Louisville Nashville Rr. Co. v. Burnam, Trustee , 214 Ky. 736 ( 1925 )

In that petition of appellees' counsel for a rehearing of what they are pleased to term "Mr. Drury's opinion" the argument of counsel is directed principally to two points: One, that the opinion is based practically entirely on the assessed value of the farm for taxation at $19,200.00; and the other, that we, in reversing the judgment because it was excessive, violated the well established rule in this and other jurisdictions circumscribing the right of courts to ignore testimony and to set aside a verdict as being flagrantly against the evidence where it is conflicting and the court would have returned a different one thereon had it occupied the place of the jury, and which rule has many times been announced by this court, the more recent cases being: Sandy Valley Elkhorn Railway Co. v. Bentley, 161 Ky. 555. 171 S.W. 178; L N. R. R. Co. v. White Villa Club, 155 Ky. 452, 159 S.W. 983; Music v. Big Sandy Railway Company, 163 Ky. 628, 174 S.W. 44; and Long Fork Railway Co. v Sizemore, 184 Ky. 54,211 S.W. 193. Before discussing either of those two points it might be well to call attention of counsel to the fact that no opinion prepared by any member of this court or by any of its commissioners is the opinion of its writer alone, but is the opinion of the court itself though prepared by the writer of it. See response in Gaffney v. Switow, 211 Ky. 232,277 S.W. 453. Also it might be well to remember that while the members of the court and its commissioners in becoming such may still be referred to as "Mr." yet when speaking of them officially and in connection with their duties on the court, the more decorous designation would be to refer to them by the official title they hold.

The judgment was not reversed because of the disparity between the verdict and the assessed valuation of the farm for taxation, as will be seen from a casual reading of it. The assessed valuation is conceded to be competent evidence, and while it is by no means controlling, it is a fact which the jury as well as the court may take into consideration, and that was all that was done in the opinion.

In considering the second point it must not be overlooked that a verdict may be set aside as being flagrantly against the evidence, and also for another and distinct ground, i. e., that the amount of assessment is excessive and it was upon the latter ground that the opinion disagreed with the jury. The cases of L. N. R. R. Co. v. Chambers, 165 Ky. 703,178 S.W. 1041; Louisville Water Company v. Lally, 168 Ky. 348,182 S.W. 186; I. C. R. R. Co. v. Finch, 178 Ky. 229, 198 S.W. 734, and Consolidation Coal Company v. Potter, 182 Ky. 562,206 S.W. 776, dealt with testimony concerning physical facts and actual occurrences to which witnesses testified, and it was held in each of them that, notwithstanding the positive testimony directed toward the establishing of such facts, the court would disregard it as being inherently incredible and thereby followed an exception to the general rule, supra, as stated in the Bentley and other cases. The verdict in this case found the value of the 13 acres actually taken to be $2,980.00, with theresulting damages to the remainder of more than 180 acres of the farm at $19,200.00, and it with the other items allowed produces a sum which if loaned out at 6% interest would pay an annual rental on the entire farm including the land actually taken of $7.60 per acre for all time with the principal sum unabated and which was a resulting damage of $100.00 per acre, in round numbers, for the entire farm, including the land taken, or $106.75 per acre for the remaining 180 acres. The basis upon which that estimate was reached was necessarily upon the "opinions" of the witnesses and their opinions, in turn, were based upon evidence which courts admit in the trial of such cases, but which is recognized to be more or less speculative and remote as well as somewhat fanciful in some of its elements, dependent upon the conceptions of the particular witness testifying. As pointed out in the opinion, the 180 remaining acres was farm property and it is just as productive since the taking as it was before, regardless of its actual valuation as farm land. Some inconvenience will be experienced in crossing the railroad from one part of the remaining land to, the other, but the evidence showed that proper and convenient crossings were provided for, and the cost of fencing was taken care of by the assessment in the verdict of $2,500.00 over and above and independent of the resulting damages of $19,200.00 to the remaining portion of the tract. What then enters into the latter item except the inconvenience of crossing the track and the other admissible facts of the nature we have described above?

