text:
    Earle V. POWELL, Commissioner, Department of Economic Security, Commonwealth of Kentucky, Appellant, v. Clara Mae SULFRIDGE et al., Appellees.
    Court of Appeals of Kentucky.
    March 5, 1965.
    Paul E. Tierney, Department of Economic Security, Forest Smith, Frankfort, for appellant
    William S. Tribell, Middlesboro, for ap-pellees.
   DAN M. GRIFFITH, Special Commis, sioner.

Qara Mae Sulfridge, wife of Alfred Sulfridge and mother of six infant children, filed an application with the Division of Public Assistance of the Department of Economic Security for aid for her dependent children on the grounds that her husband was incapacitated to afford them the necessities of life. Her application was denied by the local office, the referee, and the appeal board of the Department. Upon appeal to the circuit court, the decision of the Department was reversed. The applicant’s husband was found to be totally and permanently incapacitated and the applicant entitled to the aid she sought. From this judgment the Department has appealed.

The question presented is whether the record made before the Department contains evidence of probative value supporting the Department’s determination that the applicant’s husband was not incapacitated. If such evidence is to he found in the record, the judgment of the lower- court must be reversed and the ruling of the Department left undisturbed. Barnes v. Turner, Ky., 280 S.W.2d 185. On the other hand, if there is no evidence of probative value supporting the Department’s decision, the lower court’s judgment reversing its ruling was proper and should be affirmed.

The Department, by regulation adopted pursuant to-KRS 205.160, defines incapacity as follows: “Incapacity is any condition of mind or body which makes a parent physically or mentally unable to provide the necessities of life for his child * * The Department, by the same regulation, further provides that if the incapacity of the father is involved, “the incapacity must prevent him from working in an occupation in which he previously engaged, and prevent him from working at another job accessible in the county or community where he normally resides, for which he is equipped to do * *

Tested by this definition, we have been unable to find any evidence of probative value supporting the Department’s determination that Sulfridge was not incapacitated. The record made before the Department will now he reviewed.

The record shows that Alfred Sulfridge-is a 30-year-old resident of Pineville. He is the father of five children, ranging in-age from 3 to 7 years, and the stepfather of one child born to Clara Mae Sulfridge out of wedlock. Sulfridge attended school until the fourth grade. Since 1962 his only reported earnings amounted to approximately $206. Suffice it to say that it is apparent from the record that the children’s need is great and the conditions under which they live are deplorable.

The application resulting in this appeal was the last of seven such applications filed by the applicant since 1951. The record contains medical evidence in regard to Sulfridge’s physical condition in the form of two reports filed by medical doctors as a result of examinations on previous applications. One report was dated April 23, 1957; the other, March 29, 1961. The 1957 report concluded that Sulfridge was suffering from mild epilepsy dating from about 1953. The doctor commented as follows: “This individual is not curable from the standpoint of his epilepsy which dates back to' a car accident in 1953, but he states that he is fairly well controlled on medication and has been working with this condition since 1953.” The doctor stated that Sulfridge “may perform moderate work.” The 1961 medical report related only that Sulfridge needed dental treatment and was able to administer his resources. It is not helpful.

The present application was filed on November 7, 1962. Upon the -filing of this application, the Department made arrangements for Sulfridge to have psychiatric evaluations. He was examined by two psychiatrists and given an I. Q. test by a psychologist. The first examination was made-by Dr. George L. Gee. Dr. Gee reported to the Department as follows: “We are-diagnosing the patient’s condition as inadequate borderline defective, illiterate ■schizoid neurotic, who may have been epileptic in the past. He has probably only worked about a total of 3 years during the last 10 years and we would strongly recommend that welfare assistance (ADC) be granted if at all possible. He does have some desire to work and to. be more adequate than he actually is and he could certainly be encouraged to do as much as he is capable of doing. At any rate this man has never been and most likely will never be capable of sustained public productivity. He and his wife and family will need-as much financial and emotional support as your department can possibly offer.”

After receiving this report, the Department referred Sulfridge to a psychiatric clinic in Lexington. There he was examined by Dr. Donald I. George, a psychiatrist, and was given an intelligence test by Dr. Harold W. Meek, a clinical psy--chologist. Dr. George diagnosed Sulfridge as follows: “(1) Personality disorder, inadequate type; (2) Mental deficiency, I. Q. 71.” He concluded his report with this comment: “This is a mixed picture of personality problems plus low intelléct in a man with very poor background with no opportunity to mobilize what capacities he-has had. I feel he is significantly incapacitated and needs help. It is doubtful if he could profit by a formal vocational rehabilitation program but it is noted that he does respond to encouragement and praise and possibly could be placed in some type of work where he could be closely supervised and encouraged and his limitations understood.”

The test administered by Dr. Meek, the psychologist, showed Sulfridge to be of “borderline” intelligence with an “inadequate personality.” He stated that he had the mental capacity to learn simple jobs ■of skill but probably would have to be well supervised.

A Social Data. Report by-an employee of tbe Department dated December 4, 1962, ■concluded as follows: “Work is accessible; pick up and odd job work is about all he has done ever and it is not felt he has the mental capacity to do any gainful work.”

On the basis of the medical record as above summarized, and the lay testimony of Sulfridge and members of his family in regard to his general poor health and his epileptic seizures, the Department concluded Sulfridge was not incapacitated.

Although we are reluctant to interfere with the Department’s determination in a case of this nature, after a careful review of the record we are constrained to conclude that the evidence clearly shows that Sulfridge is incapacitated within the Department’s definition of that term and that the record contains no evidence of probative value supporting the Department’s contrary ruling. It is conceded by the Department that an I. Q. of 69, or two points lower than that at which a psychologist examining Sulfridge. placed his I. Q., would of itself show “incapacity.” This borderline mental ability combined with grave psychiatric deficiencies in-. an illiterate, epileptic, totally untrained man makes the conclusion of incapacity inescapable. Perhaps the Department based its findings upon the comment of the psychologist who administered an intelligence test to Sulfridge that he was capable of learning simple jobs or skills but probably would have to be well supervised. It seems to us that this statement, when given its full value and greatest weight, stops short of being evidence supporting the Department’s conclusion that this man is capable of providing his children with the necessities of life.

The only other evidence in the record that might possibly be considered as support for the Department’s conclusion was the statement contained in a medical report dated April 23, 1957, that Sulfridge “may perform moderate work.” Assuming without deciding that the Department may properly consider in a case of this nature medical reports obtained by it pursuant to previous applications concerning the individual involved, the 1957 medical report in this record was so remote in time as to be of no probative value on the issue of the capacity of Sulfridge at the time of the Department’s decision more than five years after the report. The record in this respect was stale. See 2 Am.Jur.2d, Administrative Law, Section 687, page 572.

It is recommended that the judgment be affirmed.

The opinion is approved by the Court and the judgment is affirmed.


source: Caselaw Access Project

author: PALMORE, Judge.

license: Public Domain

text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. Beverly MANN et al., Appellees.
    Court of Appeals of Kentucky.
    March 5, 1965.

      John B. Breckinridge, Atty. Gen., William A. Lamkin, Jr., Asst. Atty. Gen., Harold K. Huddleston, Elizabethtown, Reed D. Anderson, Atty., Madisonville, for appellant.
    E. E. Hubbard, Fulton & Hubbard, Bardstown, for appellees.
   PALMORE, Judge.

In connection with a reconstruction and partial relocation of U. S. Highway 62 the state in this proceeding condemned about 8Jdj acres of appellees’ 394-acre tract (which we shall call the Mann farm) located 1% miles west of Bardstown. Both sides appealed from a county court judgment awarding $5675, whereupon a jury in circuit court fixed the amount of recovery at $11,400 and judgment went accordingly. The state appeals.

Before the taking the farm lay 104 acres on the north side and 290 acres on the south side of U. S. 62 and was more or less flush with the highway. A good portion of the new road is on a 28-foot fill, which creates problems of access between the two portions of the farm and its various facilities. A barn, corn crib and old log tenant house were situated within the new right-of-way and were destroyed.

The state introduced two valuation witnesses, both of whom said they had used comparable sales in arriving at their estimates. However, neither of them was permitted to give the prices involved in the comparable sales.

The witness McCarter cited a 1959 sale of 108 acres located on U. S. 31E about three miles south of Bardstown. He said the improvements were in fair condition, the land was similar, the location was equal, and he considered it a fair comparison. When he was asked what was the price paid an objection was sustained. According to an avowal, he would have answered $24,000, which would amount to $222 per acre. His appraisal of the Mann farm before the taking was $175 per acre.

The witness Miller cited a 1960 sale of 83 acres located on U. S. 31E about two miles from Bardstown. He did not further describe the property but said it was sufficiently comparable that a fair and reasonable comparison could be made. Upon objection he was not permitted to give the price paid, and avowed that it was $15,250, or slightly under $184 per acre. He evaluated the Mann farm before the taking at $185 per acre.

