Sandy Valley & E. Ry. Co. v. Bentley

• Decision Date: 11 December 1914
• Parties: SANDY VALLEY & E. RY. CO. v. BENTLEY ET AL. [d1]
• Court: Kentucky Court of Appeals

171 S.W. 178

161 Ky. 555

SANDY VALLEY & E. RY. CO. v. BENTLEY ET AL. ^[d1]

Court of Appeals of Kentucky.

December 11, 1914

Appeal from Circuit Court, Letcher County.

Condemnation proceedings by the Sandy Valley & Elkhorn Railway Company against J. H. Bentley and others. From a judgment fixing the value of the property sought to be condemned, plaintiff appeals. Affirmed.

Hager &amp Stewart, of Ashland, Morgan & Harvie, of Whitesburg, and S S. Willis, of Ashland, for appellant.

O'Rear & Williams, of Frankfort, David Hays, of Whitesburg, and S B. Dishman, of Barbourville, for appellees.

CLAY C.

Plaintiff Sandy Valley & Elkhorn Railway Company, instituted this proceeding in the Letcher county court to condemn a lot of ground, consisting of 1.02 acres, situated in the town of Jenkins, and belonging to defendants, J. H. Bentley and Mary Bentley. The commissioners appointed by the county court fixed the value of the lot at $21,500. Plaintiff excepted to the finding of the commissioners, and on a trial before a jury a verdict fixing the value of the lot at $37,000 was rendered. On appeal to the Letcher circuit court, a jury there fixed the value of the lot at $43,000. The railroad company appeals.

It appears from the evidence that Jenkins is a town of 4,000 or 5,000 inhabitants, and is several miles long. It is located in a narrow valley. It came into existence during the summer of 1911, and its remarkable growth is due to the coal development in that section of the state. The Consolidated Coal Company had acquired almost all the land within a radius of five miles of Jenkins. When this proceeding was instituted the lot in question was occupied by an old dwelling house and store. These buildings were small, and of but little value. After this suit was filed the defendant built a better residence and a more substantial store, both buildings costing about $1,000. The defendants conducted a country store on the property and lived on it.

Plaintiff introduced six witnesses who valued the land as of June 3, 1912, at from $2,500 to $5,000. The defendants introduced nine witnesses who valued the land at from $40,000 to $65,000.

The court instructed the jury as follows:

"The court tells the jury that they will find for the defendants a fair equivalent for the entire piece of property, which finding should be its market value at present in money, and its market value is that price it would bring when it was offered for sale by one who desires, but is not obliged, to sell it, and is bought by one who is under no necessity of buying it; in other words, a fair market value means the fair value between one who wants to purchase and one who wants to sell."

Plaintiff offered the following instructions, which were refused:

"(a) The court says to the jury the measure of damages, when the whole of any particular piece of property is taken for public use as in this case, is the market value of that property so taken.

The term, 'market value,' means the fair value as between one who wants to purchase and one who wants to sell, and not what could be obtained for it, under peculiar circumstances, when a greater than its fair price could be obtained, nor its speculative value, nor a value obtained from the necessity of another.

(b) Therefore you will find for the defendants, J. H. and Mary Bentley, the fair and reasonable market value in cash as above defined, for the 1.02 of an acre of land sought to be taken in this proceeding by the plaintiff, and you will fix a value as of to-day.

(c) The court says to the jury that you cannot find for the defendants, the value of any improvements, placed on the property, after this proceeding was instituted, which was the 3d day of June, 1912, and you will deduct from the present value of said property the value of the new store building and of the new dwelling house, which defendants erected on the property, since the institution of this proceeding."

It is first insisted that the trial court erred in giving the instruction by which the case was submitted to the jury, and in refusing the instructions offered by plaintiff. The given instruction has been often approved by this court. Calor Oil & Gas Co. v. Franzell, 128 Ky. 734, 109 S.W. 328, 33 Ky. Law Rep. 98, 36 L.R.A. (N. S.) 456; Madisonville, etc., R. Co. v. Ross, 126 Ky. 138, 103 S.W. 330, 31 Ky. Law Rep. 584, 13 L.R.A. (N. S.) 420; Lewis on Eminent Domain, § 478; David v. L. & I. Railroad Co., 158 Ky. 721, 166 S.W. 230.

Plaintiff, however, contends that the measure of damages is incorrect, as applied to the facts of this case, because it did not permit the jury to make any deduction for improvements made after the action was instituted. It is the settled rule in this state that in a condemnation proceeding, where an appeal is prosecuted to the circuit court, evidence of the value of the property condemned should be confined to its value at the time of the trial. David v. L. & I. Railroad Co., supra. A judgment in a condemnation proceeding does not impose upon the party seeking to condemn the absolute obligation of taking the property. That being true, we are not disposed to hold that if the owner improves the property after the proceedings were instituted, and an appeal is prosecuted, he does so at his peril. So long as he acts in good faith, and as an ordinarily prudent business man would do under like or similar circumstances, he is not to be deprived of the value of such reasonable improvements as he may make. Here the defendants had a substantial mercantile business from which they derived a good income. The old buildings were of but little value. The new buildings cost about $1,000. There is nothing in the record to show that the defendants acted in bad faith in erecting the improvements, and as the value of the new improvements is very small in comparison to the value of the lot, we see no reason why their value should be excluded in determining the value of the lot.

It is next insisted that the court erred in permitting defendants' witnesses, who had not sufficiently qualified themselves, to give their opinions as to the market value of the property in question. Some of these witnesses lived in Jenkins, and some of them lived some distance therefrom. In this connection it is insisted that we should apply the rule applicable to will cases, where it is sought to set aside the will on the ground of mental incapacity, and hold that opinions without facts to support them are of no value. Clark v. Young, 146 Ky. 377, 142 S.W. 1032; Phillips v. Phillips, 149 Ky. 206, 148 S.W. 51. In our opinion, however, the same rule does not apply. Here it was difficult to obtain any facts on which to base an opinion. There had been no sales of similar property sufficiently near in point of time and circumstances to afford a fair basis in measuring the market value of the property condemned. After all, the question was...