Commonwealth Transportation Cabinet, Department of Highways v. Comer

824 S.W.2d 881, 1991 Ky. App. LEXIS 158, 1991 WL 269822
CourtCourt of Appeals of Kentucky
DecidedDecember 20, 1991
DocketNo. 91-CA-137-MR
StatusPublished
Cited by2 cases

This text of 824 S.W.2d 881 (Commonwealth Transportation Cabinet, Department of Highways v. Comer) 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.

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Commonwealth Transportation Cabinet, Department of Highways v. Comer, 824 S.W.2d 881, 1991 Ky. App. LEXIS 158, 1991 WL 269822 (Ky. Ct. App. 1991).

Opinion

HOWERTON, Judge.

The Commonwealth of Kentucky, Transportation Cabinet, Department of Highways appeals from a determination of the Fayette Circuit Court that Raymond Comer and Marion Corn were denied reasonable access to their properties when the state constructed a railroad underpass on South Broadway in Lexington. After the trial court concluded there was a public taking of the land, a jury awarded $240,000 to Comer and $111,000 to Com.

In a previous proceeding, the trial court concluded that there was no compensable taking. As that decision was apparently based on the judge’s personal knowledge of [882]*882the situation, this Court reversed the judgment and remanded for a trial and findings. Judge Meade committed a procedural error in the first proceeding, but he apparently had a correct understanding of the substantive issue. On remand, he heard the evidence and made his findings, but on the ultimate question of a compen-sable denial of reasonable access, he erred as a matter of law. We reverse.

Comer and Corn each owned property at the intersection of South Broadway and Scott Street in Lexington prior to construction of the railroad underpass in 1987. Before construction, the public had access directly from South Broadway to Scott Street in front of the properties, on which each was operating a business. After construction of the underpass, the properties did not have direct vehicular access to South Broadway but continued to have direct access only to Scott Street. It is now necessary to drive approximately nine-tenths of a mile over Scott Street and other adjacent streets to get to these properties from Broadway. There was no physical taking of any part of either the Comer or Corn property.

Comer and Corn filed the first appeal to this Court after the trial court dismissed their original complaint, which alleged deprivation of a right of reasonable access to the highway system, resulting in an unauthorized taking without just compensation. This Court vacated and remanded the case, holding that the trial court must hear some evidence in order to determine the issue. This Court noted that, although it appeared from the order of the trial court that Judge Meade believed the property owners were not denied reasonable access, the court had failed to make any specific finding or cite any legal authority regarding the issue of reasonable access. This Court’s earlier opinion did not mandate a judgment for Comer and Corn. After this Court’s decision, the Commonwealth’s motion for discretionary review was denied.

On remand, the trial court held an evi-dentiary hearing. Comer and Corn introduced evidence of circuity of travel and diversion of traffic, as well as evidence from which loss of business could be inferred. After all the evidence was presented, the trial court ruled that the property owners had lost reasonable access. A jury trial to determine damages was held over the Commonwealth’s objection. The jury awarded Comer $240,000 and Corn was awarded $111,000. The Commonwealth now appeals to this Court to review the trial court’s decision regarding reasonable access, along with the issues regarding the evidence presented to the jury and its verdict.

The Commonwealth argues that the evidence presented at the hearing, when considered in light of the legal standards enunciated in the case law, was insufficient to support the conclusion that Comer and Corn had lost reasonable access to their properties. We believe this argument is sound.

Initially, it appears that the trial judge misconstrued the directive from the first appeal of this case. The deficiency noted on that appeal was the absence of any finding or conclusion of law based on evidence that the remaining access to the Comer and Corn properties was either reasonable or unreasonable. This Court’s decision was required by the rule enunciated in Commonwealth, Department of Highways v. Adkins, Ky., 396 S.W.2d 768 (1965). Ordinarily, whether the landowner has been deprived of reasonable access is a question of law which should be resolved by the court, but in order for it to be resolved at all, the facts must be disclosed.

No evidentiary hearing was held, although a stipulation was filed. The landowners were denied the right to demonstrate by evidence, if they could, that Scott Street does not meet modern vehicular requirements, or that it was impassable at certain times, or that it provided insufficient driveway space for commercial vehicles, or that it in some way other than circuity was not reasonable access. This Court expressed no opinion as to what that ultimate determination should be. It only required that the narrow issue of reasonable access be addressed.

[883]*883The evidence adduced at the hearing on remand showed that Comer and Corn retained access to their properties via Scott Street; however, in order to get to their properties from that portion of South Broadway which adjoins their properties, one must drive approximately nine-tenths of a mile. It is well-settled law in Kentucky that reasonable restriction of access, rerouting of public highways, and circuity of travel caused thereby are not legally compensable. Commonwealth, Department of Highways v. Diuguid, Ky., 469 S.W.2d 707 (1971); Commonwealth, Department of Highways v. Rosenblatt, Ky., 416 S.W.2d 754 (1967). Clearly, governments must have the authority to grant or deny parking on streets, establish one-way traffic, allow or deny curb-cuts and driveways, erect dividers and safety barriers in streets, and other such things to improve traffic flow and safety.

DeRossette v. Jefferson County, 288 Ky. 407, 156 S.W.2d 165 (1941), the case most similar to the case at bar, involved a property owner’s claim that an underpass built by the county destroyed his property without payment of just compensation. The owner alleged that the road alteration interfered with traffic moving along a heavily-travelled road on which he was conducting a profitable business. The underpass construction rerouted or diverted traffic to the new highway. This led to loss of business and depreciation in the value of his real property.

The DeRossette court thoroughly examined the case law and distinguished the cases where a compensable loss was found. Unreasonable obstruction in which all means of ingress were destroyed was a common theme found in several of the cases where compensation was awarded. This was the situation in Henderson v. City of Lexington, 132 Ky. 390, 111 S.W. 318 (1908), and Illinois Central Railroad Company v. Ward, 237 Ky. 478, 35 S.W.2d 863 (1931). The DeRossette court further noted that other cases with compensable damage existed when there was unreasonable interference with ingress and egress or there was a wrongful or illegal obstruction of a public road. The court found Cranley v. Boyd County, 266 Ky. 569, 99 S.W.2d 737

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824 S.W.2d 881, 1991 Ky. App. LEXIS 158, 1991 WL 269822, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-transportation-cabinet-department-of-highways-v-comer-kyctapp-1991.