Commonwealth, Department of Highways v. Allie

Court of Appeals of Kentucky

Commonwealth, Department of Highways v. Allie

391 S.W.2d 385, 1965 Ky. LEXIS 308

CourtCourt of Appeals of Kentucky

DecidedJune 4, 1965

StatusPublished

Cited by1 cases

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Commonwealth, Department of Highways v. Allie, 391 S.W.2d 385, 1965 Ky. LEXIS 308 (Ky. Ct. App. 1965).

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Opinion

MILLIKEN, Judge.

This appeal involves another highway condemnation proceeding for the construction of Interstate 64 in Boyd County. The Department of Highways concedes that there is sufficient evidence to sustain the award for the land actually taken — $2,348 for 19.79 acres — but contends that the $5,-852 allowance for damage to the remainder is excessive. It is, because it exceeds the highest valuation by any of the witnesses. The amount of the verdict must be within the range of the proof. See Pierson v. Commonwealth, Department of Highways (1961), Ky., 350 S.W.2d 487; Commonwealth, Department of Highways v. Tyree (1963), Ky., 365 S.W.2d 472; Commonwealth, Department of Highways v. Brooks (1964), Ky., 380 S.W.2d 77.

In the event of a retrial of this case attention should be paid to Commonwealth, Department of Highways v. Gearhart (1964), Ky., 383 S.W.2d 922, and Commonwealth, Department of Highways v. Robinette (1964), Ky., 380 S.W.2d 78, before testimony is offered concerning the value of any coal on the land condemned. Also, evidence as to the value placed upon the land by the property owner for tax purposes should be admitted. Commonwealth, Department of Highways v. Rankin (1960), Ky., 346 S.W.2d 714; Commonwealth, Department of Highways v. Lanter (1963), Ky., 364 S.W.2d 652. The fact that the minor children are co-owners with their mother does not keep their mother’s estimate of the value for tax purposes from being admissible in evidence.

The judgment is reversed for proceedings in accordance with Commonwealth, Department of Highways v. Sherrod (1963), Ky., 367 S.W.2d 844, which holds that there shall henceforth be no breakdown of damages into categories— damages for the land taken and damages to the remainder — in the trial of highway condemnation actions. For instructions under Sherrod principle see Commonwealth, Department of Highways v. Priest (1963), Ky., 387 S.W.2d 302.

The judgment is reversed.

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MILLIKEN, Judge.

This appeal involves another highway condemnation proceeding for the construction of Interstate 64 in Boyd County. The Department of Highways concedes that there is sufficient evidence to sustain the award for the land actually taken — $2,348 for 19.79 acres — but contends that the $5,-852 allowance for damage to the remainder is excessive. It is, because it exceeds the highest valuation by any of the witnesses. The amount of the verdict must be within the range of the proof. See Pierson v. Commonwealth, Department of Highways (1961), Ky., 350 S.W.2d 487; Commonwealth, Department of Highways v. Tyree (1963), Ky., 365 S.W.2d 472; Commonwealth, Department of Highways v. Brooks (1964), Ky., 380 S.W.2d 77.

In the event of a retrial of this case attention should be paid to Commonwealth, Department of Highways v. Gearhart (1964), Ky., 383 S.W.2d 922, and Commonwealth, Department of Highways v. Robinette (1964), Ky., 380 S.W.2d 78, before testimony is offered concerning the value of any coal on the land condemned. Also, evidence as to the value placed upon the land by the property owner for tax purposes should be admitted. Commonwealth, Department of Highways v. Rankin (1960), Ky., 346 S.W.2d 714; Commonwealth, Department of Highways v. Lanter (1963), Ky., 364 S.W.2d 652. The fact that the minor children are co-owners with their mother does not keep their mother’s estimate of the value for tax purposes from being admissible in evidence.

The judgment is reversed for proceedings in accordance with Commonwealth, Department of Highways v. Sherrod (1963), Ky., 367 S.W.2d 844, which holds that there shall henceforth be no breakdown of damages into categories— damages for the land taken and damages to the remainder — in the trial of highway condemnation actions. For instructions under Sherrod principle see Commonwealth, Department of Highways v. Priest (1963), Ky., 387 S.W.2d 302.

The judgment is reversed.

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