Opposition Brief — Comer v. Kentucky Transportation Cabinet Department of Highways

: PE Boren Cour, Ua

(z) | EILED

No. 91-1814 | (U8 8 7999

"BRRICE OF THE GLEAK

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1991

RAYMOND COMER and

MARION CORN - - - - - - Petitioners

versus

COMMONWEALTH OF KENTUCKY

TRANSPORTATION CABINET

DEPARTMENT OF HIGHWAYS - -_ Respondent

ON PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF KENTUCKY

BRIEF IN OPPOSITION FOR RESPONDENT

LOUIS KAWAJA

P.O. Box 23942

Lexington, KY 40523-3942

(606) 277-5784

Attorney for Respondent

WESTERFIELD-BONTE CO., 619 W. KENTUCKY-P.O. BOX 3251, LOUISVILLE, KY.

TABLE OF CONTENTS

PAGE

ee I be iecaceihinteconpdatinsiinnnssadiniisnnmaionen ii-iii

IE aint ca ceicnaerakeencntinedenniuciarincnencinnmsacecicanads 1

Constitutional Provisions Asserted .................... 1

Statement of the Case and Facts ......................... 2- 4

Reasons for Denying the Writ ..........................065 4-19

I.

II.

IV.

The Supreme Court Is Without Jurisdiction

8 ee a ee a 4— 7

The Decision of the Kentucky Appellate

Court That the Trial Court Erred as a

Matter of Law in Finding a Compensable

Denial of Reasonable Access is Correct and

Consistent With Similar Decisions .............. 7-12

. This Case Does Not Involve an Important

Decision Directly in Conflict With the

Decision of the United States Supreme

Court in First Evangelical Church v.

County of Los Angeles, 482 U.S. 304 (1987). 12-19

The Law of the Case Was Not Decided

by the First Panel of the Kentucky Court

Sf EERE IER EER an RC OR 19

eR ET EGBA PEMA INTER RON ERE ES SCR 19-20

ii

TABLE OF AUTHORITIES

PAGE

Cases:

B & G Meats, Inc. v. State, Alaska, 601 P.2d 252

CRDTDD civcecssesesastistasviomeeaaeiananemaniaeanss 17

Brinkerhoff-Faris Co. v. Hill, 281 U.S. 673, 680 |

CRIED evencnisticssninvniscccdanaliecceaeiaamiatanaihaiaiis mete 18

City of Memphis v. Hood, Tenn., 345 S.W.2d

OL EEL LD 18 |

Commonwealth, Department of Highways v. .

Adkins, Ky., 396 S.W.2d 768 (1965)................. 10

Commonwealth, Department of Highways v.

Denny, Ky., 385 S.W.2d 776 (1964)................. 15

Commonwealth, Department of Highways v.

Diuguid, Ky., 469 S.W.2d 707 (1971)............... 1]

Commonwealth, Department of Highways v.

Rosenblatt, Ky., 416 S.W.2d 754 (1967)........... ll

Com’r. of Transp. v. Nat. Amusements, 581 A.2d

1353 (N.J. Super. A.D. 1990) ..............cccccssssseees 15

DeRossette v. Jefferson County, Ky., 156 S.W.2d

BGG CROGLD winincsvcctssecensseiiaunieeeaainatis 10, 11

Division of Admin. v. Ness Trailer Park, Inc.,

489 So.2d 1172 (Fla. App. 4 Dist 1986)............ 15

First English Evangelical Church v. County of

Los Angeles, 482 U.S. 304 (1987) ........... 12, 13, 14, 16

Fla. East Coast Prop. v. Metropolitan Dade Cty.,

572 F.2d 1108 (Fifth Cir. 1978).....................00 17

Grapevine v. Grapevine Pool Rd. J. Venture, 804

S.W.2d 675 (Tex. App.—Fort Worth 1991)...... 16

Houghs v. Mackie, Mich., 187 N.W.2d 298 (1965). 17

Kaiser Aetna v. United States, 444 U.S. 164

(2G TE) ..<0:sccossisdaensticsnaieasnaenee aa 14

Keystone Bituminous Coal Ass’n v. DeBennedictis,

480 U.S. 470, 495, 107 S.Ct. 1232, 1247, 94

Ld. Od 472, G6 (OP) cteditclvasceemene 16

Lockary v. Kayfetz, 917 F.2d 1150 (9th Cir. 1990) 13

iil

Louisville & Jefferson County Air Bd. v. Porter,

Ky., 397 S.W.2d 146, 152 (1965) ........ee.

Merritt v. State, 742 P.2d 397 (Idaho 1987) ..........

Palm Beach County v. Tessler, 538 So.2d 846

GEES Re RSG EN oe rE

Pumpelly v. Green Bay & Miss. Canal Co., 80

| __ E E

Ray v. State Highway Comm., Kan., 410 P.2d

| __

State, DOT v. Weggies Banana Boat, 576 So.2d

122 (Fia. App. 2 Dist. 1990)..............................

State Highway Com’n. v. Scrivner, Wyo., 641 P.2d

i ns sae cnsanncinecniien

ee snenpenensinamatuiciessen

Three D Corporation v. Salt Lake City, 752 P.2d

RUE GIIIET PRIN, BIPIIEID avcccsosoccosscnccconesovesecessscess

Triangle, Inc. v. State, Alaska, 632 P.2d 965

ALA RI cn

Trustee For Alaska v. E.P.A., 749 F.2d 549, 560

i catoenunnnane

United States v. U. S. Smelting Refining &

Mining Co., 339 U.S. 186, 198 (1950) ..............

Webb v. Webb, 451 U.S. 493, 495 (1981)................

Constitution, Statutes and Rules Cited

Kentucky Civil Rules of Procedure 24.03 ..............

oii n sacavehngauaesesunsvisédcdacssoescevaense

U.S. Constitution, Fifth Amendment .............. 1, 4,

U.S. Constitution, Fourteenth Amendment,

nt EE a are 1,4, 16, 17

1,5

16, 17

iv

INDEX TO APPENDICES

PAGE

I OEE BI cccnsanicnstatacinhinccsnnbenusinnscisanticintess la- 4a

Published Opinion, Reversing of the Court of

Appeals of Kentucky, Rendered December

20, 1991, No. 91-CA-137-MR ..............00000sseeee 5a—lla

Portions of Transcript of Evidence and Proceed-

ings of the Non-Jury Trial Heard on

January 31, 1990, Fayette Circuit Court,

SU re NN I wissstebcliiaciackelietbinshesieepherennséstannnn 12a-—27a

Portions of Transcript of Evidence and Proceed-

ings of the Trial Held on December 17, 1990,

Fayette Circuit Court, No. 87-CI-4114 .......... 28a-—30a

Portions of Briefs Filed by Respondent (Com-

monwealth) on July 27, 1990, and May 13,

Rid HIE sissscccccsctbantuacbtbesssintncaieceine 3la—34a

Unpublished Opinion, Vacating and Remanding

of the Court of Appeals of Kentucky, Ren-

dered April 20, 1989, No. 88-CA-1345-MR.... 35a—37a

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1991

No. 91-1814

RAYMOND CoMER and

MARION CORN - - - - - - - ~ Petitioners

v.

COMMONWEALTH OF KENTUCKY

TRANSPORTATION CABINET

DEPARTMENT OF HIGHWAYS - - - - Respondent

ON PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF KENTUCKY

BRIEF IN OPPOSITION FOR RESPONDENT

JURISDICTION

Petitioners assert jurisdiction pursuant to 28 U.S.C.

§1257. Respondent denies that jurisdiction is properly laid

in this Court for reasons cited further herein in

Respondent’s Brief.

CONSTITUTIONAL PROVISIONS ASSERTED

Petitioners assert the application of the Fifth Amend-

ment and Section 1 of the Fourteenth Amendment to the

Constitution of the United States. For reasons cited

hereinbelow, Respondent denies their applicability.

2

STATEMENT OF THE CASE AND FACTS

The parties to this action stipulated facts prior to the

Petitioners’ appeal to the Kentucky Court of Appeals (Ap-

pendix, pages la-4a). Further, the Respondent directs the

Court to Appendix for review of the Court of Appeals Opin-

ion, Reversing, pages 5a-1la which details a concise, unbi-

ased account of the pertinent facts of this case.

The Statement of the Case as recited by the Petitioners

in certain instances is misleading and is addressed in the

following paragraphs.

The Petitioners indicate that they spent over 40 years

building the businesses in question (Petitioners’ Petition,

pages 9, 10; hereafter, Petition and page number). It should

be noted that the Petitioners never testified in these pro-

ceedings and there is nothing in the non-jury trial record

to show that they devoted over 40 years building these

businesses.

The Petitioners indicated that “each business was very

successful” (Petition, page 10). There was no proof pre-

sented.

Scott Street is referred to as a “service road” and South

Broadway is characterized as being less-than-a-hundred-

foot-drive where the Petitioners’ properties abut (Petition,

page 10). It is true that the subject properties abut Scott

Street. Nowhere in the record, however, is Scott Street

designated as a “service road.” The Stipulation of Facts

speak to the contrary (Appendix, pages 1la-4a).

The street the public used to gain access to the parking

facilities of these properties was Scott Street before the

reconstruction. After construction, Scott Street is the same

street one must use to gain access to the same parking

facilities. The only difference is that one must enter from

3

the east side of Scott Street instead of the west side. The

east side accesses South Limestone a major traffic thor-

oughfare in the area of the University of Kentucky.

Further, there is no testimony regarding “less-than-a-

hundred-foot-drive on a service road called Scott Street.”

Again at page 11 of the Petitioners’ Petition, quoting

“Messrs. Corn and Comer have always called this a ‘near

impossibility’ circuitous route.” Where in the evidence did

they say this? They never testified.

The Petitioners also make misleading statements con-

cerning the use of the properties after construction and the

value of them (Petition, page 12). At the non-jury trial,

the Petitioners indicate they “proved . . . that these proper-

ties could no longer be used for their current business, or

for any commercial use . . . leading to the trial court’s

ruling “that ‘reasonable access’ was not retained.” (Peti-

tion, page 12). The only witness called by the Petitioners

was a restaurant owner who stated basically two things.

