Louisville, St. L. & T.R. Co. v. Barrett

• Decision Date: 18 April 1891
• Citation: 91 Ky. 487,16 S.W. 278
• Parties: LOUISVILLE, ST. L. & T. R. CO. v. BARRETT et al.
• Court: Kentucky Court of Appeals

16 S.W. 278

91 Ky. 487

LOUISVILLE, ST. L. & T. R. CO. v. BARRETT et al.

Court of Appeals of Kentucky.

April 18, 1891

Appeal from circuit court, Daviess county.

"To be officially reported."

Helm &amp Bruce, for appellant.

Sweeney Ellis & Sweeney, for appellees.

HOLT C.J.

In this proceeding to condemn a right of way through the land of the appellees a total damage of $7,914.20 was allowed by the commissioners appointed by the county court. Exceptions having been filed, a trial by jury resulted in a finding of $7,447.75 in that court. Upon an appeal by the appellant to the circuit court a verdict for $6,000 was rendered, it being recited in it: "This includes fencing." The appellant now complains of it, contending, first, that its motion made in the circuit court to quash the report of the commissioners should have been sustained; the ground being that the person who is the guardian of one of the appellees and agent of the other went upon the land with the commissioners, the other side not being represented, and pointed out the route of the proposed railroad, and the damages that would be done to the land by its construction. One of the parties to such a controversy should never be allowed to discuss its merits privately with the commissioners in the absence of the other party. Such ex parte communications are improper. It is, however unnecessary to determine the effect of such conduct upon their report, because, while it is at least in part the foundation of the proceeding, yet we fail to see how the appellant can now claim to have been prejudiced by it. The jury in the county court fixed the damages independently of it. A second one did the same in the circuit court, and this appeal is from the judgment upon this last verdict.

The jury were told that in fixing the amount of the direct damages they should not only consider the value of the land taken, considering its relation to the entire tract, but also the injuries, if any, directly resulting from the taking to the remainder of the tract; the injuries contemplated being those which depreciate the value of the land by reason of the shape in which it may be left, the easements impaired or destroyed, and such additional improvements, if any, as may be necessary to its reasonable enjoyment; such injuries to be considered, however, only so far as they depreciated the value of the land; the finding for direct damages not to exceed the difference in the actual value of the land immediately before and after the appropriation. They were also further instructed as incidental damages and advantages arising to the land from the operation of the road. It is contended that they were authorized under these instructions to find damages twice for the same thing, to-wit, to give the value of the strip of land taken, considering its relation to the balance of the tract, and also damages on account of the awkward shape into which the land left might be thrown, and that the former includes the latter. Undoubtedly one cannot recover twice for the same thing, but this the party does not do when he is allowed the value of the land taken considering its relation to the remainder of the tract, and also damages by reason of the depreciation of the balance of the land by reason of the shape in which it may be left. This merely means that he is to have for the land taken what it is worth as it is situated, or as a part of the whole tract; and in no other way can he be fairly compensated. In addition to this, if the balance of the land has depreciated in value by being left in bad shape, the loss should be made up to him, or else he is not made whole. Such a diminution in value is as much a taking, in constitutional meaning, as the use of the road-bed by the company. Our constitution provides that no man's property shall be taken for public use without just compensation being previously made to him; and this is not done unless he receives not only the value of the land actually taken as it is situated to the balance of the tract, but also the decrease in value of the remainder of the tract arising from a portion of the original tract having been condemned. It was said in the case of Railroad Co. v. Dickerson, 17 B. Mon. 173: "The constitution secures to the owner of the land just compensation for his property before he can be deprived of it. Its value to him, considering its relative position to his other land, and the other circumstances which may diminish or enhance that value, can alone afford him a just compensation for its loss. To third persons the same quantity of land of equal quality on one of the boundaries of the farm might be of as much value as if it were situated in the middle of the farm, but at the same time its value thus ascertained might be a very inadequate compensation to the owner if the land were taken out of the middle of his farm, so as to separate it into different parts, instead of being taken on one of its boundary lines. The real value of...