314 Ky. 137 | Ky. Ct. App. | 1950
Reversing.
The action was instituted by appellant,, Tennessee Gas Transmission Company, to condemn an easement for use and occupancy of a right of way 8,243 feet in. length, and an easement of ingress and egress to and from the right of way through the remaining 231 acres of appellees’ farm in Madison County. The right of way is fifty feet in width, except for a distance of 200 feet adjacent to a county road where it widens to 100 feet. The property was condemned to provide for the construction, patrol, and maintenance of a 26” gas pipe line for the transmission of natural gas from Texas to a point in West Virginia. The same pipe line was involved in Tennessee Gas Transmission Company v. Jackman, 311 Ky. 507, 224 S.W.2d 660, and five other cases from Barren County decided in January, 1949, and in Tennessee Gas Transmission Company v. Igo, 314 Ky. 137, 234 S.W.2d 149, decided today. The opinion in the Jackman case describes the nature of the easement and the burdens imposed by the judgment on the remainder of appellees’ farm, which burdens constitute some, but not all, of the elements of damage resulting to the remainder of the farm by reason of the situation in which it has been left by the taking of the right of way.
Commissioners appointed by the county court viewed the property and awarded appellees $1,806.00 for the use and occupation of the strip of land included in the right of way, and $1,450.00 as damages to the adjacent land of appellees. Both parties filed exceptions to the commissioners’ award and in August, 1947,
In the eight months required to lay the line, appellant occupied and severely damaged 10.3 acres of land outside of, but adjacent to, the right of way condemned. In addition thereto, it neglected to maintain existing fences crossed by the right of way. By stipulation, it was agreed by the parties that appellees might assert a claim for damages for such injuries, to be tried with the condemnation proceedings. That agreement was carried out, resulting in consolidation of the two actions: (1) The suit by appellant to condemn the. right .of way, and (2) the action by appellees for damages by reason of the trespass described above.
The trial court, in instructions 1 to 4, inclusive, covered the condemnation suit; in instructions 5 to 8, inclusive, covered the second action; and in instruction 9 directed the jury to separate the amounts found under the respective groups of instructions. The jury returned the following verdict:
“We the jury find for appellees, Q. Million and Mary Lutie Million, his wife, Julian Million, Rhea B. Million and Issie Million and fix the damages to the lands of the appellees named herein and described under Instructions 1 to 4 Inclusive (Instructions to the Jury) At Three Thousand Four Hundred Fifty Eight Dollars and Fifty Cents ($3,458.50) and $8,435.00 damages to the remainder of the land.
“We fix the damage to the lands and properties described and referred to in Instructions to the jury, Items 5 to 8 inclusive, at $2,051.76.
“Albert F. Scruggs, “Foreman of Jury.”
Accompanying the verdict, and as part thereof, the jury returned a detailed report of its calculations and method of arriving at its findings. The report is in words and figures as follows:
*141 “1. $3,458.50 For Damage to Lands Described Under Instructions 1 to 4 Inclusive
2. 10,486.76 For Damage to Properties Described under Instructions 5 to' 8 inclusive
3. $13,945.26
4. Loss of Grazing of 51 acres of Rye for two months At $4.00 per Acre per Mo.=$204.00 per Ho. 2 mos. $408.00
5. Loss of Grazing on Grass 179 Acres at 3.00 per Acre 9 Mos__ 510.00
6. Damage to Loss of Spring by Blasting 400.00 $1,318.00
7. 1. Walnut Tree & = $50.00 Less $10.00= 40.00 Poplar Tree Timber value
8. 2. Locust Posts $22.50 Not Usable Damaged ' 22.50
9. 3. Shade Trees on Hill at $50.00 ea. $150.00 Not usable = 150.00
10. 4. 5 Acres Rye Destroyed at $20 = $100.00 No Salvage 100.00 No. 6 25.00 labor to seed 12.00 fertilizer 312.50 $42.00 per acre. $10.03 42.00 2006 00 4012
11. 421.26 for restoration of 10.03
12. Required Fencing for Sheep —■ $200.00 and Damage to Fence No. 4 Before Line 9.77 x $100— 977.00 9.77 Acres 300
13. 2931.00 — $2931.00 Less $977.00 $1954.00 10.03 Acres 10.03 x $150.00 300 30.0900 — $3,009.00 1,504.50 1,504.50 Less
*142 14. $1504.50 — 1504.50 $3458.50
15. Damage Direct to Lands on Right of Way & Lands Used Outside $3,458.50”
Judgment was entered in conformity with the verdict.
