180 S.W.2d 297 | Ky. Ct. App. | 1944
Reversing.
To widen the right-of-way for a short section of a county road, Jefferson County has condemned a strip of land belonging to John E. Clausen and wife. It is 30 feet wide and 769 feet long. The commissioners appraised the property to be of the value of $260. The same sum was awarded by a jury in the County Court for the land taken. The jury finding that the remainder of the property would not be damaged. A trial on appeal in the circuit court resulted in a verdict for $234. The defendants' motion for a new trial was sustained. On another trial the verdict and judgment were for $600 as the value of the land taken and $200 for damage to the remaining property. The County perfected the record of the first trial and moved that the verdict be substituted for the second one. That as well as its motion for a new trial being overruled, the County prosecutes an appeal from the order setting aside the first verdict and from the judgment.
The particular ground upon which the first verdict was set aside was conceded by the court to be technical, but he believed that the law under which the power to take private property for public purposes is exercised *416 should be fully complied with and that "when the court considers this case as a whole and all the facts and the trial of the case," he was of the "opinion that the ends of justice will better be served by another trial, free from technicalities." We examine the record and the law to determine whether this was error, confiding our consideration to the points presented on the appeal and disregarding whatever other ground there may have been which would justify the action of the court.
The proceeding was instituted under KRS
"The county attorney shall file the petition for condemnation in the county court in the name of the county, and shall attach to the petition as an exhibit a certified copy of the resolution of the fiscal court. The resolution shall be prima facie evidence of the public use and necessity for the condemnation. Thereafter the proceedings shall be as provided in KRS
The exceptions are not material in this case.
The petition filed in the county court alleged that the property "is required by Jefferson County and is necessary for the construction and reconstruction of Mellwood Avenue Extension of a public road in Jefferson County, Kentucky, which is part of the county road system," and that the county had been unable to contract with the owners of the land for its use. It also alleged that in accordance with the statutes (specified), "the Fiscal Court of Jefferson County has adopted a resolution showing the need of said land for use in the reconstruction of Mellwood Extension, and ordered the condemnation of said land and directed the County Attorney *417 to proceed with the condemnation of said land and a certified copy of said resolution is filed herewith as part hereof, marked 'Exhibit A.' " No copy of the resolution was in fact filed with the petition.
To sustain the action of the court in setting aside the verdict, it is argued (1) that the adoption of the resolution was jurisdictional, and that as the Fiscal Court can speak only through its records a copy thereof must have been filed, or (2) the failure to file it imposed upon the County the burden of proving the necessity for the taking of the land.
We agree that the adoption of the resolution by the Fiscal Court is a condition precedent to the right of the County to condemn land. But it is alleged in the petition that that had been done and this was not denied. Condemnation proceedings rest solely on constitutional and legislative provisions, and the petition or application must comply with the statute, state all jurisdictional facts and disclose the right to condemn the property. Royal Elkhorn Coal Co. v. Elkhorn Coal Corporation,
Returning to the record: The defendants filed no motion to require the plaintiff to file the exhibit as they might have done and should have done under Sec. 120, Civil Code of Practice. Failure to do so until after judgment was too late. White v. City of Williamsburg,
At the close of the presentation of evidence by the County in the Circuit Court, the defendants moved to dismiss the proceeding, but no ground was stated. It is too late on the appeal to say that the case should have been dismissed because of the failure of the petitioner to file a copy of the resolution of the Fiscal Court, as it alleged it was doing but in fact was not. It does not appear that this was stated as a ground of dismissal.
We are of opinion that the omission to file the exhibit was waived; therefore, that it did not afford a legal ground for setting aside the verdict.
The necessity of taking the land for a public purpose, it has been repeatedly said, is a matter for the court to determine. Davidson v. Commonwealth,
We are, therefore, of the opinion that it was error to vacate the first verdict and not to have rendered final judgment thereon. It is, of course, not necessary to consider the appeal from the judgment in the second trial.
The judgment is reversed for consistent proceedings. *420