Court of Appeals

20 S.W.2d 991

230 Ky. 806

LOUISVILLE & N. R. CO. v. HARGIS et al.

Court of Appeals of Kentucky

October 8, 1929

Appeal from Circuit Court, Breathitt County.

Condemnation proceeding by the Louisville & Nashville Railroad Company against Margaret Hargis and others. On a trial in the county court of exceptions to the commissioner's report there was a verdict for defendants, and plaintiff appealed to the circuit court. Judgment for defendants, and plaintiff appeals. Reversed and remanded.

O. H Pollard, of Jackson, Hunt & Bush and C. S. Landrum, all of Lexington, and Ashby M. Warren and Woodward, Hamilton Warfield & Hobson, all of Louisville, for appellant.

Grannis Bach and W. L. Kash, both of Jackson, for appellees.

WILLIS J.

The Louisville & Nashville Railroad Company instituted a proceeding in the Breathitt county court against Margaret Hargis and others to condemn a strip of land approximately 100 feet wide and over a mile in length extending through a farm belonging to the defendants. The commissioners appointed by the county court assessed the value of the property taken and the damage to the remainder at $3,500. Both parties filed exceptions to the commissioners' report, and a trial of the exceptions in the county court resulted in a verdict in favor of the defendants for $4,500. The railroad company prosecuted an appeal to the circuit court, where a trial was had and a verdict returned awarding $6,500 to the defendants. A new trial was requested and denied, and the railroad company has prosecuted this appeal.

It is insisted that the award is not sustained by the evidence and is grossly excessive; that incompetent evidence was admitted that the jury was improperly instructed; and that the appellant was prejudiced by a ruling of the court denying it the burden of proof.

The farm is on the banks of the Middle fork of Kentucky river, and contains 334 acres, about 50 acres of which is bottom land suitable for cultivation, whilst the remainder is mountain land covered with timber. There is a small clearing of hill land containing about 25 acres used for pasturage.

A tunnel 1100 feet long is to be constructed near the lower end of the farm, and a large fill is to be made near the house. Part of the garden is to be taken. The evidence was in sharp conflict on the issues of value and damages. In cases of this character, it is peculiarly the province of the jury within the limits of the proof to fix the value of the land taken and to assess the damages to the remaining tract. L. & N. R. R. Co. v. White Villa Club, 155 Ky. 452, 159 S.W. 983; Sandy Valley & E. R. Co. v. Bentley, 161 Ky. 555, 211 S.W. 193, 171 S.W. 178; Lexington & E. R. Co. v. Sumner, 196 Ky. 788, 245 S.W. 849; Commonwealth v. Anderson, 228 Ky. 90, 14 S.W.2d 392.

The issue to be tried is a comparatively simple one. It is essential that the jury should find the value of the land to be taken and the damage to the remainder considering the situation in which it would be placed. Madisonville, H. & E. R. R. Co. v. Ross, 126 Ky. 138, 103 S.W. 330, 31 Ky. Law Rep. 584, 13 L. R. A. (N. S.) 420. But, in view of our conclusion on another point, the question regarding the amount of the verdict is reserved. The rulings of the court regulating the admission of evidence are criticized, but we find no substantial error in that particular. The answer of the witness respecting damages to the house was too vague and indefinite, but evidence might be introduced upon that subject if the witness shows any basis in fact for an opinion thereon. Much of the testimony was addressed to the cost of removing the timber from the hill land after the railroad was constructed. There was a conflict in the evidence as to the quantity of timber and as to the cost of removing it, but it constituted an element in estimating the value of the land and was a proper subject for proof. The rulings on evidence were not prejudicial. Sandy Valley & E. R. Co. v. Bentley, 161 Ky. 555-559, 171 S.W. 178; Long Fork Ry. Co. v. Sizemore, 184 Ky. 54, 211 S.W. 193.

It is said that the farm was divided by a county road, and that no damage could be allowed for separating it by the construction of a railroad; but the farm is one entire tract, used as a whole, and the presence of the county road did not affect its use. The construction of the railroad would separate the farm into two distinct tracts and increase the difficulty of communication, and it is conceivable that such a structure might materially affect the value of the farm. In any event it was competent proof for the jury to consider in determining the issues submitted. In Louisville & N. R. Co. v. Chenault, 214 Ky. 748, 284 S.W. 397, the railroad company contended that the farm on one side would be benefited, and it was sought to offset such benefits against the land taken from the other side of the farm, which was not permitted. There is nothing decided in that case militating against the right of a landowner to recover damages to all of his farm simply because a county road ran across it. The avowal by counsel that necessary crossings would be constructed was uncertain, and the plans did not provide for crossings. If crossings were contemplated, they should be shown by the plans, or stipulated in the record and provided for in the judgment (Creech v. L. & N. R. Co., 217 Ky. 301, 289 S.W. 238); but the landowner is entitled to the actual damages to his property, even considering that adequate crossings would be constructed (L. & N. R. R. Co. v. Emerson, 125 Ky. 104, 100 S.W. 863, 30 Ky. Law Rep. 1149; Louisville & N. R. R. Co. v. Pittman, 53 S.W. 1040, 21 Ky. Law Rep. 1037). The construction engineer testified that a culvert 8 feet high and 8 feet wide would have to be constructed at the mouth of the branch, which could be used by the landowner in passing from one side of his farm to the other. This testimony was admissible, as such an opening would afford a means of crossing which might materially reduce the damages to the farm.

The court instructed the jury to find for the defendants such a sum as they might believe from the evidence constituted the fair and reasonable cash value of the strip of land proposed to be taken, considering said strip of land in relation to the entire tract of which it is a part, and also such other direct damage, if any, as they might believe from the evidence resulted to the remainder of the tract by reason of the situation, condition, or shape in which it was placed, or for such additional fencing or other improvements, if any, as might be necessary to the reasonable enjoyment of the remainder of the tract; but the amount of damages, in any event, should not exceed the difference between the actual value of the land as an entirety immediately before and the actual value of the land as an entirety immediately after the taking. This instruction followed the form approved in cases of this character. Hobson, Blain & Caldwell, Instructions to Juries, § 249, p. 284; Broadway Coal Mining Co. v Smith, 136 Ky. 725, 125 S.W. 157, 26 L. R. A. (N. S.) 565. The offered instructions rejected by the court related to crossings and to the exclusion from the ascertained damages of any enhancement in the value of the remaining land by reason of the construction of the railroad. The court was also...