CHAPTER 416 Eminent Domain

Condemnation

416.010. Institution of condemnation action by railroad.

When any company authorized to construct a railroad is unable to contract with the owner of any land or material necessary for its use for the purpose thereof, it shall institute a condemnation action pursuant to the Eminent Domain Act of Kentucky.

History. 835: amend. Acts 1976, ch. 140, § 119.

Compiler’s Notes.

The Eminent Domain Act of Kentucky referred to in this section is compiled as KRS 416.540 to 416.680 .

NOTES TO DECISIONS

1.Construction.

Condemnation statutes had to be strictly construed. Portland & G. Turnpike Co. v. Bobb, 88 Ky. 226 , 10 Ky. L. Rptr. 796 , 10 S.W. 794, 1889 Ky. LEXIS 23 ( Ky. 1889 ) (decided under prior law); Board of Park Comm’rs v. Du Pont, 110 Ky. 743 , 23 Ky. L. Rptr. 106 , 62 S.W. 891, 1901 Ky. LEXIS 142 ( Ky. 1901 ). See Terrell v. Drake, 145 Ky. 13 , 140 S.W. 53, 1911 Ky. LEXIS 789 ( Ky. 1911 ).

When condemnation is authorized but no procedure prescribed, the proceedings should be governed by the common law. Board of Park Comm'rs v. Du Pont, 110 Ky. 743 , 62 S.W. 891, 23 Ky. L. Rptr. 106 , 1901 Ky. LEXIS 142 ( Ky. 1901 ).

Condemnation statutes must be strictly construed and the power will not be conferred by implication. Bell's Committee v. Board of Education, 192 Ky. 700 , 234 S.W. 311, 1921 Ky. LEXIS 144 ( Ky. 1921 ).

This section expressly covers condemnation of a railroad right of way but has been adopted by reference and used for condemnation of highway and other public purposes, and a jury in a proceeding under KRS 177.081 to 177.089 (now repealed), to condemn a highway right of way and temporary easement must, at the request of either party, view the premises as provided in KRS 416.050 (now repealed). Commonwealth v. Farra, 338 S.W.2d 696, 1960 Ky. LEXIS 407 ( Ky. 1960 ).

Originally the railroad method under this section or the park method under KRS 416.120 (now repealed) were the only statutory procedures for condemnation in Kentucky and public agencies with the power of condemnation were authorized to follow one or the other but since 1942 many new procedures have been prescribed by statute for use by different classes of condemnors and, since railroad procedure was authorized by KRS 58.140 in 1946 to be used in condemning for public projects generally and since railroads were authorized by KRS 416.015 (now repealed) in 1958 to use alternate procedures, the authorization granted by KRS 58.140 reasonably should be considered to extend so as to embrace the alternative procedures specified in KRS 416.230 . Epperson v. Briscoe Manor Sewer Constr. Dist., 420 S.W.2d 390, 1966 Ky. LEXIS 3 ( Ky. 1966 ).

2.Application.

This section applied to a power company and the only question after entry without first making payment was the value of the land taken, including the damage caused to the residue by reason of the taking, and the power company could not be compelled to remove the power line. Kentucky & West Virginia Power Co. v. Vanhoose, 295 Ky. 339 , 174 S.W.2d 538, 1943 Ky. LEXIS 249 ( Ky. 1943 ).

KRS 416.010 to 416.080 (now repealed) apply to acquisitions of cities of the fourth class under subsection (8) of KRS 86.110 (now repealed). Miller v. Georgetown, 301 Ky. 241 , 191 S.W.2d 403, 1945 Ky. LEXIS 732 ( Ky. 1945 ) (decision prior to repeal of KRS 416.015 to 416.080 ).

Under KRS 269.070 , KRS 416.010 to 416.080 (now repealed) are specific authority for a county to bear the cost of that part of a sewer project which consists of the cost of a ditch to change the channel of a creek for the purpose of eliminating pools of stagnant water. Kenton County v. Covington, 302 Ky. 503 , 195 S.W.2d 93, 1946 Ky. LEXIS 714 ( Ky. 1946 ) (decision prior to repeal of KRS 416.015 to 416.080 ).

KRS 416.010 to 416.080 (now repealed) are still in effect and provide another method for gas pipeline companies to acquire rights of way along with KRS 416.230 to 416.310 (now repealed). Barker v. Lannert, 310 Ky. 843 , 222 S.W.2d 659, 1949 Ky. LEXIS 1022 ( Ky. 1949 ) (decision prior to repeal of KRS 416.015 to 416.080 and 416.240 to 416.310 ).

The Legislature, by enactment of KRS 56.460 , empowered the state property and building commission to condemn in any manner provided in this chapter any real estate necessary for use by the state or any state agency thereof. Hofgesang v. Grauman, 257 S.W.2d 525, 1953 Ky. LEXIS 775 ( Ky. 1953 ).

3.Nature of Proceedings.

A condemnation proceeding is judicial in nature. Madisonville Traction Co. v. St. Bernard Mining Co., 196 U.S. 239, 25 S. Ct. 251, 49 L. Ed. 462, 1905 U.S. LEXIS 898 (U.S. 1905).

4.Railroad.

“Railroad” includes street railways or interurbans. Devon v. Cincinnati, C. & E. R. Co., 128 Ky. 768 , 109 S.W. 361, 33 Ky. L. Rptr. 122 , 1908 Ky. LEXIS 97 ( Ky. 1908 ), writ of error dismissed, 220 U.S. 605, 31 S. Ct. 718, 55 L. Ed. 605, 1911 U.S. LEXIS 1715 (U.S. 1911).

5.Right of Eminent Domain.

Companies cannot condemn land in the absence of statute. Postal Tel. Cable Co. v. Mobile & O. R. Co., 54 S.W. 727, 21 Ky. L. Rptr. 1188 , 1900 Ky. LEXIS 329 ( Ky. 1900 ). See Madisonville Traction Co. v. St. Bernard Mining Co., 196 U.S. 239, 25 S. Ct. 251, 49 L. Ed. 462, 1905 U.S. LEXIS 898 (U.S. 1905).

The right of eminent domain rests with the sovereignty, but such right, or the power to exercise it, may be delegated to other arms of the government or private corporations whose duties are of such a public nature as to render it expedient for them to possess it. Bell's Committee v. Board of Education, 192 Ky. 700 , 234 S.W. 311, 1921 Ky. LEXIS 144 ( Ky. 1921 ).

6.Unable to Contract with Owner.

A bona fide effort to secure the property is a condition precedent to the right to condemn. Howard Realty Co. v. Paducah & I. R. Co., 182 Ky. 494 , 206 S.W. 774, 1918 Ky. LEXIS 395 ( Ky. 1918 ). See Postlethweighte v. Towery, 258 Ky. 468 , 80 S.W.2d 541, 1935 Ky. LEXIS 183 ( Ky. 1935 ).

Evidence showed the jurisdictional requisite to the maintenance of an action to condemn rough, hilly, unimproved land was met and that a good faith attempt to secure the property had been made where, prior to commencement of the condemnation suit, a committee duly appointed to represent the city offered a nominal consideration for the land which the owner refused to accept. McGee v. Williamstown, 308 S.W.2d 795, 1957 Ky. LEXIS 142 ( Ky. 1957 ).

7.Public Use.

Railroads belong to that class of uses considered public. Tracy v. Elizabethtown, L. & B. S. R. Co., 80 Ky. 259 , 3 Ky. L. Rptr. 813 , 1882 Ky. LEXIS 49 ( Ky. 1882 ) (decided under prior law).

The burden of establishing that the property was necessary to a public use was upon the condemnor. Tracy v. Elizabethtown, L. & B. S. R. Co., 80 Ky. 259 , 3 Ky. L. Rptr. 813 , 1882 Ky. LEXIS 49 ( Ky. 1882 ) (decided under prior law).

The burden of establishing that the use was public was upon the condemnor. Tracy v. Elizabethtown, L. & B. S. R. Co., 80 Ky. 259 , 3 Ky. L. Rptr. 813 , 1882 Ky. LEXIS 49 ( Ky. 1882 ) (decided under prior law).

The use had to be a public one. Tracy v. Elizabethtown, L. & B. S. R. Co., 80 Ky. 259 , 3 Ky. L. Rptr. 813 , 1882 Ky. LEXIS 49 ( Ky. 1882 ) (decided under prior law).

Whether the taking was a public use was a judicial question. Tracy v. Elizabethtown, L. & B. S. R. Co., 80 Ky. 259 , 3 Ky. L. Rptr. 813 , 1882 Ky. LEXIS 49 ( Ky. 1882 ) (decided under prior law).

The use must be a public one. Madisonville Traction Co. v. St. Bernard Mining Co., 196 U.S. 239, 25 S. Ct. 251, 49 L. Ed. 462, 1905 U.S. LEXIS 898 (U.S. 1905). See Producers Pipe Line Co. v. Martin, 22 F. Supp. 44, 1938 U.S. Dist. LEXIS 2354 (D. Ky. 1938 ); Howard Realty Co. v. Paducah & I. R. Co., 182 Ky. 494 , 206 S.W. 774, 1918 Ky. LEXIS 395 ( Ky. 1918 ); Bushart v. Fulton County, 183 Ky. 471 , 209 S.W. 499, 1919 Ky. LEXIS 504 ( Ky. 1919 ); Bell's Committee v. Board of Education, 192 Ky. 700 , 234 S.W. 311, 1921 Ky. LEXIS 144 ( Ky. 1921 ); McIntosh Coal Co. v. Blue Grass Coal Co., 203 Ky. 802 , 263 S.W. 346, 1924 Ky. LEXIS 1012 ( Ky. 1924 ); Natcher v. Bowling Green, 264 Ky. 584 , 95 S.W.2d 255, 1936 Ky. LEXIS 374 ( Ky. 1936 ).

Whether the taking is for public use is a judicial question. Warden v. Madisonville, H. & E. R. Co., 125 Ky. 644 , 101 S.W. 914, 31 Ky. L. Rptr. 234 , 1907 Ky. LEXIS 309 ( Ky. 1907 ). See Chesapeake Stone Co. v. Moreland, 126 Ky. 656 , 104 S.W. 762, 31 Ky. L. Rptr. 1075 , 1907 Ky. LEXIS 96 ( Ky. 1907 ); Henderson v. Lexington, 132 Ky. 390 , 111 S.W. 318, 33 Ky. L. Rptr. 703 , 1908 Ky. LEXIS 123 ( Ky. 1908 ); Louisville & N. R. Co. v. Louisville, 131 Ky. 108 , 114 S.W. 743, 1908 Ky. LEXIS 115 ( Ky. 1908 ); Fitzpatrick v. Warden, 157 Ky. 95 , 162 S.W. 550, 1914 Ky. LEXIS 223 ( Ky. 1914 ); Howard Realty Co. v. Paducah & I. R. Co., 182 Ky. 494 , 206 S.W. 774, 1918 Ky. LEXIS 395 ( Ky. 1918 ); Commissioners of Sewerage v. Reisert, 243 Ky. 494 , 49 S.W.2d 324, 1932 Ky. LEXIS 147 ( Ky. 1932 ); Spahn v. Stewart, 268 Ky. 97 , 103 S.W.2d 651, 1937 Ky. LEXIS 405 ( Ky. 1937 ).

The power to condemn property already devoted to a public use must be expressly granted or necessarily implied, and if the new use will destroy the older use, then such power must be expressly granted and strictly construed. Louisville & N. R. Co. v. Louisville, 131 Ky. 108 , 114 S.W. 743, 1908 Ky. LEXIS 115 ( Ky. 1908 ).

Railroads belong to that class of uses considered public. Howard Realty Co. v. Paducah & I. R. Co., 182 Ky. 494 , 206 S.W. 774, 1918 Ky. LEXIS 395 ( Ky. 1918 ).

8.Necessity.

