Commonwealth, Department of Highways v. Cleveland

407 S.W.2d 417, 1966 Ky. LEXIS 163
CourtCourt of Appeals of Kentucky (pre-1976)
DecidedOctober 21, 1966
StatusPublished
Cited by12 cases

This text of 407 S.W.2d 417 (Commonwealth, Department of Highways v. Cleveland) is published on Counsel Stack Legal Research, covering Court of Appeals of Kentucky (pre-1976) 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. Cleveland, 407 S.W.2d 417, 1966 Ky. LEXIS 163 (Ky. 1966).

Opinion

PALMORE, Chief Justice.

The appellees, H. C. Cleveland and wife, owned a 47-acre farm tract in Nelson County fronting 1243 feet on the east side of U. S. Highway 31E about 1½ miles south of Bardstown. In order to provide for a ramp leading off U. S. 31E onto the Central Kentucky or Bluegrass Turnpike, which runs in an east-west course a short distance (200 to 250 feet) north of the Cleveland property, the state highway department condemned an .82-acre strip of the farm fronting 583 feet on U. S. 31E. The strip taken is 145 feet deep at the northwest corner of the farm and narrows to 35 feet at its other extremity 583 feet to the south. The new boundary has been fenced by the highway department, but free access to U. S. 31E along the southerly 660 feet of frontage remains undisturbed. The property was being used and developed principally for the breeding of show horses. Its existing entrance was located on the 660 feet that is not affected by the taking.

*418 A jury trial on the amount of damages resulted in a verdict and judgment for $6,-000 as follows:

Before value $46,000
After value 40,000
Difference $ 6,000

The highway department contends the testimony of each of the landowners’ valuation witnesses was devoid of probative value and should have been stricken, and that there was insufficient evidence of probative value to support the verdict.

The estimates given by the witnesses were as follows1:

For the owners:
Cleveland $56,000 $36,000 $20,000
Lewis 55,000 37,000 18,000
English 52,000 36,000 16,000
For the department:
Baesler O co Oo On 'Vj O O O O O oo CO
Schneider OO GO On 'ÑO Oo O O CO rC CO

It will be noted that the after-value of $40,000 found by the jury, though redounding to the benefit of the condemnor, had no basis in any of the evidence.

From his testimony there can be no mistake that Mr. Cleveland’s estimate of a $20,000 loss in value was based on little else but loss of access. For example, he testified on cross-examination as follows:

Q— “ * * * I will ask you to tell the court and jury what you took into account in arriving at that after value.”
A- “Well, I took into account the frontage that they are taking. We bought the property as an investment and if they take the frontage, there is nothing left. The frontage is the only value about the farm.”
Q- “Your after value was based primarily on loss of frontage?”
A- “Well, loss, what the farm was intended for, too. Took away from it the value of what we are doing now.”
* * * * * *
Q- “Did you base your $20,000 less market value on what specifically?”
A- “The frontage, primarily the frontage.”
Q- Primarily the loss of frontage?”
A- “Yes, primarily, yes.”
Q~ “That is what you based your figure of $20,000 on?”
A- “Yes, sir.”
* * * Jfc * *
Q- “Now, is the fact that the fence was built and that thereby causes you to lose frontage here, is that what you are complaining about, sir?”
A- “Well, you can’t go and come from the property because the frontage there is gone and you can’t get onto the road because of that fence.”
Q- "That’s right. Did you take that into consideration in arriving at your value?”
A- “Well, yes.”
Q- “Is that the main reason why you considered such a loss of market value ?”
A- “Not altogether, no, sir.”
Q- “That is one of the reasons?”
A~ “One of them, yes.”
Q- “Because you could not get over off your property onto 31E or to the ramp?”
A- “Yes, sir.”

*419 The taking of additional right-of-way on the east side of existing U. S. 31E did not reduce the frontage of the Cleveland place. The frontage remained virtually the same. The difference is that there is no right of access along the new frontage. But so long as reasonable access remains, that is not a compensable loss. Commonwealth, Dept, of Highways v. Denny, Ky., 385 S.W. 2d 776, 777 (1964). Though Mr. Cleveland said this was not “altogether,” but only “one of the reasons” for his opinion, he was unable to suggest any other except for the remark, “You can’t have noise around horses.” We cannot escape the conclusion that his estimate of diminution in value was so dependent upon an irrelevant factor that it should have been stricken. Commonwealth, Dept, of Highways v. Tyree, Ky., 365 S.W. 2d 472, 476 (1963); West Kentucky Coal Company v. Commonwealth, Dept, of Highways, Ky., 368 S.W.2d 738, 744 (1966). 1

The trial court did admonish the jurors not to consider “so much of this witness’ testimony which raises as an element of damage his complaint that [sic] loss of frontage,” but that left them nothing of probative value to consider, and no attempt was made to fill the void in the manner suggested in Shaw, and, more recently, in Commonwealth, Dept. of Highways v. Claypool, Ky., 405 S.W.2d 674, 676 (1966).

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Related

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473 S.W.2d 153 (Court of Appeals of Kentucky, 1971)
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442 S.W.2d 294 (Court of Appeals of Kentucky (pre-1976), 1969)
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438 S.W.2d 780 (Court of Appeals of Kentucky, 1969)
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444 S.W.2d 743 (Court of Appeals of Kentucky, 1969)
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432 S.W.2d 825 (Court of Appeals of Kentucky, 1968)
Flynn v. Commonwealth, Department of Highways
428 S.W.2d 24 (Court of Appeals of Kentucky (pre-1976), 1968)
Commonwealth, Department of Highways v. Hess
420 S.W.2d 660 (Court of Appeals of Kentucky (pre-1976), 1967)
Witbeck v. Big Rivers Rural Electric Cooperative Corp.
412 S.W.2d 265 (Court of Appeals of Kentucky (pre-1976), 1967)
Commonwealth, Department of Highways v. Doolin
411 S.W.2d 44 (Court of Appeals of Kentucky (pre-1976), 1967)

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Bluebook (online)
407 S.W.2d 417, 1966 Ky. LEXIS 163, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-department-of-highways-v-cleveland-kyctapphigh-1966.