West Ky. Coal Co. v. Com., Dept. of Highways

• Decision Date: 07 June 1963
• Citation: 368 S.W.2d 738
• Parties: WEST KENTUCKY COAL COMPANY et al., Appellant, v. COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 738

368 S.W.2d 738

WEST KENTUCKY COAL COMPANY et al., Appellant, v. COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellee.

Court of Appeals of Kentucky.

June 7, 1963.

James F. Gordon, Madisonville, Joseph J. Leary, Frankfort, for appellant.

John B. Breckinridge, Atty. Gen., William A. Lamkin, Asst. Atty. Gen., Paul E. Hunley, Frankfort, Frank D. Berry, Madisonville, for appellee.

CULLEN, Commissioner.

The Commonwealth condemned, as right of way for a four-lane nonaccess highway, a strip of land containing 8.50 acres, across one corner of a 614-acre tract owned by West Kentucky Coal Company in Hopkins County. The highway will isolate or landlock a triangular parcel of 10.50 acres. The jury in circuit court awarded $6,700 damages and judgment was entered accordingly. The coal company has appealed from the judgment.

Under a little more than 300 acres of the 614-acre tract there are seams of No. 11 and No. 12 coal (the No. 11 seam lies four feet and four inches below the bottom of the No. 12 seam). Around 200 acres of the tract are 'barren' with no coal under them. The remainder of the tract (around 100 acres) originally contained both the No. 11 and No. 12 seams, but the No. 11 seam had been removed to a considerable extent by underground mining. All of the isolated 10.50-acre parcel, and about one-half of the 8.50-acre right of way (longitudinally), were in the area where the No. 11 seam had been removed. The other one-half of the right of way still has both seams beneath it.

The Commonwealth's witnesses stated that it would not be economically feasible to attempt to strip-mine the No. 12 seam in the area where the No. 11 seam had been mined, because of insufficient ground support for the mining equipment, water problems, etc. They valued at $300 per acre so much of the right of way as had both seams under it. The remainder of the right of way, and all of the isolated 10.50-acre parcel, they valued at $150 per acre (the coal at $50 and the surface at $100). They treated the isolated parcel as having been completely destroyed in value. The total damage, according to their estimates, was around $3,500.

The coal company's witnesses gave their opinion that the No. 12 coal over the mined-out No. 11 seam could feasibly be strip-mined. They estimated the amount of recoverable coal under the right of way and under the isolated parcel at 240,000 tons, and without using a per ton or per acre value they estimated the damages at around $120,000 (which would average more than $6,000 per acre).

We shall first dispose of the appellant's contention that the damages are grossly inadequate. In view of the testimony of the witnesses for the Commonwealth that only a relatively small amount of the coal under the right of way and the isolated parcel was recoverable because of the presence of the old mine workings where the No. 11 seam had been mined out, and in view of their testimony that even where both seams were recoverable the value was only $300 an acre, we cannot say that the verdict is inadequate. (Some weight also is entitled to be given to the fact that the coal company listed its land for taxation at a top value of $160 per acre.) We have no source of knowledge that tells us an estimate of a value of $6,000 an acre for coal land in Hopkins County is credible and an estimate of $300 an acre is incredible.

The appellant attacks on various grounds the testimony of witnesses for the Commonwealth. It is contended that the testimony of the witness, Parks, should have been stricken; first, because he testified that the coal company's entire tract of land was worth more after the taking than before the taking, and, second, because the 'comparable sales' relied upon by Parks were not comparable.

The appellant maintains that Parks gave a 'before' value of $117,100 and an 'after' value of $124,088, showing an enhancement of close to $7,000. The record discloses, however, that although Parks initially stated a 'before' value of $117,100 he quickly corrected it to $125,700. Furthermore, it is reasonably clear from Parks' testimony that he estimated the damages at $3,522. A considerable portion of his examination was devoted to how he computed the damages, and his 'before' and 'after' values were very briefly touched on. It appears that the discrepancy between the damages as indicated by his 'before' and 'after' values, and the damages as separately computed by him, is attributable simply to a slip of the tongue or of the mind in stating the 'after' value. In our opinion the jury reasonably would have concluded from his testimony as a whole that he estimated the damages to be $3,522, and the jury should not have been confused or misled by the fact that the difference between his 'before' and 'after' values did not equal that amount.

As concerns Parks' testimony with regard to comparable sales, we think the way this testimony was brought out is significant. On direct examination Parks stated in general terms that his estimates of value were based on his experience in dealing with coal properties and on comparable sales. He was not asked to identify any particular sale he relied on. It was not necessary, in order for his testimony to have probative value, that he identify the comparable sales. Commonwealth Department of Highways v. Tyree, Ky., 365 S.W.2d 472. On cross-examination, Parks was questioned in detail concerning what sales he relied on. He mentioned three. One was a tract of 225 acres, some 12 miles from the tract in question, containing six acres of strip coal. He was not asked what price that sale brought. The second was a tract of 100 acres of No. 6 coal, about 25 miles from the tract in question. The price was $150 per acre. He testified that although the No. 6 seam was only about half the thickness of the No. 11 and No. 12 seams, the No. 6 coal was twice as valuable because of its better quality. The third sale involved a 55-acre tract some two miles from the tract in question, on which the No. 11 coal had been mined from under the No. 12 coal. The price was $10 an acre. The first two tracts were in reasonable proximity to cleaning, processing or preparation plants. All three sales took place around four years before the trial of the instant case.

It is to be noted that Parks was not asked what price was brought on the first sale; that although the sale of the tract with the No. 6 coal was for only $150 an acre he placed a value of $300 an acre on the unmined portion of the tract here involved; and that although the 55-acre tract on which the No. 11 coal had been mined out brought only $10 an acre he valued the similar portion of the tract here involved at $150 an acre. Thus it is clear that he was not using these sales as a fixed standard of value but only as a guide in arriving at value. Where this is the case, dissimilarities between the lands involved become less significant because the witness makes allowance for the dissimilarities; it may be considered that he has given weight only to the comparable features. See Nichols on Eminent Domain, Vol. 5, Sec. 21.3(1), pp. 430, 431.

In this connection it should be kept in mind that evidence of comparable sales may be offered on either one of two theories: (1) As independent substantive evidence of the value of the property to which the comparison relates; and (2) as foundation evidence supporting the opinion of the expert witness. Stewart v. Commonwealth, Ky., 337 S.W.2d 880. Where (as here) the evidence comes in under the second theory, there is less reason for being strict in regard to similarity, because the evidence serves the purpose only of supporting the credibility of the estimate of value given by the witness. See Commonwealth Department of Highways v. Tyree, Ky., 365 S.W.2d 472.

The dissimilarities brought out in the cross-examination of Parks were that the allegedly comparable tracts were some miles from the tract in question, the sales took place some four years before the trial, the kind of coal in one tract was not the same, and the tracts were not comparable in size. We do not consider the distance to be a fatal dissimilarity because in the case of rural property distance is not highly significant; similarity of use is more important than proximity. See Nichols on Eminent Domain, Vol. 5, sec. 21.31(3) p. 460. Here the distances were not great considering that the properties all were in the same general Western Kentucky coal field. As concerns the difference in time (four years), we believe the sales were not too remote, considering that there was no evidence of such a change in conditions during the interval as to make the sales unreliable tests of value. See Nichols on Eminent Domain, Vol. 5, sec. 21.31(2), p. 452. The difference in the kind of coal was compensated for by the testimony that the No. 6 coal was worth twice as much as the No. 11 and No. 12 coal. With respect to the fact that the tracts involved in the sales were not comparable in size to the tract in issue, we think Parks, who...