Smick v. Com.

CourtUnited States State Supreme Court (Kentucky)
Citation268 S.W.2d 424
PartiesSMICK et al. v. COMMONWEALTH et al.
Decision Date14 May 1954

Page 424

268 S.W.2d 424
SMICK et al.
v.
COMMONWEALTH et al.
Court of Appeals of Kentucky.
May 14, 1954.

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

Page 425

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...

To continue reading

Request your trial
15 practice notes
  • St. Clair County v. Bukacek, 7 Div. 447
    • United States
    • Supreme Court of Alabama
    • March 23, 1961
    ...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. Page The principle of restricted dedications has long been known to the common law. Home Laundry Co. v. City of Louisville, 168 Ky. 499, 18......
  • Lehman v. Iowa State Highway Commission, No. 49644
    • United States
    • United States State Supreme Court of Iowa
    • November 17, 1959
    ...50 Wash.2d 716, 314 P.2d 449; Carazalla v. State, supra, 269 Wis. 593, 70 N.W.2d 208, 71 N.W.2d 276. See also Smick v. Commonwealth, Ky., 268 S.W.2d 424. It is of course true that where, as here, a new highway is put through land its controlled-access character is relevant on the issue of d......
  • Lumpkin v. State Highway Dept., No. 41850
    • United States
    • United States Court of Appeals (Georgia)
    • July 6, 1966
    ...did not front upon a pre-existing road but did front upon the new road. A similar holding was had in Smick v. Commonwealth (Ky.), 268 S.W.2d 424. In the case of State Highway Commission v. Burk, 200 Or. 211, 265 P.2d 783, it was held that the fact that the statute providing for limited acce......
  • Winn v. United States, No. 16340.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • November 2, 1959
    ...71 N.W.2d 276; State ex rel. State Highway Commission v. Clevenger, 1956, 365 Mo. 970, 291 S.W.2d 57; Smick v. Commonwealth, Ky.App.1954, 268 S.W.2d 424; Wilkie Cunnyngham, The Limited-Access Highway from a Lawyer's Viewpoint, 13 Mo.L.Rev. 19, 31-32 (1948); Freeways and the Rights of Abutti......
  • Request a trial to view additional results
15 cases
  • St. Clair County v. Bukacek, 7 Div. 447
    • United States
    • Supreme Court of Alabama
    • March 23, 1961
    ...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. Page The principle of restricted dedications has long been known to the common law. Home Laundry Co. v. City of Louisville, 168 Ky. 499, 18......
  • Lehman v. Iowa State Highway Commission, No. 49644
    • United States
    • United States State Supreme Court of Iowa
    • November 17, 1959
    ...50 Wash.2d 716, 314 P.2d 449; Carazalla v. State, supra, 269 Wis. 593, 70 N.W.2d 208, 71 N.W.2d 276. See also Smick v. Commonwealth, Ky., 268 S.W.2d 424. It is of course true that where, as here, a new highway is put through land its controlled-access character is relevant on the issue of d......
  • Lumpkin v. State Highway Dept., No. 41850
    • United States
    • United States Court of Appeals (Georgia)
    • July 6, 1966
    ...did not front upon a pre-existing road but did front upon the new road. A similar holding was had in Smick v. Commonwealth (Ky.), 268 S.W.2d 424. In the case of State Highway Commission v. Burk, 200 Or. 211, 265 P.2d 783, it was held that the fact that the statute providing for limited acce......
  • Winn v. United States, No. 16340.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • November 2, 1959
    ...71 N.W.2d 276; State ex rel. State Highway Commission v. Clevenger, 1956, 365 Mo. 970, 291 S.W.2d 57; Smick v. Commonwealth, Ky.App.1954, 268 S.W.2d 424; Wilkie Cunnyngham, The Limited-Access Highway from a Lawyer's Viewpoint, 13 Mo.L.Rev. 19, 31-32 (1948); Freeways and the Rights of Abutti......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT