West Virginia, P. & T.R. Co. v. Gibson

• Decision Date: 04 April 1893
• Citation: 94 Ky. 234,21 S.W. 1055
• Parties: WEST VIRGINIA, P. & T. R. CO. v. GIBSON et al.
• Court: Kentucky Court of Appeals

21 S.W. 1055

94 Ky. 234

WEST VIRGINIA, P. & T. R. CO. v. GIBSON et al.

Court of Appeals of Kentucky.

April 4, 1893

Appeal from court of common pleas, Bell county.

To be officially reported.

Action by the West Virginia, Pineville & Tennessee Railroad Company against James J. Gibson and others to condemn land. From the judgment, plaintiff appeals. Reversed.

J. R Sampson, M. J. Moss, Unthank & Riley, D. G. Colson, and Mr Fitzpatrick, for appellant.

C. W Metcalfe and Wm. Low, for appellees.

BENNETT C.J.

The appellant sought by this action to condemn a strip of land along the bank of the Cumberland river and near the town of Pineville, Ky. and immediately at the foot of the mountain for its railroad track. The trial, on appeal to the circuit court, resulted in a verdict and judgment, estimating the value of about 5 1/2 acres of land condemned at over $12,000. The appellant has appealed.

The rule, according to the cases of Asher v. Railroad Co. (Ky.) 8 S.W. Rep. 854, and Railroad Co. v. Ingram, 14 S.W. 534, (October 14, 1890,) is that just compensation must be first made to the owner of property when it is taken for public use, which must be done, in case of condemnation for railroad purposes, by ascertaining the value of the entire tract, excluding all consideration of the question of the enhancement of the value of the land resulting from the proposed improvement. Then, what will be the value, after deducting such part of it as may be taken? The difference in value thus found, still excluding the enhancement, is the true compensation to which the owner is entitled. How much less is the land worth after the taking than before the taking, excluding always the question of enhancement of value by reason of the improvement? The value is not reached by determining the value of the land taken for actual use, but its value when considered in its relation to the entire tract, which includes every direct damage or injury tending to diminish in value the entire tract by reason of the use and appropriation of the strip for the contemplated purpose. Diminution in value of the entire tract is a condemnation for public use, which should be paid for the same as the strip that is condemned for the roadbed. It is this condemnation that the owner is entitled to pay for, etc. The court allowed the appellees to prove what was the market value of this strip of land. Taking into consideration its close proximity...