314 Ky. 146 | Ky. Ct. App. | 1950
Reversing.
The appeal is from a judgment rendered by the Madison Circuit Court in an action to condemn a right of way and easement over appellees’ farm for the construction, operation, and maintenance of a 26” gas pipe line by appellant, Tennessee Gas Transmission Company. The proceedings were instituted and conducted in accordance with the provisions of KRS 278.500 and 416.010 to 416.080 inclusive. The jury in the. Circuit Court awarded damages to appellees in the sum of $16,-985.00 for the value of the right of way and resulting damages to the remaining portion of appellees’ farm through which appellant has obtained the right to lay its gas pipe line. The jury did not separate the damages for the taking from those resulting, but made a lump sum award for both.
The farm consists of 575.92 acres, the right of way condemned comprising 9.14 acres of this boundary leaving 566.78 acres remaining, subject to the burdens hereinafter recited, and on account of which, appellees claim the marketable value to have been reduced. The right of way extends for a distance of approximately one and one-half miles lengthwise through the center' of appellees’ farm, which lies between Richmond and Lexington fronting on TJ. S. Highway No. 25 and bounded in the rear by an improved county road. The top soil is underlaid by strata of limestone, and a goodly portion of the land has been “in Blue Grass” for over fifty years. It appears from the testimony that the farm is one of the most valuable, acre for acre, in Madison County. Appellant introduced four witnesses and appellees eight, in respect to values and damages. We will give a brief summary of the estimates made by some of these witnesses.
George B. Smith, a resident of the state of Tennessee and employed by appellant as “Assistant Land Supervisor” was the first witness introduced on behalf of appellant and testified that in his opinion the land taken was worth $350 per acre. He visited Madison County
James Carr, a son-in-law of appellees, and manager of the farm, stated that in his opinion the farm was worth $500 per acre immediately before the acquisition of the right of way and $400 per acre immediately after it became known to the public in general that the pipe line was to be constructed through the farm. Jerry W. Parrish, a farmer operating 1200 acres of farm land owned by Mr. Arnold Hanger, testified that he had been managing that farm for sixteen years and that he had owned farms of his own. The Hanger land is on U. S. Highway No. 25 about three or four miles distant from the farm of appellees. A 24” gas pipe line was constructed through the Hanger land almost five years before he
We now will consider, in its various aspects, the main point relied on for reversal, viz., the award is excessive. The principal argument in respect to this contention is identical with that urged for' reversal in Tennessee Gras Transmission Company v. Jackman, decided Jan. 11, 1949, which will be published in 311 Ky. 507, 224 S.W.2d 660. That argument is: that except under very unusual circumstances, which it is contended are not present in this case, there can be no damage to the adjacent land of the owner by reason of the taking of an easement of a strip of land for the construction, operation, and maintenance of a gas pipe line. It is true that the easement granted does not forbid the landowner tilling the soil within the limits of the right of way. But if he does so, he must assume the risk of such crops being destroyed by appellant in its indiscriminate right to use the right of way for maintenance and operation of the gas pipe line; and the evidence additionally shows that the right to till the soil within the limits of the right of way is one of negligible value, because crops cannot be grown thereon in sufficient abundance, or of sufficient quality, to render them profitable. Thus the evidence presented by appellees, although contradicted, shows a practical destruction of the land for farming purposes, and the jury was privileged under the evidence to find an actual taking of 9.14 acres within the limits of the right of way, at least to the amount testified to by Carr ; viz., $460 per acre. The 9.14 acres at $460 per acre amounts to ' the sum of $4,204.40 which would leave a balance of $12,789.60 representing damages to the remaining 566.78 acres of land. The burdens imposed on this acreage are the same as those imposed on the remainder of the farm and described in the opinion in the Jackman case, supra. Those burdens, by reason of the judgment, are appurtenant to each and every portion of the farm; and no matter into how many tracts hereafter the farm may be divided and sold, the burdens imposed by the judgment will run with the land of each and • every tract. These elements ’ of alleged damage
It is reasonable to conclude that these burdens have reduced the marketable value of the farm to some extent; but the majority of the court is of the opinion that the jury and the witnesses who testified for appellees have exaggerated The depreciation in the value of the farm by reason of this sole element of damage; and, since no other factual reason was given by the witnesses to support their opinions, the majority of the court is of the opinion that the award for resulting damages is excessive. Petroleum Exploration v. McGeorge et al., 225 Ky. 131, 7 S. W. 2d 821, and cases therein cited.
Wherefore the judgment is reversed with directions that it be set aside and that appellant be granted a new trial.