In testifying, he indicated the change of access would permit

about ten percent of the public to find the businesses after

construction. However, he concluded that was only his

opinion (Appendix, page 19a), an opinion for which he ex-

hibited no expertise. Secondly, in terms of access to these

properties, he was basing his opinion on loss of business

(Appendix, page 19a).

It is imperative to note that there was a bifurcated

non-jury trial on the issue of reasonable access. The Peti-

tioners once again mislead us in their Statement of the

Case when they inject the jury trial part of the case and

quote from same (Petition, pages 12,13), to influence this

Court with regard to the issue of reasonable access. The

testimony cited on page 13 of Petitioners’ Petition is taken

from the jury trial and not from the bifurcated non-jury

4

trial where the trial court decided the reasonable access

issue. Two witnesses were called to testify at the non-jury

trial (Appendix, pages 12a-13a). The Petitioners called a

restaurant owner whose testimony was based clearly on

his opinion of loss of business. The Respondent called an

engineer to testify at the non-jury trial. Months later, in

the other half of the bifurcated trial, a jury trial was held

on value of the property due to the trial court’s ruling on

reasonable access. The Petitioners at the jury trial on

value called one witness, an appraiser. He did not testify

at the non-jury trial. The Respondent called one witness

at the jury trial, an appraiser, who also did not testify at

the non-jury trial. The inclusion in the Statement of Facts

quoting from the jury trial on the issue of reasonable ac-

cess in the non-jury proceedings is highly improper and

misleading. If the Petitioners desired this testimony at

the non-jury proceedings, then they had their day in court

to provide same. They should not try to confuse this court

by mixing the two separate proceedings.

Since the Respondent has directed the Court to the

Appendix, pages 5a-11la, for review of the Kentucky Court

of Appeals account, no further factual elaboration is neces-

sary.

REASONS FOR DENYING THE WRIT

I

The Supreme Court Is Without Jurisdiction

to Decide This Case.

The thrust of the Petitioners’ argument and their claim

of federal jurisdiction lies in their belief (unfounded) that

they have been denied “just compensation” for taking of

their property relating to the Fifth and Fourteenth

Amendments to the United States Constitution. Despite

5

the Petitioners’ attempts at federal jurisdiction on the said

basis, the record in the instant case disputes their conten-

tions, and further this court cannot decide this case for

lack of jurisdiction.

Nowhere in the first, second or third appeals to the

appellate courts of Kentucky was there a federal question

mentioned or passed upon by the state courts (Appendix,

pages 5a-1la, 35a-37a). It would have been appropriate

for the Petitioners to insist on their federal question at the

first appeal. There, the trial court dismissed the Petitioners’

Complaint for failure to state a claim upon which relief

could be granted. In their appeal, Petitioners claimed only

that their Complaint was sufficient under existing Kentucky

Case Law with only a passing reference to constitutional

due process rights. The argument that they now raise

would have been an important consideration for that first

appeal, but it was not preserved in the trial court, or ruled

on by the Court of Appeals of Kentucky. Petitioners were

successful in that appeal. In the final two appeals, they

continued to argue that the facts of their cases constituted

a “taking” under existing Kentucky law. After losing their

last appeal, even in their “Conclusion” on the Motion for

Discretionary Review, the only use of the phrase “due pro-

cess of law,” was an attempt to convince the court that a

failure to follow the existing Kentucky law would result in

a denial of “due process.” This is the first time that the

Petitioners have insisted that any court should rule on this

or any other federal question.

Further, there is a challenge to the appellate jurisdic-

tion because the case below did not raise the question “. . .

where the validity of a State statute is drawn in question

on the ground of its being repugnant to the Constitu-

tion....” 28 U.S.C. §1257.

6

Here, the state’s construction project as it allegedly

affected the properties of the Petitioners was totally within

the boundaries of the State’s own right of way. The Peti-

tioners did not lose one inch of ground. It was not a “tak-

ing” under “Eminent Domain,” but a management of its own

property—on its own property. But, even if it were an

“Eminent Domain” situation, no constitutional challenge,

with notice to the Commonwealth’s Attorney General, was

presented below, as required by KRS 418.075, and Ken-

tucky Civil Rules of Procedure, CR 24.03. Such a failure is

not fatal to Petitioners’ appeals under Kentucky Law. It

is, however, one more indication that the Petitioners never

thought of pursuing a ruling on a federal question until now.

When faced with this situation before, this Court said

in Webb v. Webb, 451, U.S. 493, 495 (1981):

“Because this case comes to this Court from a state

court, the relevant jurisdictional statute is 28 USC

§1257 [28 USCS §1257]. As applied to the circum-

stances of this case, that statute requires that in the

state courts petitioner have ‘specially set up or claimed

under the Constitution ... of... the United States’

that right which she now seeks to have this Court

enforce .. . Our examination of the record convinces

us that petitioner failed properly to raise or preserve

a claim under the Full Faith and Credit Clause of the

Federal Constitution in the Georgia courts.”

Continuing:

“We note... that nowhere in the opinion of the Geor-

gia Supreme Court is any federal question mentioned,

let alone expressly passed upon. . . . This court has

frequently stated that when ‘the highest state court

has failed to pass upon a federal question, it will be

assumed that the omission was due to want of proper

presentation in the state courts .. .’” [citation omit-

ted].

Id. at 495.

The Court ruled that it was without jurisdiction in the

case. The same holds true here.

II

The Decision of the Kentucky Appellate Court That

the Trial Court Erred as a Matter of Law in

Finding a Compensable Denial of Reasonable

Access Is Correct and Consistent With Similar

Decisions.

In simple terms this action was filed by Petitioners

against the Respondent whereby the Petitioners claim they

were denied reasonable access to their properties after the

Respondent constructed a railroad underpass on South

Broadway in Lexington, Kentucky. The Petitioners each

owned property at the intersection of South Broadway and

Scott Street prior to construction in 1987. Before construc-

tion, the public had direct access from South Broadway to

Scott Street in front of Petitioners’ properties and from

Upper and South Limestone to Scott Street in front of

Petitioners’ properties. After construction, the properties

do not have direct access to South Broadway, but have the

same access to Scott Street and the highway system before

and after construction. To get from their properties to

that part of South Broadway in front of same requires

driving approximately nine tenths (9/10) of a mile over

Scott Street and other adjacent streets. However, the pub-

lic does not have to drive one inch further to get from

Upper and South Limestone in the area of the University

of Kentucky. Neither of these properties had any physical

taking from any part of them (Appendix, pages 2a, 6a, 22a,

36a).

The trial court dismissed the Petitioners’ original Com-

plaint upon Respondent’s Motion. The Petitioners availed

8

themselves of their right to appeal their decision to the

Kentucky Court of Appeals alleging deprivation of a right

of reasonable access to the highway system (South Broad-

way), which resulted in a taking without just compensa-

tion. The Court of Appeals (First Panel) vacated and re-

manded the case for the reason that the trial court did not

hear evidence to determine the issue (Appendix, page 37a).

Motion for Discretionary Review by the Respondent was

denied. The Court of Appeals (Second Panel) made the

following astute observation of the First Panel's opinion:

“... This Court noted that, although it appeared from

the order of the trial court that Judge Meade believed

the property owners were not denied reasonable ac-

cess, the court had failed to make any specific finding

or cite any legal authority regarding the issue of rea-

sonable access. This Court’s earlier opinion did not

mandate a judgement for Comer and Corn... .” (Ap-

pendix, pages 6a-7a)

On remand to the trial court, the evidentiary hearing

was held. To attempt to prove denial of reasonable access,

Petitioners introduced evidence of diversion of traffic, loss

of business because only ten percent (10%) of the public

knew the parties were still in business and knew how to

get to their doors, that Scott Street dead-ended at South

Broadway and that South Broadway traffic had to travel a

circuitous route of an additional nine-tenths (9/10) of a

mile (Appendix, pages 16a-19a, 23a). The Bench upon

hearing the evidence, ruled there was loss of reasonable

access to the properties. After a premature appeal was

filed by Respondent and dismissed by the Court of Ap-

peals, a jury trial followed and was held over the

Respondent’s objections on the issue of damage.

The Respondent, after the jury trial, appealed to the

Kentucky Court of Appeals to review the trial court’s rul-

Se

9

ing on reasonable access and the issues pertaining to evi-

dence presented to the jury and the verdict.

It is submitted that the Respondent believed that the

evidence presented at the hearing (bifurcated non-jury trial)

when considered with reference to the legal standards set

forth by case law was lacking to suppert the conclusion

that Petitioners had lost reasonable access.

A quick review of the trial court’s comments and the

reversing opinion of the Kentucky Court of Appeals (Sec-

ond Panel) clearly shows that the trial judge erroneously

believed he was directed by the Kentucky Court of Appeals

(First Panel) to make a finding of loss of reasonable access

to Petitioners’ properties. This is the crux of the entire

case. The trial court in making its ruling referred to the

Court of Appeals (First Panel) and Respondent and com-

mented (Appendix, page 25a):

“Well, I happen to agree with your law, but the Court

of Appeals does not... I have no alternative but to

follow their ruling... .”

Prior to the jury trial, the trial court commented (Ap-

pendix, page 29a):

“THE COURT: Well that’s bad because it’s the appel-

late court that directed me to have the trial.”

“THE COURT: So if they want to reverse themselves.

They're not reversing me. I've already ruled, but they

reverse me.”

Again at the conclusion of the jury trial, the trial court

said (Appendix, page 29a-30a):

“. .. As I’ve said throughout this litigation, I am in

disagreement with the ruling of the appellate court,

but twice I have attempted to resolve the matter and

twice the appellate court sent it back. I was harking

back to the days of Frisch’s Restaurant on Harrodsburg

Road when they four-laned the highway. There were

eT

10

two problems in that case . . . second, whether or not

lack of access or limited access to a highway was

compensable. And the appellate court, at the time the

highest court . . . said lack of access or limited access

is not compensable . . . and I'm not aware of any case

which has changed that law... .”