The landowners contend that the exclusion of this evidence was not erroneous because the preliminary testimony did not provide sufficient details to indicate comparability and did not show that the sales were voluntary. They submit also that in any event the errors, if such, were not prejudicial, since the values put on the Mann farm by the landowners’ witnesses were not materially different from those reflected by the comparable sales.

It is conceded, of course, that refusal to permit evidence of prices recently paid in private sales of comparable property is reversible error if prejudicial. Cf. Commonwealth, Dept. of Highways v. Slusher, Ky., 371 S.W.2d 851 (1963); Commonwealth, Dept. of Highways v. Howard, Ky., 375 S.W.2d 398 (1964); Commonwealth, Dept. of Highways v. Shackleford, Ky., 380 S.W.2d 77 (1964).

As to the preliminary showing of comparability, we are of the opinion that great latitude should he allowed a professionally qualified witness, for the simple reason that unless the trial judge himself elects to testify in the case it must be presumed that the witness’s judgment as to comparability is better than his. Cf. Stewart v. Commonwealth, Ky., 337 S.W.2d 880, 884 (1960); Commonwealth, Dept. of Highways v. Oakland United Baptist Church, Ky., 372 S.W.2d 412 (1963). McCarter’s testimony clearly was sufficient to establish prima facie comparability. Miller’s was sketchy indeed, yet we think that since the two properties to be compared were farms and were located on major highways near Bardstown he should have been permitted to give the price. Any dissimilarities could have been developed by cross-examination.

In the absence of evidence to the contrary it is presumed that the price of land sold in a transaction between private parties was fixed freely and not under compulsion. Commonwealth, Dept. of Highways v. Shackleford, Ky., 380 S.W.2d 77 (1964).

It is our conclusion that the comparable sales testimony offered by McCarter and Miller should have been admitted.

The value of the Mann farm as of a time immediately before the taking was estimated by five defense witnesses and ranged from a low of $220 to a high of $254 per acre, as against the avowal figures of $184 and $222. The jury did not receive any evidence of prices paid in comparable sales. We are unable to say that the rejected evidence would not have been helpful to the 3tate’s case. Hence we find its exclusion prejudicial.

. It is further contended that because each of the valuation witnesses for. the landowners based his estimate of diminished market value on an itemization of “damage” factors their testimony (1) should have been stricken and (2) did not have enough probative value to support the verdict.

B. B. Mann, a co-owner of the property, testified that the farm had a fair market value.of $100,000 before and $80,000 to $85,000 after the taking. Except for his knowledge of the tract and a general familiarity with the value of real estate in the vicinity, he expressed no special qualifications as an expert witness and was not asked by either counsel to state the factors, if any, that he took into consideration in arriving at his estimate. Thus his testimony had “some probative value.” Commonwealth, Dept. of Highways v. Tyree, Ky., 365 S.W.2d 472, 477 (1963). There was no motion (and no ground) to strike it.

The four other valuation witnesses for the landowners gave before and after values as follows:

Before After Difference
L. P. Hubbard $90,000 $76,000 $14,000
J. W. Coomes 92,000 77,000 15,000
Everett Mudd 87,000 72,500 14,500
J. S. Tharp 88,000 73,200 14,800

On cross-examination each of these witnesses admitted in substance that he had arrived at the “after” figure by itemizing various damage factors and subtracting the total from the “before” figure. Hubbard, for example, said that he estimated separate amounts for such items as the log cabin, corn crib, barn, inconvenience of access, gates, fencing, etc., and arrived at a total of $14,435. Coomes did the same, and came to a total of $14,870. Mudd and Tharp did not give their totals, but they used the same procedure in arriving at the “after” value. Counsel for the landowners made a valiant effort on redirect examination of these witnesses to get the horse back in front of the cart, but it is all too clear from the transcript that their opinions were founded upon improper itemization of individual “damage” factqrs. Commonwealth, Dept. of Highways v. Tyree, Ky., 365 S.W.2d 472, 477 (1963); Commonwealth, Dept. of Highways v. Cardinal Hill Nursery, Ky., 380 S.W.2d 249, 253 (1964). The correct method is to ascertain the fair market value of what is or will be left after the taking and subtract it from the value of the whole property as it stood prior to the taking.

Counsel for the state made timely motions to strike the testimony of the four witnesses just mentioned. It was error to overrule them. Cf. West Kentucky Coal Company v. Commonwealth, Dept. of Highways, Ky., 368 S.W.2d 738, 743 (1963). It becomes unnecessary to determine the question of probative weight.

The judgment is reversed with directions for a new trial.


author: CLAY, Commissioner.

text:
    William GIVENS, Jr., et al., Appellants, v. Herbert J. GIVENS, Appellee.
    Court of Appeals of Kentucky.
    March 5, 1965.

      Robert R. R. Boone, Pineville, for appellants.
    William S. Tribell, Middlesboro, for ap-pellee.
   CLAY, Commissioner.

This is a suit for a declaration of rights, the principal objective of which was to have declared void a long term coal lease ap-pellee obtained from his mother. The Chancellor adjudged the lease valid. Appellants contend this was error, and in the alternative contend that the lease, if valid, should inure to their benefit.

In 1948 W. M. Givens deeded the real estate involved to his wife, Willa Givens, and the deed provided in part :

“To have and to hold to her in during her natural life, then the lands of whatever the parties have not transferred shall belong to the heirs of the party of the second part * *

The grantor had in 1937 conveyed the same property to his wife under somewhat similar terms, but the parties claim their rights under the last deed from which we have quoted. The grantee life tenant, Willa Givens, is dead and the appellants and appellee are her heirs and now own as cotenants the fee in the property.

The parties agree that Willa Givens had a life estate with a power to encroach upon the corpus. Nine days before her death she executed a coal mining lease to ap-pellee, her son. This lease had a term of 40 years.

Appellants’ first contention is that a life tenant has no authority to execute a lease for a term longer than her lifetime. This is the accepted general rule. 31 C.J.S. Estates § 54, p. 115; Pikeville Oil & Tire Company v. Deavors, Ky., 320 S.W.2d 782, 785. It is also recognized that a life tenant can make no oil and gas lease. Summers Oil and Gas, Permanent Edition, Vol. 2, section 223 (page 70); Union Gas & Oil Co. v. Wiedemann Oil Co., 211 Ky. 361, 277 S.W. 323; Rowe v. Bird, Ky., 304 S.W.2d 775. Since the reason for the rule is that this would permit the life tenant to deplete or waste the estate of the remaindermen, the same principle would apply to a coal lease. This seems to be recognized by KRS 353.300, which provides for the appointment of a trustee to execute an oil, gas, coal or other mineral lease where present and future interests are involved.

It is the position of the appellee that the right of the life tenant to encroach upon the corpus authorized her to execute a long term mineral lease. The argument is that if the life tenant could convey the property, she could lease it. There is merit in this argument. The only authority we have been able to discover on the point is Holland v. Bogardus-Hill Drug Co., 314 Mo. 214, 284 S.W. 121. Therein the court upheld a lease of business property which extended beyond the lifetime of the life tenant who had a power of disposition. Even though, the lease in the present case is of a different kind and will result in the depletion of the estate of the remaindermen, it seems that the life tenant’s power to encroach (which is admitted) would authorize her to transfer in this manner an interest in the devised property. We so decide. It may be observed that the remaindermen will benefit from this lease.

Appellee relied upon a judgment in another case involving leases executed by both the grantor and the life tenant, in which suit appellants and appellee were parties. We do not think the matter is res adjudi-cata because the judgment did not decide the question we have here or involve the same lease. However, the result is the same on this phase of the case.

The next question is whether this lease •inures to the benefit of appellee’s cotenants. It is clear that after the death of the life tenant, when the remainder estates matured into a fee simple and the coremaindermen had become cotenants, appellee could not have acquired an outstanding interest against the property for his exclusive benefit. The accepted principle is thus stated in 54 A.L.R. 874, at page 875:

“Tenants in common and joint tenants are said to stand in confidential relations to each other in respect to their interests in the common property and the common title under which they hold; and the courts generally assert that it would be inequitable to permit one, without the consent of the others, to buy in an outstanding adversary ■claim to the common estate and assert it for his exclusive benefit to the injury or prejudice of his co-owners; and, if one cotenant actually does acquire such claim, he is regarded as holding it in trust for the benefit of all his co-tenants, in proportion to their respective interests in the common property, who seasonably contribute their share of his necessary expenditures; the courts will not, ordinarily, permit one •cotenant to acquire and set up for his •exclusive benefit any claim adverse to the common rights; at least, where all the cotenants derive title from a common ancestor by descent, or from a common grantor by a single conveyance.”

