Opinion of tbíe Court by
Drury, Commissioner
Eeversing.
The appellant will he referred to as the plaintiff, and has appealed from' a judgment awarded against it in favor of the appellees, who will be called the defendants, for $24,700.00 for land taken in condemnation proceedings. The plaintiff sought to relocate its railroad in order to'get better grades and easier curves. Unable to purchase from the defendants, it instituted condemnation proceedings to obtain the land desired. Commissioners were appointed, and assessed the damages thus:
Value of land taken................................................ $5,300.00
Cost of fencing............................................................ 1,175.00
Eesulting damages ................................................ 20,700.00
Total ................................... .$27,175.00
Exceptions were filed to the commissioners’ report and in the county court the following was assessed against plaintiff for the taking:
Value of land taken ............................................. $3,162.50
Cost of fencing .......... 1,700.00
Eesulting damages................................................... 20,700.00
Total ...........................................................................$25,562.50-
Plaintiff paid that sum into the county court and took possession of the land. It then appealed to the circuit court, where there was assessed against it for this taking: ,
Value of land taken............................................... $2,980.00
Cost of fencing................................................ 2,500.00
Eesulting Damages ................................................ 19,220.00
Total ...........................................................................$24,700.00
From the judgment entered upon this verdict of the jury, it has appealed to this court.
This -case was practiced well, and is remarkably free from errors. The plaintiff complains of the evidence: First, because the defendant Burnam was permitted to testify that it was more difficult to maintain a fence along a railroad right of way than an ordinary fence between farms, because the trains often bum the posts and the coal, ashes and soot have a very deteriorating effect on
fencing, and that it is more difficult to construct and more expensive to maintain a fence along a curve than it is a straight fence. There is no contradiction that these things were true with the most prudent operation of .the railroad, and if it is necessary for the defendant to build and maintain fences, this testimony was clearly competent to show the cost of building and maintaining these fences. The other testimony of which plaintiff is complaining is that defendant Burnam was permitted to testify that a strip of land cut off by a railroad from the main body of the farm would not be as valuable for grazing purposes with trains going back and forth beside it. This strip of ground is of varying widths. It is about 400 feet wide at the widest part, and perhaps 150 feet at the narrowest. Its average width will not exceed 275 feet. The defendant shows that probably 40 trains a day will pass this place, and that cattle do not graze well near a railroad track on account of passing trains. Since there can be but one assessment of damages, all injuries that may result from the prudent operation of this road must be included in this recovery. L. & N. R. R. Co. v. Scomp, 124 Ky. 330, 98 S. W. 1024, 30 R. 487; Hanger v. L. & N. R. R. Co., 193 Ky. 419, 236 S. W. 568; Cin. N. O. & T. P. R. Co. v. Sadieville Milling Co., 137 Ky. 568, 126 S. W. 118.
In view of this, the evidence in condemnation cases about matters affecting the market value of land injured, but not taken, takes a very wide range, and generally speaking, every element arising from the construction and prudent operation of the road, which in an appreciable degree affects the market value of the property left, and is capable of ascertainment and estimation in dollars and cents, is properly to be taken into consideration, bur, remote, imaginary, uncertain and speculative damages should be disregarded. The evidence about cattle not grazing well on this strip falls within this exception and should not have been admitted. L.
& N.
R. R. Co. v. Hall, 143 Ky. 497, 136 S. W. 905.
Witnesses were asked about the height of the fills proposed and depth of cuts that would be made. It was proper to admit this evidence as the changes made in the surface of the strip taken may affect the drainage of the remaining land, and if it does, it will change the market value of it. Everything that affects the market value of the land left that results from the taking of this strip, and the construction of the railroad upon it, should be
considered by tbe jury. Tbe manner in whicb the remainder of the land must be plowed, its.drainage, the accessibility of the various pieces to roads and to each other, and the construction and maintenance of any fences, bridges or other improvements made reasonably necessary in order to enable the landowner to have thereafter as reasonable use and enjoyment of the remainder as he had before the taking, are all proper elements for the consideration of the jury. Other witnesses gave like testimony, which was properly admitted for the same reason.