The necessity for the taking was a judicial question. Reed v. Louisville Bridge Co., 71 Ky. 69 , 1871 Ky. LEXIS 15 ( Ky. 1871 ) (decided under prior law). See Treacy v. Elizabethtown L. & B. S. R. Co., 85 Ky. 270 , 3 S.W. 168, 8 Ky. L. Rptr. 922 , 1887 Ky. LEXIS 44 ( Ky. 1887 ).

In case where railroad was seeking injunction against removal of coal pillars from mine adjoining right-of-way, on ground that such removal would cause landslides upon railroad track, and in which mine owner resisted injunction on ground there was no serious danger of landslides, the claim that railroad could protect its right-of-way by condemning the mine property was not a defense, since railroad would have to prove likelihood of landslides in order to justify condemnation. Harris Stanley Coal & Land Co. v. Chesapeake & O. R. Co., 154 F.2d 450, 1946 U.S. App. LEXIS 3255 (6th Cir. Ky.), cert. denied, 329 U.S. 761, 67 S. Ct. 111, 91 L. Ed. 656, 1946 U.S. LEXIS 3019 (U.S. 1946).

Questions of necessity are primarily matters to be determined by the legislative department, state or municipal. Louisville & N. R. Co. v. Louisville, 131 Ky. 108 , 114 S.W. 743, 1908 Ky. LEXIS 115 ( Ky. 1908 ). See Henderson v. Lexington, 132 Ky. 390 , 111 S.W. 318, 33 Ky. L. Rptr. 703 , 1908 Ky. LEXIS 123 ( Ky. 1908 ); Howard Realty Co. v. Paducah & I. R. Co., 182 Ky. 494 , 206 S.W. 774, 1918 Ky. LEXIS 395 ( Ky. 1918 ); Louisville & N. R. Co. v. Louisville, 190 Ky. 214 , 227 S.W. 160, 1921 Ky. LEXIS 415 ( Ky. 1921 ); Baxter v. Louisville, 224 Ky. 604 , 6 S.W.2d 1074, 1928 Ky. LEXIS 654 ( Ky. 1928 ); Spahn v. Stewart, 268 Ky. 97 , 103 S.W.2d 651, 1937 Ky. LEXIS 405 ( Ky. 1937 ).

The determination of the legislative body of the state or city as to the necessity for the taking is conclusive except in rare cases where an abuse of power is plain. Louisville & N. R. Co. v. Louisville, 131 Ky. 108 , 114 S.W. 743, 1908 Ky. LEXIS 115 ( Ky. 1908 ). See Louisville & N. R. Co. v. Louisville, 190 Ky. 214 , 227 S.W. 160, 1921 Ky. LEXIS 415 ( Ky. 1921 ); Baxter v. Louisville, 224 Ky. 604 , 6 S.W.2d 1074, 1928 Ky. LEXIS 654 ( Ky. 1928 ).

Necessity does not mean absolute necessity, but covers what is appropriate and convenient to carry into effect the right conferred provided such convenience advances the public interest and welfare. Greasy Creek Mineral Co. v. Ely Jellico Coal Co., 132 Ky. 692 , 116 S.W. 1189, 1909 Ky. LEXIS 141 ( Ky. 1909 ). See Howard Realty Co. v. Paducah & I. R. Co., 182 Ky. 494 , 206 S.W. 774, 1918 Ky. LEXIS 395 ( Ky. 1918 ).

The necessity for the taking is a judicial question. Howard Realty Co. v. Paducah & I. R. Co., 182 Ky. 494 , 206 S.W. 774, 1918 Ky. LEXIS 395 ( Ky. 1918 ). See Royal Elkhorn Coal Co. v. Elk Horn Coal Corp., 194 Ky. 8 , 237 S.W. 1083, 1922 Ky. LEXIS 97 ( Ky. 1922 ); Baxter v. Louisville, 224 Ky. 604 , 6 S.W.2d 1074, 1928 Ky. LEXIS 654 ( Ky. 1928 ); Commissioners of Sewerage v. Reisert, 243 Ky. 494 , 49 S.W.2d 324, 1932 Ky. LEXIS 147 ( Ky. 1932 ); Davidson v. Commonwealth, 249 Ky. 568 , 61 S.W.2d 34, 1933 Ky. LEXIS 565 ( Ky. 1933 ).

The use of the lands must be a practical necessity. Howard Realty Co. v. Paducah & I. R. Co., 182 Ky. 494 , 206 S.W. 774, 1918 Ky. LEXIS 395 ( Ky. 1918 ).

A resolution of necessity by the legislative body is sufficient to shift from the condemnor the burden of establishing that the property is necessary to a proper use. Commissioners of Sewerage v. Reisert, 243 Ky. 494 , 49 S.W.2d 324, 1932 Ky. LEXIS 147 ( Ky. 1932 ).

An authority with power to condemn is not limited to its immediate needs only but it may, and, indeed should, give consideration to future needs. Pike County Board of Education v. Ford, 279 S.W.2d 245, 1955 Ky. LEXIS 521 ( Ky. 1955 ).

Ordinarily, the need for the taking of land for a public purpose is a question of law for the court, and evidence on this subject should not be heard before the jury for this would serve to divert their minds from the single issue of compensation which they are to try. McGee v. Williamstown, 308 S.W.2d 795, 1957 Ky. LEXIS 142 ( Ky. 1957 ).

9.Title.

A senior condemnor has priority over a junior condemnor. Cumberland R. Co. v. Pine M. R. Co., 96 S.W. 199, 28 Ky. L. Rptr. 574 (1905). See Louisville & N. R. Co. v. Western Union Tel. Co., 268 F. 4, 1920 U.S. App. LEXIS 2270, 1920 U.S. App. LEXIS 2271 (6th Cir. Ky.), cert. denied, 254 U.S. 650, 41 S. Ct. 147, 65 L. Ed. 457, 1920 U.S. LEXIS 1195 (U.S. 1920).

Condemnor secures only as easement when the condemnation is for public roads. Waller v. Syck, 146 Ky. 181 , 142 S.W. 229, 1912 Ky. LEXIS 27 ( Ky. 1912 ).

A condemnor of a right-of-way acquires not only the strip sought to be condemned, but also all passways thereon. Turner v. Louisville & N. R. Co., 189 Ky. 714 , 225 S.W. 1072, 1920 Ky. LEXIS 503 ( Ky. 1920 ).

Condemnor secures only an easement when the condemnation is for the purpose of a transmission line. Kentucky-Tennessee Light & Power Co. v. Shanklin, 219 Ky. 279 , 292 S.W. 790, 1927 Ky. LEXIS 311 ( Ky. 1927 ). See Saulsberry v. Kentucky & West Virginia Power Co., 226 Ky. 75 , 10 S.W.2d 451, 1928 Ky. LEXIS 14 ( Ky. 1928 ).

Condemnor secures only an easement when the condemnation is for a pipeline. Warfield Natural Gas. Co. v. Hammons, 233 Ky. 48 , 24 S.W.2d 933, 1930 Ky. LEXIS 495 ( Ky. 1930 ).

A deed executed pursuant to condemnation proceedings by a railroad company conveys only an easement in the property and, upon abandonment of the easement, the land reverts to the grantor or his successors in title so that a subsequent conveyance by the railroad company is ineffective. Rose v. Bryant, 251 S.W.2d 860, 1952 Ky. LEXIS 940 ( Ky. 1952 ).

10.Resolutions Authorizing.

Technical strictness in their language is not required in resolutions authorizing condemnation. Pike County Board of Education v. Ford, 279 S.W.2d 245, 1955 Ky. LEXIS 521 ( Ky. 1955 ).

11.Petition.
12.—Form.

The petition was required to allege that the property was necessary to a public use. Tracy v. Elizabethtown, L. & B. S. R. Co., 80 Ky. 259 , 3 Ky. L. Rptr. 813 , 1882 Ky. LEXIS 49 ( Ky. 1882 ) (decided under prior law). See Portland & G. Turnpike Co. v. Bobb, 88 Ky. 226 , 10 S.W. 794, 10 Ky. L. Rptr. 796 , 1889 Ky. LEXIS 23 ( Ky. 1889 ).

A formal petition was unnecessary. Portland & G. Turnpike Co. v. Bobb, 88 Ky. 226 , 10 S.W. 794, 10 Ky. L. Rptr. 796 , 1889 Ky. LEXIS 23 ( Ky. 1889 ) (decided under prior law).

The petition was required to allege that plaintiff had been unable to contract with the owner for it. Portland & G. Turnpike Co. v. Bobb, 88 Ky. 226 , 10 S.W. 794, 10 Ky. L. Rptr. 796 , 1889 Ky. LEXIS 23 ( Ky. 1889 ) (decided under prior law).

The petition was required to contain a particular description of the property. Portland & G. Turnpike Co. v. Bobb, 88 Ky. 226 , 10 S.W. 794, 10 Ky. L. Rptr. 796 , 1889 Ky. LEXIS 23 ( Ky. 1889 ) (decided under prior law).

A corporation organized under special charter which seeks condemnation under the general laws must, when its petition shows that it assumes to act under its charter, show that it has accepted the provisions of the present constitution. Newport & C. Bridge Co. v. Gill, 53 S.W. 650, 21 Ky. L. Rptr. 942 , 1899 Ky. LEXIS 579 (Ky. Ct. App. 1899).

The statement must allege that the property is necessary to a public use. Warden v. Madisonville, H. & E. R. Co., 125 Ky. 644 , 101 S.W. 914, 31 Ky. L. Rptr. 234 , 1907 Ky. LEXIS 309 ( Ky. 1907 ). See Royal Elkhorn Coal Co. v. Elk Horn Coal Corp., 194 Ky. 8 , 237 S.W. 1083, 1922 Ky. LEXIS 97 ( Ky. 1922 ).

It is immaterial that a condemnor is owned by another company, or that it has no franchise at the point of distribution, or that it proposes to distribute its product through another company. Calor Oil & Gas Co. v. Franzell, 128 Ky. 715 , 109 S.W. 328, 33 Ky. L. Rptr. 98 , 1908 Ky. LEXIS 95 ( Ky. 1908 ).

A formal petition is unnecessary. Royal Elkhorn Coal Co. v. Elk Horn Coal Corp., 194 Ky. 8 , 237 S.W. 1083, 1922 Ky. LEXIS 97 ( Ky. 1922 ).

The statement must allege that plaintiff has been unable to contract with the owner for the land. Royal Elkhorn Coal Co. v. Elk Horn Coal Corp., 194 Ky. 8 , 237 S.W. 1083, 1922 Ky. LEXIS 97 ( Ky. 1922 ).

13.—Amendment.

When the petition in the county court did not state a cause of action, it could not be amended in the circuit court on appeal. Portland & G. Turnpike Co. v. Bobb, 88 Ky. 226 , 10 S.W. 794, 10 Ky. L. Rptr. 796 , 1889 Ky. LEXIS 23 ( Ky. 1889 ) (decided under prior law).

The circuit court may refuse to permit the filing of an amended petition seeking less land than sought under the original petition. Elizabethtown L. & B. S. R. Co. v. Catlettsburg Water Co., 110 Ky. 175 , 61 S.W. 47, 22 Ky. L. Rptr. 1632 , 1901 Ky. LEXIS 75 ( Ky. 1901 ).

When the petition in the county court does not state a cause of action, it cannot be amended in the circuit court on appeal. Terrell v. Drake, 145 Ky. 13 , 140 S.W. 53, 1911 Ky. LEXIS 789 ( Ky. 1911 ).

The petition may be amended in circuit court so as to perfect it provided plaintiff does not thereby change the original cause of action or set up a waiver or estoppel that may have happened since the trial in the county court in avoidance of any defense interposed by the defendant. Royal Elkhorn Coal Co. v. Elk Horn Coal Corp., 194 Ky. 8 , 237 S.W. 1083, 1922 Ky. LEXIS 97 ( Ky. 1922 ). See Big S. R. Co. v. Dils, 120 Ky. 563 , 87 S.W. 310, 27 Ky. L. Rptr. 952 , 1905 Ky. LEXIS 135 ( Ky. 1905 ), overruled, Commonwealth, Dep't of Highways v. Kelley, 376 S.W.2d 539, 1964 Ky. LEXIS 458 ( Ky. 1964 ).

