Corns v. Transportation Cabinet, Department of Highways

814 S.W.2d 574, 1991 Ky. LEXIS 116, 1991 WL 165452
CourtKentucky Supreme Court
DecidedAugust 29, 1991
DocketNos. 89-SC-452-MR, 89-SC-582-DG
StatusPublished
Cited by7 cases

This text of 814 S.W.2d 574 (Corns v. Transportation Cabinet, Department of Highways) is published on Counsel Stack Legal Research, covering Kentucky Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Corns v. Transportation Cabinet, Department of Highways, 814 S.W.2d 574, 1991 Ky. LEXIS 116, 1991 WL 165452 (Ky. 1991).

Opinion

OPINION OF THE COURT

JOHN STANLEY HOFFMAN, Special Justice.

We are called upon to decide whether or not the Court of Appeals abused its discretion by granting a writ of prohibition in a highway condemnation case prohibiting the Franklin Circuit Court Judge, Hon. Ray Corns, (“the respondent Judge”) from enforcing an order requiring the Commonwealth of Kentucky, Transportation Cabinet, Department of Highways, (“the Commonwealth”) to deposit with the circuit court clerk, to the credit of those whose land was being condemned, $10,516,217.00 found by a special court-appointed mineral appraiser to be the value of underlying minerals. Also, before us is the question of the dismissal of the Court of Appeals of the Commonwealth’s appeal of such order on the ground that it was not final and appealable.

On March 28, 1986, the Commonwealth initiated a condemnation action in Franklin Circuit Court to condemn some 10.2 acres of land in Franklin County, either owned by or in which Robert C. Yount, Margaret R. Yount, Henrietta Yount Penn, Bradley Yount, Cassie Yount Watson, Charles E. Watson, James L. Yount, Thelma W. Yount, Ethel Yount McCray, William D. Yount, Christine M. Yount, Billy Meade, Arthur E. Beard, Rodney R. Ratliff, and Frankfort Rock, Inc., (“the landowners”), had an ownership interest. Commissioners appointed by the respondent Judge appraised the property sought to be taken by the proceedings and filed their report with court awarding the landowners the sum of $112,400.00.

[576]*576On September 9, 1986, the circuit court entered an interlocutory order and judgment finding the commissioners’ report to be in the prescribed statutory form and ordering that the Commonwealth might take possession of the subject property by paying the amount of the commissioners’ award, $112,400.00 to the clerk of the court. That same day, the Commonwealth deposited the $112,400.00 with the clerk and took possession of the property.

After the Commonwealth had paid the amount of the commissioners' award and had taken possession of the subject property, the landowners moved to have the circuit court vacate its interlocutory order and judgment on the grounds that the commissioners’ award did not take into account the value of the underlying minerals. The respondent Judge overruled the motion to vacate but appointed one Edmund Nosow to appraise the underlying minerals and directed that Mr. Nosow’s mineral appraisal report “be filed as a part of the total appraised value of the properties.” Mr. Nosow reported to the court that the highest and best use of the subject property was as a limestone quarry and that as a consequence of its taking by the Commonwealth, the landowners had lost profits from the sale of limestone totaling $10,-516,217.00.

After the Nosow report was filed, the circuit court entered an agreed order directing that it be submitted to the commissioners for their consideration “in supplementing their previous appraisal according-ly_” The order also directed that the commissioners “tender to the Court a final Commissioner’s Award taking into account the value of the entirety of the property taken....” The agreed order provided for the filing of exceptions to the “final” commissioners’ award and ordered that the Commonwealth would have 30 days after the filing of the final commissioners’ award to pay the amount of the final award to the clerk with credits to be given the Commonwealth for the amounts originally paid into court.

By letter dated March 6,1988, directed to the respondent Judge, the commissioners reported that they would stand by their original report concerning the value of the “surface rights” to the subject property because of their limited expertise in making such evaluations. Nevertheless, on March 28, 1988, the respondent Judge ordered that the original commissioners’ report be “... amended to incorporate the value of the minerals at the amount of $10,516,127.00 as found by Edmund Nosow in his report to the Court and Commissioners dated July 24, 1987.” Then, on June 20, 1988, citing the authority of KRS 416.-630, the respondent Judge ordered the Commonwealth to deposit the sum of $10,-516,217.00 with the clerk. The Commonwealth moved to have the circuit court set aside or reconsider its order of June 20, 1988, but the motion was denied by an order, said to be final and appealable, which recited that the Commonwealth should “forthwith” deposit the money with the clerk.

The Commonwealth appealed to the Court of Appeals the circuit court order directing the Commonwealth to deposit the $10,516,217.00 with the clerk. 88-CA-2746-S. The landowners moved to dismiss the appeal as not being taken from a final and appealable order. At about the same time, the Commonwealth also initiated an original action in the Court of Appeals for writ of prohibition seeking to prohibit the respondent Judge from enforcing the order directing the Commonwealth to deposit the $10,516,217.00 with the clerk. 89-CA-000918-OA. The Court of Appeals dismissed the Commonwealth’s appeal for the stated reason that the appeal was not taken from a final and appealable order. However, in the original action for a writ of prohibition, the Court of Appeals granted the Commonwealth’s petition and issued an order on May 31, 1989, prohibiting the respondent Judge from enforcing the order directing the Commonwealth to deposit the $10,516,217.00 with the clerk of the court.

The court granted the Commonwealth discretionary review of the Court of Appeals’ order dismissing the Commonwealth’s appeal in 88-CA-2746-S, and the landowners appealed to us as a matter of right from the order of the Court of Ap[577]*577peals granting the writ of prohibition in 89-CA-918-OA. CR 76.36(7)(a). The two cases were then, on application to this Court, consolidated.

While the order of the Court of Appeals granting the writ of prohibition is silent as to the reasons for its issuance, we are of the opinion that the order should be affirmed for the reasons which we announce herein.

Writs of prohibition, being extraordinary remedies, not to be substituted for appeal, and issued only in the sound discretion of the court, are reserved for those situations in which a lower court is acting either (1) without or beyond its jurisdiction or (2) within its jurisdiction, but erroneously. In the latter category of cases, a prerequisite to the issuance of the writ is a showing that there is no adequate remedy by appeal or otherwise and irreparable injury or great injustice will result without its issuance. Bender v. Eaton, Ky., 343 S.W.2d 799 (1961), Jones v. Hogg, Ky., 639 S.W.2d 643 (1982), Commonwealth, Revenue Cabinet by Gillis v. Graham, Ky., 710 S.W.2d 227 (1986). This court must therefore decide whether the Court of Appeals abused its discretion in granting the writ prohibiting the respondent Judge from enforcing the order directing the Commonwealth to deposit the $10,516,217.00 with the clerk of the court.

The procedure for the Commonwealth’s exercise of its sovereign right of eminent domain and the rights of those whose land is being condemned are governed by the Eminent Domain Act of Kentucky, KRS 416.540 to 416.670.

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Cite This Page — Counsel Stack

Bluebook (online)
814 S.W.2d 574, 1991 Ky. LEXIS 116, 1991 WL 165452, Counsel Stack Legal Research, https://law.counselstack.com/opinion/corns-v-transportation-cabinet-department-of-highways-ky-1991.