Commonwealth, Department of Highways v. Fancher

390 S.W.2d 164, 1965 Ky. LEXIS 342
CourtCourt of Appeals of Kentucky
DecidedMay 7, 1965
StatusPublished
Cited by5 cases

This text of 390 S.W.2d 164 (Commonwealth, Department of Highways v. Fancher) 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. Fancher, 390 S.W.2d 164, 1965 Ky. LEXIS 342 (Ky. Ct. App. 1965).

Opinion

HILL, Judge.

This is an appeal from a judgment of $10,000 for 6.52 acres of land taken, and $2,780 for damages to the remainder of ap-pellees’ property.

Listed in appellant’s brief are the following arguments:

“I. The court committed prejudicial error in failing to exclude testimony of damages because of limitation of access.
“II. The court committed prejudicial error in failing to exclude damages because of circuity of travel.
'TIL The trial court committed prejudicial error by permitting testimony of appellees’ witness who testified that he did not know what was meant by ‘Fair Market Value,’ which testimony was incompetent and had no probative value.”

The tract of land sought is to be used for relocation of U.S. Plighways 62, 93 and 641 around the town of Kuttawa. By Kuttawa we mean the new city which officially came into existence November 22, 1961, and replaced the old town of Kuttawa which will be flooded by Barkley Dam. Before the taking of this land, the appellees owned what they considered to be a 20-acre tract of land with the usual improvements thereon which they had occupied since 1936 as their residence and on which they did light farming. The highway engineers say the tract contained 26.5 acres. After the taking, appellees will have a 3.8-acre tract on the north side of the new highway and 16.18 acres on the south side. We shall refer to the new highway as No. 641. The residence and other buildings on the land are on the south side and there is a general north slope all the way across the farm. The construction of the new highway necessitates a cut of approximately 300 feet in length, ranging in depth from 2.5 to 11 feet; the remainder of the road consists of a fill ranging from 0 to 13 feet. Before the construction of the highway, the appellees traveled an old WPA road known as the Ross Ferry Road. However, before the construction, appellees were required to travel over adjoining land now owned by the new town of Kuttawa in order to get to the Ross Ferry Road.

Before the taking, appellees’ property was bounded on the north side by the Ross Ferry Road, a distance of 1175 feet; after the taking only 775 feet fronted or joined this old road.

The corporate limits of the town o.f Kut-tawa extend up to the appellees’ eastern boundary line. Very recently, grading and draining operations by the promoters of a shopping center on the land adjoining ap-pellees’ property have obstructed their use of the former access to the Ross Ferry Road. It is not shown the appellant was in any way responsible for this obstruction.

First, we discuss the contention of appellant that certain testimony pertaining to in[166]*166terference with appellees’ access should have teen stricken.

It should be noted that although some of the witnesses referred to the new highway, U.S. 641, as a “limited” access road, it is not such a road in the present meaning of the phrase. Appellees are provided an approach to the new highway, both from their 16.18-acre remaining tract, and from their 3.5-acre tract on the north side of the highway. Yet, in order for appellees to get from their large tract to the small one they must travel 700 feet to a cross-over and back 700 feet to where the approach leads off to the smaller tract.

In Commonwealth of Kentucky, Department of Highways v. Carlisle, Ky., 363 S.W.2d 104 (1962), this Court decided that “the only access right the landowner has is a right of reasonable access to the highway system.” Also in Commonwealth of Kentucky, Department of Highways v. Raybourne, Ky., 364 S.W.2d 814 (1963), this Court, in discussing access as an element of .damages, said:

“This was not a valid element of damage because, there being reasonable access to the old highway, the land owners had no property right of access to the new road.”
See also:

Department of Highways, Commonwealth of Kentucky v. Jackson, 302 S.W.2d 373 (1957); Commonwealth of Kentucky, Department of Highways v. Herndon, Ky., 378 S.W.2d 620 (1964); Commonwealth of Kentucky, Department of Highways v. Denny, Ky., 385 S.W.2d 776 (1964); Commonwealth of Kentucky, Department of Highways v. Roberts, Ky., 388 S.W.2d 604 (decided March 26, 1965); and Jennings v. Commonwealth of Kentucky, Department of Highways, Ky., 388 S.W.2d 133.

We quote from Denny, supra:

“ * * * The rationale of the admitted rule of the Jackson case, supra, is that the enhancement in value of land attributable to the mere convenience of the routes of travel which it enjoys is something that does not inure to the landowner as property. The same rule is applicable in the case at bar.”

Following this rule, we said in Jennings v. Commonwealth, Department of Highways:

“The appellants’ land will have the same access after the condemnation that it had before, which access was adequate for the use to which the land was being devoted (farming). The state did not condemn or take any property right of access.”

Appellant contends the appellees’ evidence is permeated with the element of loss of access. Appellee counters that the idea of access was injected by “tricky” questions which counsel for appellant “fires” at every witness. Let us see.

“Q — Go right ahead with your explanation on the damages.
“A — The fact is I damaged it $200.00 an acre because it could have been developed as one tract of land, now, it will have to be developed as two tracts. The additional expense involved in the roads, he will have to build and it is going to be greater. He had the right of access to the WPA road anywhere along there that he wanted to go in and out and now the rest of his land, the 16 acres — well, the 20 acres left on the south side of the new road has no access to the Ross Ferry Road, except through this little — well, honestly when I was down there, I couldn’t see any access. Now, they may have built one since, but now down there the other day, they had not given him any access.
“Q — And so you based it on the fact that they were cut in two and loss of access and the fill in front of it?
[167]*167“A — Right.
“Q — In other words, you are saying he had been damaged because he has got no way to get from this tract to this tract and from this tract to this tract (pointing out same on exhibit) ?
“A — I am saying my damage is based on the fact that his farm is broken into two pieces, that his 20 acres, his 26 acres, is now broken into two pieces and that before it could have been developed as one tract.

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

Related

Commonwealth, Department of Highways v. Carlisle
442 S.W.2d 294 (Court of Appeals of Kentucky (pre-1976), 1969)
Commonwealth, Department of Highways v. Noe
426 S.W.2d 459 (Court of Appeals of Kentucky, 1968)
City of Louisville v. Kerr
403 S.W.2d 30 (Court of Appeals of Kentucky, 1966)
Commonwealth, Department of Highways v. Callihan
391 S.W.2d 374 (Court of Appeals of Kentucky, 1965)

Cite This Page — Counsel Stack

Bluebook (online)
390 S.W.2d 164, 1965 Ky. LEXIS 342, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-department-of-highways-v-fancher-kyctapp-1965.