150 Ky. 769 | Ky. Ct. App. | 1912
Opinion op the Court by
Affirming.
This action was commenced in tbe Henderson County Court under article 8, chapter 6, Kentucky Statutes, to establish what is known as “Double Dam and Swan Pond Ditch.” Hpon the filing of the necessary petition, viewers and a practical engineer were appointed by the county court to survey the route of the proposed ditch and report thereon, as required by the
Appellants first complain of the instructions. It is unnecessary to set out the instructions in full. They follow the language of the statute. The only complaint urged against them is that the court told the jury how much land was assessed against each of the appellants and the amount in dollars and cents assessed against each, but failed to tell them the amount of land or money assessed against appellees. It is, therefore, insisted that it was impossible for the jury to form any judgment as to whether all the land was assessed in proportion to the benefits to be‘derived from the construction of the ditch, as required by the statute. While the number of acres assessed, and the amount of the assessment against each of the appellees, might, with propriety, have been submitted in the instructions, we fail to see how appellants were prejudiced by the failure of the court to do this. The various witnesses were asked
Another ground of exception urged by appellants is that the evidence fails to show that the lands of appellants would be benefited by the proposed ditch. In this connection we are cited to the fact that two or three witnesses state that in order to drain the lands on Hay Pond, Hog Pond, Swan Pond and Double Dam Pond, additional ditches would have to be constructed. While this is true, a number of witnesses testify that the lands belonging to appellants will be drained by the proposed ditch, and that the assessments on their lands- are in proportion to the benefits that would be derived. The evidence further shows that the lands of appellants that are. assessed are worth either practically nothing or from $10 to $15 an acre. When the ditch is completed these lands will be worth from $35 to $50 an acre. While it may be true that in order to make the system of drainage provided for by the proposed ditch absolutely perfect, additional ditches will have to be constructed, we think that the evidence is sufficient to show that the proposed ditch in and of itself will not only drain the lands
Appellant, L., H. & St. L. Ry. Co., insists that the damages that will accrue to it by reason of the construction of the proposed ditch were fixed too low. The jury allowed it $250 for removing its switch, but allowed it nothing for injury which it claims will result from the caving in of the proposed ditch. It appears that the ditch adjoins its right of way, and at three or four points extends over' its right of way for a distance of a foot or two. Its evidence is to the effect that the soil of the ditch is sandy and loose, and that the sides of the ditch will eventually cave in and inundate its roadbed. To avoid this condition it will be necessary to riprap the right of way, which will involve an expense of about $10,000. Other witnesses, however, testify that the banks and sides of the proposed ditch are not composed of sand, but are composed of blue mud of a solid and substantial character, and that there is no probability of the sides of the banks caving in. There was also evidence on the part of the railroad, company that the cost of removing its switch track, which it is conceded will have to be removed, will be greatly in excess of $250.
We cannot say that the finding of the jury upon any of the questions involved in this, case is flagrantly against the evidence. In a case like this, the evidence is usually conflicting. The remonstrants and their witnesses show that no benefits will accrue to them. Those seeking the construction of the ditch testify to- the contrary. The viewers go upon the ground; the reviewer® do the same. A jury from the vicinity finally hears, the evidence. Those who are upon the ground are in a much better position to pass on the questions involved than we are, and great reliance should therefore be placed on the judgment of those who are so situated. The finding of the viewers being sustained by the reviewers and then confirmed by the verdict of a properly
Judgment affirmed.