Louisville & Nashville Railroad Co. v. Hargis
| Decision Date | 08 October 1929 |
| Citation | 230 Ky. 806 |
| Parties | Louisville & Nashville Railroad Company v. Hargis et al. |
| Court | United States State Supreme Court — District of Kentucky |
1. Eminent Domain. — In condemnation proceeding, it is peculiarly province of jury within limits of proof to fix value of land taken and to award damages to remaining tract.
2. Eminent Domain. — In condemnation proceeding, it is essential that jury should find value of land to be taken and damage to remainder considering situation in which it would be placed.
3. Eminent Domain. — In proceeding by railroad to condemn strip of land across farm, evidence may be introduced respecting damages to house, if witness shows any basis in fact for opinion thereon.
4. Eminent Domain. — In proceeding by railroad to condemn strip of land across farm, evidence relating to cost of removing timber from land after railroad was constructed held admissible as bearing on value of land.
5. Eminent Domain. — In proceeding by railroad to condemn strip of land across farm, it was competent for jury to consider, in determining issues, question whether fact that construction of railroad would separate farm into two distinct tracts would affect value.
6. Eminent Domain. — Where crossings were contemplated by railroad condemning strip of land across farm, such crossings should be shown by plans or stipulated in record and provided for in judgment, but landowner is entitled to actual damages to property even considering that adequate crossings would be constructed.
7. Eminent Domain. — In proceeding by railroad to condemn strip of land across farm, testimony of construction engineer that culvert would have to be constructed at mouth of branch which could be used by landowner in passing from one side of farm to the other held admissible, since such opening would afford means of crossing which might materially reduce damages.
8. Eminent Domain. — In proceeding by railroad to condemn strip of land across farm, instruction to find for defendants fair cash value of strip taken and other direct damage resulting to remainder of tract by reason of situation in which it was placed and for additional fencing or other improvements, if any, required for reasonable enjoyment of remainder of tract, but that amount should not exceed difference between actual value of land as entirety immediately before and immediately after taking, held not erroneous.
9. Trial. — In railroad's proceeding to condemn strip across farm refusal of instructions relating to crossings and to enhancement in value of remaining land by construction of railroad held not error, in view of instruction given which was sufficient on question of damages.
10. Eminent Domain. — In proceeding for condemnation of land, incidental damages may be reduced by incidental benefits, where facts are shown sufficient to call for application of rule.
11. Eminent Domain. — In proceeding for condemnation of land, instructions must conform to issues in so far as supported by evidence, and that is all that is required.
12. Eminent Domain. — In proceedings by railroad to condemn strip of land across farm, error in awarding burden of proof to defendants where exceptions to award were filed by both parties, thus depriving plaintiff of right of introducing its evidence first and of further right of making concluding argument, held prejudicial, under Civil Code of Practice, sec. 317, subsecs, 3, 6, and section 526, though case was not argued to jury.
Appeal from Breathitt Circuit Court.
O.H. POLLARD, HUNT & BUSH, C.S. LANDRUM, ASHBY M. WARREN and WOODWARD, HAMILTON, WARFIELD & HOBSON for appellants.
GRANNIS BACH and W.L. KASH for appellees.
Reversing.
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...
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