Gary Lingler v. State Indiana

REES, Justice. The appellees, W. G. Tate and Wanda Tate, own a tract of land containing 14 acres located on the south side of U. S. Highway No. 60 just west of the corporate limits of the City of Frankfort. The land abuts on the highway a distance of 176 feet, and appellees residence is located about 50 feet south of the south right of way line of the highway. In 1941 the State Highway Department reconstructed U. S. Highway No. 60 from Frankfort to Shelbyville. Prior to the reconstruction of the highway the front part of appellees land was practically on a level with the surface of the road. In reconstructing the highway the center line at this point was moved 10 or 15 feet north and a fill was constructed along the entire front of appellees property. The fill is 11 feet high at the west line of the property and tapers down to 3 1/2 or 4 feet in height at the east line. The fill is made of dirt and rock, and in order to prevent the dirt and rock from sliding onto their land and to prevent the surface water from the road and fill from running thereon, the appellees constructed a stone retaining wall at a cost of $695. At its 1942 session the General Assembly of Kentucky adopted a resolution, Acts 1942, c. 229, authorizing W. G. Tate and Wanda Tate to file and prosecute appropriate action against the Commonwealth of Kentucky and/or State Highway Commission, or either or both of them in the Franklin Circuit Court for the purpose of determining the extent, if any, of the damages resulting to the property of the owners caused by reason of the construction of the new road and fill aforesaid, if any there be. The resolution provided that the suit should be fore a sum not to exceed $2,000. Pursuant to the resolution the appellees instituted this action to recover damages in the sum of $2,000. At the trial the jury returned a verdict for the plaintiffs for $1,750, and, from the judgment entered thereon, the defendants have appealed.