See also Thompson on Real Property (1961), section 1801, page 136, specifying the fiduciary duties of cotenants.

That rule is not specifically applicable here because appellee acquired his interest prior to the time the cotenancy relationship came into being. As a general rule the fiduciary duties of joint tenants or tenants in common are coextensive with the cotenancy. Sneed’s Heirs v. Atherton, 6 Dana 276, 32 Am.Dec. 70; Ford v. Jellico Grocery Co., 194 Ky. 552, 240 S.W. 65; 54 A.L.R. 884.

As we have before noted, at the time ap-pellee acquired this lease from his mother, the life tenant, she had a power of disposition of the corpus of the property. At that time appellants and appellee were not co-tenants (because lacking the right to possession). They were, however, jointly vested with a defeasible' remainder. Restatement of the Law, Vol. 2, section 157 (page 54). It could be argued that when the life tenant executed the lease she thereby reduced appellants’ remainder interest and they had no right in the benefits which subsequently accrued to appellee by virtue of this lease. (Those benefits consisted of profits accruing from a sublease of the property.)

Our problem is whether a fiduciary relationship exists between coremaindermen similar to that existing between cotenants. We think it does. Though there is lacking a unity of possession, there is a unity of title created by a single deed vesting equal remainder interests in appellants and appellee. As in the case of joint tenants or tenants in common, public policy dictates that a remainderman shall not impair the title or interests of his coremaindermen. As said in Thompson on Real Property (1961), Vol. 4A, section 2001 (page 525) :

“Most cases hold that coremainder-men like cotenants of possessory estates have a fiduciary relationship so that if one acquires an outstanding interest he acquires it for all.”

Cases supporting that statement are Clark v. Lindsey, 47 Ohio St. 437, 25 N.E. 422, 9 L.R.A. 740; Harrison v. Harrison, 56 Miss. 174; Wilson v. Linder, 21 Idaho 576, 123 P. 487, 42 L.R.A.,N.S., 242.

Thcre are cases which apparently take a contrary view. Jinkiaway v. Ford, 93 Kan. 797, 145 P. 885, L.R.A.1915E, 343; Crawford v. Meis, 123 Iowa 610, 99 N.W. 186, 66 L.R.A. 154.

This case points up the necessity for recognizing a fiduciary relationship between coremaindermeni Here appellee acquired from the life tenant, nine days before her death, a long term lease which affected the remainder interests of appellants and from which appellee has and will realize substantial benefits. The unity of title as remaindermen and the family relationship make it inequitable for appellee to obtain this advantage, against those who are now his cotenants, by so dealing with the property in which they had, since the execution of the original deed, a common interest. We hold that the benefits of this lease inure to the benefit of appellants as well as to appellee. Of course appellee is entitled to contribution for their rateable share of appellee’s expenditures, if any, in the acquisition and exploitation of this lease. 48 C.J.S. Joint Tenancy § 11, p. 933; 98 A.L.R. 865.

The judgment is affirmed in part and reversed in part, with directions to modify the judgment consistent with this opinion.

      . A distinction is recognized between “joint tenants” and “tenants in common” for some purposes, but tbe fiduciary duties are tbe same. See 48 C.J.S. Joint Tenancy § U, p. 933; 86 C.J.S. Tenancy in Common § 17, p. 376; Thompson on Real Property (1961), section 1801 (page 136).


author: DAVIS, Commissioner.

text:
    COMMONWEALTH of Kentucky, DEPT. OF HIGHWAYS, Appellant, v. J. Spencer OSBORNE, Jr., et al., Appellees.
    Court of Appeals of Kentucky.
    March 5, 1965.
    John B. Breckinridge, Atty. Gen., Wm. A. Lamkin, Jr., Asst. Atty. Gen., Frankfort, Harold K. Huddleston, Elizabethtown,. Reed D. Anderson, Madisonville, for appellant.
    E. E. Hubbard (Fulton & Hubbard), Bardstown, for appellees.
   DAVIS, Commissioner.

The Department of Highways appeals from the judgment of $3,700 awarded appel-lees upon a jury’s verdict in this condemnation proceeding. The Department urges that the evidence lacks sufficient probative value to support the verdict, and that the verdict is excessive.

The tract involved is located on the south-side of U. S. Highway 62, about a mile west of Bardstown. The original boundary contained about ten acres, upon which was situated a one and one-half story frame dwelling, a barn and two small outbuildings. None of the improvements is taken by the condemnation. The required right of way is to accommodate a reconstruction of U. ,.S. Highway 62. The land taken is a •660-foot strip across the entire frontage of the ten-acre tract; the depth of the taking is about twenty-seven feet at its west terminus, from which it gradually diminishes to about six feet in depth at the east end. The depth of the taking is ten feet at the point in front of the residence. Two shade trees which stand in front of the house will be destroyed incident to the highway construction. Also involved is a temporary easement of a plot forty by thirty feet necessary to adjust the entrance to the private garage on the tract.

Before this condemnation, U. S. Highway 62 was a two-lane travelway as it passed in front of appellees’ property. The right of way line was thirteen feet north of the front porch before the taking; the new right of way line will be three feet from the porch. The appellant’s present plans reflect that the two main travel lanes of the proposed new construction will be relocated two feet closer to appellees’ residence than had been so before. An additional “climbing” or “truck” lane, twelve feet in width, is to be constructed south of the two main travel lanes.

Prior to the taking the south edge of the travel lane — the one nearer to the appellees’ residence — was thirty-three feet from the front porch; after the new construction the edge of the “climbing” lane will be nineteen feet from the porch. Thus, the actual traveled portion of the roadway will be fourteen feet closer and the right of way line will be ten feet closer. There is to be 'no material change in the grade of the new road.

Two valuation witnesses testified for the appellant. Each of them fixed a before value of $10,500; their “after” values were shown as $9,300 and $8,750, respectively. The difference in before and after values, according to these witnesses, ranged from $1,200 to $1,750.

Appellees presented five valuation witnesses. Three of them testified to differences in before and after values ranging from $3,000 to $3,250 — sums lower than the jury’s verdict. The other two (one of whom was the appellee owner) testified to differences of $4,500 and $5,000.

Appellant centers its attack, as it must, upon the probative value of the two witnesses who testified to value differences greater than the sum awarded by the jury. As noted, one of these witnesses was the appellee owner Osborne. He expressed his view that the difference in before and after values is $5,000. He did expressly testify that he was “familiar generally” with the market value of real estate in the pertinent area. (The trial was prior'to Com. Dept. of Highways v. Fister, Ky., 373 S.W.2d 720, so no question was raised by appellant’s counsel as to Osborne’s competence.) Osborne did testify that the loss of the shade trees and the proximity to the travelway “ * * * has almost completely destroyed my house as a residential place to live. The road will be so close to it that it will actually be unfit to live in.” But he repeatedly related that situation to his opinion of its depressing effect on market value. On the whole, it cannot be said that Osborne’s evidence was premised on the basis of his personal inconvenience as opposed to diminution of market value. That the jury failed by $1,300 to accept his figure reflects that the jury took into account any “puffing” which might have stemmed from Osborne’s ownership.

The other valuation witness whose appraisal exceeded the jury verdict was a realtor and auctioneer of considerable experience. Although he is not a resident of Nelson County, it was shown that his real estate experience included numerous transactions in that county and in the area where the subject property is situated. He was qualified by training and experience; he evinced knowledge of the subject matter; the jury had a right to accept his opinion. Yet, it failed by $800 to do so. Under all the circumstances of this case we are not able to say that the evidence lacks sufficient probative value to support the verdict ; neither does the verdict strike us at first blush as excessive.

The judgment is affirmed


text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. L. T. WHEAT et al., Appellees.
    Court of Appeals of Kentucky.
    March 5, 1965.
    Robert F. Matthews, Atty. Gen., Wm. A. Lamkin, Jr., Asst. Atty. Gen., Frankfort, Reed D. Anderson, Atty., Madisonville,. Harold K. Huddleston, Elizabethtown, for appellant.
    Charles M. Summers, Campbellsville, for appellees.
   DAVIS, Commissioner.

This appeal presents the contentions of the Department of Highways seeking to reverse a judgment in the sum of $10,000 in a condemnation action. The Department urges (1) that appellees were allowed to utilize evidence based upon incompetent and irrelevant factors of damage, and (2) that the verdict is grossly excessive and not supported by evidence of sufficient probative value.

The proceedings involve a lot in Camp.-bellsville. Prior to the condemnation, the lot had width of 65 feet and depth of 165 feet. The portion of the lot used as its “front” faced on First Street, but the lot extended to and abutted Second Street also. A twelve-foot alley, connecting First and Second Streets, abuts the lot on its eastern line.

