COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. Genevia HESS, and Bank of Williamsburg, Appellees.
Court of Appeals of Kentucky
Oct. 27, 1967
Concurring Opinion Nov. 17, 1967.
420 S.W.2d 660
It is unfortunate that no witness on either side was asked to express an opinion as to the market value of the two remainder traсts if sold separately. Though we said in Commonwealth, Dept. of Highways v. Sea, Ky., 402 S.W.2d 842, 843 (1966), that in the absence of evidence to the contrary it may be assumed that the highest and best use of a farm cut in two by a condemnation remains the same after the taking as before, and that its highest value is still as a single unit,4 this case is different. Even before the taking the front portion of the Rowland property was being used in part for commercial purposes. After the taking it is obvious that its highest and best use, and the purposes for which it would bring the highest price, were different from those applicable to the acreage left on the other side. The case presents a classic instance in which the remainder tracts should have been evaluated separately.
Of course $3,440 per acre for 4.36 acres, as such, seems high. But that is not the manner in which vаlue is to be judged in a partial-taking case. It must be judged on the basis of what was there before and what is left afterward. Cf. Commonwealth, Dept. of Highways v. Sherrod, Ky., 367 S.W.2d 844, 856-857 (1963). Therefore, it cannot be reasoned from the per-acre price that the award was flagrantly excessive. We can look only to the testimony pointing to the before and after values.
The testimony regarding after-values being unsatisfactory for the reason just stated, the area of comparison shrinks to the before-values alone. Here there is but one circumstance in the record to support an acceptance of the Knight opinion over the other witnesses, and that is his use of the Chamber of Commerce sale as a comparable. Perhaps the jurors should have accepted it, but they did not. On this appellate review, the question is whether that is a sufficient basis on which we can say the verdict is so flagrantly excessive at first blush that it strikes reasonable minds as having been given under the influence of passion or prejudice. Surely the answer is “no.” Thus in order to find it so excessive we are forced outside the record, and must say that the award was of such exaggerated proportions that any reasonable man would immediately recognizе it as excessive. We find ourselves unable to do so.
The judgment is affirmed.
WILLIAMS, C. J., and MILLIKEN and STEINFELD, JJ., concur.
OSBORNE, Judge (concurring).
I concur in the results reached herein for the reasons stated in Commonwealth of Kentucky, Department of Highways v. Hess, Ky., 420 S.W.2d 660.
C. B. Upton, Williamsburg, for appellees.
PALMORE, Judge.
Incident to the construction of Interstate Highway 75 the appellant highway department in this proceeding condemned 3.2 acres of the appellee Genevia Hess’ 84-acre farm loсated on U. S. Highway 25 near Williamsburg, in Whitley County. The department appeals from a judgment entered pursuant to a verdict awarding the landowner $6,000, based on a before-value of $15,500 and an after-value of $9,500.
Grounds on which it is contended the judgment should be reversed are: (1) The award was excessive and not supported by sufficiently probative evidence; (2) Improper questioning by counsel for the landowner prejudicеd the jury; and (3) The court erred in permitting the county judge and county court clerk to testify as valuation witnesses for the landowner. We shall discuss them in reverse order.
On the last point the arguments are that county judges and county court clerks are officers of the Commonwealth and should not be allowed to appear as witnesses against it; and that the county judge, in whose court the proceeding originated and who appointed commissioners and entered a judgment reflecting their award of $3100, should be estopped to testify contrary to the judgment of his own court.
No authority is cited for the proposition that an officer of the public cannot testify against it. Barring those situations in which privileged communications may not be divulged, our view is that any person whose testimony is otherwise relevant and competent and may аssist in arriving at the truth can testify for or against any party.
If the county judge were required to perform a fact-finding function in determining the amount of compensation to be awarded in the county court, there might be good reason for a policy that would forbid his impeaching his own verdict, but that is not the case. Under
With respect to the interrogation of certain of the Commonwealth‘s witnesses by counsel for Mrs. Hess, it does appear that many of the questions were more testimonial than inquisitive, and more argumentative than appropriate. Whether prejudice resulted from it is doubtful, as it would seem more likely that the average juror‘s sympathy under such circumstances would favor the unfortunate witness. Be that as it may, the record refleсts that in most of the cited instances the trial court sustained objections and admonished the jury in the customary manner. If counsel for the Commonwealth felt that opposing counsel‘s persistent transgressions in this regard reached the point at which the jury was likely to be prejudicially affected, the proper avenue of relief was a motion to discharge the jury. No such motion was made.
