
    Bringardner Lumber Co. v. Knuckles et al.
    (Decided June 8, 1937.)
    CLEON K. CALVERT, JAMES H. JEFFRIES and J. B. SNYDER for appellant.
    GOLDEN & LAY, JAMES M. GILBERT and D. M. BINGHAM for appellees.
   Opinion of the Court by

Stanley, Commissioner—

Reversing.

In Bringardner Lumber Company v. Knuckles, 253 Ky. 292, 69 S. W. (2d) 345, it is related that the devisees of W.. R. Knuckles conveyed a right of way for a logging railroad to the Bringardner Lumber Company in consideration of its agreement to build for the grantors a spur track, about 1,000 feet in length, connecting with its line and to give them right of transportation over it for a reasonable compensation. A judgment declaring the rights of the parties in a controversy concerning the entire matter was reversed because the issues were not properly determinable under the Declaratory Judgment Act (Civ. Code Prac, sec. 639a-l et seq.).

As finally evolved, through pleading and stipulátion, the ease became one of the Knuckles family against the lumber company for damages for the wrongful taking of their property for the tram road. It was tried as if it were a condemnation proceeding. The lumber company had constructed the grade for the Knuckles spur by March 1, 1931, the date stipulated for its completion, and offered to lay the rails and finish it immediately after it had finished and opened its tram road for commercial use in the following October. But the grantors refused to permit its completion. It appears, therefore, that the consideration promised to be paid by the lumber company for its right of way failed. Whether that was through the fault of the one or of the other it is now unnecessary to determine. We avoid also any expression of opinion as to how the money which may be paid on a judgment for the taking of the land and damages for the tram road should be apportioned among the appellees and as to the effect the deed from them should have in the matter.

The appellees asked damages in the sum of $10,-449.20. The verdict was for $4,000.

The appellees owned between 1,500 and 2,000 acres of land at the head of Red Bird creek in Bell County. There were 125 or 150 acres on the west side of the creek, and this logging railroad was built on that property down the side of a mountain. The road extends across appellees’ property for 3,151 feet and the width of the right of way contained in the deed was 100 feet. The actual land taken under such measurement is 7.246 acres. The evidence of the quantity and extent of excavated material thrown or falling on other property is confusing and conflicting.' The appellees say that 11% acres were covered by such material. But that included their graded spur track. There was some rail fencing destroyed, but its worth is not shown. The timber had been removed from the side' of the mountain long before this road was built and it was practically barren. One of the major points of argument as to consequential damages to the remaining property is that the railroad cut off that body of land on the west side of the creek from the other. It seems to have been cut off by tbe creek, which was not crossed by the’railroad, and we do not gather from tbe evidence that the building of tbe railroad made that property more inaccessible.

The appellees proved that about a year before tbe property was taken over (September, 1930), they bad been offered and bad refused $50 an aeré for their .land and that was shown then' to be tbe fair reasonable value. That is tbe sum taken as tbe basis of their calculation of value and damage. Many witnesses testified that in their opinion tbe property owned by tbe appellees bad been diminished in value one-half by reason of tbe construction of this tram road. Thus their holdings worth from $75,000 to $100,000 were quickly reduced to $37,500 to $50,000. However, before the railroad was built, tbe appellees bad returned their property for taxation as containing 785 acres worth $9,600. They bad valued tbe surface at $1,800, tbe improvements, minerals, and timber making up tbe difference. Tbe county board of tax supervisors raised tbe assessment to $10,000 or about $14 an acre.

Evidence introduced by tbe appellant minimized greatly tbe conception of large consequential damages, both in extent and amount. No buildings or improvements of any character were interfered with or damaged. Most of tbe material excavatéd from tbe .cuts for the railroad was put upon the 100-foot strip, for which compensation was claimed for a taking and so regarded by both parties. But that fact was not. considered, it appears, by appellees’ witnesses. Undoubtedly, somé rocks and material rolled down the bill on to appellees’ property. A' maximum area of 5 acres was estimated by- a surveyor to have been covered by this. material beyond tbe right of way and that was between the railroad and tbe creek. Witnesses for the appellant valued the land taken and covered at from $3 to $10 an acre. They could see little or no consequential damage to tbe residue.

Tbe parties agree that tbe measure of recovery was and is the reasonable value of tbe land taken at tbe time, and such damages as were sustained by tbe adjacent lands, including those which might accrue- in tbe future by the use to which it is put. But tbe appellees submit that tbe land used for tbe uncompleted spur must be taken into consideration. That right of way was never taken by tbe appellant. Under contract, it graded the roadbed for tbe appellees’ use. If tbe company breached that contract, that is another matter. It would appear tbe appellees have benefited by tbe appellant’s labors to tbe amount of about $1,000, tbe cost of .the grading of tbe spur. It is to be observed that tbe land covered by tbe spur-was. apparently not embraced in the instructions which tbe appellees asked tbe court • to give the jury.

We are not unaware of tbe right of citizens to have a jury determine issues of fact. But there is a universally recognized power and duty in courts, which .goes along with and is a part of a trial by jury, to review tbe verdict. If it appears to tbe court in the exercise of a judicial discretion that such verdict is flagrantly against the evidence, it becomes its duty to set it aside. Kentucky-West Virginia Gas Co. v. Hays, 238 Ky. 189, 37 S. W. (2d) 17. Tbe probative' value of opinions of witnesses as to. value depend in a large measure upon tbe facts. Warfield Natural Gas Co. v. Laferty, 232 Ky. 248, 22 S. W. (2d) 611. In considering the opinions of tbe several witnesses, regard must be bad for tbe realities. If we take tbe appellant’s testimony that nearly 19 acres of their land were taken for tbe right of way and for tbe excavated material (a preposterous area) and . accept their value of $50 an acre, we have only $95.0. But it is preposterous that an area of nearly 12 acres could have been irretrievably destroyed. And tbe valuation $50 an acre represents an offer made a year before 1930 and during tbe days of prosperity. Moreover, it included minerals, timber, and improvements on a large body of land. Tbe surface value of 19 acres returned for taxation was about $2.30 an acre, or $43.70. Of course, tbe values returned for assessment are not conclusive, but they do have evidential value. Davidson v. Commonwealth ex rel. State Highway Commission, 249 Ky. 568, 61 S. W. (2d) 34. It is a wide spread between $2.30 an acre for tbe fee in tbe surface and $210 an acre for an easement in that surface as allowed by tbe jury.

Giving due consideration to tbe evidence pertaining to the.diminution of tbe value of appellees’ entire property by reason of tbe cutting off of their 150 acres, and all other facts and circumstances and opinions, we unhesitatingly reach tbe conclusion that the verdict for $4,000 is flagrantly against the evidence and should be set aside. Commonwealth v. Combs, 244 Ky. 204, 50 S. W. (2d) 497.

The judgment is reversed.  