287 S.W. 539 | Ky. Ct. App. | 1926
Reversing.
The Stumbo Elkhorn Coal Company brought this action in the Floyd county court to condemn a right of way for a spur track over the land of Noah Martin. The amount of land proposed to be taken was one-fourth of an acre. The damages were fixed at $300.00 by the commissioners, and at $500.00 by the jury in the county court. On appeal to the circuit court the damages were again fixed at $500.00. Martin appeals.
At the outset we are met by the contention that the jury was not properly impaneled. It appears that twelve of the jurors were engaged in trying another case. To complete the panel of eighteen the court directed that six bystanders be summoned. After each party had stricken three names from the panel thus tendered there remained a jury composed of eleven of the regular jurors and one bystander. The action of the court was properly challenged by appellant.
Criminal Code, section 281, is not controlling, and the method of impaneling juries in civil cases is always subject to review. Weil v. Kreutzer,
In the instruction on the measure of damages the court authorized the jury to find for the defendants "such a sum as you may believe from the evidence is the fair and reasonable cash value of the strip of land taken." The true criterion is the fair and reasonable market value of the strip of land taken, regardless of whether the sale is made for cash or on time, and, on another trial, the court will substitute "market value" for the words "cash value." The court will also omit from the instruction the words "not to exceed in all the sum of $6,000.00, the amount claimed in the exceptions."
Judgment reversed and cause remanded for a new trial consistent with this opinion.