20 S.W.2d 991 | Ky. Ct. App. | 1929
Reversing.
The Louisville Nashville Railroad Company instituted a proceeding in the Breathitt county court against Margaret Hargis and others to condemn a strip of land approximately 100 feet wide and over a mile in length extending through a farm belonging to the defendants. The commissioners appointed by the county court assessed the value of the property taken and the damage to the remainder at $3,500. Both parties filed exceptions to the commissioners' report, and a trial of the exceptions in the county court resulted in a verdict in favor of the defendants for $4,500. The railroad company prosecuted an appeal to the circuit court, where a trial was had and a verdict returned awarding $6,500 to the defendants. A new trial was requested and denied, and the railroad company has prosecuted this appeal.
It is insisted that the award is not sustained by the evidence and is grossly excessive; that incompetent evidence was admitted; that the jury was improperly instructed; and that the appellant was prejudiced by a ruling of the court denying it the burden of proof.
The farm is on the banks of the Middle fork of Kentucky river, and contains 334 acres, about 50 acres of which is bottom land suitable for cultivation, whilst the remainder is mountain land covered with timber. There is a small clearing of hill land containing about 25 acres used for pasturage. A tunnel 1100 feet long is to be constructed *808
near the lower end of the farm, and a large fill is to be made near the house. Part of the garden is to be taken. The evidence was in sharp conflict on the issues of value and damages. In cases of this character, it is peculiarly the province of the jury within the limits of the proof to fix the value of the land taken and to assess the damages to the remaining tract. L. N. R. R. Co. v. White Villa Club,
The issue to be tried is a comparatively simple one. It is essential that the jury should find the value of the land to be taken and the damage to the remainder considering the situation in which it would be placed. Madisonville, H. E. R. R. Co. v. Ross,
It is said that the farm was divided by a county road, and that no damage could be allowed for separating it by the construction of a railroad; but the farm is one entire tract, used as a whole, and the presence of the county road did not affect its use. The construction of the railroad would separate the farm into two distinct tracts and increase the difficulty of communication, and it is conceivable that such a structure might materially affect the value of the farm. In any event it was competent proof for the jury to consider in determining the issues submitted. In Louisville N. R. Co. v. Chenault, *809
The court instructed the jury to find for the defendants such a sum as they might believe from the evidence constituted the fair and reasonable cash value of the strip of land proposed to be taken, considering said strip of land in relation to the entire tract of which it is a part, and also such other direct damage, if any, as they might believe from the evidence resulted to the remainder of the tract by reason of the situation, condition, or shape in which it was placed, or for such additional fencing or other improvements, if any, as might be necessary to the reasonable enjoyment of the remainder of the tract; but the amount of damages, in any event, should not exceed the difference between the actual value of the land as an entirety immediately before and the actual value of the land as an entirety immediately after the taking. This instruction followed the form approved in cases of this character. Hobson, Blain Caldwell, Instructions to Juries, sec. 249, p. 284; Broadway Coal Mining Co. v. Smith,
The final complaint of the appellant is that the court erred in awarding the burden of proof to the defendants. It is conceded that this was error, since exceptions were filed by both parties, and in such cases it has been held that the burden of proof is on the condemnor. Waller v. Lee County,
In other cases it has been broadly stated that a denial of the burden of proof, involving the right to the closing argument, is itself reversible error. Fornash v. Antrobus,
It is not merely granting the right to the closing argument to the litigant's adversary that constitutes the error, but it is the denial of the litigant's own right in that behalf. It may be that the argument to the jury was waived by appellant solely because it had been denied the burden of proof and the right to make the last argument. In view of our decisions upon the subject, we are constrained to hold that the court erred in this case in denying to the appellant the burden of proof, thus depriving it of the right of introducing its evidence first *812 and of the further right of making the concluding argument to the jury.
The judgment is reversed for a new trial not inconsistent with this opinion.
Whole court sitting.