Commonwealth, Department of Highways v. Allen , 409 S.W.2d 291 ( 1966 )

WADDILL, Commissioner.

The landowner was awarded $15,000 for the taking of 5¾4 acres of farm land (improved only by two wooden sheds and a hen house) for right of way purposes in the construction of a portion of an extension to the Eastern Kentucky Turnpike located between Salyersville and Prestonsburg. The Commonwealth has appealed contending that the award is excessive and is not supported by any evidence of probative value.

The farm involved in this proceeding consisted of 114 acres, approximately ten acres of which were described as bottomland. It was shown that the landowner purchased 39 acres of this farm during 1959 for $3000 and that 4½ acres of it were included in the 5¼ acres taken in the condemnation proceeding. The farm has been located on and has had access to a public highway both before and after the taking.

The jury in awarding $15,000 made the following findings:

Before value $30,000

After value 15,000

Difference $15,000

The only testimony tending to support these determinations was that of the landowner’s evaluation witnesses whose estimates were as follows:

These witnesses relied on comparable sales in an attempt to support their valúa-tions. Conley referred to a sale averaging only $400 an acre while May referred to sales which averaged high prices per acre, however these sales involved tracts of land to be divided into and sold as lots. The landowner’s property was not shown to be adaptable for subdivision purposes nor was it shown there was a reasonable expectation that in the near future it could be divided into lots. Bowling Green-Warren County Airport Board v. Long, Ky., 364 S.W.2d 167.

In these circumstances we are unwilling to hold that their testimony has sufficient probative value to sustain an award equal to 50% of the farm’s total value for the taking of less than 5% of its acreage.

The judgment is reversed with directions to set it aside and to grant a new trial.