NEIKIRK, Justice.
This is a condemnation proceeding by the Commonwealth of Kentucky, Department of Highways, involving the taking of 0.37 of an acre of land for right-of-way purposes in order to construct Interstate Highway 24. The 0.37 of an acre of land taken was from a 63-acre tract of land belonging to James Williams and William Williams and located in Lyon County on the Eddy Creek embayment of Barkley Lake. The only controversy between the Commonwealth and the landowners is over the amount of compensation for the taking. The jury awarded the landowners $52,000. Judgment was entered against the Commonwealth. The Commonwealth appeals. We reverse.
In August 1965, the landowners recorded in the Lyon Circuit Court Clerk’s office a plat of their property, dividing the property into seventy-four lots. Fourteen of the lots fronted on the lake. The 0.37 of an acre taken was a narrow strip of land on the lake at a corner of the tract. The plans for the highway provided for a fill on the landowners’ land and for a bridge over the Eddy Creek embayment of the lake.
The evaluation opinions of the various witnesses for both parties and the verdict of the jury were as follows :
Free access — add to your briefcase to read the full text and ask questions with AI
NEIKIRK, Justice.
This is a condemnation proceeding by the Commonwealth of Kentucky, Department of Highways, involving the taking of 0.37 of an acre of land for right-of-way purposes in order to construct Interstate Highway 24. The 0.37 of an acre of land taken was from a 63-acre tract of land belonging to James Williams and William Williams and located in Lyon County on the Eddy Creek embayment of Barkley Lake. The only controversy between the Commonwealth and the landowners is over the amount of compensation for the taking. The jury awarded the landowners $52,000. Judgment was entered against the Commonwealth. The Commonwealth appeals. We reverse.
In August 1965, the landowners recorded in the Lyon Circuit Court Clerk’s office a plat of their property, dividing the property into seventy-four lots. Fourteen of the lots fronted on the lake. The 0.37 of an acre taken was a narrow strip of land on the lake at a corner of the tract. The plans for the highway provided for a fill on the landowners’ land and for a bridge over the Eddy Creek embayment of the lake.
The evaluation opinions of the various witnesses for both parties and the verdict of the jury were as follows :
It is apparent from the evidence that the witnesses for the landowners reached their opinions as to the extent of diminution in value of the tract on the basis of the fill, the bridge, and the highway. These witnesses pointed out that the noise and fumes from automobiles and trucks using the highway would seriously depress the value of the property for lake-resort residential development. These same witnesses fur[292]*292ther testified that the bridge over the lake would obstruct a portion of the view of the lake from all seventy-four lots, and considering the intended use of the land, this would drastically decrease the value of the remaining property. The trial court overruled the Commonwealth’s objection to this testimony and permitted the landowners’ witnesses to give their evaluation opinion based on the effect that the entire bridge and fill, as well as the use of the highway, would have on the property. The Commonwealth insists that the trial court erred in its ruling, as only a small portion of the improvements was located on the portion condemned.
In our opinion, the testimony of the landowners’ witnesses as to the effect the taking had on the value of the property should have been restricted to the damages occasioned by the use of the portion that was taken. This would not include damages by reason of the entire highway, fill, and bridge located on the lands of others. Had the highway been constructed along or near the landowners’ property lines without any of their land being taken, the landowners would not be entitled to any damages, although the highway, the fill, and the bridge would have the same depreciating effect as envisioned by the landowners’ appraisal witnesses. In a condemnation case, the damages to which the landowner is entitled for a taking of a part of his lands are limited to the diminution in value resulting from the taking and from the use to which the portion taken is to be put. Although there is some authority to the contrary, the predominant view is that no damages should be awarded by reason of the use of other lands located near or adjacent to, but not part of, the lands taken from the landowner. 4 Nichols on Eminent Domain, 3rd Edition, Section 14.-21(1), and cases cited.
The landowners contend that Commonwealth, Department of Highways v. Elizabethtown Amusements, Inc., Ky., 367 S.W. 2d 449 (1963), supports the proposition that compensation may be allowed for damages caused by the building of a highway on land taken from other owners. The case does not support that proposition. The opinion refers to damages from “the use to which the condemned property will be put,” and the damages allowed in that case were from lights and noise from the use of that part of the highway constructed on the land taken.
In addition to Elizabethtown Amusements, Inc., supra, the landowners cite Commonwealth, Department of Highways v. Burns, Ky., 394 S.W.2d 923 (1965), and Commonwealth, Department of Highways v. Carson, Ky., 398 S.W.2d 706 (1966), as supporting the proposition that a jury in a condemnation case may be permitted to consider as a factor in determining “after value” the effect of “aesthetic damages” on the “remainder.” While those cases recognize that aesthetic factors may be considered, they do not hold that damages, from aesthetic considerations or otherwise, may be allowed for use of land other than that taken from the condemnee. In each of the cited cases, the road split a farm, and the claimed damages were attributable to that part of the road built on the land taken.
In Commonwealth, Department of Highways v. Raybourne, Ky., 364 S.W.2d 814 (1963), we said:
“It is our opinion that any depreciation in market value of the remaining land of a person directly attributable to a taking of a portion of his land may be recovered, even where the depreciation is due solely to aesthetic factors. We see no difference in this from allowing damages for depreciated value from fear of explosion of a gas pipe line. See Gulledge v. Texas Gas & Transmission Corp., Ky., 256 S.W.2d 349. However, since aesthetic factors are so intangible and variable, we think strong proof of damages from those factors should be required.”
The landowners contend that it is difficult, if not impossible, to separate the aes[293]*293thetic-factor damages attributable to the use of the land actually taken from those attributable to the use of the lands of others, and that, therefore, the owner of the remainder area is entitled to all damages caused by the entire public project. We think that an equally valid argument might be that by reason of the difficulty of separation, the landowners should not be awarded any damages for aesthetic factors. In any event, the difficulty here suggested does not impress us as being any greater than the general difficulty of estimating damages in all condemnation cases.
It is obvious that the major depreciation factor in the estimates by the landowners’ witnesses was attributable to the use of land other than that taken from these landowners. The verdict could not rest on those estimates.
We need not discuss other contentions urged by the Commonwealth as, doubtless, these alleged objectionable matters will not occur during another trial of this case.
The judgment is reversed.
HILL, MILLIKEN, and PALMORE, JJ-, concur.
STEINFELD, C. J., dissents and files dissenting opinion.
OSBORNE and REED, JJ„ dissent. Dissenting opinion filed by OSBORNE, J., with REED, J., joining in dissent.