Commonwealth, Department of Highways v. Boyer

434 S.W.2d 630, 1968 Ky. LEXIS 236
CourtCourt of Appeals of Kentucky
DecidedNovember 29, 1968
StatusPublished

This text of 434 S.W.2d 630 (Commonwealth, Department of Highways v. Boyer) 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. Boyer, 434 S.W.2d 630, 1968 Ky. LEXIS 236 (Ky. Ct. App. 1968).

Opinion

STEINFELD, Judge.

This is a highway condemnation case in which the Commonwealth appeals a judgment of the Henry Circuit Court. Trial was had after a proceeding in the county court pursuant to KRS 177.081 through 177.089.

The Commonwealth condemned 32.42 acres as right-of-way for 1-71 cutting a swath through the 138 acre farm of Paul and Helen Boyer, appellees, located in Henry County. The taking severed 24.44 acres from the main tract. Substantially all improvements are on the larger portion. Commissioners appointed by the county court awarded the appellees $13,628.80 for the property taken and the circuit court action resulted in a verdict of $16,000.00.

The Commonwealth sets forth two grounds for reversal:

“I The trial court erred in overruling appellant’s motion to strike estimates of value of appellees’ witnesses which were based upon irrelevant measure of value in' that a separate fixing of damages for fencing was made by each of appellees’ witnesses.
II The verdict is palpably excessive and it is not supported by evidence of probative value.”

In view of our disposition of the case it will be necessary to address ourselves to the first argument only.

The Commonwealth agreed to fence both sides of the right-of-way for 1-71 and to construct a service or “frontage” road for [631]*631access to the severed 24.44 acre tract. The appellees maintain that in order to utilize this 24.44 acres it will be necessary for them to construct a fence along the east boundary of the tract, separating that portion of their farm from the service road. The fence would be about 200 rods in length and serve to keep stock from wandering upon the service road.

Appellant’s witnesses testified as to before and after value only, while the appel-lee, Paul Boyer, and his three witnesses each testified as to before and after value, and then as to the additional factor of fencing cost. Representative of the latter testimony is that of Mr. Raymond Barnett:

“Q. What is the difference between the value you assigned before the taking on June the 6th, 1966, and the value you assigned after the taking on the 105 acres, after June the 6th, 1966?
A. The difference in those values amounts to $17,115.00, not counting the extra fence.
Q. Did you learn that as a result of the taking of this right-of-way any other damage will result to Mr. Boyer ?
A. He will have to build approximately 200 rods of fence.
Q. And did you assign any value or cost to that item of fencing that he will be required to have?
A. I valued the cost of the fence at approximately $1,000.00.”

Counsel for the condemnor promptly objected to the testimony of “separate amounts” used by the witnesses in arriving at values, specifically the expense of the fencing. At the conclusion of the direct examination of ■ each witness he renewed his objection “and move(d) the court to admonish the Jury not to consider the evidence, * * * and to instruct the witness to discount the improper factors he used in arriving at the” values. “This is the proper procedure.” See Com., Dept. of Highways v. Noe, Ky., 426 S.W.2d 459 (1968), and cases cited therein. Each motion was erroneously overruled as we shall show.

Appellees rely upon Greenup County v. Redmond, Ky., 335 S.W.2d 335 (1960), to refute the Commonwealth’s contention that testimony as to the costs of fencing is inadmissible. We answered that argument in Com., Dept. of Highways v. Sherrod, Ky., 367 S.W.2d 844 (1963), when we said:

“Under the rule promulgated in this opinion, that only before and after values are to be considered, there is no place for a separate allowance for fencing. Certainly the landowner is not entitled to fencing costs on top of an allowance for the total diminution of value of his property. * * * We hereby abolish the old fencing rule and we hold that the provisions of KRS 416.110 for separate fixing of damages for fencing, trees and shrubbery are inoperative, for the same reason as stated above why statutory provisions requiring the separate fixing of taking and resulting damages are inoperative.”

Since Sherrod we have consistently ruled against the separate pricing of various items of damage claimed. Com., Dept. of Highways v. Tyree, Ky., 365 S.W.2d 472 (1963); Com., Dept. of Highways v. Cardinal Hill Nursery, Inc., Ky., 380 S.W.2d 249 (1964); Com., Dept. of Highways v. Hopson, Ky., 396 S.W.2d 805 (1965); Com., Dept. of Highways v. Conley, Ky., 386 S.W.2d 750 (1965); Com., Dept. of Highways v. Cottrell, Ky., 400 S.W.2d 228 (1966); Com., Dept. of Highways v. Larence, Ky., 426 S.W.2d 776 (1966); and Snyder v. Com., Dept. of Highways, Ky., 423 S.W.2d 890 (1968).

Constant reiteration by this court of the proper procedure to be followed in ascertaining the before and after value of property involved is not desirable, but in order to emphasize the distinctions involved in [632]*632this quest, we repeat our previous statement from Tyree, supra.

“A further conclusion is that in the trial of condemnation cases it should he kept in mind at all times that the various elements and factors of damage that may he involved are not items of damage to be priced and totalled for the purpose of reaching a verdict, but are only reasons to be given

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

Related

Commonwealth, Department of Highways v. Napier
387 S.W.2d 861 (Court of Appeals of Kentucky (pre-1976), 1965)
Greenup County v. Redmond
335 S.W.2d 335 (Court of Appeals of Kentucky (pre-1976), 1960)
Commonwealth, Department of Highways v. Tyree
365 S.W.2d 472 (Court of Appeals of Kentucky (pre-1976), 1963)
Commonwealth, Department of Highways v. Sherrod
367 S.W.2d 844 (Court of Appeals of Kentucky (pre-1976), 1963)
Commonwealth, Department of Highways v. Cardinal Hill Nursery, Inc.
380 S.W.2d 249 (Court of Appeals of Kentucky (pre-1976), 1964)
Commonwealth, Department of Highways v. Conley
386 S.W.2d 750 (Court of Appeals of Kentucky, 1964)
Commonwealth, Department of Highways v. Dearen
392 S.W.2d 49 (Court of Appeals of Kentucky, 1965)
Commonwealth, Department of Highways v. Hopson
396 S.W.2d 805 (Court of Appeals of Kentucky, 1965)
Commonwealth, Department of Highways v. Cottrell
400 S.W.2d 228 (Court of Appeals of Kentucky, 1966)
Snyder v. Commonwealth, Department of Highways
423 S.W.2d 890 (Court of Appeals of Kentucky, 1968)
Commonwealth, Department of Highways v. Noe
426 S.W.2d 459 (Court of Appeals of Kentucky, 1968)
Commonwealth, Department of Highways v. Larence
426 S.W.2d 776 (Court of Appeals of Kentucky, 1968)

Cite This Page — Counsel Stack

Bluebook (online)
434 S.W.2d 630, 1968 Ky. LEXIS 236, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-department-of-highways-v-boyer-kyctapp-1968.