Plaintiff complains of the instructions given. We have carefully examined them, and find very little merit in plaintiff’s objection; but upon the retrial of this case, the court will give the following instructions, number three being given before because the plaintiff asked it, and the defendant did not object, and if such an instruction is asked again, it should be given, though we see no particular necessity for it:
1. You are instructed that the plaintiff had under the law, a right to take and has taken from the defendants, the two strips of land aggregating 13.21 acres, described in the evidence, one being taken for a passway for the benefit of this and the Ramsey land, and the other for a right of way on which plaintiff proposes to construct and operate a double tracked steam railroad. You are to consider the value of the land taken in relation to the entire 193.47 acres of which it was a part, 'and as it was before the taking, considering all the purposes for which you may believe from the evidence this 193.47 acres was adapted.
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Opinion of tbíe Court by
Drury, Commissioner
Eeversing.
The appellant will he referred to as the plaintiff, and has appealed from' a judgment awarded against it in favor of the appellees, who will be called the defendants, for $24,700.00 for land taken in condemnation proceedings. The plaintiff sought to relocate its railroad in order to'get better grades and easier curves. Unable to purchase from the defendants, it instituted condemnation proceedings to obtain the land desired. Commissioners were appointed, and assessed the damages thus:
Value of land taken................................................ $5,300.00
Cost of fencing............................................................ 1,175.00
Eesulting damages ................................................ 20,700.00
Total ................................... .$27,175.00
Exceptions were filed to the commissioners’ report and in the county court the following was assessed against plaintiff for the taking:
Value of land taken ............................................. $3,162.50
Cost of fencing .......... 1,700.00
Eesulting damages................................................... 20,700.00
Total ...........................................................................$25,562.50-
Plaintiff paid that sum into the county court and took possession of the land. It then appealed to the circuit court, where there was assessed against it for this taking: ,
Value of land taken............................................... $2,980.00
Cost of fencing................................................ 2,500.00
Eesulting Damages ................................................ 19,220.00
Total ...........................................................................$24,700.00
From the judgment entered upon this verdict of the jury, it has appealed to this court.
This -case was practiced well, and is remarkably free from errors. The plaintiff complains of the evidence: First, because the defendant Burnam was permitted to testify that it was more difficult to maintain a fence along a railroad right of way than an ordinary fence between farms, because the trains often bum the posts and the coal, ashes and soot have a very deteriorating effect on
fencing, and that it is more difficult to construct and more expensive to maintain a fence along a curve than it is a straight fence. There is no contradiction that these things were true with the most prudent operation of .the railroad, and if it is necessary for the defendant to build and maintain fences, this testimony was clearly competent to show the cost of building and maintaining these fences. The other testimony of which plaintiff is complaining is that defendant Burnam was permitted to testify that a strip of land cut off by a railroad from the main body of the farm would not be as valuable for grazing purposes with trains going back and forth beside it. This strip of ground is of varying widths. It is about 400 feet wide at the widest part, and perhaps 150 feet at the narrowest. Its average width will not exceed 275 feet. The defendant shows that probably 40 trains a day will pass this place, and that cattle do not graze well near a railroad track on account of passing trains. Since there can be but one assessment of damages, all injuries that may result from the prudent operation of this road must be included in this recovery. L. & N. R. R. Co. v. Scomp, 124 Ky. 330, 98 S. W. 1024, 30 R. 487; Hanger v. L. & N. R. R. Co., 193 Ky. 419, 236 S. W. 568; Cin. N. O. & T. P. R. Co. v. Sadieville Milling Co., 137 Ky. 568, 126 S. W. 118.
In view of this, the evidence in condemnation cases about matters affecting the market value of land injured, but not taken, takes a very wide range, and generally speaking, every element arising from the construction and prudent operation of the road, which in an appreciable degree affects the market value of the property left, and is capable of ascertainment and estimation in dollars and cents, is properly to be taken into consideration, bur, remote, imaginary, uncertain and speculative damages should be disregarded. The evidence about cattle not grazing well on this strip falls within this exception and should not have been admitted. L.
& N.
