Commonwealth, Department of Highways v. Merriman

HILL, Judge (reversing). The Commonwealth appeals from a $3,-025 judgment for a strip of appellees’ front yard 6 X 159 feet on which were situated some shrubs and a yard fence. Twenty-five ($25) Dollars of the judgment is for an agreed valuation for temporary easement. The land is sought for improvement of U.S. 150 between Danville and Perry-ville. Before the taking, appellees’ house, located on the lot, was 25 feet from the old right-of-way. The right-of-way after the taking will be 19 feet from the residence. Before the taking, the nearest edge of the' hard surface of the old road was 32 feet from the home. After taking, it is 54 feet. The strip taken contains approximately 954 square feet. Appellant complains of (1) incompetent evidence, for lack of proper qualification of the witness, and (2) excessiveness of the amount of the verdict. First, was the testimony of appellee, John Merriman, incompetent because of his failure to qualify on knowledge of market value? He had not bought or sold any real estate but had “seen it” sold. He was 62 years of age, a farmer and carpenter, and had lived in the community 40 years. He heard of the sale of the Ison place behind him, and “just different places all up and down the road.” Certainly, this witness was not an expert, or a professional. That he was qualified on values at all is subject to serious debate. We have concluded his evidence was of some value to the jury, although its probative value is small. Cf. Commonwealth of Kentucky, Department of Highways v. Tyree, Ky., 365 S.W.2d 472 (1963). Also, Commonwealth, Department of Highways v. Fister, Ky., 373 S.W.2d 720 (1963). Was the judgment excessive? Unquestionably we think it was. Before the [662] taking the entire lot fronted 159 feet on the old road and extended hack in parallel lines an average of 97 feet, thus containing 15.-423 square feet. The house has four rooms, a hath, and partial basement framed up with rock. The strip taken contains 954 square feet, for which the judgment allows appellees $3.14 plus per square foot. At this same rate the entire lot would sell for $48,428.22 plus, without the house. Of course, we do not intend to imply that this means of arriving at value is a controlling one. There are other important considerations to appellees, such as loss of a shade tree and some shrubs and the closer proximity of the right-of-way to their home. However, change of grade has been favorable to appellees. Before the taking there was a minus four percent grade. New construction made a cut measuring 3.5 feet down to 1.1 feet. Appellant’s witness, Harper, an employee of appellant, and a professional appraiser of considerable experience, testified the difference in before and after value of this property was $250. Appellee, John Merriman, fixed the difference at $3,000. His two witnesses made it $2,950 and $3,250, respectively. Appellant’s witness relied on comparable sales, three of which he compared ir. value, size of lot with improvements, and located a few hundred feet from appellees’ property. We conclude this is one of those cases where at first blush it strikes the judicial conscience as being grossly excessive. Cf. Ballard v. King, Ky., 373 S.W.2d 591 (1963); Commonwealth of Kentucky, Department of Highways v. Branham, Ky., 380 S.W.2d 213 (1964); Commonwealth of Kentucky, Department of Highways v. American National Bank & Trust Company, Ky., 379 S.W.2d 252 (1964). The judgment is reversed with directions to grant appellant a new trial. PALMORE, J., dissents.