122 Ky. 599 | Ky. Ct. App. | 1906
OpxNiok op the ■ Court by
Reversing.
The appellee, Kate E. Kaye, is the owner of a lot of ground in Louisville, Ky., situated on the northeast, corner of Catalpa and Woodland avenues. -In making Woodland avenue the city changed the grade of the street theretofore existing, and made a cut of four and one-half to five feet along the entire length of appellee’s lot. To recover damages for this alleged injury, this action was instituted. A trial was had before a jury, and a verdict and judgment rendered in favor of appellee for the sum' of $200, of -which the city is now complaining.
. Upon the trial of the case the court gave thé following instructions: ‘ ‘ (A) The city of Louisville had the right to have Woodland avenue improved along and adjacent to the plaintiff’s property described in the petition, hut it had no right, in so doing, to diminish the value of said' property; and if you believe from the evidence that said property was diminished in value by reason of the construction of said street,' as it was constructed along and adjacent to plaintiff’s property, then the law is for the plaintiff and you should so find. (2) But, unless you believe from the evidence that said property was diminished in value by reason of the construction of said street as it was constructed, the law is for the defendant and you should so find. (3) In making your estimate, you should consider the fair
The case of City of Henderson v. Winstead, 109 Ky., 328, 22 Ky. Law Rep., 828, 58 S. W., 777, is identical m- principle with that at bar. There the court, in instructions 1 and 2, gave to the jury the principle as announced in instruction No. 5 under consideration; that is, “in estimating the damages they should not diminish the amount on account of any enhancement of the property in value by the change of the grade of the street, unless it received some
The instructions given by the court in this cas( from 1 to 4, inclusive, state the correct rule of If y and the proper measure of damages in lucid : ad succinct terms. The learned trial judge, in gi>?ng instruction No. 5, evidently failed to distinguish between the direct damage, which arises from taking private property for public use, and the consequential damage, which arises, as in this case, from the city’s changing the grade of its own street. At common law the property owner in a case such as this was without remedy, but our present Constitution has been construed so as to make the municipality liable. When the property of the citizen is taken for public use, the loss or damage accruing to him by this act cannot be offset by any speculative advantage; but
The foregoing authority is deemed conclusive of the question in hand, and the judgment is therefore reversed, for proceedings consistent herewith.