Louisville & N.R. Co. v. White Villa Club

• Decision Date: 23 October 1913
• Citation: 159 S.W. 983,155 Ky. 452
• Parties: LOUISVILLE & N. R. CO. v. WHITE VILLA CLUB.
• Court: Kentucky Court of Appeals

159 S.W. 983

155 Ky. 452

LOUISVILLE & N. R. CO. v. WHITE VILLA CLUB.

Court of Appeals of Kentucky.

October 23, 1913

Appeal from Circuit Court, Kenton County, Common Law and Equity Division.

Condemnation proceeding by the Louisville & Nashville Railroad Company against the White Villa Club. From the judgment, the petitioner appeals. Affirmed.

Benjamin D. Warfield, of Louisville, and S.D. Rouse, of Covington, for appellant.

Myers &amp Howard, of Covington, for appellee.

CARROLL J.

In this condemnation proceeding instituted by the appellant railroad company against the appellee corporation the jury in the circuit court assessed the damages at $15,333. From the judgment on this verdict this appeal is prosecuted.

Commissioners appointed to value the property desired to be taken by the railroad company and assess the damages fixed the amount at $7,144.65. Both parties filed exceptions to the report of the commissioners and on a trial before a jury in the county court there was a verdict and judgment fixing the damages at $6,500. From this judgment both parties appealed to the circuit court. The circuit court in Kenton county holds terms in Covington, a city of the second class, and also at Independence, the county seat of Kenton county. The railroad company prosecuted its appeal to the Independence court, while the appellee prosecuted its appeal to the Covington court. It seems that the appeal filed in the Covington circuit court came up for trial first, and when the case was called the railroad company objected to its being tried in Covington and moved that it be transferred for trial to Independence. This motion was overruled and the case tried at Covington. On this appeal the first question raised by counsel for the railroad company is that the trial court erred in refusing to transfer the case for trial to Independence.

The place at which cases shall be docketed and set for trial in Kenton county is regulated by section 980 of the Kentucky statutes, providing in part that "the circuit courts shall be in continuous session, and shall be held in cities of the second class, where there are or may be such cities but the judge of such courts shall hold part of such sessions at the county seat of the county where the same is not such city, such part to be not less than two weeks, if the business of the court require so long. *** And all suits in which the defendants, or the greater number of defendants, reside nearer to said county seat than to said city of the second class, shall be docketed and tried at said county seat, and the process in such cases shall so indicate." Under this statute it will be observed that all cases are to be tried at the court held in the city of the second class--in this case Covington--except suits in which the defendants, or the greater number of them, reside nearer to the county seat than to the city of the second class. In this case the appellee, the defendant below, was a corporation and had its office and principal place of business in the city of Covington and so should be treated as residing in that city. Therefore it was proper that the appeal should be docketed and tried in Covington. We do not think the fact that this was an appeal and not an original suit affects the question of where it should be tried. The statute refers to trials in the circuit court, and whenever a case is pending for trial in the circuit court, whether it be brought originally in the circuit court or comes to the circuit court by appeal from some inferior court, the procedure is the same. We think the court properly ordered a trial of the case to be had in the Covington court.

Before taking up the other grounds of reversal, a general description of the condition and situation of the entire tract of land a part of which was sought to be condemned by the railroad company will be helpful in understanding the questions raised on this appeal. In 1905 a number of gentlemen residing in Covington purchased a long narrow tract of land containing about 127 acres, situated some 18 miles south of Covington and bounded on one side by existing lines of the appellant company, and on the other side by the Licking river. They paid for the land $11,000, and their purpose in buying it was to convert it into a country summer resort for themselves and others who might become members of a corporation which they formed under the name and style of the White Villa Club. Soon after the purchase of the property, landscape and other engineers were employed and the grounds were surveyed and laid out into roads, walks, plats, and sidewalks. Trees and shrubbery were planted at appropriate places. Lakes for bathing, boating, and fishing purposes were established, and a number of handsome homes were erected by members of the club. In fact, everything that intelligence, taste, and wealth could accomplish was being done towards making this naturally attractive property a delightful residential place. As a result of these efforts of the members of the club, the place greatly increased in value, and the weight of the evidence shows that when these condemnation proceedings were instituted its reasonable market value was between $75,000 and $100,000.

The railroad company desired to condemn a strip of land, parallel with its existing line, for the purpose of double-tracking its road. The strip of land it wished to condemn varied in width from 30 to 80 feet and extended through this property for a distance of something over 5,000 feet. The amount of damage the taking of the strip of land did to the whole tract, including the value of the land taken, was estimated at widely varying figures, to which attention will be called later, although we may here add that a number of witnesses placed the damage at a much larger sum than the jury allowed.

On the trial of the case the railroad company introduced the deputy sheriff of Kenton county and asked him "on what date the assessments were made of property in Kenton county contained in the current tax books for the year 1912." To this question the defendant appellee objected. The court sustained the objection, and it was then avowed that the witness, if permitted to answer, would say "that he is deputy sheriff, and as such has in his possession the tax books for the year 1912 which contain the assessments made as of the first of September, 1911, and that the 127 acres of the White...