14.Measure of Damages.

The taking of franchise-operated property is a taking of the franchise which must be compensated for in the condemnation proceeding. Bloxton v. State Highway Com., 225 Ky. 324 , 8 S.W.2d 392, 1928 Ky. LEXIS 762 ( Ky. 1928 ).

An owner may show the adaptability of his property for certain valuable uses, either present or reasonably expected in the future. Kentucky Nat'l Park Com. ex rel. Commonwealth v. Russell, 301 Ky. 187 , 191 S.W.2d 214, 1945 Ky. LEXIS 710 ( Ky. 1945 ).

The proper inquiry in each case is what is the property value in view of any use to which it may be applied, and to all the uses to which it is adapted. Kentucky Nat'l Park Com. ex rel. Commonwealth v. Russell, 301 Ky. 187 , 191 S.W.2d 214, 1945 Ky. LEXIS 710 ( Ky. 1945 ).

Generally, where there is an appropriation of land for a high tension power line or other wire lines over private property, the owner has the right to be compensated not only for land actually taken for poles and towers and the depreciation in the value of the strip of land over which wires are suspended and which is subjected to use as a right-of-way for maintenance of the line, but is also entitled to compensation for impairment of the remainder of the tract by reason thereof less any special consequential benefits. East Kentucky Rural Electric Cooperative Corp. v. Smith, 310 S.W.2d 535, 1958 Ky. LEXIS 395 ( Ky. 1958 ).

In condemnation proceedings, adaptability for particular uses to which the land may be reasonably put is a proper element for consideration, so that if the land is reasonably adaptable and there is expectation or probability in the near future that it can or will be divided into town lots, that should be regarded and the increased market value thereof considered. East Kentucky Rural Electric Cooperative Corp. v. Smith, 310 S.W.2d 535, 1958 Ky. LEXIS 395 ( Ky. 1958 ).

In determining what compensation should be paid for an easement taken under the power of eminent domain, the measure of damages is its market value to the owner of the land taken and the loss caused to him by the taking and depriving him of its use. East Kentucky Rural Electric Cooperative Corp. v. Smith, 310 S.W.2d 535, 1958 Ky. LEXIS 395 ( Ky. 1958 ).

Owners of farmland were entitled to recover such sum as would equal the difference in the market value of their entire property immediately before the taking and after the easement was taken, that market value being in a large degree its value as a potential subdivision to the growing city which it adjoined. East Kentucky Rural Electric Cooperative Corp. v. Smith, 310 S.W.2d 535, 1958 Ky. LEXIS 395 ( Ky. 1958 ).

The owner is not limited in condemnation proceedings to the value of the land for the purposes for which it is being used at the time, but he is entitled to have considered every legitimate use to which the land may be devoted and everything that affects the value. East Kentucky Rural Electric Cooperative Corp. v. Smith, 310 S.W.2d 535, 1958 Ky. LEXIS 395 ( Ky. 1958 ).

15.Evidence.

In condemnation proceedings it is competent for either party in the proceeding to offer evidence descriptive of the property, its physical characteristics, its location and surroundings. East Kentucky Rural Electric Cooperative Corp. v. Smith, 310 S.W.2d 535, 1958 Ky. LEXIS 395 ( Ky. 1958 ).

16.Costs.

Although authorized by state statute, the United States government is not required to pay costs incurred by the landowner in condemnation proceedings in federal court since costs are part of the measure of compensation and not forms and methods of procedure. United States v. 251.81 Acres of Land, 50 F. Supp. 81, 1943 U.S. Dist. LEXIS 2566 (D. Ky. 1943 ).

The fact that the county air board sought and secured court orders prior to commencing any action against the landowners, showed bad faith on its part; therefore, the landowners were entitled to attorney’s fees. Bernard v. Russell County Air Bd., 747 S.W.2d 610, 1987 Ky. App. LEXIS 610 (Ky. Ct. App. 1987).

17.Jurisdiction of Federal Court.

Jurisdiction of the United States circuit courts on removal is limited to suits of which they have original jurisdiction and, where diversity of citizenship exists, an eminent domain proceeding is one of original jurisdiction. Madisonville Traction Co. v. St. Bernard Mining Co., 196 U.S. 239, 25 S. Ct. 251, 49 L. Ed. 462, 1905 U.S. LEXIS 898 (U.S. 1905).

18.Power to Condemn.

The Legislature had power to condemn property under the right of eminent domain for public use and this power could not be impaired or defeated by any private contract. Cornwall v. Louisville & N. R. Co., 87 Ky. 72 , 7 S.W. 553, 9 Ky. L. Rptr. 924 , 1888 Ky. LEXIS 38 ( Ky. 1888 ).

When an owner cedes property to a company in consideration that it not condemn any of his other property, the company cannot thereafter condemn other property of the owner without paying for the land originally ceded to it. Cornwall v. Louisville & N. R. Co., 87 Ky. 72 , 7 S.W. 553, 9 Ky. L. Rptr. 924 , 1888 Ky. LEXIS 38 ( Ky. 1888 ).

Cited in:

Davis v. Howard, 306 Ky. 149 , 206 S.W.2d 467, 1947 Ky. LEXIS 965 ( Ky. 1947 ); Ratliff v. Fiscal Court of Caldwell County, 617 S.W.2d 36, 1981 Ky. LEXIS 252 ( Ky. 1981 ).

Research References and Practice Aids

Cross-References.

Airports, privately owned, land and property, KRS 183.490 .

Condemnation for pipelines and related facilities, including rights of ingress and egress, KRS 278.502 .

County, for reclamation of swamplands and removal of stagnant waters, KRS 269.070 .

Department of corrections, for necessary purposes, KRS 196.140 .

Department of highways, to eliminate ferry competing with toll bridge, KRS 180.270 .

District boards of education, KRS 162.130 .

Drainage board, for drainage purposes, KRS 267.280 , 268.280 , 268.510 .

Drainage company, for drainage purposes, KRS 269.210 .

Federal government lands and rights, KRS ch. 3.

Ferry, owner, for landing, KRS 280.210 .

Fish and wildlife resources commission, for necessary purposes, KRS 150.024 .

Foreign railroad company cannot exercise right of eminent domain until incorporated in this state, Ky. Const., § 211.

General power of railroads to acquire property, KRS 277.060 .

Governmental agency, for public project, KRS 58.140 .

Governmental projects of cities, power of eminent domain, KRS 82.180 .

Interstate bridge company, for approaches, KRS 280.140 .

Jury required on appeal in condemnation proceedings, Ky. Const., § 242.

Legal notices, KRS, ch. 424.

Levee commissioners, for levee purposes, KRS 266.130 .

Mine operators, power of for transportation of materials, KRS 277.040 .

Miscellaneous condemnation proceedings:

City of first class, for redevelopment corporation, KRS 99.220 to 99.240 .

County, for county purposes, KRS 67.085 .

Ferry, owner, for landing, KRS 280.210 .

Housing projects, KRS 80.150 , 80.540 .

Metropolitan sewer districts, KRS 76.080 , 76.110 , 76.325 .

Municipal electric plant board, for electric plant, KRS 96.590 , 96.600 .

Slum clearance and redevelopment agencies, KRS 99.420 .

Municipal universities, KRS 165.070 .

Owner of land, for connection with drainage system, KRS 268.570 .

Owner of salt spring, for pipelines, KRS 381.660 .

Persons by whom and purposes for which property may be condemned in manner provided in KRS 416.540 to 416.680 :

Board of education, for school buildings, KRS 162.030 .

Burial association, KRS 416.210 .

City of third class, for cemetery or park, KRS 97.540 .

Persons by whom and purposes for which right of eminent domain may be exercised, but for which procedure is not prescribed:

Bridge commission of city of second class, for interstate bridge, KRS 181.620 .

City, for playgrounds, KRS 97.010 .

City, for water pipes, KRS 96.150 .

County, for playgrounds, KRS 97.010 .

Department of highways, for highways, KRS 177.081 .

Electric and water plant board of third-class city, for operation of plant, KRS 96.175 , 96.178 .

Kentucky aeronautics department, for airports, KRS 183.120 .

Rural electric cooperative corporation, for proper purposes, KRS 279.110 .

United States, for forest reserves, KRS 3.080 .

Property not to be taken for public use without just compensation, Ky. Const., §§ 13, 242.

Property ownership and conveyance, KRS chs. 381 to 385.

Public projects, KRS ch. 58.

Quarry operators, power of for transportation of materials, KRS 277.040 .

Railroad purpose, company authority, KRS 277.060 .

Right of eminent domain remains in state, KRS 381.020 .

Rural electric cooperative corporations, KRS 279.110 .

Sanitation districts, KRS 220.310 .

State college board of regents, for college purposes, KRS 164.410 .

State has same right of eminent domain with respect to corporations as with respect to individuals, Ky. Const., § 195.

State, judgment condemning land for to be filed with secretary of state, KRS 56.050 .

State lands and buildings, KRS ch. 56.

State property and buildings commission may condemn according to any procedure provided for in KRS ch. 416, KRS 56.460 .

Streets not to be used by private corporation without consent of city, Ky. Const., § 163.

Telephone companies, KRS 278.540 .

Underground passageway to mine, condemnation of use of, KRS 381.635 , 381.636 .

Union railroad station company, for building, tracks and appurtenances, KRS 277.050 .

University of Kentucky board of trustees, for university purposes, KRS 164.260 .

Water companies, for necessary purposes, KRS 96.080 .

Water district, for necessary land, KRS 74.090 .

Treatises

Caldwell’s Kentucky Form Book, Prac. & Proc. Forms, 5th Ed., Practice Context for Railroads, § 335.00.

416.015. Alternate procedure. [Repealed.]

Compiler’s Notes.

This section (Enact. 1958, ch. 108, § 1, effective June 19, 1958) was repealed by Acts 1976, ch. 140, § 129. For present law see KRS 416.540 to 416.680 .

416.020. Appointment of commissioners — Evaluation of property — Commissioners’ report. [Repealed.]

Compiler’s Notes.

This section (835, 836) was repealed by Acts 1976, ch. 140, § 129. For present law see KRS 416.540 to 416.680 .

416.030. Process issued when report filed. [Repealed.]

Compiler’s Notes.

This section (837) was repealed by Acts 1976, ch. 140, § 129. For present law see KRS 416.540 to 416.680 .

416.040. Confirmation of report as to parties not excepting. [Repealed.]

Compiler’s Notes.

This section (838: amend. Acts 1952, ch. 84, § 66) was repealed by Acts 1976, ch. 140, § 129. For present law see KRS 416.540 to 416.680 .

416.050. Trial of exceptions — Judgment. [Repealed.]

Compiler’s Notes.

This section (839) was repealed by Acts 1976, ch. 140, § 129. For present law see KRS 416.540 to 416.680 .

416.060. Appeal to circuit court. [Repealed.]

Compiler’s Notes.

This section (839,840) was repealed by Acts 1976, ch. 140, § 129. For present law see KRS 416.540 to 416.680 .

416.070. Transfer of case to circuit court when title to land is involved. [Repealed.]

Compiler’s Notes.

This section (839) was repealed by Acts 1976, ch. 140, § 129. For present law see KRS 416.540 to 416.680 .

416.080. When company entitled to possession of condemned property. [Repealed.]

Compiler’s Notes.

This section (839) was repealed by Acts 1976, ch. 140, § 129. For present law see KRS 416.540 to 416.680 .

416.090. Railroad right-of-way cannot be condemned.

No part of the right-of-way of any railroad company, or any interest or easement therein, shall be taken by any condemnation proceedings, or without the consent of the railroad company, for the use or occupancy of any part of such right-of-way on, over and along the right-of-way longitudinally, by any telegraph, telephone, electric light, power or other wire company, with its poles, cables, wires, conduits or other fixtures. Nothing in this section is intended to prevent any such wire company from obtaining the right to cross the right-of-way of a railroad company, under existing laws, in such manner as not to interfere with the ordinary use or ordinary travel and traffic of the railroad.