The Kentucky Court of Appeals (Second Panel) in its

reversing opinion correctly observed:

. . it appears that the trial judge misconstrued the

directive from the first appeal of this case. The defi-

ciency noted on that appeal was the absence of any

finding or conclusion of law based on evidence that

the remaining access to the Comer and Corn properties

was either reasonable or unreasonable. This Court’s

decision was required by the rule enunciated in Com-

monwealth, Department of Highways v. Adkins, Ky.,

396 SW2d 768 (1965)... .” (Appendix, page 7a)

The Court further said:

“.. . This court expressed no opinion as to what the

ultimate determination should be. It only required

that the narrow issue of reasonable access be ad-

dressed.” (Appendix, page 8a).

Plain and simple the trial judge misinterpreted the di-

rective of the First Panel's Opinion of which the Second

Panel resolved the confusion.

Further, the Kentucky Court of Appeals (Second Panel)

thoroughly discussed in its reversing opinion (Appendix,

pages 9a-10a) the cases as regards the instant case and

distinguished those cases where there was a compensable

loss. One of the cases relied upon by the Respondent,

DeRossette v. Jefferson County, Ky., 156 S.W.2d 165 (1941)

was stated by the Second Panel to be the “most similar”

case to the instant case. The Court distinguished this case

with other cases relied upon by the Petitioners by stating:

1]

“. .. Here we do not have a complete destruction of

ingress and egress to and from the subject properties.”

(Appendix, page Ya).

As the Court further notes:

. if one is east of the properties, the Scott Street

route is still the same.” (Appendix, page 10a).

The Petitioners would have us believe in error that no

traffic ever entered Scott Street from the east side of town.

The trial court even noted correctly that much of Mr.

Comer’s business came from a “substantial number of pa-

trons . . . University of Kentucky Students” (Appendix,

page 26a). This would be from the east side of Scott Street.

The Petitioners say at page 24 in their Petition that

“The Commonwealth (Respondent) did not even cite

DeRossette in its original brief to the Second Panel... .”

This is clearly inaccurate. The Respondent did cite

DeRossette as reflected in its Brief to the Second Panel

(Appendix, pages 3la-34a).

The Kentucky Court of Appeals (Second Panel) after

reading briefs and hearing arguments of counsel noted:

“The evidence adduced at the hearing on remand

showed that Comer and Corn retained access to their

properties via Scott Street ... to get to their proper-

ties from that portion of South Broadway which ad-

joins their properties, one must drive approximately

nine-tenths of a mile. It is well-settled law in Kentucky

that reasonable restriction of access, rerouting of pub-

lic highways, and circuity of travel caused thereby are

not legally compensable. Commonwealth, Department

of Highways v. Diuguid, Ky., 469 S.W.2d 707 (1971);

Commonwealth, Department of Highways v. Rosenbiatt,

Ky., 416 S.W.2d 754 (1967)... .” (Appendix, page 8a)

i

12

Not satisfied with the Court of Appeals’ Opinion

reversing, the Petitioners sought review by the Supreme

Court of Kentucky. Their Motion for Discretionary Review

by the Supreme Court of Kentucky was denied without

comment.

Ill

This Case Does Not Involve an Important Decision

Directly in Conflict With the Decision of the

United States Supreme Court in First English

Evangelical Church v. County of Los Angeles, 482

U.S. 304 (1987).

Although the Respondent believes the record on its face

thoroughly and completely negates the Petitioners’ claims,

the Respondent deems it appropriate to respond to the

Petitioners’ arguments and the cases cited. Petitioners

rely heavily on First English Evangelical Lutheran Church

v. County of Los Angeles, 482 U.S. 304 (1987) to promote a

taking. The Church operated a campground for handi-

capped children. The grounds contained twenty-one acres

along a river bank. A flood in 1978 destroyed the grounds

and buildings. A year later, the County of Los Angeles due

to the flood adopted an ordinance prohibiting construction

or reconstruction of any building along the river bank which

included the campground site for the children. The Church

and the County alleged the ordinance deprived the Church

of all use of the campground. The Court here addressed

the issue of whether the “Just Compensation Clause re-

quires the government to pay for ‘temporary’ regulatory

takings.” Id. at 313. The Court held “that invalidation of

the ordinance without payment of fair value for the use of

the property during this period of time would be a consti-

tutionally insufficient remedy.” Id. at 322.

13

This Court went on to say, however:

“We limit our holding to the facts presented... .” Id.

at 321

First English is obviously a land use case that applies

to a temporary regulatory taking. The Church was not

permitted use of the property. In the instant case, the

properties are still in tact. There are no restrictions of

use. They can be used for any use the property owners

desire within the laws of Lexington. The case at hand is a

case of circuity of travel which is noncompensable. In

Pumpelly v. Green Bay & Miss. Canal Co., 80 U.S. 166

(1872), also relied on by Petitioners, take note there had

been a physical invasion of the real property of a private

property owner and that he was practically ousted of pos-

session. This distinguishes the instant case.

In a recent decision Lockary v. Kayfetz, 917 F.2d 1150

(9th Cir. 1990), the United States Court of Appeals dis-

cussed a case considering First English which also was a

case alleging a regulatory taking of land. While we do not

concede that either of these two cases is the instant case,

the Court’s discussion sheds light on the Petitioners’ argu-

ments. In Lockary, the Bolinas Community Public Utility

District and its directors (hereinafter “BCPUD”) denied

water hookups to appellant partnership and its general

partner who owned undeveloped land. Upon filing of suit,

summary judgment was granted to appellee. The United

States Court of Appeals reversed the grant of the sum-

mary judgment to allow Appellant “to establish whether

BCPUD’s rejection of the water hookups arbitrarily denies

them all economically viable use of their land.” Jd at 1157.

In application here, the Petitioners had every opportunity

to present whatever evidence they so desired at the non-

jury trial as to loss of reasonable access including how the

einen

14

construction affected the “economically viable use” of their

properties. They quote from Kaiser Aetna v. United States,

444 U.S. 164 (1979) regarding their “reasonable invest-

ment backed expectations.” Jd. at 175. However, at the

non-jury trial, they missed any opportunity they had to

present facts in support of each and every argument they

now make. What evidence did they present to advance

their position? They presented one witness, who had over

twenty years experience in the restaurant business. He

advanced his non-expert opinion on Petitioners’ access and

that his opinion was based on loss of business. (Appendix,

page 19a). There were no studies or surveys taken (Ap-

pendix, page 19a). Did any witness testify to “reasonable

investment backed expectations” or how there was a loss

of reasonable access based on evidence other than circuity

of travel or diversion of traffic? The record is completely

devoid of any evidence to support Petitioners’ claims. Had

evidence been presented as the Kentucky Court of Appeals

indicated, the Petitioners might have had a valid claim.

Even if evidence were presented, a mere reduction in the

properties’ value does not establish that all economically

viable use of the property is denied. Trustee for Alaska v.

E.P.A., 749 F.2d 549, 560 (9th Cir. 1984).

The Petitioners cite other state courts in deciding loss

of access since First English such as Palm Beach County v.

Tessler, 538 So.2d 846 (Fla. 1989). Here, the case turns on

Florida law that recognizes right of access as a property

right which every adjoining landowner holds to every point

of access. The Opinion recognizes some states do not con-

sider each access as a property right. Instead, they con-

sider the total access picture to determine reasonable ac-

cess. Kentucky is one of these states. Further, Tessler did

not get an unlimited following in its own state. Take, for

iia

15

example, State, DOT v. Weggies Banana Boat, 576 So.2d 722

(Fla. App. 2 Dist. 1990) which considered Tessler, but chose

not to follow.

In Weggies, there was even a physical taking and the

road modification “resulted in a 23 foot wall and roadway”

affecting the “visual and physical accessibility of motorists

passing its premises.” Id. at 724. In quoting from Tessler,

the Court said “The loss of the most convenient access is

not compensable where other suitable access continues to

exist.” See also, Division of Admin. v. Ness Trailer Park,

Inc., 489 So.2d 1172 (Fla. App. 4 Dist. 1986) reflecting

Florida recognizes that circuity of travel is not compensable.

The case of Merritt v. State, 742 P.2d 397 (Idaho 1987)

cited by Petitioners clearly shows access closed at one end,

allowing the property access from the other end.” Id. at 400.

Compared with the instant case, Scott Street closed on one

end, and it has access from the east side. A case in point.

The problem with the Petitioners’ view is that they forget

they have the same preconstruction access where Scott

Street east intersects with Upper and Limestone at the

University of Kentucky. As the Court in Merritt said at 400:

“,.. the requirement of merely a more circuitous route

to reach property is merely a by-product of a regulation,

and does not constitute a taking.” [citation omitted]

Three D Corporation v. Salt Lake City, 752 P.2d 1321

(Utah App. 1988), cited by Petitioners was a loss of parking

case. Even if the facts in Three D justify the result, the facts

in the instant case are distinguishable.

Com’r. of Transp. v. Nat. Amusements, 581 A.2d 1353

(N.J. Super. A.D. 1990) in citing a Kentucky case, Com-

monwealth, Dept. of Highways v. Denny, 385 S.W.2d 776

(Ky. 1964) does not change anything because the Petitioners

16

still have reasonable access to the highway system via

Scott Street east.

What we have learned since First English is that there

is not a clear view as to what constitutes a “taking” under

the Fifth and Fourteenth Amendments to the United States

Constitution. As Judge Bakes said in his Opinion concur-

ring on rehearing in Merritt, in discussing this Court’s po-

sition at 406:

. Keystone Bituminous Coal Ass’n v. DeBennedictis,

supra at 1247 (‘ “ ‘this court has generally “been un-

able to develop any ‘set formula’ for determining when

‘justice and fairness’ require that economic injuries

caused by public action be compensated by the govern-

ment, rather than remain disproportionately concen-

trated on a few persons.”’ ”’)...

Therefore, one must look then to the presented facts

and circumstances of each case.

Recently in a physical taking case, Grapevine v. Grape-

vine Pool Rd. J. Venture, 804 S.W.2d 675 (Tex. App.—Fort

Worth 1991), where one road was cut off—restricting ac-

cess, the Court said at page 678:

“One of two public streets may be closed without com-

pensation to abutting landowners if the remaining

street furnishes a suitable means of access to the piece

of property.” [citations omitted]

As Grapevine indicates, no compensation is paid to

abutting !andowners if there is a suitable means of access.