Appellant urges three grounds for reversal: (1) The award of $3,458.50 for the easement over the right of way is grossly excessive; (2) the award of $8,435 as resulting damages, is grossly excessive; and (3) the court erred to the prejudice of appellant’s substantial rights in admitting certain evidence over its objection. The award of $2,051.76 for damages to trees and growing crops is not challenged.
The area embraced in the right of way comprises 9.77 acres. The calculation sheet returned with the verdict shows the jury found this area to have been worth $300 per acre initially, and to have been reduced in value $200 per acre by reason of the servitude. The initial evaluation and the consequent reduction are supported by the testimony of several qualified witnesses, indeed one of appellant’s own witnesses placed the reduction in value at fifty per centum of its initial worth. Thus, the jury’s calculations show the total damages awarded for the easement through the right of way to be $1,954.00 and not $3,458.50, as appellant contends. The difference, $1,504.50, is revealed by the jury’s computation on line 14 to be the damages fixed for appellant’s partial destruction of the 10.3 acres of land off the right of way, in the process of construction.
The testimony of competent and qualified witnesses amply supports this finding. The wording of the verdict itself shows $3,458.50 to have been the sum fixed for “damage direct to lands on right of way and lands used outside.” (Our emphasis.) The prior conclusory statement in the verdict that such sum was found under instructions 1 to 4- is incorrect, not verified by the calculations, and manifestly is a clerical misprision. The sum of $2,051.76 is shown by the jury’s computations to represent special damages, such as the destruction of crops, trees, etc., and properly is included within the purview of instructions 5 to 8 inclusive. No element of damage
In reviewing the award of $8,435.00 for resulting damages to the remaining 231.23 acres, we must consider the separate elements of damage which are two in number. First, in its construction of the pipe line, appellant dug drainage ditches along its right of way, and extending onto the property of appellees’ outside the limits of the right of way. The evidence for appellees shows that surface waters have been diverted and caused to flow in unnatural quantities in these unnatural channels from the right of way through the drainage ditches onto the remaining lands of appellees, thereby causing erosion of the top soil; and that this condition will continue to exist with consequent increase of damage. Second, appellant, in addition to its easement on the right of way, is granted the right of ingress and egress over the entire tract to and from its pipe line. It must pay any damage occasioned off the right of way in the exercise of this right, and the burden is one which by the judgment runs with the land. Such a burden is an encroachment on the dominion, reduces the marketable value of the property, and is a damage for which compensation must be paid. Tennessee Gas Transmission Company v. Jackman, supra. 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 witnesses who testified for appellees and the jury have exaggerated the depreciation in the value of the farm occasioned by them; 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.
Appellant claims the court erred in permitting one of appellees’ witnesses to testify as to the value of the property (as high as $800 per acre) for building sites or baby farms. Reliance is placed on Louisville & Nashville R. Co. v. Cornelius, 232 Ky. 282, 22 S. W. 2d 1033,
Finally, the point is urged that the Trial Court erred in refusing to strike the testimony of a witness for appellees relative to the value of the land in issue, after it was disclosed upon cross-examination that the witness was not entirely familiar with appellees’ land. Although the testimony of this witness was weakened on cross-examination to such an extent that it was of meager probative value, we cannot say that it was utterly destroyed as a matter of law.
Neither do we approve of the practice of using, as witnesses, the commissioners appointed by the court, to such an extent, that, on appointment, they may anticipate being engaged as such by the party who may be favored by their appraisal and testimony.
For the reasons stated, the judgment is reversed