188 S.W.2d 434 | Ky. Ct. App. | 1945
Affirming.
In Mitchell v. Skidmore,
The defendants filed exceptions to the report in every particular. The plaintiff filed none. The defendants alleged that $500 was too little and claimed $2,750. The jury returned the following verdict: "We the jury agree from the evidence the plaintiff is entitled to buy the right of way and fix the damage at $300."
The appellants insist that since the condemnor did not except to the report of the commissioners he was not entitled to any reduction in the $500 assessment, and that the court should have instructed the jury that they might find more but not less than $500 as the value. Their point is that the commissioners' report is binding upon a litigant who fails to file exceptions to it. It is true that we have often ruled that a report, or any particular part of it, is binding where no exceptions are filed. Jefferson County v. Clausen,
The contention of the appellants was presented and denied in Shirley v. Southern R. Co.,
While exceptions had been filed by both parties to the commissioners' report in David v. Louisville I. Railroad Co.,
It is argued by the appellants that the judgment should be reversed because the jury ignored the instruction on the issue of necessity for establishing the road. The instructions authorized the award of compensation and damages if the jury believed that the road was necessary in order to enable the plaintiff to haul coal mined from his land to market and should "say so in their verdict." While the verdict, which has been copied above, does not "say so" expressly, such a conclusion is implicit in the award of compensation and damages, and it cannot be said, therefore, that the instruction was ignored.
Judgment affirmed.