Commonwealth, Department of Highways v. McFarland , 435 S.W.2d 770 ( 1968 )

CLAY, Commissioner.

In this condemnation case the landowners were awarded $15,000 for the taking of approximately one-half acre along the frontage of a 110-acre farm near Glasgow. The sole ground for reversal is that the award is palpably excessive and not supported by evidence of sufficient probative value.

Appellees’ property has been used as a farm, but admittedly has a potential for residential and commercial use. The principal taking was a strip 1300 feet long and approximately 20 feet wide. (An additional 800 square feet were taken for a drainage easement.)

No one would contend that the land taken had a value anything like $15,000. What caused the depreciation in market value of the farm was the road construction of a fill approximately 500 feet long and about 12 feet high at its highest point. This impaired the accessibility to the land opposite this fill, although this was not a limited access highway. The position of the landowners is that the fill appreciably lessened the value of their land for commercial development. There was ample expert testimony to this effect.

We have held that a partial loss of access (as long as reasonable access is maintained) is not a compensable item in condemnation cases. Commonwealth, Dept. of Highways v. Lawton, Ky., 386 S.W.2d 466; Sloan v. Commonwealth, Dept. of Highways, Ky., 405 S.W.2d 294; Commonwealth, Dept. of Highways v. Smith, Ky., 413 S.W.2d 72. However, the Commonwealth did not object to the testimony of the landowners’ expert witnesses on the ground that their opinions were based upon this noncompensable factor. The argument is made that even if the "partial loss of access was a compensable factor, the verdict was still demonstrably excessive. We cannot accept this argument.

The lowest difference in value estimate of the landowner’s five expert witnesses was $15,000 (the amount of the verdict). There is nothing incredible about their testimony if the impairment of access by reason of the fill properly could be considered by them as substantially depreciating the value of the land for commercial purposes. Since the Commonwealth did not object to this testimony, or move to have it stricken, the jury had a right to consider it. It does not lack probative value and the verdict is amply supported by the evidence.

The judgment is affirmed.

EDWARD P. HILL, J., dissents. MONTGOMERY, C. J., and MILLI-KEN, OSBORNE, PALMORE, STEIN-FELD and WILLIAMS, JJ., concur.