49 S.W.2d 324 | Ky. Ct. App. | 1932
Reversing.
The commissioners of sewerage of Louisville filed a petition against William A. Reisert to condemn a portion of a tract of land for sewerage purposes. The defendant was awarded the burden of proof and the closing argument to the jury. The jury found the value of the land taken to be $3,750, and fixed the consequential damages to the residue of the tract at $6,250. A judgment was rendered accordingly, and the commissioners of sewerage have prosecuted an appeal. *495
The first question to be determined concerns the correctness of the ruling of the trial court respecting the burden of proof. The commissioners of sewerage is a municipal corporation authorized to condemn land needed for sewerage purposes. The procedure for the condemnation of property is the same as that provided for condemnation for municipal purposes by cities of the first class. Section 8, C. 72, Acts of 1928, p. 247, section 3037a-8, Ky. Stats. 1930. The charter of cities of the first class respecting condemnation for municipal purposes adopts the same procedure provided by law for the condemnation of property for park purposes. Ky. Stats., sec. 2831. The procedure for condemnation for park purposes requires a petition to be filed in the Jefferson circuit court upon which a summons must be issued and served upon the defendant or defendants, and the subsequent proceedings must conform as nearly as may be to ordinary actions at law. Section 2852, Ky. Stats.; Board of Park Commissioners v. Du Pont,
It is correctly conceded that an error of the trial court in assigning the burden of proof in a condemnation case requires a reversal of the judgment. Louisville N. R. Co. v. Hargis,
The purpose of the proceeding by the commissioners of sewerage is to ascertain what constitutes a full and *496
adequate compensation for the taking or injury to the land desired, and, before any land can be taken, the amount of compensation to be paid must be ascertained and determined according to law. Under the Civil Code of Practice, which prevails in proceedings of this character, allegations concerning value or amount of damages although not denied, must be proved. Civil Code of Practice, sec. 126. Hence, if the petitioner fails to produce evidence of the value of property proposed to be taken, no relief can be awarded and the proceeding would have to be dismissed. Seattle M. Ry. Co. v. Murphine,
The petitioner cannot condemn land without showing the necessity for public use. It may not do so even then, unless it goes further and shows the value of the land proposed to be taken so that the constitutional mandate can be obeyed. No court is authorized to take private property for public use except in a manner authorized by the Constitution. Riley v. Louisville, H. St. L. R. Co.,
When the court, in a case like this one, places the burden on the landowner, and he declines to offer evidence, *498 no judgment of condemnation can be rendered because there is nothing to show the value of the land proposed to be taken. The initial burden is on the condemnor to prove the value of the land before he is entitled to a judgment for the land. The landowner may offer countervailing evidence both as to the value of the land and as to the damages caused by the taking. But the landowner is not required to offer any evidence until the condemnor has met the burden resting on him to show the value. If the value shown is not satisfactory to the landowner, he is free to go forward with his proof. We see no escape from the conclusion that, under our Constitution and the statute here involved, the burden is upon the condemnor to show, first, the necessity for the taking, which may be shown in the first instance by the legislative declaration; and, second, the public use to which the land is to be devoted; and, third, the value of the land.
It follows that the court erred in the present case in assigning the burden of proof and the right to the concluding argument to the jury. The conclusion reached renders it necessary to reverse the judgment for a new trial, and relieves us of the necessity of discussing or deciding the other questions raised.
The judgment is reversed for a new trial consistent with this opinion.