Smick v. Com.
| Decision Date | 14 May 1954 |
| Citation | 268 S.W.2d 424 |
| Parties | SMICK et al. v. COMMONWEALTH et al. |
| Court | United States State Supreme Court — District of Kentucky |
W. A. Armstrong, Louisville, for appellants.
William E. Berry, Louisville, for appellees.
CULLEN, Commissioner.
In condemnation proceedings by the State Highway Department and the City of Louisville, in the county court of Jefferson County, to condemn for an 'inner belt' highway certain land owned by James Smick and wife, the commissioners awarded damages in the amount of $4,750. On appeal to the circuit court by the Smicks, a jury reduced the award to $3,500, consisting of $2,300 for the land and improvements taken, and $1,200 for damages to the remaining land. The Smicks have appealed, contending that the damages are inadequate.
The Smicks' land consisted of a lot in a residential area of the City of Louisville, extending 100 feet north and south, and 200 feet east and west. On the south half of the lot is a duplex apartment house, of good quality. On the north half of the lot were a two-car frame garage, and a number of large shade trees, shrubs and flower beds. The north half of the lot was condemned, taking the garage and most of the shade trees, and leaving a 12-foot yard space on the north side of the home.
The main contention of the Smicks is that, by evidence and instructions, the jury should have been directed, in fixing the damages to the remaining land, to take into consideration the cost of building a new garage to replace the one taken by condemnation. They rely on the cases, such as Louisville, St. L. & T. R. Co. v. Barrett, 91 Ky. 487, 16 S.W. 278, and Big Sandy Ry. Co. v. Dils, 120 Ky. 563, 87 S.W. 310, in which the court said that the cost of improvements to the remaining land, made necessary by the taking, is a part of the direct damage to the remaining land for which compensation should be awarded. The Smicks argue that, since their garage was taken by the condemnation, and it is necessary that they build a new one, the cost of building a new one should be considered as part of the damage to their remaining land.
The fallacy in the argument is that a garage is not an improvement made necessary by the condemnation, within the meaning of the Barrett and Dils cases. The kind of improvement contemplated by those cases is one which would not have been necessary at all in the absence of condemnation. For example, prior to the condemnation of a strip of land through the middle of a farmer's field, it would not be necessary for...
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...276; Lehman v. Iowa State Highway Commission, Iowa 1959, 99 N.W.2d 404; Medearis v. State, Okl.1959, 341 P.2d 607; Smick v. Commonwealth, Ky. 1954, 268 S.W.2d 424. The principle of restricted dedications has long been known to the common law. Home Laundry Co. v. City of Louisville, 168 Ky. ......
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Lumpkin v. State Highway Dept., 41850
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Winn v. United States, 16340.
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