Commonwealth, Department of Highways v. Baker

442 S.W.2d 290, 1969 Ky. LEXIS 256
CourtCourt of Appeals of Kentucky
DecidedMay 23, 1969
StatusPublished
Cited by2 cases

This text of 442 S.W.2d 290 (Commonwealth, Department of Highways v. Baker) 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
Commonwealth, Department of Highways v. Baker, 442 S.W.2d 290, 1969 Ky. LEXIS 256 (Ky. Ct. App. 1969).

Opinion

STEINFELD, Judge.

This is a condemnation suit. The Commonwealth has appealed, complaining of the amount of the award. We affirm.

Appellees Baker owned and operated a 428-acre cattle and hog farm which witnesses described as “mechanical”. It fronted on Kentucky Highway 260 in Hopkins County near the east city limits of the town of Hanson and less than one mile east of the intersection of U. S. Highway 41. It contained many improvements including residence, concrete block and frame house, pump house, meat house, chicken house, hog house, stock shelter building, crib building, storage building, silo, sheds, barns, fencing and ponds. About 53 acres had been in grain and enough hay was raised to feed the animals.

For the construction of the Penny rile Parkway, a controlled-access toll road, the Department of Highways condemned 31.56 acres west of the center of the farm leaving 82.83 acres on the west side of the Parkway and 313.61 acres east of it. On the land taken were a storage building or shop, a shed, a stock barn, a hog shelter, a machine shed, a tobacco barn, a crib building, a pond and a complete water system furnishing [291]*291water to 20 lots and a pit silo. Even though the large barn was not taken the new right-of-way was so close to one end that the use was impaired.

The evidence revealed that the taking substantially interfered with the watering system, fencing arrangement and that the mechanical feeding operation had been materially diminished in efficiency. To reach the stock barn the landowners then had to go onto Kentucky 260 under the Pennyrile Parkway overpass to a service road leading to the property on the separated east portion of the farm, a distance of almost one-quarter mile. Improvements were the creation of a permanent type entrance to replace the former gravel entrance and a service road creating new frontage for the east portion of the farm.

In county court the commissioners awarded $29,641.60. On appeal the jury found the before-taking value to be $171,-200.00, the after-taking value $118,000.00, a difference of $53,200.00. Judgment was entered pursuant to that verdict from which judgment the Commonwealth appeals. It assigns two points in seeking reversal — that the verdict is excessive and that the jury was allowed to consider noncompensable factors. We will discuss these two contentions in reverse order.

The Commonwealth complains that Mr. J. R. Davie, a farm management specialist, was permitted, over its objection, to testify concerning “loss of income”. The gist of the testimony was that the taking substantially reduced the capacity of the property to produce beef cattle and hogs. Mr. Davie was asked:

“Q. 75. So everything that you have testified here today on what this taking has accomplished or what it has done is based on loss of income, is it not?
A. The testimony in regard to what it did to the present operation is based on loss of income.
Q. 189. So what you have testified to is strictly economics, isn’t it, the theory of economics ?
A. Primarily.”

The Commonwealth moved to strike Davie’s testimony but the motion was overruled. Claiming this as error it relies upon Com., Dept. of Highways v. Eubank, Ky., 369 S.W.2d 15 (1963), in which we held that income, whether from a farm or business which is dependent upon the skill of the farmer or businessman, is not admissible evidence. We said “ * * * any testimony pertaining to that income should be excluded.” However, we cited with approval cases “ * * * holding that the productivity of agricultural land in the way of crops is a proper item to consider.” We view Davie’s testimony as being in that latter classification. He did not mention dollar figures. Testimony concerning the utility of the farm before and after the taking was admissible. Com., Dept. of Highways v. Sellers, Ky., 421 S.W.2d 581 (1967); Com., Dept. of Highways v. Thompson, Ky., 424 S.W.2d 382 (1968) and Com., Dept. of Highways v. Lake, Ky., 432 S.W.2d 23 (1967).

Appellant asserts that Otto Corum used a noncompensable factor as the basis for his valuation of the property, that his testimony indicated “what he thought the value of the land was to him, as a person” and that this violated the rules we announced in Com., Dept. of Highways v. Harvey, Ky., 396 S.W.2d 311 (1965) and Com., Dept. of Highways v. Lovell, Ky., 405 S.W.2d 21 (1966). In Lovell the owner testified how “much he had been damaged” and in Harvey the condemnee stated the value of the land to him. Corum was asked the following questions and made the following answers :

“83. Now disregarding the fact that you may feel personally that the property is worth $400.00 per acre, or you might feel it is worth more than that or less than that, what is your opinion concerning whether or not on the open market, with [292]*292people buying and selling, as to the fair market value of this property as of May 1, 1967? Do I make myself clear? I want to know what other people who are buying and selling — what the market is. We are looking for the market.
A. Well, in other words, I think that farms of that type have sold around that price, yes, sir. I would say that would be fair market value.
84. And this is the price that buyers and sellers on an open market would arrive at?
A. Yes, sir.
85. And your opinion is based upon that?
A. Yes, sir.”

At the conclusion of Corum’s testimony the Commonwealth moved to strike it but the motion was overruled. The vice of Harvey and Lovell did not occur, furthermore, it appears to us that the jury must have understood that Corum was discussing the value established by an arms-length transaction in the open market.

To consider the claim that the award was excessive, we summarize the testimony as to values:

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442 S.W.2d 290, 1969 Ky. LEXIS 256, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-department-of-highways-v-baker-kyctapp-1969.