On the portion of the lot facing First Street is situated a concrete block building, 30 x 45 feet; this building is used as a service station.' Between the building and First Street there is one concrete island upon which are located two gasoline pumps. First Street is regulated for one-way eastbound traffic (away from the center of Campbellsville). Prior to the taking, Second Street was a low grade thoroughfare, without curbs, gutters or sidewalks. It was serving westbound traffic only, and consisted of two lanes. The proposed construction will make of Second Street a four-lane, two-way street with a median strip susceptible to being crossed by automobiles.

The Department is acquiring as permanent right of way a plot from the north (Second Street) side of the appellees’ lot. The taken portion is a rectangle 65 feet in width, with depth of 39 feet. The new construction of Second Street will necessitate a fill along the north side of the lot. The fill is to be 2.8 feet at the right of way line. In order to make the required fill, and to accommodate a fifty-foot entranceway, the Department is acquiring a temporary easement, 65 x 25 feet, immediately south of the permanent right of way taken. Grading is to be done on the easement so that the surface will attain grade level with the original lot at the toe of the fill; the surface along the fill is to be covered with gravel provided by the Department. Full access to Second Street will be afforded, according to present plans. None of the structures on the lot are disturbed.

The appellant Department presented two witnesses as to values. They expressed opinions that the after value would range from $5,700 to $6,050 less than the before value. Each of these witnesses testified that an additional $500 should be awarded for the temporary easement. It is observed that the before value expressed by one of these witnesses was $30,000; the after value was stated as $24,300, resulting in the $5,700 difference. The other witness placed the before value at $27,350 and the after value at $21,300, reflecting the difference as $6,050.

For the appellees three witnesses gave before and after values as follows:

Before Value After Value Difference
$49,335 $38,374 $11,861 (sic)
53,870 42,470 11,400
50,500 40,000 10,500

The first of appellees’ witnesses (an owner) did not make any specific reference to any allowance for the temporary easement, although he expressed the view that the change in grade of the highway had a depressing effect on the after value of the remaining lot. The next witness for ap-pellee valued the temporary easement at $1.00 per square foot, or $1,625; this, added to his $11,400 difference in before and after values, resulted in his total estimate of award due of $13,025. The third witness for appellee placed $1,500 as the value of the temporary easement, so that his total award figure reached $12,000, although for some unexplained reason his testimony is that the total amounts to $11,673.

The first point urged by appellant relates to whether evidence for appellees was based upon incompetent and irrelevant factors. In general, the basis for this contention is that witnesses for appellees related that they took into consideration the extent of contemplated damage to the existing service station business. However, the specific portions of testimony to which appellant makes reference, when read in their context, clearly indicate that the witnesses did not base their valuations upon contemplated loss of profit to the existing service station. One of the witnesses expressed the thought that the “temporary” easement was “permanent”; but fairly read, his statement merely incorporated his opinion that the effect of the sloping will have a permanent effect on the remaining lot despite the fact that the condemnor’s easement to put it there was temporary. We find no merit in the first point presented.

A more serious question is presented in considering the amount of the verdict in light of the evidence. Witnesses for each side related details of sales of two tracts of land, the Campbell property immediately adjoining the subject property to the east, and the other designated as Taylor County Bank property, immediately east of the Campbell property. To all intents and purposes, the Campbell and Taylor Bank properties are as nearly identical with ap-pellees’ property as may be found. The differences exist chiefly in the fact that both the Campbell and Taylor Bank properties possess twice the frontage as that of the subject lot. The improvements on the latter two lots apparently did not figure measurably in their sales, since in each instance the improvements were demolished. Each of them had frontages on both First and Second Streets, their depth being identical with that of appellees’ lot.

The Taylor Bank property was sold before the reconstruction of Second Street for $50,000. The price was for an average, of approximately $2.33 per square foot. The Campbell land was sold after the right of way had been taken, so that its depth was reduced exactly as appellees’ lot will be. The Campbell property also brought $50,000, so that the per square foot price approximated $2.93. The evaluations ascribed subject property by witnesses for appellees equal $4.25 (and up) per square foot. The only sales suggested by appellees supporting the substantial increase in square foot price are admittedly much nearer the “hub” of the community and in a more valuable section. We are not to be understood as saying that the Campbell and Taylor County Bank sales completely control the evaluations of the appellees’ property, but we cannot escape the conclusion that absent some significant distinction, they are of high probative quality. Apart from the fact that the lot of the appellees is slightly nearer the center of the business district, and except for a small differential in the matter of street grade, there is no material difference intimated in the record whereby to distinguish those properties from the land under consideration. Under these circumstances we are impelled to the view that the probative quality of the evidence for appellees is not sufficiently strong to sustain the verdict. It follows that the verdict, resting on that basis, is excessive. See Com. Dept. of Highways v. Tyree, Ky., 365 S.W.2d 472, and Com. Dept. of Highways v. Scott, Ky., 385 S.W.2d 330.

The judgment is reversed for proceedings consistent with this opinion.


author: PALMORE, Judge. MONTGOMERY, Judge

text:
    Clyde COLLIER, Jr., Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    March 5, 1965.
    Clyde Collier, Jr., pro. se.
    Robert M. Matthews, Atty. Gen., Charles W. Runyan, Asst. Atty. Gen., for appellee.
   PALMORE, Judge.

Clyde Collier, Jr., appeals from a judgment overruling, without a hearing, his RCr 11.42 motion to vacate the judgment by which he was convicted of armed robbery and sentenced to life imprisonment. Cf. KRS 433.140.

Under the broad principle followed by the U. S. Supreme Court in Fallen v. United States, 378 U.S. 139, 84 S.Ct. 1689, 12 L.Ed.2d 760 (1964), we decline to dismiss the appeal on the ground it was not timely.

The ground stated in the motion is that the conviction was induced by improper reception of evidence obtained by a search conducted in violation of the 4th Amendment of the U. S. Constitution. Collier was represented by counsel of his own choice at the trial.

RCr 11.42 is patterned after 28 U.S. C.A. § 2255, which did not enlarge the scope of review theretofore permitted by habeas corpus and is not a substitute for a timely appeal. See King v. Commonwealth, Ky., 387 S.W.2d 582 (decided February 27, 1965); Tipton v. Commonwealth, Ky., 376 S.W.2d 290 (1963).

Since Mapp v. State of Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), a question has arisen as to whether previous convictions in states that did not have the exclusionary rule are subject to collateral attack. Thus in Hall v. Warden, Maryland Penitentiary, 313 F.2d 483 (4th Cir. 1963), it was held that a Maryland conviction based on illegally seized evidence could be attacked in a federal habeas corpus proceeding. But that was because at the time the petitioner was tried in the Maryland court he could not have known that Mapp would change the law, and was therefore ignorant of his constitutional rights and unable to protect himself. A contrary result has been reached with respect to conviction in a state which, like Kentucky, already had its own exclusionary rule. Sisk v. Lane, 331 F.2d 253 (7th Cir. 1964).

Except for the possible effect of the Mapp decision on previous trials held in states that permitted the introduction of evidence which now would be impermissible under the 4th and 14th Amendments of the U. S. Constitution, it is firmly settled that the reception of evidence obtained by an unlawful search is an error that can be attacked only by timely motion for new trial or by appeal. It has never been a ground for review under 28 U.S.C.A. § 2255.

“Assuming that the evidence could have been suppressed by proper motions before or during the trial, it is extremely doubtful that objection to the evidence can be raised at this late date by motion under 28 U.S.C.A. § 2255. Such a motion cannot ordinarily be used in lieu of appeal to correct errors committed in the course of a trial, even though such errors relate to constitutional rights.” (Emphasis added.) United States v. Walker, 197 F.2d 287 (2d Cir. 1952), cert. den. 344 U.S. 877, 73 S.Ct. 172, 97 L.Ed. 679.

It is “well established that the complaints of illegal arrest and illegal search are not proper matters to be presented by a motion to vacate sentence under § 2255 but can only be properly presented by appeal from the conviction.” Warren v. United States, 311 F.2d 673 (8th Cir. 1963).

“Questions concerning the admissibility of evidence obtained directly or indirectly as a result of an unlawful search can be reviewed on an appeal from a judgment of conviction, but cannot be dealt with in a section 2255 proceeding.” Williams v. United States, 307 F.2d 366 (9th Cir. 1962).

“It is established that a search and seizure may not be attacked under Section 2255.” Wilkins v. United States, 103 U.S.App.D.C. 322, 258 F.2d 416 (1958), cert. den. 357 U.S. 942, 78 S.Ct. 1396, 2 L.Ed.2d 1557.