How do we arrive at the question? By looking at the

evidence presented. In the instant case, the Petitioners

had the burden to show the loss of reasonable access. They

produced one witness (bifurcated non-jury trial) whose

opinion was incompetent to show a “taking” or unreasonable

access. There may have been more evidence as the Second

17

Panel suggests, but the Petitioners did not go farther to

meet this burden of proof. They now ask this Court to

straighten out their failure to meet same.

Earlier cases support the Kentucky Courts in its view

such as Triangle, Inc. v. State, Alaska, 632 P.2d 965 (1981)

again where some property was physically taken and one

had to travel about one-half (1/2) mile of a circuitous route

to reach a nightclub after construction. Quoting from B &

G Meats, Inc. v. State, Alaska 601 P.2d 252, (1979), the

Alaska Court said at page 967:

... circuity of travel, so long as it is not unreason-

able, is non-compensable. Likewise, loss of business

occasioned by the diversion of traffic is

noncompensable.’ ”

As the Court further stated in Triangle:

. its only right was to reasonable access ... .” Id.

at 967.

In B & G Meats, a frontage road was made a one-lane

road causing some of its patrons to travel an additional 2.3

miles to reach the meat store. The Alaska Court said it

was not so unreasonable to constitute a compensable taking,

the same as it held in Triangle. See also, Ray v. State

Highway Comm., Kan., 410 P.2d 278 (1966); Stipe v. United

States, 337 F.2d 818 (10th Cir. 1964); Houghs v. Mackie,

Mich., 137 N.W.2d 298 (1965); and State Highway Com’n.

v. Scrivner, Wyo., 641 P.2d 735 (1982). In Scrivner, there

was property physically taken. The case, Fla. East Coast

Prop. v. Metropolitan Dade Cty., 572 F.2d 1108 (Fifth Cir.

1978) in discussing a diminutidn in value to present a

valid claim for compensation under the Fifth or Fourteenth

Amendments quoted the Kentucky Court of Appeals in

Louisville and Jefferson County Air Bd. vy. Porter, Ky., 397

S.W.2d 146 at 152 (1965) where it said:

18

“... It is fundamental that a buyer of property as-

sumes the risk of changing community conditions.

Sometimes the value of his property is enhanced, and

he does not have to pay for the enhancement. Some-

times it declines, and he has no recourse. These facts

of life are not subject to an exception simply because

the source of the transition can be identified and is

suable....”

This is the Kentucky view.

As the Tennessee Court said in City of Memphis v. Hood,

Tenn., 345 S.W.2d 887 (1961) at 890:

. . . In the instant case the damages claimed are

those as a result of the lawful authorities acting in

changing the traffic and such damages are

noncompensable to anyone, because if we allowed

damages in this way to everyone who might claim

that... traffic as diverted caused this and that damage

to them it would completely obstruct the building of

roads and highways by the public authorities... .”

Where would Kentucky be if every time it built a by-

pass all downtown business owners could claim damages?

That is a reasonable extension of this case. It would not

only disrupt and obstruct the building of roads, but it would

eventually bankrupt the coffers of the Commonwealth.

And finally, in a case cited by Petitioners’ Brinkerhoff-

Faris Co. v. Hill, 281 U.S. 673 (1930) at 680:

“... the courts of a State have the supreme power to

interpret and declare the written and unwritten laws

of the State...”

The Kentucky Court of Appeals has reviewed the lim-

ited facts presented by the Petitioners at the bifurcated

non-jury trial. They weighed them in the balance and

found them wanting. The Supreme Court of Kentucky

19

denied discretionary review. The Petitioners’ Claims are

not valid.

IV

The Law of the Case Was Not Decided by the First

Panel of the Kentucky Court of Appeals.

The Petitioners attack the Second Panel of the Ken-

tucky Court of Appeals in that they (Petitioners) claim the

Second Panel did not reaffirm the law pronounced by the

First Panel. This is where the Petitioners have focused

and continue to make a glaring error. The First Panel

only vacated and remanded the case to the trial court for

the reason the trial court did not hold a hearing for the

presentation of evidence. The First Panel did not affirm law

on the taking issue as Petitioners suggest. It remanded

for a hearing. The trial court misinterpreted the First

Panel's directive as the First Panel did not express an

opinion as to what the final determination should be. It

only told the trial court to hold a hearing and decide the

issue of reasonable access. Nothing more, nothing less.

The trial court proceeded, but erroneously believed it was

directed to rule that there was unreasonable access. The

idea of the First Panel deciding the law of the case is moot.

“... It is not applicable here because when this case vas

first remanded, nothing was finally decided. The whole

proceeding thereafter was in feri....” United States v. U.S.

Smelting Refining & Mining Co., 339 U.S. 186, 198 (1950).

CONCLUSION

The Respondent submits that the record clearly reflects

that no federal question was mentioned or passed upon by

the state courts and this Court is without jurisdiction to

decide this case. Even if it had jurisdiction, the Petition

|

20

ers have not shown any reason that this Court should

review the decision of the Court of Appeals below. Accord-

ingly, the Respondent would respectfully request that the

Petition for a Writ of Certiorari be denied.

Respectfully submitted.

Louis KAwAJA

P.O. Box 23942

Lexington, KY 40523-3942

(606) 277-5784

Attorney for Respondent,

Commonwealth of Kentucky,

Transportation Cabinet

Department of Highways

21

CERTIFICATE OF SERVICE

This is to certify that copies of the Brief for Respondent

in Opposition have been served by mailing three true cop-

ies thereof to Hon. Robert S. Miller, Miller, Griffin & Marks,

PSC, 700 Security Trust Building, 271 West Short Street,

Lexington, Kentucky 40507, Telephone No. (606) 255-6676,

and to Hon. John C. Scott, Clerk, Supreme Court of Ken-

tucky, New Capitol Building, Frankfort, Kentucky 40601,

Telephone No. (502) 564-4720 on this the 6="day of June,

1992.

Louis KAwAJA WA

P.O. Box 23942 ;

Lexington, Kentucky 40523-3942

(606) 277-5784

Attorney for Respondent

APPENDIX

la

No. 87-CI-4114

FAYETTE CIRCUIT COURT

CIVIL BRANCH

SECOND DIVISION

RAYMOND CoMER and

MaRioN CorN - - - - - - - - ~~ Plaintiffs

UV.

COMMONWEALTH OF KENTUCKY,

TRANSPORTATION CaBINET,

DEPARTMENT OF HiGHways - - - - - Defendant

STIPULATION OF FACTS

The Plaintiffs and the Defendant being in agreement,

the parties hereto stipulate the following facts:

1. Raymond Comer (“Comer”) is the owner of certain

real property located at and known as 684-686 South

Broadway, Lexington, Kentucky and more particularly de-

scribed on Exhibit “A” attached hereto and incorporated

herein.

2. Marion Corn (“Corn”) is the owner of certain real

property located at and known as 704 South Broadway,

Lexington, Kentucky and more particularly described on

Exhibit “B” attached hereto and incorporated herein.

“Bowyer Street” referred to on Exhibit “B” is believed to be

what is now called “Scott Street”. There is no street pres-

ently existing in the area called “Bowyer Street.”

3. During 1987, Defendant altered the location of or

removed that portion of South Broadway adjacent to and

2a

in the area of the real properties owned by Plaintiffs by its

construction of a railroad underpass in that vicinity.

4. South Broadway is a part of the public highway

system and Plaintiffs are entitled to a right of reasonable

access to the highway system.

5. Prior to the construction of the underpass, Plaintiffs’

properties fronted on South Broadway. After the construc-

tion of the underpass, Plaintiffs’ properties do not have

vehicular access to South Broadway, but have vehicular

access to Scott Street.

6. Plaintiffs’ properties are presently used and were

used prior to the construction of the underpass for business

and commercial purposes, including such purposes as a

hotel, lounge, and restaurant.

7. Plaintiffs’ experts would testify that the fair market

value of Plaintiffs’ properties on South Broadway has de-

clined due to Defendant’s construction of the underpass.

8. No property owned by Plaintiffs was condemned by

Defendant to enable the construction of the underpass.

Miller, Griffin & Marks, P.S.C.

700 Security Trust Building

Lexington, Kentucky 40507

Telephone: (606) 255-6676

By: /s/ Thomas C. Marks

Robert S. Miller

Thomas C. Marks

Attorneys for Plaintiffs

Transportation Department

P.O. Box 23942

Lexington, KY 40523-3492

By: /s/ Louis Kawaja

Louis Kawaja

Attorney for Defendant

3a

EXHIBIT “A”

Beginning at a point in the east property line of South

Broadway, said point being 99.5 feet north of the north

property line of Scott Street as measured along the east

property line of South Broadway, said point being in the

division line between Louise Kirk Headley and Raymond

Comer; thence with Headley and Comer for two lines be-

tween the existing buildings, in an easterly direction 111

feet and in a southerly direction 114.8 feet to a point in the

north property line of Scott Street, said point being 97.2

feet east of east property line of South Broadway as mea-

sured along said north property line of Scott Street.

4a

EXHIBIT “B”

All that tract of land with improvements thereon known as

704 South Broadway in the City of Lexington, County of

Fayette and State of Kentucky, described as follows:

All that lot of land on the East side of Broadway, between

Bowyer Street and the Cincinnati Southern Railroad prop-

erty, bounded as follows: Beginning on the East side of

Broadway in said City of Lexington, Kentucky, at the cor-

ner of Bowyer Street; thence along Broadway in a South-

erly direction a distance of forty six and three tenths (46.3)

feet to the property of the Cincinnati Southern Railroad;

thence along the Southern Railroad property line in a

Southeasterly direction a distance of one hundred and thirty

eight and seven tenths (138.7) feet to the property now or

formerly owned by Wheeler; thence with Wheeler’s line in

a northeasterly direction a distance of eighty five and seven

tenths (85.7) feet to Bowyer Street; thence along Bowyer

Street in a Westerly direction a distance of one hundred

and thirty (130) feet to Broadway at the place of beginning.

