Commonwealth, Department of Highways v. Merrill

383 S.W.2d 327, 1964 Ky. LEXIS 22
CourtCourt of Appeals of Kentucky
DecidedMay 1, 1964
StatusPublished
Cited by5 cases

This text of 383 S.W.2d 327 (Commonwealth, Department of Highways v. Merrill) 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. Merrill, 383 S.W.2d 327, 1964 Ky. LEXIS 22 (Ky. Ct. App. 1964).

Opinion

WADDILL, Commissioner.

Upon appeals to the circuit court from a county court judgment of $276,130.00, Boynton Merrill, Jr. and his wife were awarded $253,280.00 for 47.68 acres of their land taken by the Commonwealth for the construction and relocation of U. S. Highway 41 as a nonaccess bypass around the city of Henderson, the placement of a non-access interchange with U. S. Highway 60, and the rerouting of Kimsey Lane over the bypass, and were awarded $97,588.00 as damages to the remainder of their property for a total of $350,868.00.

The Merrills own and operate a farm located northeast of Henderson, which, prior to this condemnation proceeding, comprised 398 acres. The farm was divided into two tracts which, for convenience, we shall refer to as tract A and tract B. Tract A contained 98 acres situated between the “Y” junction of U. S. 41 and U. S. 60. Tract B contained 300 acres bounded on the northwest side by U. S. 60 (across from tract A) and on the southwest side by Kimsey Lane.

As a result of this condemnation tract A now contains a one-acre tract west of the bypass and a 75-acre tract east of the bypass and north of U. S. 60. Tract B now [329]*329contains an 18-acre tract west of the bypass, a one-acre tract south' of the bypass and west of'Kimsey Lane and a 254-acre tract east of the bypass. (These acreages have been rounded to the nearest whole acre.)

The Commonwealth contends the trial judge abused his discretion in permitting the use of certain exhibits prepared by Boynton Merrill. We do not agree. A chart showing the computation used by him in determining the difference between the value of his farm before and after the taking was shown to the jury while he was testifying. This chart is analogous to a blackboard demonstration and its use is preferable since it may be preserved for review upon appeal. Meglemry v. Bruner, Ky., 344 S.W.2d 808.

Merrill also used a map upon which different areas of his farm were shown along with the values which he assigned to each in his testimony. The Commonwealth’s objection is directed to the designation of these areas, which it calls “lots” and “subdivisions,” and to the notations of value. Since it was shown that this farm has residential and commercial developments on three sides and was reasonably adaptable for similar uses, it was competent for Merrill to premise the before and after valuations of his land on the value of each area. Commonwealth, Dept. of Highways v. Treadway, Ky., 346 S.W.2d 296. This designation of general areas does not show a subdividing of the property. We believe, as did the trial judge, that this map was of assistance to the jury in understanding how Merrill valued his land prior to the condemnation.

Further objection is made to the use of 38 colored 35 mm transparencies or slides depicting the land taken, aerial views of the farm and commercial and residential improvements on land ¿djacent to" the farm. The condemnation took place in the spring and the slides were made in the following summer. ' The photographer testified that, except for the seasonal foliage change, the slides fairly represented the condition of the property as it was on the date of the taking. The jury viewed the land during the trial. Under the circumstances shown we find this contention to be without merit. ■

It is contended that the trial judge erred in permitting witnesses for the Merrills to testify to prices paid in 3 comparable sales which occurred 2 to 4 months after the taking of the Merrills’ property. In Commonwealth v. Begley, 272 Ky. 289, 114 S.W.2d 127, we approved evidence of “sales of land of like character, similarly situated and at a point of time not too remote.” The Commonwealth did not produce any evidence of a prejudicial change in property valuation within four months after the taking and therefore the trial judge did not abuse his discretion in allowing the witnesses to testify concerning these particular sales. Stewart v. Commonwealth, Dept. of Highways, Ky., 337 S.W.2d 880.

It is contended that the trial judge erred in not permitting Merrill to be questioned about any valuations placed on his property for tax purposes. We have held that evidence of the valuation which a landowner places on his property for tax purposes is a proper factor to be considered by the jury in determining fair compensation. Commonwealth, Dept. of Highways v. Lanter, Ky., 364 S.W.2d 652. Merrill testified on avowal that he had not listed his property for tax purposes. Since no exhibits or witnesses were offered to contradict this statement the trial court properly refused to allow further questioning of Merrill on this subject.

There is no merit to the Commonwealth’s contention that the Merrills are not entitled to any damages because they accepted the farm knowing public highways might someday be built across it. Such a rule would place the Commonwealth in the enviable but unwarranted position of taking, without compensation to anyon'e,-any-prop-erty transferred aftei the dbn’ee -or grantee was aware of pending.pub.Iic,improvements.

[330]*330It is argued that both the awards for the land taken and for the damages to the remaining property are excessive because they are not supported by competent evidence. Looking first to the $253,280.00 awarded for the land taken, the estimates of the value of the land taken were $95,500.-00 and $118,047.00 for the Commonwealth and $339,040.00 to $574,113.00 for the Mer-rills. This variance is directly attributable to the method of appraisal. The Commonwealth’s witnesses used a per acre valuation although the evidence established that land along the major highways near Henderson usually sold for commercial purposes on a front foot basis. The Merrills’ witnesses valued the land adjacent to the highways on a front foofbasis and the remainder on-a per acre basis. In view of the-fact that it was shown -the Merrills’ land was' saleable for commercial, residential arid farm uses, the method of appraisál' employed' by these witnesses was proper-and their-: valuations convincingly support the jury’s award for the$arid thkeri-.'

-The highest resulting damages ap-pfáis’ed-.by the Commonwealth’s witnesses', were $54,000.00, while for the Merrills they ranged; a-s high’as $249,750.00. Although three of ’the Merrills’ witnesses gave testimony.that'amply supports the resulting damages awarded, the Commonwealth contends that damages attributed to'thé smaller segment reiriaining in tract A are based on an incompetent factor and are unbelievable. It was shown that prior to this taking about 24,000 cars a day passed the portion of tract A where U. S. 41 and U. S. 60 converged and that this area was adjacent to Henderson. The evidence shows that this area was extremely desirable for commercial use. While part of it was taken by the Commonwealth, a triangular segment about 600 feet along U. S. 41, extending back at its base 143 feet, was not condemned.

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

Related

Columbia Gas of Kentucky, Inc. v. Maynard
532 S.W.2d 3 (Court of Appeals of Kentucky (pre-1976), 1975)
Commonwealth, Department of Highways v. Hess
420 S.W.2d 660 (Court of Appeals of Kentucky (pre-1976), 1967)
Rowland v. Commonwealth, Department of Highways
414 S.W.2d 880 (Court of Appeals of Kentucky, 1967)
Commonwealth, Department of Highways v. Rhea
386 S.W.2d 443 (Court of Appeals of Kentucky, 1965)

Cite This Page — Counsel Stack

Bluebook (online)
383 S.W.2d 327, 1964 Ky. LEXIS 22, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-department-of-highways-v-merrill-kyctapp-1964.