
    Taylor et al. v. Pike County et al.
    (Decided May 24, 1938.)
    
      STEELE & VANOVER for appellants.
    G. R. BLACKBURN, County Attorney, for appellees.
   Opinion of the Court bt

Chief Justice Stites—

Reversing.

This is an appeal from a judgment of the Pike Circuit Court dismissing the petition of appellants, Mr. and Mrs. Anthony Taylor, on demurrer. Appellants allege that they are the owners of a tract of land in Pike County traversed by a right of way for a county road. About 1933 the State. Highway Commission took over the road and agreed to construct and maintain it if the county would acquire an additional strip 30 feet in width through appellants’ property. Condemnation proceedings were commenced by the county, and a trial was held before a jury in the countv court, resulting in a verdict for damages in the sum of $1,250. _ Following the verdict of the jury, the county, being evidently dissatisfied with the amount fixed, moved to set aside the verdict and to dismiss the petition. This the court did.

Following the dismissal of the petition, appellants brought this suit in equity, in which they asked for a mandatory injunction directing the county judge to enter a judgment conforming to the commissioner’s report and the verdict of the jury. It is asserted. that, pending the condemnation proceedings, Pike County took possession of the 30-foot strip of land through appellants ’ property and that it constructed and is now maintaining a road over this 30-foot strip.

Plainly, if the county has in fact taken the property as alleged, appellants are entitled to compensation. Indeed. appellees concede this to be true. The only question, therefore, is whether or not appellants have sought the proper remedy to obtain redress. So far as the record before us is concerned, we must of course accept as true, on demurrer, tbe allegation tbat tbe county has actually expropriated tbe property.

It is settled tbat, if, pending tbe final disposition of a condemnation proceeding, the condemnor takes possession of tbe land involved, be thereby elects to abide by tbe verdict, and be cannot thereafter refuse to pay tbe amount fixed. Long Fork R. Co. v. Sizemore, 184 Ky. 54, 211 S. W. 193; City of Owingsville v. Ulery, 260 Ky. 792, 86 S. W. (2d) 706. Where it appears from tbe record that there bas been an actual taking of the-property prior to tbe termination of tbe condemnation proceedings, there can be no essential difference between tbe effect of such proceedings and an ordinary suit for damages resulting from the expropriation of private property. Mercer County v. Ballinger, 238 Ky. 120, 36 S. W. (2d) 856. A personal judgment against tbe condemnor in such a situation is not improper. City of Owingsville v. Ulery, supra.

Appellants undoubtedly could bring an action for damages and relitigate tbe question of values. But this question has already been determined in tbe condemnation proceeding — at least so it appears from tbe petition. The only inquiry remaining would seem to bo whether or not there bas been an actual taking. We can see no reason why this question cannot properly be determined by a court of equity without subjecting tbe parties to tbe uncertainty, inconvenience and expense of again trying out tbe amount of damages.

If, in fact, appellants’ property has been taken, there can be no doubt of tbe duty of tbe county court to enter judgment on tbe verdict heretofore rendered. Whether tbe taking alleged bas actually occurred is a. question of fact, and, as tbe record now stands, this, fact is admitted. We conclude, therefore, tbat the chancellor improperly sustained the demurrer to tbe petition.

Judgment reversed.  