History. 840a.

Compiler’s Notes.

By Kentucky act of March 14, 1916, all laws empowering telegraph companies to condemn the right-of-way of railway companies was repealed and this section was enacted.

NOTES TO DECISIONS

1.Constitutionality.

The enactment of this section repealing the right of condemnation of railroad right of way by telegraph company under KRS 416.150 through 416.200 (now repealed) did not violate the federal or Kentucky Constitutions by denying this right to a telegraph company with a petition for condemnation on appeal but unexercised. Western Union Tel. Co. v. Louisville & N. R. Co., 258 U.S. 13, 42 S. Ct. 258, 66 L. Ed. 437, 1922 U.S. LEXIS 2232 (U.S. 1922). (Decision prior to repeal of KRS 416.115 , 416.120 , 416.160 to 416.200 ).

Cited in:

McGee v. Williamstown, 308 S.W.2d 795, 1957 Ky. LEXIS 142 ( Ky. 1957 ).

416.100. Condemnation by county judge/executive for road purposes.

When any county judge/executive desires to condemn land under the authority of KRS 178.110 , the county judge/executive shall proceed pursuant to the Eminent Domain Act of Kentucky.

History. 4302: amend. Acts 1976, ch. 140, § 120; 1978, ch. 384, § 521, effective June 17, 1978.

Compiler’s Notes.

The Eminent Domain Act of Kentucky referred to in this section is compiled as KRS 416.540 to 416.680 .

NOTES TO DECISIONS

1.Construction.

This section does not require that landowners be given 20 days’ notice of the hearing at which the report of the commissioners is to be considered. Miller v. King, 278 Ky. 151 , 128 S.W.2d 621, 1939 Ky. LEXIS 415 ( Ky. 1939 ).

2.Exceptions.

Where landowner tendered exceptions in county court after order had been entered confirming commissioners’ report, and his motion to file was overruled, action of circuit court on appeal, in denying motion to dismiss appeal on ground that exceptions had not been filed in county court, amounted to a ruling making the exceptions a part of the record. Miller v. King, 278 Ky. 151 , 128 S.W.2d 621, 1939 Ky. LEXIS 415 ( Ky. 1939 ).

3.Assessment of Damages.

Where property is condemned for highway purposes, the owner may show that it is specially adapted for certain uses, if such adaptability adds to the value of the property, but he may not show what use he intended or planned to make of the property. Miller v. King, 278 Ky. 151 , 128 S.W.2d 621, 1939 Ky. LEXIS 415 ( Ky. 1939 ).

In condemnation suit, where minor errors were committed at the trial, both as to statements of trial judge as to his conception of the measure of damages and as to the admission and exclusion of evidence, but there was competent testimony as to the elements making up the true measure of damages, and the jury viewed the property sought to be condemned, there was no prejudicial error warranting reversal. Bailey v. Harlan County, 280 Ky. 247 , 133 S.W.2d 58, 1939 Ky. LEXIS 115 ( Ky. 1939 ).

The assessment of damages in condemnation proceedings is within the peculiar province of the jury, and the court will not set aside their finding on appeal if it is supported by substantial evidence. Bailey v. Harlan County, 280 Ky. 247 , 133 S.W.2d 58, 1939 Ky. LEXIS 115 ( Ky. 1939 ).

The fair, reasonable, cash market value of land immediately before strip was taken and its fair cash market value immediately after was not the proper measure of damages. Bailey v. Harlan County, 280 Ky. 247 , 133 S.W.2d 58, 1939 Ky. LEXIS 115 ( Ky. 1939 ).

When a jury views the property involved in condemnation proceedings, it has the right to form its own opinion as to both direct and consequential damages. Bailey v. Harlan County, 280 Ky. 247 , 133 S.W.2d 58, 1939 Ky. LEXIS 115 ( Ky. 1939 ).

4.Verdict.
5.—Not Excessive.

Verdict allowing $300 damages for one-half acre of land, especially adapted for building purposes, out of 211/2-acre tract worth, on the average, $50.00 per acre was not flagrantly against the evidence. Miller v. King, 278 Ky. 151 , 128 S.W.2d 621, 1939 Ky. LEXIS 415 ( Ky. 1939 ).

Award of $600 for taking of 2.27 acres of farmland for highway purposes was fair and reasonable, and supported by evidence. Bailey v. Harlan County, 280 Ky. 247 , 133 S.W.2d 58, 1939 Ky. LEXIS 115 ( Ky. 1939 ).

Where, in an action brought under this section, commissioner reported an award of $300, exceptions were filed and a jury assessed the value of the land taken at $1,700 and the damages to the remaining land at $100, judgment was entered accordingly and, on appeal by Commonwealth to circuit court, jury assessed the land taken at $800 and damages to the remainder at $200, the evidence justified the circuit court verdict and the landowner who did not move the court to dismiss the proceedings could not complain on appeal that no bona fide effort was made by the Commonwealth before the institution of condemnation proceedings to agree with the owner upon the compensation which should be paid her. Kendall v. Commonwealth, 286 Ky. 59 , 149 S.W.2d 787, 1941 Ky. LEXIS 221 ( Ky. 1941 ).

6.Appeal to Circuit Court.

Refusal of Circuit Court, in trying de novo a highway condemnation proceeding, to allow landowner to introduce evidence as to the sale price of similar land in the neighborhood was error. Miller v. King, 278 Ky. 151 , 128 S.W.2d 621, 1939 Ky. LEXIS 415 ( Ky. 1939 ).

7.Commissioners.

It was not important that order appointing commissioners did not recite in detail the names of the parties upon whose application it was made. Ford v. Cullins, 108 Ky. 553 , 56 S.W. 993, 22 Ky. L. Rptr. 251 , 1900 Ky. LEXIS 77 ( Ky. 1900 ) (decided under prior law).

Cited in:

Jefferson County v. Clausen, 297 Ky. 414 , 180 S.W.2d 297, 1944 Ky. LEXIS 745 ( Ky. 1944 ); Kentucky Utilities Co. v. Brashear, 726 S.W.2d 321, 1987 Ky. App. LEXIS 452 (Ky. Ct. App. 1987).

Research References and Practice Aids

Cross-References.

Appeal must be granted from preliminary assessment of damages, jury required on such appeal, Ky. Const., § 242.

Land for detour may be acquired as provided in this section, KRS 179.370 .

416.110. Condemnation by fiscal court for road purposes.

  1. When  any fiscal court desires to condemn land under the authority of KRS 178.120 ,  it shall adopt a resolution ordering the condemnation of the required land.  The resolution shall set forth the facts contemplated by KRS 178.120 , give  a general description of the land, and the name of the owner if known, and  shall direct the county attorney to institute the proceedings.
  2. The  county attorney shall file the petition for condemnation in the Circuit Court  in the name of the county, and shall attach to the petition as an exhibit  a certified copy of the resolution of the fiscal court. The resolution shall  be prima facie evidence of the public use and necessity for the condemnation.  Thereafter the proceedings shall be as provided in the Eminent Domain Act  of Kentucky.

History. 4302a-2 to 4302a-12: amend. Acts 1976, ch. 140, § 121; 1976 (Ex. Sess.), ch. 14, § 418, effective January 2, 1978.

Compiler’s Notes.

The Eminent Domain Act of Kentucky referred to in this section is compiled as KRS 416.540 to 416.680 .

Legislative Research Commission Notes.

According to the provisions of KRS 416.540 to 416.680 (the Eminent Domain Act of Kentucky), the petition for condemnation shall be filed in the circuit court, followed by proceedings relating to the condemnation action.

NOTES TO DECISIONS

1.Constitutionality.

The provisions of this section for separate fixing of damages for fencing, trees and shrubbery are inoperative because of Ky. Const., §§ 13 and 242. Commonwealth, Dep't of Highways v. Sherrod, 367 S.W.2d 844, 1963 Ky. LEXIS 33 ( Ky. 1963 ). See Commonwealth, Dep't of Highways v. Boyer, 434 S.W.2d 630, 1968 Ky. LEXIS 236 ( Ky. 1968 ).

2.Construction.

This section authorizes fiscal courts to institute condemnation proceedings for the acquisition of land for county road purposes, once such roads have been opened and established by the county court as provided by KRS 178.080 , and is not a substitute for prior statutes providing methods for opening and establishing public roads. Carrigan v. Fiscal Court of Fulton County, 289 Ky. 562 , 159 S.W.2d 420, 1942 Ky. LEXIS 603 ( Ky. 1942 ).

Questions as to the choice of condemnation procedures, this section and KRS 416.115 (now repealed), allowed by the resolution of the fiscal court address themselves to the condemnation proceedings and cannot be raised in an appeal under KRS 178.115 , which has to do only with the establishment of the public project. Prather v. Fulton County, 336 S.W.2d 339, 1960 Ky. LEXIS 322 ( Ky. 1960 ).

3.Resolution.

Failure to file copy of the resolution of the fiscal court as required by subsection (2) of this section was waived by failure to file a motion to require the plaintiff to file the exhibit and by filing of exception admitting adoption of the requisite order or resolution and, therefore, did not afford a legal ground for setting aside the verdict. Jefferson County v. Clausen, 297 Ky. 414 , 180 S.W.2d 297, 1944 Ky. LEXIS 745 ( Ky. 1944 ).

Landowner, on appeal from Circuit Court, was not entitled to reversal of judgment of condemnation on ground that court erred in adjudging the necessity for the establishment of the road, where evidence introduced in Circuit Court on issue of necessity was not sufficient to overcome the presumption of necessity established by the resolution of the fiscal court ordering the condemnation. Smallwood v. Hardin County, 299 Ky. 53 , 184 S.W.2d 230, 1944 Ky. LEXIS 1022 ( Ky. 1944 ).

4.Public Use.

If the Legislature has determined the use or purpose of condemnation to be a public one, its judgment will be respected by the courts, unless the use be palpably private or the necessity for the taking plainly without reasonable foundation. Chesapeake & O. R. Co. v. Greenup County, 175 F.2d 169, 1949 U.S. App. LEXIS 2350 (6th Cir. Ky. 1949 ).

5.Burden of Proof.

Where landowners appealed to Circuit Court from award of county court in condemnation case in trial de novo, the landowners had burden of proof as concerned the issue of damages, for the party excepting to the commissioner’s report is the one who has the burden of proof and if both condemnor and landowner file exceptions to the commissioner’s report, the burden of proof is assigned to the condemnor. Citizens Fidelity Bank & Trust Co. v. Jefferson County, 283 S.W.2d 1, 1955 Ky. LEXIS 280 ( Ky. 1955 ).

Where the landowner appeals to Circuit Court in condemnation cases, burden of proof as concerns the issue of damages is upon landowner. Citizens Fidelity Bank & Trust Co. v. Jefferson County, 283 S.W.2d 1, 1955 Ky. LEXIS 280 ( Ky. 1955 ).

6.Damages.

In condemnation proceeding under this section where only evidence as to damages was the report of the commissioners, no witnesses having testified upon the issue of damages, and jury slightly increased damages for one tract and slightly decreased them for another tract, landowners, on appeal to Court of Appeals, could not complain of inadequacy of damages or error in instructions as to damages, since it will be presumed that commissioners correctly assessed the damages, in the absence of testimony to overcome that presumption. Smallwood v. Hardin County, 299 Ky. 53 , 184 S.W.2d 230, 1944 Ky. LEXIS 1022 ( Ky. 1944 ).

7.Estoppel.

Where a landowner had conveyed, by deed, a right of way and easement in accordance with plans and specifications of the highway department and received $7,600 as consideration, the landowner is estopped to later claim damages to his property resulting from reconstruction of a road on the deeded land. Meyer v. Jefferson County, 305 S.W.2d 536, 1957 Ky. LEXIS 322 ( Ky. 1957 ).

Research References and Practice Aids

Cross-References.

Compensation must be paid before property if taken, Ky. Const., § 242.

Condemnation by county for county purposes to follow this procedure, KRS 67.085 .