5a

No. 91-CA-137-MR

RENDERED: DECEMBER 20, 1991; 10:00 A.M.

TO BE PUBLISHED

COURT OF APPEALS OF KENTUCKY

COMMONWEALTH OF KENTUCKY,

TRANSPORTATION CaBINET,

DEPARTMENT OF HIGHWAYS - - - - - Appellant

VU.

RAYMOND CoMER and

Marion Corn - - - - - = | . Appellees

Appeal From Fayette Circuit Court

Honorable N. Mitchell Meade, Judge

Action No. 87-CI-4114

REVERSING

4

BreForE: Howerton, ScHRoDER, and WILHOIT, Judges.

HOWERTON, JUDGE. The Commonwealth of Kentucky,

Transportation Cabinet, Department of Highways appeals

from a determination of the Fayette Circuit Court that

Raymond Comer and Marion Corn were denied reasonable

access to their properties when the state constructed a

railroad underpass on South Broadway in Lexington. After

the trial court concluded there was a public taking of the

land, a jury awarded $240,000 to Comer and $111,000 to

Corn.

6a

In a previous proceeding, the trial court concluded that

there was no compensable taking. As that decision was

apparently based on the judge’s personal knowledge of the

situation, this Court reversed the judgment and remanded

for a trial and findings. Judge Meade committed a proce-

dural error in the first proceeding, but he apparently had a

correct understanding of the substantive issue. On remand,

he heard the evidence and made his findings, but on the

ultimate question of a compensable denial of reasonable

access, he erred as a matter of law. We reverse.

Comer and Corn each owned property at the intersection

of South Broadway and Scott Street in Lexington prior to

construction of the railroad underpass in 1987. Before

construction, the public had access directly from South

Broadway to Scott Street in front of the properties, on

which each was operating a business. After construction

of the underpass, the properties did not have direct vehicu-

lar access to South Broadway but continued to have direct

access only to Scott Street. It is now necessary to drive

approximately nine-tenths of a mile over Scott Street and

other adjacent streets to get to these properties from

Broadway. There was no physical taking of any part of

either the Comer or Corn property.

Comer and Corn filed the first appeal to this Court

after the trial court dismissed their original complaint,

which alleged deprivation of a right of reasonable access to

the highway system, resulting in an unauthorized taking

without just compensation. This Court vacated and re-

manded the case, holding that the trial court must hear

some evidence in order to determine the issue. This Court

noted that, although it appeared from the order of the trial

court that Judge Meade believed the property owners were

not denied reasonable access, the court had failed to make

any specific finding or cite any legal authority regarding

the issue of reasonable access. This Court’s earlier opinion

7a

did not mandate a judgment for Comer and Corn. After

this Court’s decision, the Commonwealth’s motion for dis-

cretionary review was denied.

On remand, the trial court held an evidentiary hearing.

Comer and Corn introduced evidence of circuity of travel

and diversion of traffic, as well as evidence from which

loss of business could be inferred. After all the evidence

was presented, the trial court ruled that the property own-

ers had lost reasonable access. A jury trial to determine

damages was held over the Commonwealth’s objection. The

jury awarded Comer $240,000 and Corn was awarded

$111,000. The Commonwealth now appeals to this Court

to review the trial court’s decision regarding reasonable

access, along with the issues regarding the evidence pre-

sented to the jury and its verdict.

The Commonwealth argues that the evidence presented

at the hearing, when considered in light of the legal stan-

dards enunciated in the case law, was insufficient to sup-

port the conclusion that Comer and Corn had lost reason-

able access to their properties. We believe this argument

is sound.

Initially, it appears that the trial judge misconstrued

the directive from the first appeal of this case. The defi-

ciency noted on that appeal was the absence of any finding

or conclusion of law based on evidence that the remaining

access to the Comer and Corn properties was either rea-

sonable or unreasonable. This Court’s decision was re-

quired by the rule enunciated in Commonwealth, Depart-

ment of Highways v. Adkins, Ky., 396 S.W.2d 768 (1965).

Ordinarily, whether the landowner has been deprived of

reasonable access is a question of law which should be

resolved by the court, but in order for it to be resolved at

all, the facts must be disclosed.

No evidentiary hearing was held, although a stipula-

tion was filed. The landowners were denied the right to

8a

demonstrate by evidence, if they could, that Scott Street

does not meet modern vehicular requirements, or that it

was impassable at certain times, or that it provided insuf-

ficient driveway space for commercial vehicles, or that it in

some way other than circuity was not reasonable access.

Tnis Court expressed no opinion as to what that ultimate

determination should be. It only required that the narrow

issue of reasonable access be addressed.

The evidence adduced at the hearing on remand showed

that Comer and Corn retained access to their properties

via Scott Street; however, in order to get to their properties

from that portion of South Broadway which adjoins their

properties, one must drive approximately nine-tenths of a

mile. It is well-settled law in Kentucky that reasonable

restriction of access, rerouting of public highways, and cir-

cuity of travel caused thereby are not legally compensable.

Commonwealth, Department of Highways v. Diuguid, Ky.,

469 S.W.2d 707 (1971); Commonwealth, Department of

Highways v. Rosenblatt, Ky., 416 S.W.2d 754 (1967).

Clearly, governments must have the authority to grant or

deny parking on the streets, establish one-way traffic, allow

or deny curb-cuts and driveways, erect dividers and safety

barriers in streets, and other such things to improve traffic

flow and safety.

DeRossette v. Jefferson County, 288 Ky. 407, 156 S.W.2d

165 (1941), the case most similar to the case at bar, involved

a property owner's claim that an underpass built by the

county destroyed his property without payment of just

compensation. The owner alleged that the road alteration

interfered with traffic moving along a heavily-travelled road

on which he was conducting a profitable business. The

underpass construction rerouted or diverted traffic to the

new highway. This led to loss of business and depreciation

in the value of his real property.

9a

The DeRossette court thoroughly examined the case law

and distinguished the cases where a compensable loss was

found. Unreasonable obstruction in which all means of in-

gress were destroyed was a common theme found in several

of the cases where compensation was awarded. This was

the situation in Henderson v. City of Lexington, 132 Ky. 390,

111 S.W. 318 (1908), and Illinois Central Railroad Com-

pany v. Ward, 237 Ky. 478, 35 S.W.2d 863 (1931). The

DeRossette court further noted that other cases with

compensable damage existed when there was unreasonable

interference with ingress and egress or there was a wrong-

ful or illegal obstruction of a public road. The court found

Cranley v. Boyd County, 266 Ky. 569, 99 S.W.2d 737 (1936),

to be an example of unreasonable interference when a

county engineer closed access to an old road used by the

plaintiff when the barriers effectively destroyed her ingress

and egress to that road. The Cranley court limited its

holding to the facts and specifically stated that “[no] com-

pensation [will] be required where a change in a road results

merely in personal inconvenience or injury, such as to trade

or business by diverting traffic, or compels a more circuitous

route of access.” 266 Ky. at 573.

Although Comer and Corn rely on Henderson, supra,

and Ward, supra, these cases are easily distinguishable from

the present case. Here, we do not have a complete destruc-

tion of ingress and egress to and from the subject properties.

Neither do we have an unreasonable obstruction as pre-

sented in Cranley. Also, we note that the remainder of the

cases cited by Comer and Corn involve a physical taking

from the abutting properties and are thus distinguishable.

DeRossette, supra, and the cases discussed therein, in-

dicate that where there is only a diversion of traffic or a

circuitous route of travel suffered by the property owner,

there is to be no compensation. In the case before us, it is

evident that the public has to take another route from

10a

South Broadway to the Comer and Corn properties. But,

as the Commonwealth points out in its brief, if one is east

of the properties, the Scott Street route is still the same.

The DeRossette case was cited with approval in De-

partment of Highways v. Jackson, Ky., 302 S.W.2d 373

(1957), which was an action by an owner for depreciation

of land value when a county road between his property

and a nearby town was closed. The court held that the

closing of the county road at one end did not deprive the

owner of reasonable access from his land to the highway

system and that he was therefore not entitled to damages,

even though the closing required taking a slightly longer

route to the nearby town. The court noted that past deci-

sions has made a distinction between county highways and

city streets as to the rights of abutting landowners to con-

tinued maintenance. The rule had been that a landowner

along a county road had no property right in the continued

maintenance of that road, while a landowner along a city

street had a right, in the nature of a private easement, to

the continued maintenance of platted or dedicated streets.

302 S.W.2d at 374. In specifically holding that this distinc-

tion be abolished, the court declared “that the rule govern-

ing city streets shall be the same as that herein stated for

county roads.” Jd. at 376. Jackson overruled all earlier

cases in conflict with this new rule, including, to this extent,

Cranley, supra, and Ward, supra.

In conclusion, we recognize the difficulties frequently

presented by inverse condemnation cases, and the resulting

hardships often experienced by the parties involved. How-

ever, it is not for this Court to carve out any exceptions to

the general rule of law applicable to cases such as this.

The inherent nature of the circumstances involved in such

cases has required that rules be created, which may some-

times be viewed as arbitrary, but which in fact provide

workable, objective standards. Neighborhoods, traffic pat-

Se

lla

terns, safety requirements, and the like change over time,

and governments must not always be required to compen-

sate a property owner for every inconvenience or loss of

business. The facts here present a case of noncompensable

damage. The trial judge gathered the evidence as required

but then reached the wrong conclusion of law. Because we

find that there is no support in the case law to hold that

Comer and Corn were denied reasonable access to their

properties as a result of the construction of the underpass,

we decline to address the remaining issues raised by the

Commonwealth.

The judgment of the Fayette Circuit Court is reversed.

ALL Concur.

Attorney for Appellant:

LOUIS KAWAJA

Lexington, KY

Attorneys for Appellees:

THOMAS C. MARKS

ROBERT S. MILLER

MILLER, GRIFFIN, & MARKS, PSC

Lexington, KY

12a

No. 87CI4114

FAYETTE CIRCUIT COURT

CIVIL BRANCH

SECOND DIVISION

RAYMOND CoMER and

MarRION CoRN - - - - - - +--+ Plaintiffs

VU.