R. R. Co. v. Hall, 143 Ky. 497, 136 S. W. 905.
Witnesses were asked about the height of the fills proposed and depth of cuts that would be made. It was proper to admit this evidence as the changes made in the surface of the strip taken may affect the drainage of the remaining land, and if it does, it will change the market value of it. Everything that affects the market value of the land left that results from the taking of this strip, and the construction of the railroad upon it, should be
considered by tbe jury. Tbe manner in whicb the remainder of the land must be plowed, its.drainage, the accessibility of the various pieces to roads and to each other, and the construction and maintenance of any fences, bridges or other improvements made reasonably necessary in order to enable the landowner to have thereafter as reasonable use and enjoyment of the remainder as he had before the taking, are all proper elements for the consideration of the jury. Other witnesses gave like testimony, which was properly admitted for the same reason.
Plaintiff complains of the instructions given. We have carefully examined them, and find very little merit in plaintiff’s objection; but upon the retrial of this case, the court will give the following instructions, number three being given before because the plaintiff asked it, and the defendant did not object, and if such an instruction is asked again, it should be given, though we see no particular necessity for it:
1. You are instructed that the plaintiff had under the law, a right to take and has taken from the defendants, the two strips of land aggregating 13.21 acres, described in the evidence, one being taken for a passway for the benefit of this and the Ramsey land, and the other for a right of way on which plaintiff proposes to construct and operate a double tracked steam railroad. You are to consider the value of the land taken in relation to the entire 193.47 acres of which it was a part, 'and as it was before the taking, considering all the purposes for which you may believe from the evidence this 193.47 acres was adapted. You are to consider the damage, if any, to the 180.26 acres remaining after this 13.21 acres is taken and prudently used for the purposes taken, the shape of the pieces left, their condition, connection with and relation to each other, and to the highway, and the added burden, if any, of erecting and thereafter maintaining any additional fencing or other improvements that you may find from the evidence, will, after and because of the taking, be reasonably necessary to afford defendants such reasonable use and enjoyment thereof as was had before the taking, and considering these things, you will award the defendants such a sum as you may believe from the evidence is the fair and reasonable value of the 13.21 acres of land taken, and in addition, such sum as will reasonably compensate defendants for
the damages, if any, done to the 180.26 acres of land remaining. The entire amount of your finding should not exceed the difference between the actual market value of the entire tract immediately before, and the market value of what is. left immediately after the taking, excluding from both these estimates any enhancement, if any, in the value of the remainder by reason
of
the construction and prudent operation of the road.
2. The market value of property is the price which it will bring when it is offered for sale by one who desires to sell, but is not compelled to do so, and is bought by one who desires to purchase, but is not compelled to have it.
3. You will find and state separately in your verdict the amount awarded for the land taken, for the damage to the remainder of the tract, if any, and for the cost of fencing, if any.
On the trial, the plaintiff asked the court to instruct the jury not to consider as an element of damage the cost of maintaining fencing, but only the cost of the original construction of additional fencing when made necessary by the taking, but this court has said in the case of Louisville, St. Louis & Texas R. Co. v. Barrett, 91 Ky. 487, 16 S. W. 278, 13 R. 57:
“If, in view of the probable future use of the land, additional fencing will be necessary of which the jury or commissioners are to judge, and the owner must construct the fence if he has it, then the land is depreciated in proportion to the expense of constructing and maintaining such fencing.. Nothing can be allowed for fence as fence. The allowance should be for the depreciation of the land in consequence of the burden thus cast upon it.”
This court said, again, in the case of Hanger v. L. & N. R. Co., 193 Ky. 419, 236 S.
W.
568:
“As the railroad condemned a right of way through the land in question, and paid the former owner damages, in the estimation of which the cost of fencing was taken into consideration, it follows that the railroad company is under no obligation to contribute to the cost of maintaining the fences. That being true, the demurrer to the petition was properly sustained. ’
’
With these two- expressions of this court before it, the trial court properly overruled the instruction as to maintaining fence, offered by the plaintiff, for when the strip of land is taken, it may be necessary that fencing be done in order to afford the owner as reasonable use and enjoyment of the remainder of the farm as he had before the taldng. All of this burden is cast upon the landowner. It is a burden that was not upon him before, and that was put upon him by this taking, and unless this cost is allowed him in the verdict, he does not get that full compensation contemplated by section 242 of our Constitution.