If it can be said, as was done in the Chambers case and other like ones supra, where the testimony related to physical facts or actual occurrences, that the court would be authorized in its endeavor to administer justice to decline to accept that testimony at its full face value, then it would seem to follow that the same authority would exist to likewise question the more or less fanciful figures which have for their foundation only the opinions of the witnesses founded as above stated, and this and other courts have not hesitated to do so in a proper case; as will be seen from the cases of Calor Oil and Gas Co. v. Franzell, 128 Ky. 715, 109 S.W. 328; Same v. Withers,141 Ky. 489, 133 S.W. 210; L N. R. R. Co. v. Asher, 12 K. L. R. 815, and Same v. Hall, 143 Ky. 497, 136 S.W. 905. While this court may not take judicial notice of the value of land as it is located, and must and will accept the opinions of witnesses showing themselves to be qualified to testify as to such value, still it may not shut its eyes to the resulting damage to land not appropriated, in the light of the facts hearing upon such diminution In such case it is placed in the same position as the witnesses who based their opinions upon the same facts, and it is that difference which distinguishes this case from the Bentley case, supra. In that case the entire parcel of land was sought to be taken by the condemnation proceeding. It was located in the town of Jenkins in Letcher county. The available area for the construction of business houses, especially such as were contemplated by the condemnor therein, was limited by the mountains surrounding the town, and necessarily it commanded an exorbitant price over and above the same quantity of land not so situated. Its value, therefore, was essentially a question to be determined by the opinions of witnesses who were acquainted with the local situation and qualified to testify thereon.

In the case of Elkhorn Beaver Valley Railway Co. v. Martin,195 Ky. 20, 241 S.W. 344, the recovery of damage flowing from the alleged wrongful construction of a railroad bed was sought, and also for some wrongful appropriation of a small parcel of plaintiff's land. The opinion testimony of witnesses in that case supported the verdict, but it was so exorbitant in the light of the developed facts that we held it to be excessive, and for that reason principally we reversed the judgment, although the assessed damages included the valuation of two small pieces of land wrongfully appropriated by the railroad company, and which were capable of being conclusively valued by the opinions of witnesses, as we have hereinbefore indicated. In so holding the opinion said: "Courts are established for the administration of justice, and should not permit, under any circumstances, an absurd and patently unjust result to be reached through the forms of law. The two little pieces of land did not exceed in the aggregate one-half acre, and even if they each represented the most valuable part of the cultivating land on the place, the amount of the verdict is so absurdly excessive as to be revolting to even the commonest sense of justice." But it is said that a different rule should apply in condemnation proceedings, since, as contended, section 242 of our Constitution has the effect to make the verdict of the jury conclusive on the courts so as to deprive the latter of interfering with or disturbing them on account of their being either flagrantly against the evidence or excessive in amount. But we cannot agree with that contention, since all of our opinions cited, supra, wherein verdicts in condemnation proceedings were set aside for the reasons stated were written since the adoption of our Constitution. Moreover, text writers do not endorse the contention as a correct principle of law. See 20 C. J. 1116, Lewis on Eminent Domain, volume 2, sections 776 and 805, and 10 R. C. L., 222, para. 189. Paragraph 187 in the same volume sustains the observations as to the opinions of the witnesses upon the resultant damages to the remainder of the tract. The text in the latter section says, inter alia:

"The opinions of experts as to value, however, are not to be passively received and blindly followed, but are to be weighed by the jury and judged of in view of all the testimony in the case and the jury's own general knowledge of affairs, and have only such consideration given them as the jury may believe them entitled to receive. . . . In determining the damage to land not taken, a witness must be familiar with the market value before the injury was inflicted and the market value afterward, and estimates of percentage of value lost, not based upon some substantial ground, should be excluded."

Our conclusion, therefore, is that the assessment in this case of $19,200.00 as resulting damages to the land not taken and which did not include the cost of constructing and maintaining extra fences was excessive, notwithstanding it had opinion evidence to support it. It is our further conclusion that such opinions to the extent of the damages given by the witnesses were not altogether based upon substantial grounds; and further, that it is the duty of courts to "not permit, under any circumstances, an absurd and patently unjust result to be reached through the forms of law."

We, therefore, conclude that the opinion did not depart from the rules of appellate practice, and the petition for rehearing is overruled.