COMMONWEALTH OF KENTUCKY,

TRANSPORTATION CABINET,

DEPARTMENT OF HiGHways - - - - - Defendant

TRANSCRIPT OF THE EVIDENCE AND

PROCEEDINGS OF THE NON-JURY

TRIAL HEARD ON JANUARY 31, 1990

Juanita Stollings

Official Court Reporter

401 Courthouse

Lexington, Kentucky 40507

606 233-0817

Statement in Behalf of Plaintiff by Mr. Miller.......... 2- 4

Statement in Behalf of Defendent by Mr. Kawaja.... 4

Evidence in Behalf of Plaintiff:

Giovanni Freda

Direct examination by Mr. Miller .................... 5- 9

Cross-examination by Mr. Kawaja .................. 9-1]

Evidence in Behalf of Defendant:

Dennis Bellamy

Direct examination by Mr. Sn 12-16

Cross-examination by Mr. Miller..................... 16-19

Btuling OF Che Court ..................0.cccescescecescseseccoceees....... 20-22

Certificate of Reporter ...........ccccceccccceccecceccecceeeccccsccc. 23

Exhibits

for Defendant:

#1, T.E., p. 13 Aerial photograph

#2, T.E., p. 15 Aerial photograph

l4a

Evidence In Behalf Of Plaintiffs:

The first witness, GIOVANNI FREDA, after first being

duly sworn, testified as follows:

The Court: State your name and your occupation.

Witness: Pardon me?

The Court: Name, address and occupation.

Witness: My name is Giovanni Freda.

The Court: Spell your last name.

Witness: F-r-e-d-a. I live on 505 Shaftsbury Road,

Lexington. My occupation, I’ve been in the restaurant

business and property owner, and at the present time I’m

retiring.

Direct Examination By Mr. Miller:

Q. Mr. Freda, how long have you been in the real

estate business?

A. Since 1967.

Q. Will you tell briefly for the Court some of the prop-

erties that you’ve owned, bought and sold in the area of

South Broadway that Mr. Comer’s —

A. Well, no properties on South Broadway, but around

Limestone and Maxwell Street very close to South Broad-

way, yes.

Q. Would you tell the Court —

A. I own the property on 270, 290, 276, 266, which is

the Dunn Building, used to be the restaurant, the Execu-

tive

6

House Restaurant used to be there, which is 1880 right

now. Most of that block I own that plus the parking lot

across the street where Joe Bologna parking lot was.

15a

I own property on Warren Court. Own property on

Bassett Court and on Henton Road, all in Lexington.

Q. Mr. Freda, how long have you been in the restau-

rant business?

A. Since 1969.

Q. And would you tell the Court some of the restau-

rants throughout this area that you've been involved with?

A. I own the Mama Mia Pizzeria, Giovonni’s Pizza. |

owned the Executive House Restaurant. I used to own the

Cave Restaurant, built it and operate it in Frankfort, Ken-

tucky.

The Court: The what?

Witness: Pardon me?

The Court: What was that in Frankfort?

Witness: The Cave. The Cave Restaurant. | build it

and operate it. And I was involved with the Holiday Inn.

I was the general manager of the Holiday Inn. I was here

work at the Holiday Inn West and then I was manager at

the, general manager at the Holiday Inn in Morehead,

Kentucky.

Q. So you're familiar with the hotel business as wel]

7

as the restaurant and real estate business?

A. Yes. Plus I’ve been in the area. I attend the Uni-

versity of Kentucky since 1963. So I've been in the area.

Q. Are you familiar with the properties owned by Mr.

Corn and Mr. Comer on Scott Street in Lexington and

have you been familiar with those for a long period of

time?

A. Since I was a student over U.K., yes.

Q. And are you familiar with the access that each had

to South Broadway both before and after the overpass was

built?

A. Yes.

16a

Q. Would you describe to the Court the access before

and after and give your characterization and how you would

describe that to the Court?

A. Well, for years when most every time I went to Mr.

Comer’s restaurant, I always went to Broadway, and very

seldom we use the Scott Street because it’s not too many

people is familiar with that street.

Mr. Kawaja: I object to that. I don’t think he knows

how many people are familiar with it.

The Court: Overruled.

Q. You may go ahead, Mr. Freda.

A. So I always use the Broadway exit and entrance,

8

and since this has been blocked, I used to go to see Mr.

Comers even on this parking lot quite often, and since it’s

been blocked, usually I get on Broadway and sometimes

the traffic is so bad in the area there, Bolivar Street, that I

just keep going. I never stop. In a year, I’ve been maybe

two or three times to see him.

Q. Based on the experience you've described in the

real estate business and the restaurant business and the

hotel business, how would you characterize the use of such

access by the general public?

A. Right at the present time if that restaurant and

bar were to be given to me just with the free rent, I wouldn't

operate it because you can’t make the expenses for the

utilities.

Q. Would you describe to the Court why that is?

A. Well, it’s no access to it. It’s just people has been

used to years—I know that restaurant has been there I

know for over thirty or twenty-seven some years, but I

know people know Comer’s. Almost everybody in town

knows Comer’s. But I don’t think they realize that, you

know, he’s still there because of the access.

17a

Q. What percentage of the people in this community,

based on your experience, would know how to get to those

restaurants now?

Mr. Kawaja: Objection, Your Honor.

9

A. I believe a very small percentage.

The Court: Overruled.

Q. Based on your experience, can you estimate a per-

centage?

A. Maybe a ten percent.

Q. Can you tell the Court, based again on the experi-

ence that you've described, the importance to businesses

such as these of access to the highways?

A. Especially the type of business, my experience in

the restaurant and bar business, you got to have plenty

access, easy access for public to come in and out because

people they don’t travel a mile to go all the way around to

try to find where the place is. Especially the particular

business where he was there for years and that’s the only

way they knew how to get in, a lot of people, from the

Broadway side.

Mr. Miller: That’s all, Your Honor.

Cross-Examination By Mr. Kawaja:

Q. Mr. Freda, how did you get to the parking area for

either of these two establishments when you entered from

Broadway? What street did you come upon?

A. What street?

Q. Yes.

A. On Broadway.

10

Q. You said you used Broadway.

A

Yes.

18a

Q. To get to these properties and park, where did you

park?

A. Well, Mr. Raymond Comers has a park in there.

Q. Where is the parking?

A. Right on Scott Street.

Q. It’s on Scott.

A. Yes.

Q. So you came off of Broadway to Scott Street, correct?

A. Yes.

Q. That’s how you got to the establishments?

A. Yes.

Q. Did you park in front on Broadway anywhere?

A. No. I never parked in the front, no.

Q. Could you park on Broadway before the construc-

tion?

A. I don’t really know. I don’t think so.

Q. You said you were familiar with it.

A. Well, but I never, you know, pay attention to park

there because he always had enough parking on Scott

Street, which he had parking right with the building plus

across the street right on Scott Street. So I never, you

know, park on the street.

ll

Q. But you don’t know then whether you could park

on Broadway or not?

A. No,Idon’t. I’m not familiar if somebody had parked

there.

Q. You mentioned a figure that Mr. Miller asked you

about, ten percent of the public, you know. That would be

the percentage that would know maybe how to get there.

How did you make that determination?

A. Because I’ve been in the restaurant business many

years and I talked to a lot of people that—usually the

19a

same kind of people goes out that goes to a lot of restaurants

and bars, and I know people that they don’t know that

Raymond Comer is still exist in there, that building or

when he had it for business last two or three years.

Q. But did you do any kind of survey or study or is

this just your opinion?

A. That's just my opinion.

Q. All right. And are you basing your thought as to

this piece of property, in terms of access and so on, as to

loss of business?

A. Yes, sir.

Mr. Kawaja: That’s all.

{

Mr. Miller: That’s all, Your Honor. We rely

12

on Mr. Freda and the material matters that are in the

record.

Mr. Kawaja: We call Mr. Dennis Bellamy to the stand.

Evidence In Behalf Of Defendant:

The first witness, DENNIS BELLAMY, after first being

duly sworn, testified as follows:

The Court: State your name, address and occupation.

Witness: My name is Dennis Bellamy. I’m a design

engineer for the Department of Highways, Lexington, Ken-

tucky.

The Court: What is your last name? How do you spell

it?

Witness: B-e-]-]-a-m-y.

The Court: You're with the Department of Highways?

Witness: Yes, sir.

—

20a

Direct Examination By Mr. Kawaja:

Q. Mr. Bellamy, how long have you been employed by

the Department?

A. Thirty years.

Q. And you're a registered engineer?

A. Yes, sir.

13

Q. Are you familiar now with the property known as

Comer’s and/or Boots Bar located on Scott Street and

fronting what was old South Broadway now is Broadway?

A. Yes, sir.

Q. Mr. Bellamy, how long would you say you’ve been

familiar with this piece of prcperty or that location rather?

A. Twenty-five to thirty years roughly.

Q. Were you involved in some of the project known as

the Broadway underpass or the railroad underpass?

A. Yes, sir. As a district design engineer in Lexington,

I was involved in all phases in some way or another gener-

ally.

Q. Now, we've already stipulated these aerial photo-

graphs, and the one that is in black and white I believe

you have labeled as “before construction,” and the one that’s

in color, which is a bluish type color, is labeled “after con-

struction of the Broadway railroad underpass;” is that cor-

rect?

A. Correct.

Q. And the parties, as I say, have stipulated to this.

Now, by using the Exhibit No. 1, which is labeled No. 1,

the black and white one, would you tell the Court exactly

the routes that you’re familiar with, the routes to this

property prior to the construction of the railroad

14

underpass? And if you need to get up, just get up and

come up and point it out to the court.

Zia

A. Mr. Comer lies in the north—want me to describe

where it is roughly?

Q. Yes. Go right ahead.

A. Mr. Comer’s property lies in the northeast quadrant

of Scott and Broadway. He fronts on Broadway. His park-

ing lot is east of that, and to get—let me describe the Boots

Bar also. It also fronts on Broadway. There’s no access to

Broadway to either of the properties. The parking lot is a

little farther east of it also. It’s in the south quadrant of

Scott and Broadway.