Condemnation by county or regional housing commission to follow this procedure, KRS 80.540 .

State property and buildings commission may condemn according to this procedure, KRS 56.460 .

416.115. Alternative method of condemnation for roads and bridges and for public purposes. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1944, ch. 19; 1950, ch. 28; 1962, ch. 142) was repealed by Acts 1976, ch. 140, § 129.

416.120. Condemnation for park purposes in cities of first class. [Repealed.]

Compiler’s Notes.

This section (2852: amend. Acts 1942, ch. 34, § 3; 1968, ch. 152, § 162; 1976, ch. 140, § 122) was repealed by Acts 1980, ch. 239, § 4.

416.130. Dam and electric companies may make surveys and condemn property.

  1. Every  corporation organized for the purpose of constructing, or empowered to construct,  a dam in any stream in this state for the purpose of improving navigation  or developing, distributing and selling water power or electricity, and every  corporation authorized under the laws of this state to conduct the business  of producing and supplying electricity for the purpose of light, heat or power,  may cause examinations and surveys to be made for its proposed dams, reservoirs,  ponds, locks, bridges, power stations, roads, conduits and transmission lines,  as well as the land that may be overflowed by the erection of any dam or other  structure, and for such purposes may, by its officers, agents or servants,  enter from time to time upon any lands or waters for the purpose of making  such surveys or examinations, subject to liability for actual damage done.  Before entering upon any land for such purposes, the corporation shall deposit  with the clerk of the county in which the property is located, a bond to the  Commonwealth in a penal sum fixed by the county judge/executive at not more  than double the last assessed valuation of the property to be surveyed or  examined, conditioned to indemnify all persons for actual damages sustained  on account of making any examination or survey. When the location of the dam  or other structure, and the land that may be overflowed by the erection of  the dam, is determined, the corporation shall cause a survey and map to be  made of the land to be taken and entered upon, which map shall be signed by  the president and secretary and filed in the office of the county clerk of  the county in which the land shown on the map is situated.
  2. When  any such corporation cannot, by agreement with the owner, acquire the property  rights, privileges or easements needed for any of the uses or purposes referred  to in subsection (1) of this section, the corporation may condemn such property,  property rights, privileges or easements in the manner provided in the Eminent  Domain Act of Kentucky. Any corporation constructing or maintaining such dam  shall be liable for any damages resulting from overflowing any property, public  or private.

History. Enact. Acts 1956, ch. 52; 1976, ch. 140, § 123; 1978, ch. 384, § 522, effective June 17, 1978.

Compiler’s Notes.

A former section KRS 416.130 (1599b-1, 1599b-2) was repealed by Acts 1956, ch. 52.

The Eminent Domain Act of Kentucky referred to in this section is compiled as KRS 416.540 to 416.680 .

NOTES TO DECISIONS

1.Application.

Law permitting electric companies to condemn property applied to all corporations producing, distributing or selling electricity regardless of the method of production. Smith v. Kentucky & West Virginia Power Co., 207 Ky. 401 , 269 S.W. 310, 1925 Ky. LEXIS 97 ( Ky. 1925 ) (decided under prior law).

2.Right to Cut Timber and Erect Lines.

Plaintiff in condemnation proceeding could properly ask for the right to cut timber endangering his transmission lines, and also to erect telephone and telegraph lines on the easement. Webb v. Kentucky & West Virginia Power Co., 216 Ky. 64 , 287 S.W. 232, 1926 Ky. LEXIS 842 ( Ky. 1926 ) (decided under prior law).

3.Bond.

One on whose lands the company made no entry could not complain of failure to execute bond. Louisville Hydro-Electric Co. v. Coburn, 270 Ky. 624 , 110 S.W.2d 445, 1937 Ky. LEXIS 138 ( Ky. 1937 ) (decided under prior law).

4.Liability for Damages.

Purchaser of land from person who had lost his right to object to dam for gristmill could not enjoin operation of the dam to provide power for electric plant and dam, which electric plant could have acquired by condemnation for use of creating and distributing electric current for public use, should not be destroyed, but electric plant was liable for damage to upper riparian owners caused by raising of the dam until it took statutory steps to condemn land and compensate riparian owners. Kentucky Electric Development Co.'s Receiver v. Wells, 256 Ky. 203 , 75 S.W.2d 1088, 1934 Ky. LEXIS 390 ( Ky. 1934 ) (decided under prior law).

5.Appeal.

If the condemnor elected to pay the verdict and costs into court and to take possession of land sought to be condemned, it was not thereafter deprived of its right of appeal; but the condemnor could not thereafter, if the verdict on appeal was greater than that appealed from, elect not to take the property. Kentucky Hydro Electric Co. v. Woodard, 216 Ky. 618 , 287 S.W. 985, 1926 Ky. LEXIS 952 ( Ky. 1926 ) (decided under prior law).

Cited in:

Kentucky Utilities Co. v. Glenn, 250 F. Supp. 265, 1965 U.S. Dist. LEXIS 9892 (W.D. Ky. 1965 ), aff’d in part, rev’d in part, 394 F.2d 631, 1968 U.S. App. LEXIS 7057 (6th Cir. Ky. 1968 ); Thompson v. Kentucky Power Co., 551 S.W.2d 815, 1977 Ky. App. LEXIS 704 (Ky. Ct. App. 1977).

Opinions of Attorney General.

Although subsection (2) of this section provides that a power company may condemn in the manner provided in the Eminent Domain Act and KRS 416.560(4), which is part of that act, does not contain any requirement of a bond in connection with a precondemnation survey of the land, the provision of subsection (1) of this section, requiring such a bond is controlling as being the later and more specific statute on the subject of prefile survey and damage to land; accordingly, a rural power cooperative was required to post bond before making a survey and appraisal of private property for the purpose of constructing a transmission line and prior to the filing of a petition for condemnation. OAG 81-383 .

Although subsection (2) of this section provides that condemnation shall be brought in the manner provided in the Eminent Domain Act of Kentucky and subsection (1) provides for a bond to cover prefile damages, KRS 416.560(4) merely declares a cause of action for any prefile damages, and thus there is no basic disharmony or real conflict, since the bond merely guarantees recovery for any damages under the terms of the bond. OAG 81-383 .

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, Prac. & Proc. Forms, 5th Ed., Practice Context for Condemnation (Eminent Domain), § 307.00.

416.140. Companies transmitting or selling electricity, gas, or gasoline may acquire rights for lines and appliances along roads and streams.

  1. Subject  to the provisions of subsections (2) and (3) of this section, any person authorized  under the laws of this state to conduct the business of producing or supplying  water, electricity, gas or gasoline for purposes of light, heat, domestic  use or power, or who is engaged in the business of the transmission or sale  of water, electricity, gas or gasoline for such purposes, the aforesaid businesses  being for a public purpose, may construct and maintain transmission or distribution  lines, including placing and maintenance of pipes, poles, wires, crossarms  and all other equipment incident thereto, for use in the transmission and  sale of such water, electricity, gas or gasoline under, on, along or over  any right-of-way used as a state highway, county road, public way or dedicated  road outside the limits of a city, and over, under or across any of the waters  of this state outside the limits of a city, and may construct and maintain  along any right-of-way used for purposes of such state highway or county road  all erections and appliances that are necessary to transform, convert and  apply such water, electricity, gas or gasoline to the public purposes of lighting,  heat, domestic use or power and to distribute and deliver it to the consumers.
  2. The  fixtures of the company shall not interfere with, obstruct or endanger the  travel on and along the highway or road, nor obstruct the navigation of the  waters, and the location of all transmission lines and other appliances shall  be subject to the reasonable direction and regulation of the authorities having  control of the highways, roads and waters through and over which the lines  are constructed or proposed to be constructed.
  3. Before  any persons named in subsection (1) of this section shall proceed to place  his wires, poles or other appliances on or over any part of the right-of-way  of a state highway, he shall first obtain from the Department of Highways  a permit so to do. Any poles, wires or other obstructions, heretofore or hereafter  placed along, under, on or over any state highway that are found by the Department  of Highways to be unreasonably interfering in any way with the convenient,  safe and continuous use and maintenance of such highway shall, upon thirty  (30) days’ notice to the person or his chief agent, by the Department of Highways,  be removed or relocated by such person at his own expense, except as otherwise  provided in KRS 177.035 . Whenever an order of the Department of Highways requires  such removal or change in the location of any telephone, telegraph, electric  light or other poles, signboards, fences, gasoline tanks and pumps, gas, water,  sewerage, oil or other pipelines, or other similar construction or obstructions  from the right-of-way of a state highway, and the owner thereof fails to remove  or change the same at his own expense, except as otherwise provided in KRS 177.035 , to conform to the order within the time stated in the notice, the  Department of Highways shall proceed to cause the obstruction to be removed;  the expense thereby incurred shall be paid out of any money available therefor,  and shall be charged against the owner and levied and collected and paid into  the State Treasury as provided by law.

History. 1599c-1, 1599c-3: amend. Acts 1966, ch. 213, § 1; 1972, ch. 195, § 17; 1974, ch. 74, Art. IV, § 20(1).

NOTES TO DECISIONS

1.Constitutionality.

This section, in authorizing utility companies to use public roads without paying compensation, does not violate Const., §§ 164 or 177. Warfield Natural Gas Co. v. Lawrence County, 300 Ky. 410 , 189 S.W.2d 357, 1945 Ky. LEXIS 556 ( Ky. 1945 ).

2.Construction.

Under this section the state has reserved to itself the right to grant the named utilities permission to use public roads, and has not delegated that right to any of its political subdivisions. Warfield Natural Gas Co. v. Lawrence County, 300 Ky. 410 , 189 S.W.2d 357, 1945 Ky. LEXIS 556 ( Ky. 1945 ).

3.Application.

This section refers to every corporation producing, distributing or selling electricity regardless of the method of production. Smith v. Kentucky & West Virginia Power Co., 207 Ky. 401 , 269 S.W. 310, 1925 Ky. LEXIS 97 ( Ky. 1925 ), (decision prior to 1970 amendment).

4.Permits.

The obtaining of permits under this section to construct pipelines under state highways gave to pipeline company special and exclusive privileges within the meaning of KRS 136.120 . Martin v. Producers Pipe Line Co., 113 F.2d 817, 1940 U.S. App. LEXIS 3466 (6th Cir. 1940), cert. denied, Producers Pipeline Co. v. Martin, 311 U.S. 715, 61 S. Ct. 397, 85 L. Ed. 465, 1940 U.S. LEXIS 12 (1940), (decision prior to 1942 amendment), cert. denied, Producers Pipeline Co. v. Martin, 311 U.S. 715, 61 S. Ct. 397, 85 L. Ed. 465, 1940 U.S. LEXIS 12 (U.S. 1940).

Violation of this statute in failing to obtain permission from the department of highways to place its wires and poles on the right-of-way would not constitute a negligent breach of duty to person coming in contact with uninsulated electrical tap line while viewing scene of automobile accident in which pole had been broken and line sagged to the ground, for there was no casual connection between the violation and the accident. Harrison v. Hickman-Fulton Counties Rural Electric Cooperative Corp., 346 S.W.2d 533, 1961 Ky. LEXIS 313 ( Ky. 1961 ).

5.Relocation.

Where operator of a residential subdivision had obtained a grant of easement from the state department of highways for the maintenance of a water pipeline along a state highway, and the written easement definitely prescribed the portion of the highway over which the easement should extend, and recited a valuable consideration, such easement was not a “franchise” or mere permissive right, within the rule that the holder of such, a franchise or right is required at all times to see that he does not interfere with the use of the highway and is required at his own expense to make such changes in his installations as are made necessary by alteration of the highway, but was a permanent, definitely located easement, so that when highway was widened so as to require relocation of pipeline, the owner was entitled to recover from the state the cost of such relocation. Commonwealth v. Means & Russell Iron Co., 299 Ky. 465 , 185 S.W.2d 960, 1945 Ky. LEXIS 451 ( Ky. 1945 ), (decision prior to 1970 amendment).