We have disposed of all the alleged errors set out by plaintiff in its grounds for a new trial, except the one wherein it alleged that the verdict is so grossly excessive as to appear at first blush to have been given under the influence of passion and prejudice, and that the verdict is not sustained by the law and the evidence. The verdict of a jury in a condemnation case may be excessive, just as in any other case, and when it is so, the motion for
a
new trial should be sustained. Elizabethtown
&
Paducah R. Co. v. Stickler, 4 Ky. Opin 446; Elizabethtown & Paducah R. Co. v. Kurtz, et al., 4 Ky. Opin. 71; Calor Oil & Gas Co. v. Franzell, et al., 128 Ky. 715, 33 R. 98, 109 S. W. 328 and 122 S. W. 188; Calor Oil & Gas Co. v. Withers
’
Admr., et al., 141 Ky. 489, 133 S. W. 210; L. & N. R. R. Co. v. Asher, 15 S. W. 517, 12 R. 815.
We have here a farm of 193.47 acres, assessed for taxation at $19,200.00 and an award of $24,700.00 for the taking of only 13.21 acres of it. This is $5,500.00 more than the assessed value of the entire farm. This award, if loaned at
6%
interest would produce an annual income -of $1,462.00, which is over $7.60 per acre income on every acre of the entire 193.47 acres. This is unreasonable, it almost amounts to a judicial determination that the whole farm is less valuable than one of its parts, and that part we see from actual surveys, is less than
7%
of the farm. We have concluded, therefore, that this finding is excessive.' In saying this, we are fully aware that in the case of Sandy Valley & E. Ry. Co. v. Bentley, 161 Ky. 555, 171 S. W. 178, we said:
“While it may be true that the value of the property as fixed by the jury is unusually high, and much more than we would have fixed it, if the question were not for the jury, but one for our determination,
yet where six witnesses fix the value at from $2,500.00 to $5,000.00, and nine witnesses fix the value at from $40,000.00 to $65,000.00, we know of no rule of law that will permit us absolutely to ignore the testimony of the nine witnesses, and conclude that the six witnesses are correct in their opinion. Indeed, the only way by which we could reverse this case would be to disregard the evidence entirely, and also the finding of the jury, and fix the market value of the lot in controversy at what we think would be fair and right under the circumstances. This we have no right to do.”
There is this difference between that case and this. In that case the jury was fixing the value of a lot, all of which was taken. In this case the jury fixed the value of the land taken at $2,980.00, or $225.00 per acre. This was a definite, certain and reasonable finding. Twenty-five hundred dollars was allowed for fencing, which was perhaps a trifle low; but that was a definite thing upon which the jury could figure and make estimates. When it came to the question of damage to the remainder of the land the jury was met with difficulties, and the finding that the 180.26 acres of land remaining will be damaged, and its market value depreciated $19,220.00 is unreasonable. That is an allowance of $100.00 per acre on the entire ■192.2 acres which the jury believed the farm contained. This finding for damages exceeds the assessed value of the farm. There is opinion evidence in the record, which if unqualifiedly accepted, would support the verdict, but the figures submittted by these witnesses are so extravagant that the probability qf their correctness is very remote. Doubtlessly, these witnesses honestly think that these fabulous figures correctly represent the injury done to this land by the taking, but the stubborn fact remains that the 180.26 acres are there, with their fertility and productiveness unimpaired. Grass and grain will grow there as abundantly as before, and these crops will be as succulent and nutritious as any grown before the taking. The physical facts are such as to demonstrate that this evidence is not correct, and the verdict unjust and unsupported in law and in fact. It should not be allowed to stand. This court has reversed judgments for these same reasons in other cases. See L. & N. R. R. Co. v. Chambers, 165 Ky. 703, 178 S. W. 1041, Ann. Cas. 1917B 471; Consolidation Coal Co. v. Potter, 182 Ky. 562, 206 S. W. 776;
Louisville Water Co. v. Lally, 168 Ky. 348, 182 S. W. 186, L. R. A. 1916B 300; I. C. R. R. Co. v. Finch’s Admr., 178 Ky. 229, 198 S. W. 734.
The judgment is reversed and the cause remanded with directions to award plaintiff a new trial to be had in conformity herewith.