In both Byrd v. Commonwealth, Ky., 283 S.W.2d 191, 194 (1955), and Thomas v. Commonwealth, 196 Ky. 539, 245 S.W. 164, 166 (1922), thе defendant objected to improper argument by opposing counsel and the court duly admonished the jury to disregard the argument, but the defendant did not move to discharge the jury, and it was held that the court had done all it had been asked to do, and that a failure to discharge the jury when there is no motion for such action is not an error. These were criminal cases, but the reason for the rule applies equally, if not more strongly, in a civil trial. Cf. Lawler v. Copelin, Ky., 258 S.W.2d 913, 915 (1953); Moore v. Lyons, Ky., 386 S.W.2d 717, 719 (1965); Standard Sanitary Mfg. Co. v. Brian‘s Adm‘r, 224 Ky. 419, 6 S.W.2d 491, 493 (1928).
I-75 is a limited access highway. In Whitley County it follows generally the same path as U. S. Highway 25. Before the taking Mrs. Hess’ property fronted 255 feet on U. S. 25. As best we can tell from the record, which contains the wrong map, for all practical purposes her frontage on U. S. 25 has been eliminated, and the driveway from a dwelling house located on the remainder tract to a nеw access road is less advantageously situated than was the original driveway leading directly to U. S. 25.
Robert Knight, a real estate appraiser employed by the department, testified that the highest and best use of the property before the taking was for farming and that it contained about 10 acres of tillable land with a frame dwelling and several outbuildings. No buildings were taken. In his opinion the market value was $15,500 before the taking and $14,500 afterward. He cited as comparable a 1958 transaction in which Mrs. Hess had sold 7.5 acres off the rear of the property to a lumber company for $1,000, a 1959 sale of seven acres nearby (but not fronting on the highway) at $3,700 for strip-mining purposes, and a 1963 sale of 35 acres “across the road” at $25,000 for industrial purposes. It was brought out on cross-examination that several commercial properties were situated in the near vicinity.
Ray Wells, a district right-of way agent for the department, using the same comparable sales, testified to a before-value of $15,500 and an after-value of $14,200. His evidence was much the same as the witness Knight‘s except that he was of the opinion that with some filling and grading the front part of the property would have been adaptable to use for a residence or small business.
Valuation testimony given in behalf of the landowner was as follows:
Edward Moses, county welfare director, who buys and sells real estate and makes
Everett Rains, county court clerk and former sheriff, is a farmer and trader by profession, lives in the neighborhood and has been familiar with the property in question all his life. He has had experience in buying and selling land and observes the prices at which real estate in Whitley County is bought and sold. It was his opinion that the Hess tract was worth $15,200 before and $8,250 after the taking, and that the 1958 and 1959 transactions cited by thе department‘s witnesses were not comparable.
William Morton Bennett, the county judge, grew up on a farm adjoining the Hess place and has been well acquainted with it all his life. He has had extensive experience in the purchase and sale of real estate and now owns 23 dwellings and a store building in the county. He testified that the value of property in the area in question had been on the increase, to the extent of four or five times its former value, prior to the taking, by reason of increasing population. His opinion was that the Hess place was worth $16,000 before and $9,000 after the taking. He said the most valuable part was taken, but was not able to give any specific case in which property located in the same vicinity along U. S. 25 had brought $2,000 per acre.
It will be noted that the principal differences between the testimony of the department‘s appraisers and the witnesses for the owner lay in their opinions as to the value of the remainder left after the taking and in the fact that the former relied on comparable sales whereas the latter did not.
Since the witnesses substantially agreed on the before-value, the alleged comparable sales can have no decisive significance except as to the after-value. The 1959 purchase for strip-mining purposes simply is not comparable without a showing that the Hess property can be strip-mined. Certainly the highway frontage tract sold in 1963 for industrial purposes cannot be equated with the Hess property as it was left after the taking. If the 1958 sale by Mrs. Hess be given the probative weight claimed by the witnesses who cited it as comparable, the valuе ascribed by the jury to the property remaining after the taking may be somewhat low, but it is not so grossly out of line that a court would be justified in repudiating the verdict.
In conclusion, we are unable to say that the amount of the award appears excessive at first blush.
The judgment is affirmed.
WILLIAMS, C. J., and MILLIKEN, EDWARD P. HILL and STEINFELD, JJ., concur.
CONCURRING OPINION
OSBORNE, Judge.
This case and Commonwealth, Dept. of Highways v. Rowland, et al., Ky., 420 S.W.2d 657 were stated and voted on as companion cases. In my opinion they share a сommon fault which this court should immediately proceed to correct. In both cases the properties involved were situated upon U.S. Highway 25 near Williamsburg in Whitley County. The properties were
I concur in the action of the majority affirming the judgments in these cases because I believe the owners have a property interest in the adjacency of their land to an open access highway and, therefore, I would compensate them for any loss of value suffered as a result of curtailing or limiting such access. I would overrule those cases holding otherwise. As the matter now stands, we are compensating some and denying others for identically the same loss. The rule denying recovery for access has its genesis in the decisions of this court. See Wright v. Flood, 304 Ky. 122, 200 S.W.2d 117, wherein a county sought to close a rural road. Flood claimed he was damaged by the closing and insisted he was entitled to compensation under sections 13 and 242 of the Constitution. This court held:
“A careful reading of the evidence convinces us that there was no special damage to appellee‘s property differing in kind and not merely in degree from that which might have been sustained by the general public when this section of the road was discontinued. That part of the road contiguous to appellee‘s property which connects his private entrance with the Cropper-Cull road which in turn connects with all of the principal public roads in thе vicinity was not discontinued * * *.