To similar effect see Way v. United States, 276 F.2d 912 (10th Cir. 1960); Sinks v. United States, 318 F.2d 436 (7th Cir. 1963), cert. den. 375 U.S. 946, 84 S.Ct. 355, 11 L.Ed.2d 279; Eberhart v. United States, 262 F.2d 421 (9th Cir. 1958); Plummer v. United States, 104 U.S.App.D.C. 211, 260 F.2d 729 (1958); Barber v. United States, 197 F.2d 815 (10th Cir. 1952), cert. den. 344 U.S. 857, 73 S.Ct. 94, 97 L.Ed. 665; and United States v. Edwards, 152 F.Supp. 179 (D.D.C.1957), aff’d 103 U.S.App.D.C. 152, 256 F.2d 707, cert. den. 388 U.S. 847, 79 S.Ct. 74, 3 L.Ed.2d 82.

See also Whitley v. Steiner, 293 F.2d 895 (4th Cir. 1961), for discussion of the principle that a denial of constitutional rights will authorize collateral relief only under certain exceptional circumstances.

It follows that the motion in this case was insufficient on its face and was properly overruled summarily.

The judgment is affirmed.

MONTGOMERY, Judge

(dissenting).

I respectfully dissent from so much of the majority opinion as declines to dismiss the appeal.

The majority opinion points out very thoroughly and convincingly- that there is no merit in the arguments advanced on appeal but fails to discuss the failure to dismiss the appeal. The record shows that appellant’s notice of appeal was not filed within the time provided by RCr 12.54. Extension of such time is expressly prohibited. RCr 1.10. The latter rule also provides that the provisions of the Rules of Civil Procedure as to time shall apply to the procedures in the Rules of Criminal Procedure when the latter rules do not specifically provide otherwise.

By analogy, under the Rules of Civil Procedure, the running of the appeal time is not affected by the failure of the party adversely affected to receive notice of entry of the judgment or order. Brown v. Harris, Ky., 321 S.W.2d 781; Commonwealth Dept. of Highways v. Hatcher, Ky., 386 S.W.2d 262 (decided January 22, 1965). The time requirement is mandatory and jurisdictional. Electric Plant Board of City of Hopkinsville v. Stephens, Ky., 273 S.W.2d 817; Hawks v. Wilbert, Ky., 355 S.W.2d 655.

The failure to discuss the dismissal contention raises pertinent questions which, should have been considered and answered. Does the majority opinion mean that the-pertinent Rules of Criminal Procedure have-been abrogated? Is this true in cases of' direct appeal from judgments of conviction and in appeals from rulings in RCr 11.42' cases alike, or does it apply only to the latter as in this case? Fallen v. United States, 378 U.S. 139, 84 S.Ct. 1689, 12 L.Ed.2d 760, given as authority for sustaining the appeal, dealt with a direct appeal from a judgment of conviction. This might be-considered as distinguishing it from this case, although I am not convinced that Fallen is right.

Does the majority opinion apply only to-prisoners or indigent accuseds or does it apply alike to all who may have run afoul of the criminal la.ws? If it does not apply to all, then it is indicative of a double standard of justice which has no proper foundation and should not be.

Will the majority opinion become known as the Collier exception to the established rule? RCr 13.08 provides the method of amending the Rules of Criminal Procedure-How is it affected by such change? Is the Court falling into the childish practice of changing its rules in the middle of the game, so to speak, as each case arises?

It seems to me that the majority opinion should have answered these questions for the guidance of the bench and bar instead of leaving their members to guess as to its meaning.

I agree that the appellant is entitled to no relief but his meritless appeal should have been dismissed. The Court could better occupy its time in consideration of more deserving litigation.

For these reasons I respectfully dissent.

      . RCr 11.42 provides a direct attack, but only on grounds that would otherwise sustain a collateral attack. Higbee v. Thomas, Ky., 376 S.W.2d 305, 307 (1963).


text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. Burnett W. NAPIER et al., Appellees.
    Court of Appeals of Kentucky.
    March 5, 1965.

      John B. Breckinridge, Atty. Gen., Wm. A. Lamkin, Jr., Asst. Atty. Gen., George P. Stavros, Frankfort, Reed D. Anderson, Atty., Madisonville, for appellant.
    H. B. Noble, Hazard, for appellees.
   DAVIS, Commissioner.

In this condemnation proceeding the Department of Highways is acquiring portions of two lots owned by the appellees. The Department prosecutes this appeal, seeking to overturn the trial court’s judgment for $25,000 in favor of the appellees, premised upon two assignments of error: (1) the verdict is excessive and unsupported by sufficient evidence of probative value, and (2) the trial court erred in failing to strike testimony reflecting that a noncompensable factor was used in support of claimed reduction of after value.

The two lots involved are situated in the Walkertown Addition to Hazard and are on opposite sides of Kentucky Highway 15. The present condemnation is to acquire land incident to construction of the Walk-ertown Interchange on an extension of Eastern Kentucky Parkway. Throughout the record the lots were referred to as Lot No. 3 and Lot No. 11; for convenience we shall use those designations.

Lot No. 3 fronts on the west side of Kentucky Highway 15 (which serves as the Main Street of Hazard). Before the taking this lot had frontage on the highway for 77.8 feet; its depth was about 460 feet, its shape generally rectangular. The rear portion of the lot’s described boundary is within the waters of the North Fork of the Kentucky River. Of the 42,323 square feet embraced in the original boundary, 4,5J-7 square feet are in the river. The taking by the Department includes slightly more than thirty-seven thousand square feet, including the portion under water. All that is left of Lot No. 3 after the taking is a wedge shaped plot, having frontage of 35.4 feet on Highway 15. The frontage is the widest portion of this remaining wedge, which narrows to zero as it traverses its remaining depth of about 240 feet. There was no building or other improvement on Lot No. 3 at the time of the taking.

Lot No. 11 had frontage of 102.3 feet on the east side of Highway 15 before the taking. It had depth of about 262 feet and was slightly narrower in the rear than in front. There was an offset in the front line of Lot No. 11, although it was substantially rectangular prior to the taking. The original boundary of Lot No. 11 contained about 21,547 square feet; the taken portion includes 7,182 square feet, so that slightly more than 14,000 square feet remain. The plot taken from Lot No. 11 is a rectangle, having frontage of 30.8 feet on Highway 15, and upon which was located a small two-room building which had once served to house a radio transmitter. The building was not in use at the time of the taking, and it appears that it had been allowed to fall into disrepair. The highway frontage remaining to Lot No. 11 is 69.5 feet; its depth is not changed, although the rear line of the lot is left at 37.3 feet after the taking.

There was evidence that a bridge will be constructed as a part of the project, and that the piers supporting the bridge, together with certain other factors, will create added drainage burdens on the remaining portion of the two lots.

For the appellant condemnor two valuation witnesses expressed their opinions as to before and after value, which we lump, although the witnesses gave breakdowns for each lot:

Before Value After Value Difference
$14,835.00 $6,445.00 $8,390.00
15,750.00 6,900.00 8,850.00

In sharp contrast, the witnesses for the appellees gave their estimates of values:

Before Value •After Value Difference
$49,660.00 $10;760.00 $38,900.00
49,600.00 8,180.00 41,480.00
44,709.00 4,461.00 40,248.00

It is interesting to observe that in its verdict the jury made separate findings as to the before and after values, by placing the before value of the two lots at $30,000.00 and the after value of them as $5,000, thus arriving at the $25,000 verdict

The appellant urges that the evidence for the appellees is so incredible and contrary to common knowledge as to lack probative value sufficient to support the award. Reliance is had upon Commonwealth Dept. of Highways v. Lyons, Ky., 364 S.W.2d 336, and Commonwealth Dept. of Highways v. Tyree, Ky., 365 S.W.2d 472. While we adhere to the principles stated in those decisions, we do not find it necessary to pass upon the question of their application here. It is our view that the case must be reversed upon the second ground urged, so that we do not adjudicate the question of excessiveness — that question is specifically reserved.

Since there may be another trial, we take occasion to refer to one particular in which appellant assails the probative quality of the evidence for appellees. This attack relates to the evidence pertaining to some comparables mentioned by witnesses for appellees.

It appears that some nearby lots had been sold to Standard Oil Company, and the residences on some of the lots had been torn down by the oil company. It was elicited on cross-examination that two witnesses for appellees did not ascribe any value to the improvements on these lots “because they were of no use to Standard Oil.” At most, we think, this was a matter going to the credibility of the particular evidence of the witnesses, and the extent of comparability of the cited sales. The jury did not accept the “before” value of the witnesses by some $19,660. It may not be doubted that instances occur wherein the existing improvements make no contribution to market value.

The other value witness for the ap-, pellees admitted that he had not been aware of the fact that over 4,500 square feet of Lot No. 3 are in the river. This too, as we view it, serves to assail the credibility of the witness, but does not afford basis to rule that the entire evidence is so incredible and contrary to common knowledge as to lack probative value. The before value fixed by this witness was $44,709, some $14,709 more than found by the jury as before value.

