Chitwood v. Commonwealth, Department of Highways

391 S.W.2d 381, 1965 Ky. LEXIS 307
CourtCourt of Appeals of Kentucky
DecidedJune 4, 1965
StatusPublished
Cited by3 cases

This text of 391 S.W.2d 381 (Chitwood v. Commonwealth, Department of Highways) is published on Counsel Stack Legal Research, covering Court of Appeals of Kentucky primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Chitwood v. Commonwealth, Department of Highways, 391 S.W.2d 381, 1965 Ky. LEXIS 307 (Ky. Ct. App. 1965).

Opinion

PALMORE, Judge.

The appellants owned a 64.5-acre tract of land abutting the west side of Hurst-bourne Lane in Jefferson County. In December of 1962 the Commonwealth condemned 23.61 acres of it for the construction of Interstate Highway 64, leaving the owners a tract of 31.94 acres on the north side and two separate tracts of 2.38 acres and 6.57 acres on the south side of the new highway. The 31.94-acre and 6.57-acre remainder parcels have frontage upon and access to Hurstbourne Lane adjacent to the interchange lane- leading to and from 1-64. The 2.38-acre tract is landlocked. The owners appeal from a judgment following a jury verdict awarding them $60,-000 as the difference between the fair market value of the whole tract immediately before the taking and the fair market value of the three tracts remaining immediately thereafter. Cf. Commonwealth, Dept. of Highways v. Sherrod, Ky., 367 S.W.2d 844 (1963).

The appeal rests on two arguments, (1) that the amount of the verdict was not within the extreme limits of the valuation testimony and (2) that the trial court erred in permitting the valuation witnesses to consider the prospect of rezoning in estimating the value of the property left to the owners after the taking.

In support of the first point appellants cite Pierson v. Commonwealth, Ky., 350 S.W.2d 487, 489 (1961), and Commonwealth, Dept. of Highways v. Cardinal Hill Nursery, Ky., 380 S.W.2d 249, 253 (1964), in each of which it was held that a verdict for less than the lowest figure at which any of the witnesses estimated the value of the property taken could not be sustained. This, however, is a post-Sher-rod case in which the testimony was confined to “before” and “after” values and there was no separate valuation of the land taken. It was tried before issuance of the opinion in Commonwealth, Dept. of Highways v. Priest, Ky., 387 S.W.2d 302, 306 (1965), requiring that henceforth the [383]*383jury be directed to set forth in its verdict both the before and after values and the difference. This particular verdict was as follows:

“We, the jury, find for the appellees and award them the sum of $60,000.”

The lowest difference between before and after values given by any individual witness was $60,675, which is $675 more than the amount of the verdict. Nevertheless, it was within the range of the evidence the jury was permitted to consider. For example, the Commonwealth’s witness Rietze gave before and after values of $132,500 and $67,000, and its witness Kennedy gave before and after values of $125,-000 and $64,325; it would not have been incongruous or unreasonable for the jury to rely on Kennedy’s before value of $125,-000 and Rietze’s after value of $67,000 and return a verdict of $58,000, which is $2,000 less than the amount actually awarded. We do not suggest that the jury could have taken the lowest before value given by a Commonwealth witness ($125,000) and the highest after value given by a witness for the landowners ($132,000) and awarded nothing. Our opinion is simply that in this case the jury could reasonably have found before and after values that produced the resulting award of $60,000.

The second point raises a question that was mentioned but not decided in the recent case of Tharp v. Urban Renewal and Community Development Agency, Ky., 389 S.W.2d 453 (rehearing denied April 30, 1965).

“When * * * a particular use of property is prohibited or restricted by law, but there is a reasonable probability that the prohibition or restriction will be modified or removed in the near future, the effect of such probability upon the value of the property may be taken into consideration.” 1 Nichols on Eminent Domain § 219, p. 669.
“In other words, the general rule is that present market value must ordinarily be determined by consideration only of the uses for which the land 'is adapted and for which it is available.’ The exception to this general rule is that if the land is not presently available for a particular use by reason of a zoning ordinance or other restriction imposed by law, but the evidence tends to show a ‘reasonable probability’ of a change ‘in the near future’ in the zoning ordinance or other restriction, then the effect of such probability upon the minds of purchasers generally may be taken into consideration in fixing present market value.” Long Beach City High School Dist. v. Stewart, 30 Cal.2d 763, 185 P.2d 585, 173 A.L.R. 249, 254 (1947).

In the Long Beach case the California Supreme Court held that because the zoning classification existing at the time of the condemnation had been enacted only three years before, it would have been “speculative to assume that a change in the provisions of the zoning ordinance is likely to occur.” For a similar reason (a recent refusal to reclassify) this court in the Tharp case declined to decide whether under other circumstances it would have been proper to consider prospective rezoning as a factor bearing upon the value of the property in question.

The evidence to which objection is made in this case related to the value of the remaining property fronting on Hurstbourne Lane after the taking. At the intersection of Hurstbourne Lane and 1-64 (which at this location has now been completed) a “diamond” interchange has been constructed, meaning that there is a connecting access ramp in each of the four sectors of the intersection. Witnesses testified that the highest and best use of land located adjacent to such an interchange is for commercial purposes, in view of which it is likely that the zoning authorities, recognizing the changed conditions of the property, will reclassify it for commercial use. It was further shown that on April 4, 1963, the land directly across Hurstbourne Lane from the 6.57-acre remainder tract of appellants actually was rezoned from residen[384]*384tial to “highway service” use. Our conclusion is that there was sufficient evidence of probable reclassification in the near future to justify its consideration as a factor bearing upon the value of the property immediately after the taking. We accept as reasonable and valid the principles quoted above from Nichols and the Long Beach opinion.

When evidence has been introduced tending to show enough prospect of rezoning to affect the price a willing buyer would have paid and a willing seller would have accepted for a piece of property (either immediately before or immediately after the taking, as the case may be), a valuation witness may take that circumstance into consideration, but he may not testify what the property would be worth in the event of such rezoning, or what it would be worth for purposes inconsistent with its classification at the time of the taking. Long Beach City High School Dist. v. Stewart, supra.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Commonwealth, Department of Highways v. Bradley
483 S.W.2d 150 (Court of Appeals of Kentucky, 1972)
Proctor v. Commonwealth, Department of Highways
412 S.W.2d 252 (Court of Appeals of Kentucky, 1967)
Commonwealth v. Lovell
405 S.W.2d 21 (Court of Appeals of Kentucky, 1966)

Cite This Page — Counsel Stack

Bluebook (online)
391 S.W.2d 381, 1965 Ky. LEXIS 307, Counsel Stack Legal Research, https://law.counselstack.com/opinion/chitwood-v-commonwealth-department-of-highways-kyctapp-1965.