
    Robertson v. Chesapeake & Ohio Railway Company. Morris v. Chesapeake & Ohio Railway Company.
    (Decided December 8, 1925.)
    Appeals from Greenup Circuit Court.
    1. Trial—Where Property Sought to be Condemned was Similarly iSituated, Not Abuse of Discretion to Try Actions Together.— Where separate condemnation proceedings were instituted by railroad against two property owners, it was not an abuse of discretion to try the actions together, where property involved was similarly situated and not far apart, and physical conditions were substantially the same in both cases.
    2. Eminent Domain—Where Commissioner and Two Juries Practically Agreed on Damages, .Findings Based on Substantial Evidence Not Disturbed Unless Clearly Inadequate or Excessive.— In condemnation proceedings, where commissioner and two juries had practically agreed on the amount of damages, findings based on substantial evidence will not be disturbed; unless it is at once apparent that the damages awarded were so clearly inadequate or excessive as to amount to a denial of justice.
    3. Adverse Possession—Claimant's Payment to Another for Trees Taken from Land Not Recognition of Latter’s Title, But Only Evidence to be Considered.—That a railroad company, claiming title adversely to a strip of land, made payment to another for trees taken therefrom, did not operate as a recognition of her title, but was only evidence to be considered, and insufficient of-itself to overcome clear showing of adverse title made by railroad.
    JOHN T. DIEDERICH for appellants.
    BROWNING & REED for appellee.
   Opinion of the Court by

Judge Clay

Affirming.

These are appeals from judgments rendered in separate actions of condemnations,. The cases were tried together and will he considered in one opinion.

At the outset we are met by the contention that the court erred in ordering a joint trial over the objection of appellants. We have ruled, however, that, where the questions of law are the same and the tracts involved are similarly situated and not far apart, it is not an abuse of discretion to try the actions together. Waller v. Lee County, 187 Ky. 848, 220 S. W. 1071. Here the two tracts sought to be condemned adjoin the railroad right-of-way in the town of Russell, are only a few yards apart, and, the physical conditions being substantially the same, it is not perceived how either party could have been prejudiced by having the same jury pass on the question of damages.

In the Robertson case the land condemned consists of a parcel of ground 58 feet in width and varying in length between 98 feet and 119 feet. Being situated in a ravine, the land is low and swampy, being 35 feet lower than the railroad fill on the north and 25 feet below the grade of High 'street to the south. It is subject to overflow and is covered by undergrowth, debris, etc. It does not lie on any public highway and it is not easily accessible. The commissioners appointed by the court to assess the damages fixed the damages at $850.00. On exceptions a jury in the county court fixed the damages at the same amount. On appeal to the circuit court the commissioner’s, who had been, property owners in Russell for many years, testified that in their opinion the damages amounted to $850.00. There was further evidence that the half interest of Mrs. Kinman, a former joint owner, was purchased by the railroad company for $850.00. On the other hand, some ten or twelve witnesses for appellant fixed the damages at from $1,500.00 to $3,000.00

In the Morris case the land condemned is the rear part of the four lots. It is 158 feet in length, 22 feet wide at one end, and 33 4-10 feet wide at the other end, and contains .083 acres. The commissioners, fixed the damages at $1,400.00. A jury in the county court awarded the same amount. On appeal to the circuit court the jury fixed the damages a.t $2,000.00. The witnesses for the company fixed the damages at $1,400.00. On the other band, about a dozen witnesses for appellant fixed tbe damages at from $7,000.00 to $12,000.00.

It is insisted that tbe finding of tbe jury in each case is flagrantly against the evidence. In support of this position it is argued that not only tbe numerical weight of tbe testimony is with appellants, but that tbe witnesses for tbe company were not as positive -in their statements that they knew tbe market value of tbe tracts involved as were tbe witnesses for appellants. This may be true, but in view of tbe great difficulty in fixing tbe market value of tbe tracts involved, and tbe damage to tbe remainder of tbe tracts owned by appellants, tbe lack of certainty expressed by tbe witnesses for tbe company may have impressed the jury more than tbe more positive statements of tbe witnesses for appellants. After all, each is a casé where tbe jury viewed the premises and fixed the damages on conflicting evidence. In one case tbe damages are tbe same as fixed by tbe commissioners and tbe jury in tbe county court. In tbe other case tbe damages are somewhat in excess of those fixed by tbe commissioners and the jury in .the county court. Where tbe commissioners and two juries have practically agreed as to tbe amount of damages, and their findings are based on substantial evidence, we are not disposed to interfere with tbe verdict unless upon consideration of all tbe facts' and circumstances it is at once apparent that tbe damages awarded are so clearly inadequate or unreasonably excessive as to amount to a denial of justice.

Tbe court did not err in bolding that tbe railroad company was tbe owner of tbe small strip of land lying immediately north of the condemned land of Mrs. Morris. It is true that there was evidence to tbe effect that in tbe year 1920 tbe company paid Mrs. Morris $100.00 for some trees taken from tbe disputed strip, but as tbe evidence leaves no doubt that at that time it bad already acquired title by bolding and occupying tbe land adversely for more than tbe statutory period, and also that tbe deed to Mrs. Morris was cbampertous, tbe mere fact that it paid for tbe trees was not such a recognition of title in her as to defeat tbe title already acquired, but was evidence to be considered in detérmining whether tbe prior possession of tbe company was in fact adverse. Walling v. Eggers, 104 S. W. 360; Murphy v. Roney, 82 S. W. 396, 2 C. J. 102, and was not sufficient to overcome tbe clear showing made on that question.

Judgment affirmed.  