6.Added Expense.

County could not compel natural gas company to pay for privilege of attaching pipeline to county bridge, but perhaps could require company to meet any added expense to county arising from such use of the bridge. Warfield Natural Gas Co. v. Lawrence County, 300 Ky. 410 , 189 S.W.2d 357, 1945 Ky. LEXIS 556 ( Ky. 1945 ).

Cited in:

Louisville Hydro-Electric Co. v. Coburn, 270 Ky. 624 , 110 S.W.2d 445, 1937 Ky. LEXIS 138 ( Ky. 1937 ).

Opinions of Attorney General.

Where a city deeded its publicly owned right-of-way along a city street to the department of highways, the department could not assume the responsibility for, or the costs of relocating sewer lines and laterals located within the public way. OAG 60-498 .

Notwithstanding the provisions of this section, the gas utility must, in order to lay its lines along or under such county road right-of-way, obtain the consent of the abutting landowners. OAG 69-589 .

The counties have no authority to invoke Ky. Const., § 164 and sell franchises, involving the use of county roads and bridges, to utilities named in this section. OAG 71-538 .

Under this section the state has reserved to itself the right to grant the named utilities permission to use county road rights-of-way and has not delegated the right to the county or any other political subdivision. OAG 71-538 .

Under this section utility companies supplying water may use highway rights-of-way to carry water for public purposes, but as to extending such rights-of-way outside the city limits to serve potential industrial sites under KRS 96.150 , a determination must be made as to whether the potential industrial sites to be served are in the territory contiguous to the city and within 15 miles of the corporate limits and if such requirements are not met, the city cannot extend its service to such sites. OAG 73-748 .

Under this section a fiscal court can require no franchise for water, electric, gas or gasoline utilities which have their appliances, lines and transmission facilities on county right-of-way since the state has granted the permission, but the fiscal court has a right to enfranchise other utilities, including telephone and telegraph utilities, and issue permits. OAG 79-346 .

Where a husband and wife deeded certain lands to the state in fee simple for the benefit and use of the Department of Highways in contemplation of the construction and maintenance of a road, and where the state’s title to the road and maintenance responsibility were never transferred to the county in which the road was located, but the state and the county maintained the road for several years, only the state had the right to permit a gas company to run a gas pipeline along the subject road right-of-way, since KRS 177.106 and this section, which control, are in pari materia and do not conflict, and since under this section the location of such gas lines would, under a permit, be subject to the reasonable direction and regulation of the Department of Highways. OAG 81-183 .

The fiscal court has no authority to permit private individuals to place their gas pipelines along or under county road rights-of-way, since they are not public utilities; public policy demands that these county roadways not be encumbered except in the manner permitted by the constitution and statutes. OAG 84-111 .

Research References and Practice Aids

Cross-References.

Board of municipal electric plant may construct lines along, across or under street or highway, with consent of authority having jurisdiction, KRS 96.175 , 96.570 .

Cost of removing obstructions from roads to be assessed against person making obstruction, how payment made when removal is by county, KRS 179.280 , 179.400 .

Pipeline companies to remove obstructions, use of roads restricted, KRS 179.260 .

Poles and wires of telephone, telegraph and electric companies to be removed and reset when they obstruct road, KRS 179.250 .

Use of roads by telephone and telegraph companies, KRS 278.540 .

Relocation of publicly-owned utility equipment and appliances, cost to be borne by state, KRS 177.035 .

Relocation of utility facilities, cost to be paid by public, KRS 179.265 .

416.150. Condemnation by telephone companies.

Any telephone company desiring to condemn a right-of-way under the authority of subsection (2) of KRS 278.540 shall proceed pursuant to the Eminent Domain Act of Kentucky.

History. 4679c-3, 4679d-2: amend. Acts 1976, ch. 140, § 124.

Compiler’s Notes.

The Eminent Domain Act of Kentucky referred to in this section is compiled as KRS 416.540 to 416.680 .

NOTES TO DECISIONS

1.Foreign Telephone Company.

A foreign telephone company need not domesticate itself in order to be able to condemn land. Potter v. Gardner, 222 Ky. 487 , 1 S.W.2d 537, 1927 Ky. LEXIS 946 ( Ky. 1927 ).

2.Necessity.

A condemnor hereunder has no authority to declare a necessity. Louisville & N. R. Co. v. Western Union Tel. Co., 249 F. 385, 1918 U.S. App. LEXIS 2220 (6th Cir. Ky.), cert. denied, 248 U.S. 576, 39 S. Ct. 18, 63 L. Ed. 429, 1918 U.S. LEXIS 1743 (U.S. 1918).

Some measure or degree of necessity must be shown or be presumed to exist before the right of condemnation hereunder matures. Louisville & N. R. Co. v. Western Union Tel. Co., 249 F. 385, 1918 U.S. App. LEXIS 2220 (6th Cir. Ky.), cert. denied, 248 U.S. 576, 39 S. Ct. 18, 63 L. Ed. 429, 1918 U.S. LEXIS 1743 (U.S. 1918).

The question of necessity and similar precedent conditions are matters for the court to decide in advance of or separately from the jury trial concerning compensation. Louisville & N. R. Co. v. Western Union Tel. Co., 249 F. 385, 1918 U.S. App. LEXIS 2220 (6th Cir. Ky.), cert. denied, 248 U.S. 576, 39 S. Ct. 18, 63 L. Ed. 429, 1918 U.S. LEXIS 1743 (U.S. 1918).

The petition must show the necessity of the appropriation. Louisville & N. R. Co. v. Lang, 160 Ky. 702 , 170 S.W. 2, 1914 Ky. LEXIS 512 ( Ky. 1914 ).

Telecommunications company did not have the power to condemn the entirety of an owner’s property, nor to condemn the owner’s property for the purpose of expanding its “Point of Presence” facility, which was not a “telephone line” for purposes of KRS 278.540(2); the telecommunications company abused its discretion in pursuing a condemnation action against the owner’s entire property, and a trial court erred in entering summary judgment in favor of the telecommunications company on the owner’s counterclaim for abuse of process. Leggett v. Sprint Communs. Co., L.P., 2005 Ky. App. LEXIS 255 (Ky. Ct. App. Dec. 2, 2005), aff'd in part and rev'd in part, 307 S.W.3d 109, 2010 Ky. LEXIS 64 ( Ky. 2010 ).

3.Petition.

Plaintiff should have set out in his petition, in addition to the facts stated, how much land was to be used in the construction, maintenance, and repair of its line, and for ingress and egress to examine, repair, and maintain the line. Postal Tel. Cable Co. v. Patton, 153 Ky. 187 , 154 S.W. 1073, 1913 Ky. LEXIS 799 ( Ky. 1913 ).

4.Selection of Right-of-Way.

The owner has no right to select the route to be condemned. Western Union Tel. Co. v. Louisville & N. R. Co., 201 F. 946, 1912 U.S. Dist. LEXIS 1068, 1913 U.S. Dist. LEXIS 1854 (D. Ky. 1912 ), aff'd, 207 F. 1, 1913 U.S. App. LEXIS 1597 (6th Cir. Ky. 1913 ).

The court must determine what is appropriated. Louisville & N. R. Co. v. Lang, 160 Ky. 702 , 170 S.W. 2, 1914 Ky. LEXIS 512 ( Ky. 1914 ).

Research References and Practice Aids

Cross-References.

Use of roads by telephone and telegraph companies, KRS 278.540 .

Treatises

Caldwell’s Kentucky Form Book, Prac. & Proc. Forms, 5th Ed., Practice Context for Telegraphs and Telephones, § 336.00.

416.160. Summons issued; jury called; challenges; oath; compensation of jury and officers. [Repealed.]

Compiler’s Notes.

The following section (4679c-4, 4679c-11) was repealed by Acts 1976, ch. 140, § 129. For present law see KRS 416.540 to 416.680 .

416.170. Assessment of damages. [Repealed.]

Compiler’s Notes.

The following section (4679c-5, 4679c-6) was repealed by Acts 1976, ch. 140, § 129. For present law see KRS 416.540 to 416.680 .

416.180. Verdict and judgment; form of. [Repealed.]

Compiler’s Notes.

The following section (4679c-6, 4679c-7) was repealed by Acts 1976, ch. 140, § 129. For present law see KRS 416.540 to 416.680 .

416.190. Mortgage on property sought to be condemned; procedure. [Repealed.]

Compiler’s Notes.

The following section (4679c-9) was repealed by Acts 1976, ch. 140, § 129. For present law see KRS 416.540 to 416.680 .

416.200. Appeals. [Repealed.]

Compiler’s Notes.

The following section (4679c-8: amend. Acts 1960, ch. 104, § 23) was repealed by Acts 1976, ch. 140, § 129. For present law see KRS 416.540 to 416.680 .

416.210. Right of burial association or corporation to condemn land for cemetery — Governmental approval needed — Procedure.

Any burial association or corporation may, with the approval of the appropriate city, county, urban-county, consolidated local government, or charter county legislative body, condemn land by first recording, in the county clerk’s office of the county where the land lies, a resolution that it needs the land to furnish a burial site for the public. It may condemn a sufficient roadway to have access to the land, not wider than one hundred (100) feet. It may also condemn enough land, not exceeding five (5) acres, adjacent to any land used for a cemetery for a chapel site. If the building of any state highway requires a change in the entrance to any cemetery, the burial association or corporation may condemn any adjacent land, not wider than one hundred (100) feet for the new entrance. The condemnation procedure shall be in the Circuit Court of the county pursuant to the Eminent Domain Act of Kentucky. This section shall not permit condemnation of more than forty (40) acres at any one time.

History. 199a-8, 199a-9: amend. Acts 1946, ch. 141, § 3; 1976, ch. 140, § 125; 1976 (Ex. Sess.), ch. 14, § 419, effective January 2, 1978; 2006, ch. 44, § 1, effective July 12, 2006.

Compiler’s Notes.

This section was formerly compiled as KRS 271.420 , and was renumbered by Acts 1946, ch. 141, § 3.

The Eminent Domain Act of Kentucky referred to in this section is compiled as KRS 416.540 to 416.680 .

NOTES TO DECISIONS

Cited in:

Mother of God Cemetery Asso. v. Commonwealth, Transp. Cabinet, Dep’t of Highways, 759 S.W.2d 69, 1988 Ky. App. LEXIS 128 (Ky. Ct. App. 1988).

416.220. Owner of real estate providing public sleeping accommodations and meals — Condemnation for water supply — Furnishing of water to owner of property condemned.

  1. The  owner of real estate serving the public, providing sleeping accommodations  and meals, when pure water is not available in adequate quantities, shall  have the right to condemn on the banks of any navigable stream a tract of  land not more than twenty (20) feet square and above the high water mark for  a pumping station site and a right-of-way for a pipeline from said site to  the deep water of the navigable stream and from said pumping station site  to the point on the owner’s real estate where the water is desired for use.  The said property owner may condemn a right-of-way for an electric power line  over the most direct course to the pumping station site. In the event the  owner of such real estate finds it more desirable to make connections with  the water system of a municipality or a water supply line leading from a navigable  stream to the municipality or other source of supply, then said real estate  owner may, at his option, condemn a right-of-way for a pipeline from said  city water system or water supply line or other source of supply to the point  on the owner’s real estate where the water is desired for use, including such  area as may be required to install and maintain pumps and meters for said  water system and an electric line to conduct power to said pump with necessary  electric control lines or apparatus. The owner of property condemning right-of-way for a water line under this section, may agree to supply the subject  owner a quantity of water in lieu of cash compensation for the easement, and  such agreement to supply water to the subject property owner shall not be  construed to place a burden on the condemning party to supply water service  to others or meet the obligation of a public utility to render water service.
  2. The  provisions of KRS 381.660 , 381.670 , and 381.680 shall be complied with except  that when the pumping station site and pipeline are located on cliff land  and do not cross any tillable land the pumps and pipe may be located above  ground.
  3. The  procedure for condemnation shall be that set forth in the Eminent Domain Act  of Kentucky.

