136 Ky. 725 | Ky. Ct. App. | 1910
Opinion op the Court by
Reversing.
This appeal is prosecuted from a judgment of the Ohio circuit court ordering- a public road to be opened over the land of appellants and others. The proceedings to open the road were instituted in the Ohio county court, and upon exceptions to the commissioners’ report a verdict was returned to the effect
The appellants ask that this judgment be reversed and set aside, first, because the petitioning appellees were estopped to appeal from a judgment of the county court that they had procured to be set aside; second, because the court erred in the instructions
The first question to be determined is whether or not the action of the county court in granting a new trial setting aside the first judgment again hearing the case and entering a new judgment was void. If it was, these various orders might properly have been ignored and an appeal taken to the circuit court from the judgment of the county court dismissing the proceeding. On the other hand, if the county court had the power to set aside the first judgment and grant a new trial, it follows as a matter of course that the second judgment in the county court is a valid judgment, giving to the petitioners all the relief they sought, and, further, that no appeal could be prosecuted to the circuit court from a judgment of the county court that on motion of the appellants in the circuit court had been set aside in the county court. There is no provision in the statute authorizing new trials in the county court in road cases, but section 4303 of the Kentucky Statutes (Bussell’s Stat. Sec. 5435) provides for an appeal to the circuit court-from the decision of the county court. We do not think, however, that the failure of the statute to authorize a new trial or the fact that it does make provision for an appeal takes from the county court the right to grant a new trial in a road case if the application therefor is made in due time. Section 700 of the Civil Code of Practice provides 1 hat r “The provisions of this Code shall regulate the proceedings in civil actions in quarterly courts,
The court instructed the jury as follows: ‘ ‘ The jury will find from the evidence and state in their verdict whether • or not the road described in the commissioners’ report herein and shown on the plat produced in the evidence is necessary and will be for the convenience of the traveling public to en
In Henderson & Nashville R. Co. v. Dickerson, 17 B. Mon. 173, 66 Am. Dec. 148, the statute under which the condemnation proceedings were instituted
It will thus be seen that it was the well settled law before the present Constitution that benefits and advantages could not be offset against the compensation to which the owner was entitled for the property taken, but that such advantages might be set off against consequential inconvenience or injury; and that the word “taken” was construed to embrace the injury to the residue of the tract as well as that actually taken.
But, in addition to section 13, there was embodied in the present Constitution section 242, which reads', in part, that: “Municipal and other corporations, and individuals invested with the privilege of taking-private property for public use, shall make just compensation for property taken, injured or destroyed by them; which compensation shall be paid before such taking, or paid or secured, at the election of such corporation or individual, before such injury or destruction. * * *” This section is more comprehensive than section 13, as in addition to providing-that the owner shall be compensated for property
The language of section 242 embraces the taking or injury of private property for public use by any corporation or person. In short, whenever a person or. corporation — municipal or otherwise— is invested with authority to take the property of the individual for a public use, the compensation to which the individual is entitled must be measured by the same standard and in conformity with this section. It makes no provision for setting off the benefits or advantages that the owner may derive from the contemplated improvement against the compensation to which he is entitled for the property taken, injured, or destroyed by the improvement. The owner is entitled as a matter of right to compensation for the direct and actual damage or loss sustained by reason of the taking or injury to his property, and this compensation- — which must be paid in money — cannot be diminished by evidence of benefits that may accrue to him as a consequence of the improvement. If the prospective benefits or advantages could be set ofl against the property injured or destroyed by the improvement, there is no reason why such benefits or advantages might not be set off against that actually taken. As the owner is entitled to compensation in
So that we have in this state steadfastly adhered both by judicial construction and constitutional enactment to the doctrine that just compensation means compensation in money, and that neither against damages that may be assessed for the land actually taken by the improvement nor against the direct injury to the residue of the tract can any prospective benefits or advantages be set off. In so holding this court has laid down a rule at variance with that prevailing in many jurisdictions, but in our opinion, after a full and careful consideration of the question, it is sound in principle. It is everywhere recognized that the individual cannot be compelled by the exercise of the power of eminent domain to surrender any part of his land, however insignificant or trifling in value it may be, or however much the welfare of the public demands the. exaction, unless he receives in return a just compensation. Nor is there any difference of opinion as to what is just compensation when the entire tract or body of land'is taken, as all the courts agree that in such a case the owner is entitled to the market or vendible value of his property, and no question of benefits or advantages to him can enter into the case. But, when only a part of his land is taken, there is great diversity of opinion as to what benefits to the residue should be considered in estimating the damage he has sustained by the
Holding to the last view, we are of the opinion that so much of section 4292 as permits benefits to the residue of the tract to be set off against the direct damage to it is in conflict with the Constitution as heretofore and now construed, and hence the instruc
On the question of costs this may he said: The commissioners in their report to the county court assessed the damages to the Broadway Coal Company at $35, and the damages in favor of J. L. Southard at $75. In the circuit court each of these parties succeeded in recovering more than was allowed by the commissioners. Section 4299 of the Kentucky Statutes reads: “The court may open or alter a road on condition that all or a part of the sum required to be paid to the owner and tenant and the cost of procedure, shall be paid by the applicants, or on condition that thq applicants wholly or in part open or alter the road; but if the court be of the opinion that such sum or sums and the cost of proceedings shall be paid by the county, it shall order the same to be paid to the person or persons entitled thereto.” In cases like this the landowner cannot be charged with any cost in the county court, although he may in that court file exceptions to the commissioners’ report and demand a jury trial. The costs in that court must be paid as provided in section 4299. But if the owner is not satisfied with the judgment in the county court, and prosecutes an appeal to the circuit court, whether the appeal be taken from a judgment rendered upon the verdict of a jury or the report of the commissioners, he must pay the costs in the circuit court, unless he recovers damages in that court in a larger sum than was awarded him in the county court. But, if he succeeds in increasing in the circuit court the damages allowed him in the county court,
Wherefore the judgment is reversed, with directions for a new trial in conformity with this opinion.