” ’ * * * the general weight of authority in requiring compensation to an owner of private property for a taking or damage under similar constitutional provisions is that the damage suffered must be to contiguous property and the direct and immediate consequence of the act complained of. Recovery cannot be had for remote or contingent injury.’ ”
It will be noted that the sрecific holding is to deny recovery because damage suffered was not to “contiguous” property. There seems to be little doubt but what damages would have been allowed had the property
“This brings us to the question of liability for damages. We think it is fairly well established that a property ownеr on a road proposed to be closed is entitled to damages (for depreciation in the value of his property) only when the closing of the road will deprive him of his sole or principal means of ingress and egress. Wright v. Flood, 304 Ky. 122, 200 S.W.2d 117; Standiford Civic Club v. Commonwealth, Ky., 289 S.W.2d 498.”
The holding here is that a property owner has no compensable property right in the road to be closed even though his property be contiguous to the road, if he has another means of ingress and egress. It is interesting to note that the court cites the Flood case as authority for its holding, when the Flood case actually stands for the opposite. Here we have witnessed the disappearance of the constitutional right of the citizen to be compensated for property taken for public use. The right seems to have vanished like the rabbit from the magician‘s hat, nоw you see it, now you don‘t. As if to further allay any doubt as to whether the right had been completely annihilated, the court again wrote in Department of Highways v. Jackson, Ky., 302 S.W.2d 373:
“It is argued by amicus curiae that if a landowner suffers a depreciation in the value of his land as a result of the closing of a road, he necessarily has sustained a property damage, which is damage differing in kind from that suffered by the public generally, and for which he should be compensated, regardless of whether he continues to have a reasonable way of ingress and egress. The simple answer to this is that the enhancement in value of land attributable to the mere convenience of the routes of travel which it enjoys (whether such convenience is from the extent to which the surface of the road is improved or from the geographical location) is something which does nоt inure to the landowner as property.”
The rule has been reaffirmed and repeated many times since and today remains as finalized in this case, to wit, a contiguous property holder has no financial interest in the adjacency of his property to the highway and can not recover from its alteration, abandonment or closing so long as he is left “reasonable” access to the road system gеnerally. Commonwealth, Department of Highways v. Rowland, Ky., 414 S.W.2d 880; Commonwealth, Department of Highways v. Smith, Ky., 413 S.W.2d 72; Commonwealth, Department of Highways v. Cleveland, Ky., 407 S.W.2d 417; Sloan v. Commonwealth, Department of Highways, Ky., 405 S.W.2d 294; Commonwealth, Department of Highways v. Lawton, Ky., 386 S.W.2d 466; Commonwealth, Department of Highways v. Merrill, Ky., 383 S.W.2d 327; Commonwealth, Department of Highways v. Sherrod, Ky., 367 S.W.2d 844; Commonwealth, Department of Highways v. Carlisle, Ky., 363 S.W.2d 104; Department of Highways v. Jackson, Ky., 302 S.W.2d 373 and Wright v. Flood, 304 Ky. 122, 200 S.W.2d 117.
In the case now before us we are tacitly permitting recovery for loss of access or adjacency whichever you choose to call it. Otherwise there would be no justification for the size of the verdict. What we have said could not be done by direct means, we now permit to be done by indirect means. Our very actions amount to a confession that the rule announced in Ex parte Commonwealth, supra, is wrong. Therefore, that case and those following should be overruled. A proрerty owner has a pecuniary interest in the adjacency of his property to a public highway for which he should be allowed to recover. The rule is stated in 26 Am.Jur.2d 929, § 241 as follows:
“The general rule is that persons specially injured by the vacation of a
street or highway are entitled to recover such damages as they may sustain, even in the absence of a statute providing therefor. The discontinuance оf a public street upon which a parcel of land abuts, if such street constitutes the only means of access to the parcel in question, would in legal effect be the same as the construction of an impassable barrier around such land, and discontinuance in such a case is generally held to constitute a taking of the property so cut off, inasmuch as total deprivation of access is еquivalent to a taking, especially when the easement of access to the street is recognized by the substantive law of the state.”
For the foregoing reasons I concur in the results reached by the majority opinion but not for the reasons stated therein.