Access to either of these properties before from Broad-

way, you could go north or south on Broadway and you

could turn east on Scott Street for a little distance and

then you could park at either one of ‘em.

Also, if you wish, if you lived up north, you could ap-

proach ‘em by Bolivar Street down through the warehouse

area to Upper and you could go south on Upper Street to

Scott and you could go west on Scott Street to the same

point. Or if you was coming from south, you could approach

by Broadway, as I mentioned, or you could go down in this

area. East of Broadway, you could come Virginia Avenue

to Limestone. You could come up Limestone to Scott and

you could go out Scott to the properties.

15

Q. And that is your description of how you got there

before the construction?

A. Yes, sir.

Q. Okay. And the arteries that you have pointed out

to the court, are those the main arteries that you're familiar

with?

A. Yes, sir.

Q. Now, if you need to, we might put this upon the—

The Court: Can’t we summarize the second one by

simply saying that there is no access from Broadway, but

22a

other avenues, already described, are still there.

A. Yes, sir.

Mr. Kawaja: And we want to use this exhibit.

The Court: I’ve already summarized what he would

say. ;

Mr. Kawaja: Okay. As far as you're concerned then,

Your Honor, you’re satisfied with that.

The Court: Oh, yes. We’ve now reached the conclusion

that there’s no access from Broadway but all other access

is still the same.

Mr. Kawaja: It’s still the same.

Essentially that’s the case, Your Honor.

Q. And if I may ask him a few more questions just for

16

the record, there are no disturbances along Limestone or

what is know as Nicholasville as to access with regard to

this construction of any manner; is that correct?

A. That’s correct.

Q. Scott Street as to access?

A. Scott Street remains the same except that you can-

not access Scott from Broadway.

Q. What about the parking for the Comer’s and the

other restaurant there?

A. The parking remains the same. It has not been

affected.

Q. Was any property actually physically taken from

these two properties?

A. No, sir.

Mr. Kawaja: That’s a!l I have, Your Honor.

Cross-Examination By Mr. Miller:

Q. Mr. Bellamy, the shortest route that you've de-

scribed is one of the alternates that existed before and

23a

remains now, the one down Bolivar. Have you measured

the distance of that?

A. From what point? Do you mean from Broadway?

Q. Well, from Comer’s to Comer’s. From Broadway as

it passes Comer’s and Corn to get actually to the parking

lot.

17

A. You mean from Bolivar right up here to get to it

now? Is that what you mean?

a. No, sir. I mean the circle from the prior entrance

down Bolivar—down South Broadway, down Bolivar, down

Upper, to Scott.

A. To get to it from this point here. This route. Is

that the route you mean?

Q. Yes, sir, the shortest one that you described.

A. Okay. Upper, Bolivar, okay. If you go from this

point right here, Lime and Upper, you go up Upper Street,

Bolivar and down Broadway, that distance is .63 miles.

Q. That’s without counting any part of Scott Street?

A. Right.

Q. How long is Scott Street?

A. From Scott Street, that distance is .29 miles.

Q. So it’s a little over nine tenths of a mile to make

the whole circle; is that right?

A. It’s about three tenths of a mile difference then

distance wise. If you were here and you went about three

tenths of a mile farther in going this route.

Q. I'm asking you the whole circle is a little over nine

tenths of a mile.

A. Yes.

Q. How about the second alternate route you described;

have you measured that?

24a

18

A. Yes.

Q. How long is that distance? You can just take a

minute and add ‘em together, if you would, rather than

going through the whole thing, if you don’t want to.

A. I’ve got so many here. I'm trying to pick out the

ones—I’ll just add ‘em all. You want the complete circle

from?

Q. From the front of their property to get into their

property.

A. To Broadway, Virginia, Lime and Scott. It’s about

one and a half miles for that complete circle.

Q. You described, going back to the first route again,

you described Bolivar as a warehouse district; is that right?

A. There’s warehouses down Bolivar, yes.

Q. Until you get to the university buildings, Upper is

a warehouse area.

A. Yes, sir, there’s some warehouses on Upper.

Q. And after you pass the university, you're back to a

warehouse area on Scott Street; isn’t that right?

A. Right.

Q. Now, if you were coming south on South Broadway,

away from town, and you passed Comer’s and decided you

wanted to go on and make this circle you've described, how

many streets that are dead-end streets along South Broad-

way

19

will you pass before you got to Virginia Avenue?

A. There’s about three or four that is dead and always

has been dead.

Q. So if you were a non-Lexingtonian and decided you

wanted to take your chances to take left, left and left to get

there, you'd first have to get out of three dead-end streets

25a

before you got to Virginia, wouldn’t you?

A. If it was me, sir, I would know where Comer’s was

and I'd know how to get there before I started.

Q. Yes. But if you didn’t?

A. Then I'd just have to hunt it.

Mr. Miller: That’s all. Thank you.

Mr. Kawaja: Your Honor, that’s our case.

The Court: Parties want to be heard briefly? And

since it’s his burden, you go first.

Mr. Miller: I really don’t have anything to add, Your

Honor. To me, it’s the same way it was before we started.

The access is plainly unreasonable. We appreciate your

time, Your Honor.

The Court: Anything you wish to say?

Mr. Kawaja: Only to say that we think it is reasonable,

and since the case law supports this kind of situation, we

would ask the Court to

20

review the cases along with the testimony and make that

application that this is reasonable access, which we have

submitted a multitude of cases on, Your Honor. Thank

you.

Ruling Of The Court:

The Court: Well, I happen to agree with your law, but

the Court of Appeals does not. And since they are second

and the last to speak, I have no alternative but to follow

their ruling. They have directed I hold this hearing as to

whether or not access to these two business establishments

are reasonable.

I have heard evidence in that regard additionally.

Courts are entitled to take judicial notice of those matters

which are of common knowledge in the community. Having

—

26a

been a resident of this community for a great number of

years, being familiar with Mr. Comer and his establishment

since at least 1962 in several regards, knowing the type of

business he receives, where that business comes from, it

will be the Court’s conclusion that Mr. Comer’s access has

been diminished by at least sixty percent.

What’s the name of the hotel?

Mr. Kawaja: Used to be the Scott Hotel.

The Court: The Scott Hotel has been reduced by about

forty percent. Again, taking into play my judicial

21

knowledge that the Scott Hotel at one time was principally

for use by the people who worked for the railroad, whereas,

Mr. Comer draws not only from the railroad people who

used to work on the railroad but the entire community and

substantial number of patrons from the University of Ken-

tucky students.

So with that, it’s the Court’s determination that the

access is not reasonable by virtue of the building of the

underpass. Being a traveler of Broadway, I’m very happy

to see the underpass being built because I don’t have to

worry about being killed now by trains.

I might add that one of the reasons I’m talking about

these diminishing matters is I’m aware that Mr. Comer’s

business is not the same business it was fifteen years ago.

-Hopefully, you fellows now can reach a conclusion. |

have a rule in the Second Division that nothing bigger

than what can be placed in a file folder cannot be—but you

might, if you want to appeal this matter at some future

date, substitute that for the record, but then if you go up

on appeal to the Court of Appeals or Supreme Court, then

you can take those up so they can see them better. They’re

not as familiar with this location as I am.

Mr. Kawaja: Your Honor, may I ask if the

27a

22

Court would entertain making this an appealable matter

at this point and then coming back for damages?

The Court: The Court’s findings of fact and conclusions

are as dictated into the record. I may look at ‘em later and

shudder at my grammar and English that I’ve used; but,

nonetheless, that’s going to be my findings of fact and

conclusions. Let this be a final and appealable order.

Maybe one of these days we'll get this case over with while

Mr. Comer and | are still living.

THEREUPON, at 2:28 p.m., the hearing was concluded.

28a

No. 87C14114

FAYETTE CIRCUIT COURT

CIVIL BRANCH

SECOND DIVISION

COMMONWEALTH OF KENTUCKY,

TRANSPORTATION CABINET,

DEPARTMENT OF HiGHWays - - - - - Appellant

v.

RAYMOND CoMER and

MarRioN CoRN - - - - - - - - Appellees

TRANSCRIPT OF THE EVIDENCE AND

PROCEEDINGS OF THE TRIAL HELD

ON DECEMBER 17, 1990

Juanita Stallings

Official Court Reporter

401 Courthouse

Lexington, Kentucky 40507

(606) 233-0817

The Court: Well, that’s bad because it’s the appellate

court that directed me to have the trial.

Mr. Kawaja: I understand, Your Honor, but this is our

position.

The Court: So if they want to reverse themselves.

They're not reversing me. I've already ruled, but they

reversed me.

Mr. Kawaja: We understand, Your Honor, but we feel

like that’s something that needs to go in the record.

At 9:15 a.m., the trial commenced in open court as

follows:

The Court: Call the case of Raymond Comer and Marion

Corn v. Commonwealth of Kentucky, Department of

Transportation or Cabinet of Transportation. What says

the plaintiffs?

Mr. Miller: We're ready, Your Honor.

The Court: And what says the Commonwealth?

Mr. Kawaja: We're ready, Your Honor.

The Court: Call around the jury.

° * * + . * *

76

oJ a * * ~ . >

The Court: Overruled. As I've said throughout this

litigation, I am in disagreement with the ruling of the

appellate court, but twice I have attempted to resolve the

matter and twice the appellate court sent it back. | was

harking back to the days of Frisch’s Restaurant on

Harrodsburg Road when they four-laned the highway.

There were two problems in that case. One, as to whether

30a

or not the lessee was entitled to show the value of their

lease separate and apart from the total value of the prop-

erty, and, second, whether or not lace of access or limited

access to a highway was compensable. And the appellate

court, at that time the highest court, in both cases said

lack of access or limited access is not compensable. Two,

the property has to be valued as a whole. And I’m not

aware of any case which has changed that law, but some-

where along the line maybe the appellate court is desirous

of changing what our law might be and maybe they want a

new Start at it, so I’m attempting to give them a new start.

I've never hesitated to let ‘em know what I think about a

matter, but that’s their decision they have to make, not

mine.