A more serious question is presented as respects the refusal of the trial court to strike certain testimony relating to a noncompensable item of damage. On cross-examination a witness for appellees expressly testified that he attributed a portion of the reduced after value to the fact “ * * * a lot of traffic would be diverted on the new highway and wouldn’t pass in front of any business that might be placed on this lot, I took the remaining value of one-half of the $258.00 I was originally using per front foot, which would be $129.00 per front foot on Lot No. 11.” (The witness had said that the fact that the bridge would be there also reduced the after value.) The appellant’s counsel • promptly moved the court to strike the testimony because of use of the noncompensable item of diversion of traffic. The court overruled the motion. When the witness was asked again, on cross-examination, to enumerate the factors which he considered as reducing the after value of Lot No. 11, he again related that the diversion of traffic was one of the factors. When appellant’s counsel moved to strike that testimony, the trial court responded: “You asked him yourself. You brought it out willfully and deliberately. I’ll overrule your objection.”

We think it is beyond cavil that diversion of traffic is a noncompensable item. Commonwealth Dept. of Highways v. Carlisle, Ky., 363 S.W.2d 104; Commonwealth, Dept. of Highways v. Slusher, Ky., 371 S.W.2d 851, and cases therein discussed. Moreover, as was pointed out in Commonwealth Dept. of Highways v. Tyree, Ky., 365 S.W.2d 472; West Ky. Coal Co. v. Commonwealth Dept. of Highways, Ky., 368 S.W.2d 738; and Commonwealth, Dept. of Highways v. Cardinal Hills Nursery, Inc., Ky., 380 S.W.2d 249, it is proper for the cross-examination to delve into the factors used by a valuation witness— and this for the express purpose of testing whether that witness has based all or part of his appraisal on any improper factor. When the attorney does elicit such admission from the witness he is not to be visited with the principle that he, the attorney, has foreclosed his right to object because he asked the question. The colloquy just recited had the added prejudicial effect of placing the trial court’s firm approval on the erroneous damage factor. In such a circumstance, and in light of the appearance of liberality in the verdict, we are not able to say that this was harmless error. (It may not be said that the factor of diversion of traffic was the sole or principal basis for the witness’s depreciation of “after” value, such as would make his entire evidence subject to being stricken. Cf. the Tyree and West Kentucky Coal opinions above cited.)

The judgment is reversed for proceedings consistent with the opinion.


author: MONTGOMERY, Judge.

text:
    David SALISBURY et al., Appellants, v. COLUMBIAN FUEL CORPORATION et al., Appellees.
    Court of Appeals of Kentucky.
    March 5, 1965.

      Joe Hobson, Prestonsburg, for appellants.
    C. Kilmer Combs, Ashland, for Colum-bian Fuel Corp.
    Paul C. Combs, Prestonsburg, for Gretchen and Bennie Lafferty.
   MONTGOMERY, Judge.

David Salisbury and Betty Lou, his wife, appeal from a judgment by which Gretchen Lafferty and Bennie, her husband, were awarded the free use of gas under a lease now held by Columbian Fuel Corporation. Columbian’s only interest is in knowing who is entitled to the gas.

The pertinent portion of the lease follows:

“Lessor to have gas free of cost from any such well for all stoves and all inside lights in the principal dwelling house on said land * * *.”

K. B. Hall and Maggie, his wife, became the joint owners of a large boundary of land, subject to the lease, upon which the principal dwelling house was situated. They lived in the house and enjoyed free gas until the house was destroyed by fire. Thereafter, the Halls occupied a dwelling on the premises, which formerly had been rented, known as the “Rent House.” While there the Halls had free gas until 1936. In that year the Halls erected a new house on the former site of the principal dwelling, where they lived and used the free gas until K. B. Hall died.

On August 24, 1957, Maggie Hall and seven children of K. B. Hall, as his widow and heirs at law, executed a deed by which they divided the lands owned by them. Gretchen Lafferty received Parcel No. 5, which was part of the surface covered by the leasehold. The concluding sentence following a description of her tract is: “It is understood Parcel No. 5 will have free gas to the house on said described land.” Grace Floyd, the predecessor in title of appellants, received Parcel No. 6, which also was a part of the surface covered by the leasehold. The rebuilt principal dwelling house was located on Parcel No. 6.

Appellants instituted this action and claimed the right to free gas. The lower court held that Gretchen Lafferty was the only person entitled to free gas under the lease and that appellants were estopped to question her right to such use.

Appellants contend that the covenant to furnish free gas is a personal one, extending only to the person owning the principal dwelling house on the lands, relying on Coleman v. Lindsey, 314 Ky. 273, 234 S.W.2d 950, and Patrick v. Allen, Ky., 350 S.W.2d 481.

The rule, as stated in Patrick v. Allen, is that the right to the use of free gas created by lease or deed is a covenant running with the land unless the language of the instrument clearly creates a personal right. The criterion for determining whether a covenant runs with the land or is merely personal is the intention of the parties. A recitation in a conveyance, and repeated in a subsequent conveyance, in favor of a grantor, his heirs and assigns indicates a covenant running with the land. Maynard v. Ratliff, 297 Ky. 127, 179 S.W.2d 200. The customary method of creating such a covenant is to bind the grantor’s assigns. 14 Am.Jur., Covenants, Conditions and Restrictions, Section 6, page 485. See United Fuel Gas Co. v. McCoy, Ky., 307 S.W.2d 176, and cases collected therein.

The lease contains the following provision :

“If the estate of either party hereto is assigned, and the privilege of assigning in whole or in part is expressly allowed, the covenants hereof shall extend to their heirs, executors, administrators, successors or assigns * *

A. C. Webb and wife executed the lease in question to Ward Allen in 1923. In a division of the Webb land the tract in question was conveyed to K. B. and Maggie Hall. Columbian is the successor in title to Allen. Thus, the respective rights and obligations under the lease concerning free use of gas have been made binding on the Halls and Columbian by subsequent conveyances. This is a clear indication that the covenant is one to run with the land instead of being personal.

The fact that the gas has been furnished to three houses, the original principal dwelling, the replacement to it, and the “Rent House,” indicates that the covenant runs with the land and is not personal, and it has been so considered by all the parties concerned until appellants acquired Parcel No. 6. In the division of the Hall lands the provision in favor of Parcel No. 5 shows that the Halls did not consider the covenant personal or restricted to the principal dwelling house. On the contrary, it was considered a right incident to ownership of the surface. As quoted, the lease expressly provides for assignment in whole or in part. Such division was contemplated by the parties. No reason is advanced why all of the surface owners, without objection by the lessee, could not have assigned or disposed of the right to free gas so long as it continued to run with some part of the surface and was not enlarged. The right to free gas undoubtedly was considered as one factor in arriving at an equal division of the Hall lands. The conclusion is that the covenant was one running with land which was assignable to a portion of the surface. Appellants have not shown clearly that the covenant was intended as a personal one.

The cases relied on by appellants, including Warfield Natural Gas Company v. Moore, 281 Ky. 689, 136 S.W.2d 1086, do not stand for the proposition advanced by appellants that the covenant is for the sole benefit of the person owning the principal dwelling house. A reading of the cases relied on reveals that they stand for the proposition that the covenant runs with the land and cannot be enlarged. In the Moore case, use of gas in a tenant house piped from the main dwelling was prohibited. The use of the gas in a different house on the lands is not a violation of the covenant so long as the use is limited to one house as provided in the lease.

Judgment affirmed.

HILL, J., not sitting.


text:
    James J. BUTLER, Jr., et al., Appellants, v. COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellee.
    Court of Appeals of Kentucky.
    March 5, 1965.
    Henry J. Burt, Jr., W. Howard Clay, Louisville, for appellants.
    John B. Breckinridge, Atty. Gen., William A. Lamkin, Jr., Asst. Atty. Gen., Raleigh O. Jones, Dept, of Highways, Louisville, for appellee.
   PALMORE, Judge.

The dispositive question on this appeal arises from the alleged misconduct of one of the jurors during the trial of a condemnation case.

On the second morning of the trial, before the Commonwealth had completed the introduction of its evidence and before any valuation witnesses had testified, the witness Lewis R. Long was permitted to appear out of order in behalf of the landowners because it was necessary for him to leave town that day. Immediately after he had given his opinion to the effect that the property in question had a fair market value of $2,000 per acre at the time of the taking, an objection was made, whereupon counsel and the trial judge retired from the presence of the jury, leaving Long in the witness chair and the jurors in the jury box. According to Long’s affidavit later filed in support of the landowners’ motion for a new trial, during this brief recess several of the jurors “were talking among themselves in regard to this property” and one of them stated that “no land out there is worth $2,000 an acre.”

Facts stated in an affidavit supporting a motion for new trial will be taken as true unless countered. Roland v. Eibeck, Ky., 385 S.W.2d 37, 41 (1964). Certainly Long’s affidavit, if untrue or inaccurate, could have been contradicted by affidavits from others present at the trial, including the jurors themselves.

