Commonwealth, Department of Highways v. Vincent

357 S.W.2d 678, 1962 Ky. LEXIS 134

• Court: Court of Appeals of Kentucky (pre-1976)
• Decided: May 18, 1962
• Status: Published

Opinions

WADDILL, Commissioner.

On an appeal to the Graves Circuit Court from a county court award of $9,071, Robert Vincent and his wife recovered a verdict and judgment of $25,000 in a condemnation suit brought by the Commonwealth for construction of a bypass around the city of Mayfield. The verdict fixed the value of 9.24 acres of farm land taken from the Vin-cents at $15,000 and resulting damages to the remainder of their farm at $10,000. The land condemned was a portion of a 55-acre farm located about ½ mile from May-field which was shown to be reasonably adaptable for use as a residential subdivision.

Appealing from the judgment entered in the circuit court, the Commonwealth assigns as error: (1) The admission in evidence of a subdivision plat prepared after the condemnation proceeding was filed; (2) the verdict was based on incompetent testimony; (3) the failure of the instructions to state a proper basis for determining damages; and (4) the excessiveness of the verdict.

Over appellant’s objections the trial court permitted a plat to be introduced by the Vincents showing their entire 55 acres divided into a residential subdivision, although the property itself was not actually subdivided on the ground. The plat was offered in evidence solely to show the susceptibility of the land for use as a subdivision. For this limited purpose the plat was proper evidence. Commonwealth Dept. of Highways v. Evans, Ky., - S.W.2d - (decided May 4, 1962). Adaptability for particular uses to which the land may reasonably be put is a proper factor for the jury’s consideration in assessing damages. East Kentucky Rural Electric Co-op. Corp. v. Smith, Ky., 310 S.W.2d 535.

Appellant urges that the verdict was based on incompetent evidence. Two witnesses stated, without objection, that residential lots on the Vincent farm would have sold for $1,000 to $1,500 each and they apparently calculated the damages on that basis. While there is a serious question of whether this testimony was competent, it was not preserved for review in this Court by either a specific objection to the testimony or by the scope of the objections made to the introduction of the previously mentioned subdivision plat of the Vincent farm. CR 46; Division of Parks, Department of Conservation v. Hines, Ky., 316 S.W.2d 60. Appellant also claims that the trial court erred in permitting the landowner to testify concerning his intention to sell residential lots on his farm. Since it was shown that the land was adaptable to such use and there was a reasonable expectation that in the near future the farm could have been divided into lots, the landowner was entitled to have this evidence considered by the jury. East Kentucky Rural Electric Co-op. Corp. v. Smith, supra.

An instruction offered by the Commonwealth would have authorized the jury to fix damages at the difference between the fair market value of the Vincent property immediately before it became generally known that the bypass would be constructed and its fair market value just after the land was taken by condemnation. The proffered instruction was apparently premised upon certain language used in Commonwealth Department of Highways ex rel. v. Baldwin, 312 Ky. 782, 229 S.W.2d 744. In the instant case there was no evidence introduced concerning when it became generally known that the bypass would be constructed around Mayfield. Consequently the court did not err in refusing to give this instruction.

Finally, as to whether the verdict was excessive, we observe that the landowners’ witnesses, who were familiar with the Vincent farm and with land values in its vicinity, estimated the difference in the before and after value of the farm at amounts ranging from $28,000 to $40,000. When witnesses assign sound reasons for their estimates of damage, as here, we are unable to hold that the verdict is a result of passion and prejudice on the part of the jury. Commonwealth Dept. of Highways v. Hall, Ky., 353 S.W.2d 548; Commonwealth Dept. of Highways v. Kennard, Ky., 342 S.W.2d 531. Therefore, we cannot reasonably say that the sum awarded is excessive.

Judgment affirmed.