Mr. Miller: Let me state forthe recordthat *° us “

= > of = *. > *

3la

No. 90-CA-000497

COURT OF APPEALS OF KENTUCKY

COMMONWEALTH OF KENTUCKY

TRANSPORTATION CABINET,

DEPARTMENT OF HiGHways - - - - .~ Appellant

v.

RAYMOND CoMER and

meamion Comm - - - - - - =. Appellees

APPEAL FROM FAYETTE CIRCUIT COURT

SECOND DIVISION, CIVIL ACTION NO. 87-CI-4114

HON. N. MITCHELL MEADE, TRIAL JUDGE

BRIEF FOR APPELLANT

COMMONWEALTH OF KENTUCKY

TRANSPORTATION CABINET

DEPARTMENT OF HIGHWAYS

This is to certify that the record on appeal was not withdrawn by the

party filing this Brief and that copies of this Brief have been served

pursuant to CR 76.12 upon the Trial Judge, Hon. N. Mitchell Meade,

Fayette County Courthouse, Lexington, Kentucky 40507; and to Hon.

Robert S. Miller and Hon. Thomas C. Marks, Miller, Griffin & Marks, 700

Security Trust Building, Lexington, Kentucky 40507, Attorneys for

Appellees, on this the 27th day of July, 1990.

COMMONWEALTH OF KENTUCKY

TRANSPORTATION CABINET

DEPARTMENT OF HIGHWAYS

/sf/ LOUIS KAWAJA

LOUIS KAWAJA

Attorney for Appellant

Post Office Box 23942

Lexington, Kentucky 40523-3942

(606) 277-5784

32a

STATEMENT OF POINTS AND AUTHORITIES

PAGE(S)

ee OP I I i cos aa 1-3

RRS ne ie ae agi A oe i RT Sh RPO 3-9

er a a le ee ca 3

I. The Trial Court Erred in Ruling the Appellees

A I I ia iiciscecacipecsanernoisecencen 4-6

Commonwealth, Department of Highways v.

Carlisle, Ky., 363 S.W.2d 104 (1962) ............... 4

Commonwealth, Department of Highays v.

Diuguid, Ky., 469 S.W.2d 707 (1971)............... 5

Commonwealth, Department of Highways v. York,

Ky., 390 S.W.2d 190 (1965) ................0............. 5

II. Restriction of Access or Circuity of Travel Are Not

STAI nO ATT Oa 6-9

Commonwealth, Department of Highways v. York,

Ky., 390 S.W.2d 190 (1966) ....................cccceccees 6

Commonwealth, Department of Highways v.

Diuguid, Ky., 469 S.W.2d 707 (1971)............... 7

DeRossette v. Jefferson County, Ky., 156 S.W.2d

RAR rc tr LIE Re ty Or 7-8

Commonwealth of Kentucky, Department of

Highways v. Slusher, Ky., 371 S.W.2d 851

I radar ateceee ie eee 8

Commonwealth, Department of Highways v.

Rosenblatt, Ky., 416 S.W.2d 754 (1967)........... 8

Flynn v. Commonwealth, Department of

Highways, Ky., 428 S.W.2d 24 (1968) ..00.......... 8

33a

FILED —May 13, 1991

No. 91-CA-000137

COURT OF APPEALS OF KENTUCKY

COMMONWEALTH OF KENTUCKY

TRANSPORTATION CABINET,

DEPARTMENT OF HIGHWAYS - - - - - Appellant

v.

RAYMOND CoMER and

Marion Corn - - - - - - «= . Appellees

APPEAL FROM FAYETTE CIRCUIT COURT

SECOND DIVISION, CIVIL ACTION NO. 87-C1-4114

HON. N. MITCHELL MEADE, TRIAL JUDGE

BRIEF FOR APPELLANT

COMMONWEALTH OF KENTUCKY

TRANSPORTATION CABINET

DEPARTMENT OF HIGHWAYS

This is to certify that the record on appeal was not withdrawn by the

party filing this Brief and that copies of this Brief have been served

pursuant to CR 76.12 upon the Trial Judge, Hon. N. Mitchell Meade,

Fayette County Courthouse, Lexington, Kentucky 40507; and to Hon.

Robert S. Miller and Hon. Thomas C. Marks, Miller, Griffin & Marks, 700

Security Trust Building, Lexington, Kentucky 40507, Attorneys for

Appellees, on this the 13th day of May, 1991.

COMMONWEALTH OF KENTUCKY

TRANSPORTATION CABINET

DEPARTMENT OF HIGHWAYS

/sf/ LOUIS KAWAJA

LOUIS KAWAJA

Attorney for Appellant

Post Office Box 23942

Lexington, Kentucky 40523-3942

(606) 277-5784

34a

STATEMENT OF POINTS AND AUTHORITIES

PAGE(S)

SCOUT CO TOU CI aiisiiscitnserensssinscnestnidecaaniataae 1- 5

FT SLA ETRE ENT LS ND oa 5-17

TE III aiseciccsescsssssssnenisinitsesicinassichcagmbiapaauaamtentadeceeaieaass 5- 6

I. The Trial Court Erred in Ruling the Appellees

Lost Reasonable Access ................ssssseeseseseeeeeeeees 6-10

Commonwealth, Department of Highways v.

Carlisle, Ky., 363 S.W.2d 104 (1962) ........... 8

Commonwealth, Department of Highways v.

Diuguid, Ky., 469 S.W.2d 707 (1971)........... 9

Commonwealth, Department of Highways v.

York, Ky., 390 S.W.2d 190 (1965)................. 9

II. Restriction of Access or Circuity of Travel Are

Not Legally Compensable........... ERT TRE ee 10-13

Commonwealth, Department of Highways v.

York, Ky., 390 S.W.2d 190 (1965)................. 11

Commonwealth, Department of Highways v.

Diuguid, Ky., 469 S.W.2d 707 (1971)........... 11

DeRossette v. Jefferson County, Ky., 156 S.W.2d

DEE CEE prishtintnhvsntaas sp abensdadieaddblaaiabcideinisstenns 11-13

Commonwealth of Kentucky, Department of

Highways v. Slusher, Ky., 371 S.W.2d 851

CRI ccii nti cectecanicainniteceensctacciabrimaniabaabidendaaa tater eens. 13

Commonwealth, Department of Highways v.

Rosenblatt, Ky., 416 S.W.2d 754 (1967)....... 13

Flynn v. Commonwealth, Department of

Highways, Ky., 428 S.W.2d 24 (1968).......... 13

35a

No. 88-CA-1345-MR

RENDERED: APRIL 20, 1989; 10:00 A.M.

NOT TO BE PUBLISHED

COURT OF APPEALS OF KENTUCKY

RAYMOND CoMER and

Marion CorN - - - - - - - - Appellants

Uv.

COMMONWEALTH OF KENTUCKY,

TRANSPORTATION CABINET,

DEPARTMENT OF HiGHways - - - - - Appellee

Appeal From Fayette Circuit Court

Honorable N. Mitchell Meade, Judge

Civil Action No. 87-CI-4114

VACATING AND REMANDING

BeForE: DycHe, E_swick and Lester, Judges.

LESTER, JUDGE. This is an appeal from an order in an inverse

condemnation action dismissing the complaint.

Raymond Comer and Marion Corn owned certain prop-

erties fronting on South Broadway in Lexington upon which

they operated a hotel, lounge, and restaurant. In 1987,

the Department of Highways constructed a railroad under-

pass, the effect of which was to eliminate direct access to

appellants’ land from Broadway and cause that ingress

36a

and egress to be lengthened by eight tenths of a mile over

a route which, at least in part, utilized Scott Street. None

of the appellants’ tracts were taken for the project and

their complaint centers around the circuitous access.

Subsequent to the filing of the complaint the appellee

moved to dismiss and memoranda was ordered to be filed

by both parties supporting their respective positions. No

evidence was adduced but oral arguments were heard by

the court at a regular motion hour after which the follow-

ing order was entered:

It Is HEREBY ORDERED AND ADJUDGED as follows:

1. It appearing from the oral arguments that the

parties are in agreement on certain factual matters

that may be of assistance to any appellate court that

may review this Order, the parties are directed to file

a Stipulation of Facts;

2. Defendant’s Motion to Dismiss is sustained.

The main thrust of this appeal centers around the rea-

sonableness of the access to appellants’ businesses or, to

put it another way, is the additional eight tenths of a mile

from Broadway such an unreasonable span as to warrant

compensation. One of the most recent authorities upon

the subject of unreasonableness of access following con-

demnation where none of the complainant’s land was actu-

ally taken is Commonwealth, Department of Highways v.

Jent, Ky., 525 S.W.2d 121 (1975), wherein the court pointed

out:

In Commonwealth, Department of Highways v. Carlisle,

Ky., 363 S.W.2d 104, we held that the only access

right that the landowner has is a right of reasonable

access to the highway system. In Commonwealth, De-

partment of Highways v. Adkins, Ky., 396 S.W.2d 768,

we held that, conversely, the landowner cannot be de-

prived of reasonable access without just compensation.

37a

The question of reasonableness of access must be dealt

with on a case-by-case basis. Ordinarily, whether the

landowner has been deprived of reasonable access is a

question of law which should be resolved by the court,

but in order for it to be resolved at all it is indispens-

able that the facts be disclosed. Adkins, supra.

From the foregoing, we discern that it is the trial court’s

function to determine what is reasonable access and in

order to do so evidence must be heard. In the case at

bench, although it might be assumed that in dismissing

the complaint the court viewed appellants’ ingress and

egress to be reasonable, it is axiomatic that the court speaks

only through its orders, opinions or judgments and we have

no specific finding on the prime issue of the litigation.

Moreover, Raymond and Marion argue that they are en-

titled to present evidence and it is the mandate of Jent that

they be allowed to do so.

The judgment is vacated and the cause remanded for

proceedings consistent herewith.

ALL Concur.

Attorneys for Appellants:

HON. ROBERT S. MILLER

HON. THOMAS C. MARKS

MILLER, GRIFFIN, & MARKS, P.S.C.

Lexington, Kentucky

Attorney for Appellee:

HON. LOUIS KAWAJA

Lexington, Kentucky