The Commonwealth does not question the affidavit, but suggests that the juror’s comment was just a casual remark not indicative of any prejudice. With much regret at the necessity of remanding this excellently tried case for a new trial, we are forced to a different conclusion. The value of the land was the heart and soul of the case. Two witnesses for the condemnor fixed it at $870 and $850 per acre, respectively. The appraisals of six witnesses for the landowners ranged from $1,800 to $2,000 per acre. The jury eventually determined that the value of the portion taken was $900 per acre. At the time-the bumptious juror injected his unsolicited opinion only one of these figures had been, given, and that was $2,000. The only possible basis for his scoffing at that estimate-before hearing the others was prejudice.

KRS 29.302 provides that when a. jury is permitted to separate the jurors-must be admonished to the effect that “during the trial, it is their duty not to form or express an opinion thereon, until the causé-is finally submitted to them.” The admonition given to the jurors by the trial court when they separated the evening before this particular incident happened was not exactly in the form required by the statute, but we do not believe that is material, because the right to a fair and impartial jury is. fundamental. It does not rest on the statute and it does not rest on the giving or not giving of an admonition. It inheres in the woof and warp of the jury system itself.

“The conduct of the jury after they are impanelled is a matter of very great concern. The law, before their selection, insists on impartiality between the parties; hence, any exhibition of favor toward either of the parties, by act or expression, will be fatal to their proceedings.” Proffatt on Jury Trial, § 386 (p. 449).

Normally the trial court is allowed much discretion in determining the prejudicial effect of a juror’s misconduct, particularly if there is an opportunity to give a curative admonition. Here there was no such opportunity. The amount of the verdict when viewed against the evidence and the context of the juror’s remark is what our brethren of the medical profession would term “consistent” with the existence of prejudicial effect. Moreover, since the verdict in a condemnation case must be unanimous, ipso facto one had apple is one too many. We hold that there was no leeway for discretion; the landowners were entitled to a new trial as a matter of law.

Except for two further points, the questions raised on this appeal may not arise upon retrial and we need not consider them. The first point is this: According to affidavits filed with a motion by the landowners that they he accorded the burden of proof and final argument, the Commonwealth had offered them more money in settlement than the amount of $35,000 fixed by the county court commissioners, remained willing to pay the offered amount even after the county court award, and admittedly appealed to the circuit court only for the procedural advantage. Hence, say the landowners, the Commonwealth’s appeal was a sham and it should not have been allowed the burden.

When one has an undoubted right to appeal, it would not do for the courts to question too closely his motives in so doing. The give and take of compromise efforts must be allowed in condemnation cases as it is in others. In our adversary system lawsuits are still battles, even when the state is pitted against one of its citizens. And until a truce is struck neither side can be expected to rest on its arms merely because it has reached a point at which it would be glad for the battle to end. The warrior whose offer of quarter is spurned must fight on to win whatever he can. The action of the trial court in overruling the motion was proper.

The remaining point is that it was error to exclude testimony offered by the landowners to show what the highway department paid in a negotiated acquisition of adjoining property in connection with the same project for which their property has been condemned. But as pointed out in Commonwealth, Dept. of Highways v. McGeorge, Ky., 369 S.W.2d 126, 128 (1963), the reason for exclusion of such evidence is particularly applicable in right-of-way cases, because both parties are under some degree of compulsion. The evidence is not admissible.

The judgment is reversed and the cause remanded for a new trial.

      . As the incident occurred in the absence of court and counsel it was not disclosed until after Long. had returned and the trial was over.

      . Lord Mansfield’s rule against a juror’s impeaching his own verdict, even if it were otherwise applicable in this instance, does not exclude a juror’s testimony in support of a verdict. Wigmore on Evidence, § 2354 (Yol. 8, p. 714), citing Kentucky decisions in accord.

      .Literally, the statute does not apply unless and until there is a separation.

      . Franklin County v. Bailey, 250 Ky. 528, 63 S.W.2d 622, 627 (1933), and earlier cases tlierein cited.

      . With respect to the measurement of damages, Commonwealth, Dept. of Highways v. Sherrod, Ky., 367 S.W.2d 844 (1963), will apply.


author: CULLEN, Commissioner.

text:
    J. H. McGIBONEY, Appellant, v. BOARD OF EDUCATION OF MIDDLESBORO, Kentucky, Appellee.
    Court of Appeals of Kentucky.
    March 5, 1965.

      Watson & Watson, Middlesboro, for appellant.
    Glenn W. Denham and A. Henry Ralston, • Middlesboro, for appellee.
   CULLEN, Commissioner.

J. H. McGiboney brought action against the Board of Education of the City of Middlesboro seeking to quiet his title to a tract of land in the city. He was successor in title to all of the property of the Middles-boro Town and Lands Company, which in 1907 had deeded the tract in question to the school board, and his claim of title was based on the proposition that under the terms of the deed the title to the tract automatically reverted to the company in 1909. The circuit court entered judgment rejecting his claim and he has appealed.

The deed, which recited a consideration of $600, contained this provision (following the habendum clause) :

“The said party of the second part covenants for itself, its successors and assigns, that the land above conveyed shall be used for no other than colored school purposes, that a good and substantial school building, to cost not less than Eight Thousand Dollars ($8,000.-00) shall be erected on said land within two years from the date of this instrument, and that in the event of its failure to erect such a building within two years, the land hereby conveyed shall at once revert to the party of the first part and the sum of $600.00 shall be repaid to the party of the second part.”

No school building ever was erected on the tract. A colored school building was erected in 1908 on adjoining land, and the tract in question was used thereafter, until this lawsuit was brought in 1963, as the school playground. (However, the circuit court found that the school board had not acquired title by adverse possession and there is no cross-appeal from that ruling.) Admittedly, the $600 consideration was never tendered back or repaid to the school board, and no claim to the property was asserted by the original grantor or any successor to its property until the instant suit was filed.

The appellant maintains that the deed created a determinable fee and that upon the lapse of two years without erection of a building the title automatically reverted to the grantor without necessity of re-entry. We find this proposition unacceptable.

Were it not for the provision in the deed for return of the consideration, the deed clearly would have created a determinable fee. See Fleming County Board of Education v. Hall, Ky., 380 S.W.2d 273. But in our opinion the provision for return of the consideration negatives the existence of a determinable fee.

The theory of a determinable fee is that there is an ungranted interest retained by the grantor, called a possibility of reverter, which automatically blossoms into full title upon the occurrence of the limiting event. See Barren County Board of Education v. Jordon, Ky., 249 S.W.2d 814. The deed before us, however, does not in reality provide for an automatic reversion; in true effect it provides only that the grant- or may buy back the property by returning the consideration.

Clearly there is no way in which the $600 consideration could automatically revert to the grantee, in the sense of vesting the grantee with title and right to possession of specific units of money. The grantee could obtain title to and possession of the consideration only by some affirmative act. Accordingly, it is not to be believed that the parties could have intended that the land would automatically revert, without any affirmative act by either party.

In our opinion the deed in question contemplated only a right of repurchase, in that the grantor, by tendering back the purchase price, could recover the land. This construction of the deed is consistent with the grantor’s having had the perfectly normal and reasonable desire to retain an option to repurchase the land in the event it were not used for a school building.

The law does not favor forfeitures and a deed will not be construed to create a conditional estate unless the language clearly evinces such an intent. Holbrook v. Board of Education, Ky., 300 S.W.2d 566. We think it would be unreasonable to firrdi in the deed before us an intent that the-land should automatically be forfeited but: the grantee should be left merely with a. chose in action for recovery of the purchase price.

It is our opinion that the deed did not leave in the grantor any ungranted property interest in the land, which is necessary to the existence of a determinable fee. The deed gave the grantor only a contract right. Enforcement of that right admittedly has been barred by limitations.

Under the view we have taken it is immaterial that the trial court relied in part on parol evidence heard for the purpose of determining the intentions of the parties and the circumstances attending the execution of the deed. The parol evidence has no significance in the decision of the case.

The appellant maintains that the trial court erred in overruling a motion to compel the school board to pay expenses incurred by the appellant in employing a person to examine the minutes of the board'. The appellant had served a request for admissions on the board asking the board to make admissions, in substance, that the minutes from 1907 to the present time did not mention the land in question or any transactions or official action involving it. The board answered, denying the allegations-of the request “because they are conclusions drawn by the plaintiff based upon the minutes of the Board of Education and it is the contention of the defendant, Board of Education, that its minutes speak for themselves.”