History. Enact. Acts 1946, ch. 219; 1954, ch. 47; 1976, ch. 140, § 126.

Compiler’s Notes.

The Eminent Domain Act of Kentucky referred to in this section is compiled as KRS 416.540 to 416.680 .

416.230. Condemnation for oil or gas pipelines and related facilities — Petition.

A corporation, partnership or individual seeking to condemn lands and material or the use and occupation of lands, under the provisions of KRS 278.502 , may file a verified petition in the office of the Circuit Court clerk of the county in which all or the greater portion of the land and material is located. The petition shall state that it is filed under the provisions of KRS 278.502 and shall be conducted pursuant to the Eminent Domain Act of Kentucky.

History. Enact. Acts 1948, ch. 186, § 2; 1976, ch. 140, § 127.

Compiler’s Notes.

The Eminent Domain Act of Kentucky referred to in this section is compiled as KRS 416.540 to 416.680 .

NOTES TO DECISIONS

1.Constitutionality.

KRS 416.230 to 416.310 (decision prior to repeal of KRS 416.240 to 416.320 ), with the exception of subsection (5) of KRS 416.280 (now repealed), do not contravene the provisions of Ky. Const., §§ 13 or 242. Barker v. Lannert, 310 Ky. 843 , 222 S.W.2d 659, 1949 Ky. LEXIS 1022 ( Ky. 1949 ).

2.Construction.

Previous to the effective date of this section, gas pipeline companies acquired their necessary rights of way under the provisions of KRS 416.010 to 416.080 (decision prior to repeal of KRS 416.015 to 416.080 ) which are still in effect. The new act, KRS 416.230 through 416.990 (decision prior to repeal of KRS 416.240 to 416.320 and 416.410 to 416.530 ), merely provides an alternate method of procedure with the only substantial change in procedure being that the preliminary assessment in the county court is allowed to be fixed previous to the issuance of a summons and without permitting the property owner or the condemnor to introduce evidence as to the value of the land to be condemned and the incidental damages to adjacent property by reason of the taking or application of it to the purpose for which it is being condemned. Barker v. Lannert, 310 Ky. 843 , 222 S.W.2d 659, 1949 Ky. LEXIS 1022 ( Ky. 1949 ).

It is inescapable that an immediate right of entry and possession was considered of prime importance by the General Assembly when this section was passed and, where the necessary procedural steps have been taken, a landowner may not supersede a judgment of a county court on appeal to the circuit court on this issue by filing a writ of prohibition or mandamus in the Court of Appeals since he would have no such right on appeal from the circuit court to the Court of Appeals. Linn v. Bryan, 312 Ky. 203 , 226 S.W.2d 959, 1950 Ky. LEXIS 626 ( Ky. 1950 ).

3.Necessity.

In an action by a gas corporation to condemn an easement for a pipeline, an amended petition was filed to conform to this section and a practical and reasonable necessity was found. Petroleum Exploration v. Hensley, 308 Ky. 103 , 213 S.W.2d 262, 1948 Ky. LEXIS 850 ( Ky. 1948 ).

4.Damages.

Where petition for condemnation of gas line easement was over a 129-acre tract, and the landowners did not by pleading seek to include in the assessment of damages any part of their other land and made no claim of entity or unity of the tracts except in their offered instructions, which were refused, only land referred to in the petition could be considered in awarding compensation for incidental damages to remainder of tract. Central Kentucky Natural Gas Co. v. Long, 312 S.W.2d 894, 1958 Ky. LEXIS 242 ( Ky. 1958 ).

Cited in:

Commonwealth, Dep’t of Highways v. Holloman, 390 S.W.2d 666, 1965 Ky. LEXIS 369 ( Ky. 1965 ); Big Rivers Rural Elec. Coop. Corp. v. Royer, 425 S.W.2d 569, 1968 Ky. LEXIS 426 (1968); Thompson v. Kentucky Power Co., 551 S.W.2d 815, 1977 Ky. App. LEXIS 704 (Ky. Ct. App. 1977).

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, Prac. & Proc. Forms, 5th Ed., Interlocutory Order and Judgment, Easement, Form 307.05.

Caldwell’s Kentucky Form Book, Prac. & Proc. Forms, 5th Ed., Petition for Condemnation of Underground Storage Reservoir, Form 354.04.

Caldwell’s Kentucky Form Book, Prac. & Proc. Forms, 5th Ed., Report of Commissioners in Condemnation Proceeding, Form 354.05.

Caldwell’s Kentucky Form Book, Prac. & Proc. Forms, 5th Ed., Answer to Petition for Condemnation and Exception to Report of Commissioners, Form 354.06.

Caldwell’s Kentucky Form Book, Prac. & Proc. Forms, 5th Ed., Judgment in Condemnation Action, Form 354.07.

416.240. Appointment of commissioners; duties; report. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1948, ch. 186, § 3) was repealed by Acts 1976, ch. 140, § 129. For present law see KRS 416.540 to 416.680

416.250. Process against owner. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1948, ch. 186, § 4) was repealed by Acts 1976, ch. 140, § 129. For present law see KRS 416.540 to 416.680 .

416.260. Answer or other pleading by owner. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1948, ch. 186, § 5; 1952, ch. 84, § 67, effective July 1, 1953) was repealed by Acts 1976, ch. 140, § 129. For present law see KRS 416.540 to 416.680 .

416.270. Examination of report of commissioners; correction of report; judgment if right to condemn is not questioned; appeal; judgment where right to condemn is questioned; right of immediate possession. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1948, ch. 186, § 6; 1952, ch. 84, § 68) was repealed by Acts 1976, ch. 140, § 129. For present law see KRS 416.540 to 416.680 .

416.280. Appeal from judgment authorizing petitioner to take possession; appeal from judgment dismissing petition; right to possession pending appeal. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1948, ch. 186, § 7; 1966, ch. 255, § 271; 1968, ch. 152, § 163) was repealed by Acts 1976, ch. 140, § 129. For present law see KRS 416.540 to 416.680 .

416.290. Custody of money paid into court. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1948, ch. 186, § 8) was repealed by Acts 1976, ch. 140, § 129. For present law see KRS 416.540 to 416.680 .

416.300. Determination of rights of conflicting claimants to land. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1948, ch. 186, § 9) was repealed by Acts 1976, ch. 140, § 129. For present law see KRS 416.540 to 416.680 .

416.310. Application of Rule of Civil Procedure. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1948, ch. 186, § 10) was repealed by Acts 1976, ch. 140, § 129. For present law see KRS 416.540 to 416.680 .

416.320. Damages allowed for market value reduction of entire tract. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1952, ch. 208, § 1) was repealed by Acts 1976, ch. 140, § 129. For present law see KRS 416.540 to 416.680 .

416.330. Limitation on right of ingress and egress for pipeline.

Where the pipeline is reasonably accessible over the easement sought to be condemned, ingress and egress to and from the pipeline and appurtenances shall be limited to the easement itself.

History. Enact. Acts 1952, ch. 208, § 1, effective June 19, 1952.

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, Prac. & Proc. Forms, 5th Ed., Report of Commissioners in Condemnation Proceeding, Form 354.04.

416.340. Water associations may condemn property.

Any water association supplying water to no less than 100 customers, which has been formed under the provisions of KRS Chapter 273, may exercise the power of eminent domain in accordance with the provisions of the Eminent Domain Act of Kentucky.

History. Enact. Acts 1970, ch. 213, § 1; 1976, ch. 140, § 128.

Compiler’s Notes.

The Eminent Domain Act of Kentucky referred to in this section is compiled as KRS 416.540 to 416.680 .

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, Prac. & Proc. Forms, 5th Ed., Practice Context for Condemnation (Eminent Domain), § 307.00.

416.350. Right of condemnation by owner to gain ingress or egress to public road.

  1. The  owner of any tract or parcel of land on which his residence is located, who  has no means of ingress or egress to any public road or highway, may acquire  by condemnation pursuant to the Eminent Domain Act of Kentucky a convenient  right-of-way in order to attend courts and elections and discharge other duties  required of him by law; such right-of-way shall not exceed in width thirty  (30) feet over the lands intervening and lying between such tract or parcel  of land and the public road nearest or most convenient thereto.
  2. The  right of condemnation conferred in subsection (1) of this section shall not  exist in any of the following situations:
    1. Where  the current owner or any of his predecessors in title purchased a tract or  parcel of land having no means of ingress or egress to a public road or highway;
    2. Where  the current owner or any of his predecessors in title sold a part of a tract  or parcel of land, leaving the part retained without any means of ingress  or egress to a public road or highway; or
    3. Where  the current owner or any of his predecessors in title has had a part of his  land taken by condemnation, the part not taken has no means of ingress or  egress to a public road or highway, and the current owner or any of his predecessors  in title has been compensated, by reason of the condemnation, for such loss  of ingress or egress to a public road or highway.

History. Enact. Acts 1980, ch. 228, § 1, effective July 15, 1980.

Compiler’s Notes.

The Eminent Domain Act of Kentucky, referred to in subsection (1) of this section, is compiled as KRS 416.540 to 416.680 .

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, Prac. & Proc. Forms, 5th Ed., Practice Context for Condemnation (Eminent Domain), § 307.00.

416.360. Acquisition of real property necessary to locate or relocate public utility facilities by public agency with power of eminent domain for public improvement projects.

  1. Any  public agency which has the right to exercise the power of eminent domain  for street, road, highway, or other public improvement projects may acquire  in its own name, by condemnation or otherwise, any real property that is necessary  to locate or relocate any public utility facilities as required for the construction,  reconstruction, rehabilitation, or maintenance of the project. The public  agency and the affected public utility shall first enter into an agreement  for this acquisition. The agreement shall include all relevant terms and conditions  of the acquisition, including a description of the real property to be acquired.  Notwithstanding any other provisions of law, a public agency which acquires  any real property for public utility facilities pursuant to this section shall,  pursuant to the terms of the agreement, convey to the affected utility any  real property so acquired.
  2. The  right of a public utility to exercise the power of eminent domain shall not  in any way be affected by this section. Nothing in this section shall empower  the condemnation of property owned by the Commonwealth of Kentucky or in which  the Commonwealth of Kentucky has an interest.
  3. For  purposes of this section, “real property” includes any estate,  easement, fixtures, or other interests or rights in and to real property.

History. Enact. Acts 1996, ch. 227, § 1, effective July 15, 1996.

Research References and Practice Aids

Cross-References.

Eminent domain, KRS 416.010 et seq.