In our opinion the requested admissions were not properly within the scope of CR 36.01 because they did not seek the truth of vital controversial issues of fact, but rather they sought admissions concerning the existence of evidence. The rule may not be employed as a substitute for discovery or for eliciting evidence. Driver v. Gindy Mfg. Corp., D.C.Pa., 24 F.R.D. 473. Accordingly, the circuit court correctly refused to apply CR 37.04, which authorizes the imposition of expenses on a party who without good reasons denies the truth of any “matters of fact,” properly requested to be admitted under CR 36.01.

The judgment is affirmed.


text:
    Helen Lebus MAYES et al., Appellants, v. Robert M. WATT, Jr., Appellee.
    Court of Appeals of Kentucky.
    Dec. 4, 1964.
    Rehearing Denied March 26, 1965.
    Weldon Shouse, Shouse & Barker, Lexington, for appellants.
    J. C. Helton, Pineville, for appellee.
   CULLEN, Commissioner.

Helen Mayes and her husband, Robert, appeal from a judgment awarding Robert M. Watt, Jr., $50,000 damages for malicious prosecution.

Various grounds of error are asserted but we find it necessary to consider only the ground that the defense of advice of counsel was established as a matter of law and the trial court therefore erred in overruling the appellants’ motions for a directed verdict and for judgment n. o. v.

The claim of malicious prosecution arose out of the appellants’ having caused to be issued a warrant charging the appellee with a violation of KRS 435.240(3), which among other things makes it a felony for a divorced parent not having lawful custody of a child to take and carry away the child from the custody of the other parent, to whom the custody was awarded by the judgment of divorce, without the consent of that parent.

The appellee asserts only two respects in which he claims the appellants failed to establish satisfaction of the requirements of the defense of advice of counsel. They are: (1) The evidence warranted a conclusion that the appellants-proceeded contrary to the advice of their counsel; and (2) the appellants did not disclose all the material facts to their counsel.

As concerns the first point, an attorney-employed by the appellee’s father (the father was actively participating in the controversy on behalf of appellee) testified that in a conference with appellants’ counsel on the morning of the day on which the warrant was issued (it was issued around 4:30 p. m.), the latter said that he had advised his clients “not to get the warrant because he didn’t think it would stick.”

The evidence shows that after the morning conference appellants’ counsel returned to his office and did research on the legal aspects of the case, and came to the conclusion that the facts established guilt of the offense for which the warrant later was issued. He then had further conversations with his clients, the appellee’s father, the latter’s attorney, and the justice of the peace who was called upon to issue the warrant. He testified unequivocally that he then advised his clients to have the warrant issued. His clients fully corroborated that. The testimony of the justice of the peace shows that appellants’ counsel made the final decision that the warrant should be issued.

Giving full value to the evidence concerning the counsel’s statement at the morning conference, it proves no more than that the counsel previously had advised his clients not to obtain the warrant and at that time he “didn’t think it would stick.” However, the appellants’ evidence establishes without contradiction or even a suggestion of doubt that thereafter the counsel, upon further legal research, became convinced that there were valid grounds for issuance of the warrant; he then advised his clients to obtain the warrant; and the warrant was issued upon his advice.

With respect to the second point, it is contended that appellants failed to disclose to their counsel a material fact, in that they did not tell him that on the occasion out of which arose the charge that the appellee had taken and carried away his son from the lawful custody of the mother (the appellant Mrs. Mayes), the son had gone with the father willingly and in fact had asked his father to take him away.

We think the evidence shows that the appellants did disclose this fact to their counsel, because the counsel testified that Mrs. Mayes told him of a telephone conversation with her son the morning after the alleged taking away of the son, and the evidence shows that in that conversation the son had told his mother that his going away with his father was his own idea.

In any event, whether the son went willingly and at his own request was not a material fact as concerned the elements of the crime denounced by KRS 435.240(3). Certainly appellants’ counsel did not consider it a material fact, because at the conference with appellee’s father and his attorney on the morning of the day the warrant was issued, the fact that the boy had gone willingly was discussed with appellants’ counsel, and he then and there stated that in his opinion whether or not the boy went willingly was immaterial. In our opinion there was no failure of disclosure of a material fact.

In appellee’s brief it is suggested that appellants’ counsel acted unreasonably in advising his clients to obtain the warrant. We are not aware of any rule that the advice must be sound in order to sustain the defense of advice of counsel (we do not intend to suggest that the advice here was not sound).

It is our conclusion that the appellants established as a matter of law all of the necessary elements of the defense of advice of counsel, which defense is a complete one to a claim of malicious prosecu-t'ion. See Moser v. Fable, 164 Ky. 517, 175 S.W. 997; Stanhope v. Cincinnati, N.O. & T.P. Ry. Co., 210 Ky. 674, 276 S.W. 567.

The judgment is reversed with directions to enter judgment for the defendants in accordance with their motion for judgment M. o. v.


author: MILLIKEN, Judge."

text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. Roscoe TERRY et al., Appellees.
    Court of Appeals of Kentucky.
    March 5, 1965.
    Joh'n’B. Breckinridge, Atty. Gen., William A. Lamkin, Jr., Asst. Atty. Gen., Reed D. Anderson, Atty., Madisonvillfe, for appellant.
    Henry Spencer, Moss Noble, Jackson, for appellees.
   MILLIKEN, Judge."

The appellees owned a three-year old, insulated, five-room frame home with a forced air coal furnace and up-to-date plumbing and wiring, situated beautifully on about an acre and a half of farm land which was taken by the State for the construction of the Mountain Parkway Extension, near Jackson in Breathitt County. - A little over eight acres of the farm were left. The jury gave its verdict in the following form and judgment for the total amount was entered accordingly:

“Value of the 1.41 acres
condemned $ 4,000.00
Damages to the remainder 12,000.00
Our total award therefor is 16,000.00”

Although it is not relevant as evidence, it is interesting to note that an identical total award had been made by the county court which the State appealed to the Circuit Court.

The Department of Highways complains on this appeal that “there is no evidence whatsoever that will support the $12,000 awarded by the jury in its verdict as damages to the remainder.” Whatever the form of the verdict, it is apparent to us that a substantial allowance had to be made for the taking of the home or house itself and there is credible testimony that the value of the house alone was $13,000 to $14,000. Loss of the home necessarily must be reflected in the allowance for remainder damage, for it is reflected nowhere else. It is implicit, of course, that the Department contends that the total award was excessive, but we do not find it so on the basis of this record and the briefs tendered to support counsels’ contentions. According to the owners their best farm land was taken and according to one of their witnesses the beautiful location of the home on the land was a factor he considered in his appraisal of the market value before the taking. This case was tried before Commonwealth, Department of Highways v. Sherrod (1963), Ky., 367 S.W.2d 844.

We are not unmindful of our decisions holding that a proper aggregate verdict cannot stand if an item in the verdict is beyond the evidence on the item (Pierson v. Commonwealth, Department of Highways, Ky., 350 S.W.2d 487, and Commonwealth, Department of Highways v. Cardinal Hill Nursery, Inc., Ky., 380 S.W.2d 249, 253), but the way in which this' case was tried and the instructions given impel us to conclude that the principle of the aforesaid decisions is not applicable here.

We are not persuaded that the amount allowed was excessive so the judgment is affirmed.


author: PER CURIAM.

text:
    Homer TRIMBLE, Petitioner, v. TEXAS STATE BOARD OF REGISTRATION FOR PROFESSIONAL ENGINEERS, Respondent.
    No. A-10383.
    Supreme Court of Texas.
    Feb. 17, 1965.
    Robert Ziesenheim, El Paso, Hill D. Hudson, Pecos, John R. Lee, Kermit, for petitioner.
    Waggoner Carr, Atty. Gen., Austin, Pat Bailey, Asst. Atty. Gen., for respondent.
   PER CURIAM.

The Court of Civil Appeals did not discuss petitioner’s complaint that he had not been afforded procedural due process of law in the proceeding leading to the revocation of his license.

We have carefully read the Statement of Facts, and have concluded that the evidence does not raise the issue. The testimony of petitioner and of his counsel is that petitioner did receive a letter from the secretary of respondent Board, advising petitioner of the charges against him and setting a date for a hearing on these charges. Petitioner testified that attached to this letter were the copies of the affidavits of the two witnesses on which the charges were based.

The evidence further shows that petitioner and his attorney appeared before respondent Board on the date set for a hearing and served the members and officers of the Board with an injunction restraining them from proceeding with the hearing.

Some thirty to forty-five days later, and after the injunction had been dissolved, a new date for hearing was set, and petitioner and his attorney appeared before the respondent Board at that hearing and introduced such witnesses and evidence as they desired.

Therefore, this record shows conclusively that petitioner was afforded due process in all orders and steps taken by the Board and the trial court. Northwestern Bell Telephone Co. v. Nebraska State Railway Commission, 297 U.S. 471, 56 S.Ct. 536, 80 L.Ed. 810.

Motion for rehearing is overruled.