416.410. Definitions for KRS 416.420 to 416.530. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1970, ch. 73, § 2) was repealed by Acts 1976, ch. 140, § 129. For present law see KRS 416.540 to 416.680

416.420. Right to condemn. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1970, ch. 73, § 3) was repealed by Acts 1976, ch. 140, § 129. For present law see KRS 416.540 to 416.680

416.430. Filing petition. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1970, ch. 73, § 4) was repealed by Acts 1976, ch. 140, § 129. For present law see KRS 416.540 to 416.680

416.440. Appointment, report of commissioners. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1970, ch. 73, § 5) was repealed by Acts 1976, ch. 140, § 129. For present law see KRS 416.540 to 416.680

416.450. Issuing summons. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1970, ch. 73, § 6) was repealed by Acts 1976, ch. 140, § 129. For present law see KRS 416.540 to 416.680

416.460. Filing answer. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1970, ch. 73, § 7) was repealed by Acts 1976, ch. 140, § 129. For present law see KRS 416.540 to 416.680

416.470. Trial by court on pleadings — Interloctory judgment. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1970, ch. 73, § 8) was repealed by Acts 1976, ch. 140, § 129. For present law see KRS 416.540 to 416.680

416.480. Trial of exceptions to interlocutory judgment — Questions as to compensation to be tried by jury — Appeals. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1970, ch. 73, § 9) was repealed by Acts 1976, ch. 140, § 129. For present law see KRS 416.540 to 416.680

416.490. Money paid into court. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1970, ch. 73, § 10) was repealed by Acts 1976, ch. 140, § 129. For present law see KRS 416.540 to 416.680

416.500. Conflicting claimants to condemned land. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1970, ch. 73, § 11) was repealed by Acts 1976, ch. 140, § 129. For present law see KRS 416.540 to 416.680

416.510. Proceedings governed by civil rules. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1970, ch. 73, § 12) was repealed by Acts 1976, ch. 140, § 129. For present law see KRS 416.540 to 416.680

416.520. Standard for determining compensation. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1970, ch. 73, § 13) was repealed by Acts 1976, ch. 140, § 129. For present law see KRS 416.540 to 416.680

416.530. Citation. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1970, ch. 73, § 1) was repealed by Acts 1976, ch. 140, § 129. For present law see KRS 416.540 to 416.680

Eminent Domain Act of Kentucky (1976)

416.540. Definitions for KRS 416.540 to 416.670.

As used in KRS 416.540 to 416.670 :

  1. “Condemn” means to take private property for a public use under the right of eminent domain;
  2. “Condemnor” shall mean and include any person, corporation or entity, including the Commonwealth of Kentucky, its agencies and departments, county, municipality and taxing district authorized and empowered by law to exercise the right of eminent domain;
  3. “Condemnee” means the owner of the property interest being taken;
  4. “Court” means the Circuit Court;
  5. “Eminent domain” means the right of the Commonwealth to take for public use and shall include the right of private persons, corporations, or business entities to do so under authority of law;
  6. “Government lien” means any lien established by or in favor of the Commonwealth or a local government under KRS Chapter 65, 82, 91, 91A, or 134;
  7. “Local government” means any city, county, urban-county government, consolidated local government, unified local government, or charter county; and
  8. “Property” means real or personal property, or both, of any nature or kind that is subject to condemnation.

History. Enact. Acts 1976, ch. 140, § 2; 2006, ch. 73, § 2, effective July 12, 2006; 2016 ch. 127, § 9, effective July 15, 2016.

NOTES TO DECISIONS

1.Power to Condemn.

Where land was condemned to expand a utility’s existing electrical transmission system, the selection of the transmission lines route and the purpose for which they were built was for a public use and therefore proper and well within the power of condemnor. Ratliff v. Fiscal Court of Caldwell County, 617 S.W.2d 36, 1981 Ky. LEXIS 252 ( Ky. 1981 ).

2.—Denial.

In eminent domain proceedings a court will deny the right to take only where there has been gross abuse or manifest fraud. Commonwealth v. Cooksey, 948 S.W.2d 122, 1997 Ky. App. LEXIS 60 (Ky. Ct. App. 1997).

3.Federal Licensee.

State law does not affect a federal licensee’s power to acquire land necessary to effectuate its license. Greenup County v. Utilities Com. of Vanceburg, 632 S.W.2d 463, 1982 Ky. App. LEXIS 211 (Ky. Ct. App. 1982).

4.Exemption.

A cemetery’s exemption from taking by condemnation, specifically granted to its property by an 1888 act of the General Assembly, was not invalidated by later general provisions, KRS 177.081 and KRS 416.540 to 416.680 , relating to the Department of Highways’ power of eminent domain. Mother of God Cemetery Asso. v. Commonwealth, Transp. Cabinet, Dep't of Highways, 759 S.W.2d 69, 1988 Ky. App. LEXIS 128 (Ky. Ct. App. 1988).

5.Fair Market Value.

The Eminent Domain Act provides for condemnation of real property upon payment of the difference in the fair market value of the condemnee’s property immediately before and immediately after the taking; fair market value of the property condemned is the test, and even where the building upon the property is to be torn down, a city should not be required to pay more for the property because it had a building upon it than the amount by which the building upon it added to the fair market value of the property at the time of the taking. Ford v. Bowling Green, 780 S.W.2d 613, 1989 Ky. LEXIS 104 ( Ky. 1989 ).

6.Condemnation Not Necessary.

Condemnation of farmland near airport by fee simple title was not necessary for the intended public purpose of serving as a buffer zone for airport where landowner offered to restrict the land to agricultural use, to give the airport a noise easement and/or an easement prohibiting trees, residential development, and the erection of any structures on the property up to the airport’s building restriction line. City of Bowling Green v. Cooksey, 858 S.W.2d 190, 1992 Ky. App. LEXIS 227 (Ky. Ct. App. 1992).

7.Title Acquired.

Circuit court erred ruling that a county had the right to condemn an owner's property under the state constitution and the Eminent Domain Act for a permanent easement for the construction of a large box culvert and drainage system because the interest that the county proposed to take was neither in proportion to the 95% utility it would take from the property nor consistent with the “pass through” function of an easement, the owner could make no physical use of the property if a permanent easement was taken, regardless of what the county stated was necessary for the project, and to take less than a fee simple interest in the property was arbitrary and in excess of the county's authority under the Act. Moore v. Lexington-Fayette Urban Cty. Gov't, 2017 Ky. App. LEXIS 515 (Ky. Ct. App. Sept. 15, 2017), rev'd, 559 S.W.3d 374, 2018 Ky. LEXIS 448 ( Ky. 2018 ).

Cited in:

Stidham v. Commonwealth, Dep’t of Transp., Bureau of Highways, 579 S.W.2d 372, 1978 Ky. App. LEXIS 67 1 (Ky. Ct. App. 1978); Martin v. Commonwealth, 199 S.W.3d 195, 2006 Ky. App. LEXIS 67 (Ky. Ct. App. 2006).

Opinions of Attorney General.

The Eminent Domain Act of Kentucky of 1976 (KRS 416.540 to 416.680 ) does not authorize the condemnation of a passageway over private property by a private individual and since the statutes authorizing such a proceeding were repealed there is no statute in Kentucky authorizing such procedure. OAG 78-297 .

Oil and gas companies cannot condemn public property. OAG 79-346 .

The city of Covington could not acquire title to vacant city lots for private disposition by its general condemnation authority or by utilizing the condemnation authority under the Urban Renewal Act unless it elected to operate thereunder. OAG 80-62 .

A library district can qualify to issue revenue bonds under KRS ch. 58, since it is a special taxing district under Const., § 157 and is a “governmental agency” under KRS 58.010(3). If it issues revenue bonds for a proposed project, the library district board can exercise the power to condemn real estate pursuant to KRS 58.140 . OAG 82-343 .

A library district which planned to use mortgage financing for library improvements had no power to condemn the real estate needed. OAG 82-343.

Research References and Practice Aids

Journal of Energy, Natural Resources & Environmental Law.

Daugherty, 2006 Eminent Domain Ballot Initiatives: Citizens’ Voice or Crying Wolf?, 21 J. Energy, Nat. Res. & Env’l L. 99 (2007).

Kentucky Law Journal.

Comments, A Challenge to Historic Preservation in Kentucky, 65 Ky. L.J. 895 (1976-77).

Leathers, Rethinking Jurisdiction and Notice in Kentucky, 71 Ky. L.J. 755 (1982-83).

Northern Kentucky Law Review.

Ruh & Lockaby, Balancing Private Property Rights with “Public Use”: A Survey of Kentucky Courts’ Interpretation of the Power of Eminent Domain., 32 N. Ky. L. Rev. 743 (2005).

Treatises

Caldwell’s Kentucky Form Book, Prac. & Proc. Forms, 5th Ed., Practice Context for Condemnation (Eminent Domain), § 307.00.

416.550. Right to condemn.

Whenever any condemnor cannot, by agreement with the owner thereof, acquire the property right, privileges or easements needed for any of the uses or purposes for which the condemnor is authorized by law, to exercise its right of eminent domain, the condemnor may condemn such property, property rights, privileges or easements pursuant to the provisions of KRS 416.550 to 416.670 . It is not a prerequisite to an action to attempt to agree with an owner who is unknown or who, after reasonable effort, cannot be found within the state or with an owner who is under a disability.

History. Enact. Acts 1976, ch. 140, § 3.

NOTES TO DECISIONS

1.Condemnation Not Necessary.

Condemnation of farmland near airport by fee simple title was not necessary for the intended public purpose of serving as a buffer zone for airport where landowner offered to restrict the land to agricultural use, to give the airport a noise easement and/or an easement prohibiting trees, residential development, and the erection of any structures on the property up to the airport’s building restriction line. City of Bowling Green v. Cooksey, 858 S.W.2d 190, 1992 Ky. App. LEXIS 227 (Ky. Ct. App. 1992).

Appellate court erred in finding that the land at issue was left essentially valueless to the owner after the condemning authority took possession of the land by easement rather than fee simple because the appellate court failed to give appropriate deference to the circuit court’s finding that the authority acted in good faith, at the time the authority negotiated its taking with the owner, the authority a duty to pursue the taking of an interest less than fee simple ownership if its public purpose could be so achieved. Lexington-Fayette Urban Cty. Gov't v. Moore, 559 S.W.3d 374, 2018 Ky. LEXIS 448 ( Ky. 2018 ).

2.Illustrative Cases.

Condemnation of an historic theatre was necessary for a valid public purpose, that the condemnor’s desire to acquire a fee simple interest (instead of the easement offered by the condemnee) was not unreasonable, that the condemnor did not abuse its discretion, and that it had negotiated in good faith before filing suit. God's Ctr. Found., Inc. v. Lexington-Fayette Urban County Gov't, 125 S.W.3d 295, 2002 Ky. App. LEXIS 2315 (Ky. Ct. App. 2002).

Telecommunications company did not have the power to condemn the entirety of an owner’s property, nor to condemn the owner’s property for the purpose of expanding its “Point of Presence” facility, which was not a “telephone line” for purposes of KRS 278.540(2); the telecommunications company abused its discretion in pursuing a condemnation action against the owner’s entire property, and a trial court erred in entering summary judgment in favor of the telecommunications company on the owner’s counterclaim for abuse of process. Leggett v. Sprint Communs. Co., L.P., 2005 Ky. App. LEXIS 255 (Ky. Ct. App. Dec. 2, 2005), aff'd in part and rev'd in part, 307 S.W.3d 109, 2010 Ky. LEXIS 64 ( Ky. 2010 ).

Easement was properly granted to a gathering pipeline operator because the operator engaged in good faith negotiations prior to filing a condemnation petition; the proper corporate entity conducted the negotiations, and good faith negotiations were undertaken based on the written correspondence. Milam v. Viking Energy Holdings, LLC, 370 S.W.3d 530, 2012 Ky. App. LEXIS 99 (Ky. Ct. App. 2012).

3.Right of Agency to Condemn.

If, prior to the entry of an interlocutory judgment, the issue of the right of the agency to condemn was timely and properly raised, it should have been heard and determined before entry of a judgment awarding the agency the possession, use and control of the property being condemned. Idol v. Knuckles, 383 S.W.2d 910, 1964 Ky. LEXIS 64 ( Ky. 1964 ) (decided under prior law).

The landowner had no appeal to challenge the right of the condemning agency to take the property being condemned. Anderson v. Urban Renewal & Community Development Agency, 436 S.W.2d 533, 1968 Ky. LEXIS 187 ( Ky. 1968 ), appeal denied, 395 U.S. 823, 89 S. Ct. 2133, 23 L. Ed. 2d 738, 1969 U.S. LEXIS 1170 (1969), appeal dismissed, Anderson v. Urban Renewal & Community Development Agency, 395 U.S. 823, 89 S. Ct. 2133, 23 L. Ed. 2d 738, 1969 U.S. LEXIS 1170 (1969) (decided under prior law).

An appeal testing the propriety of the circuit court’s ruling upholding the agency’s right to take is precluded once the circuit court affords a hearing and renders a judgment sustaining the agency’s right to condemn. Cartmell v. Urban Renewal & Community Development Agency, 432 S.W.2d 445, 1968 Ky. LEXIS 343 ( Ky. 1968 ) (decided under prior law).

If the issue of the right of the agency to condemn was properly presented it had to be adjudicated before the court awards the interlocutory judgment. Cartmell v. Urban Renewal & Community Development Agency, 432 S.W.2d 445, 1968 Ky. LEXIS 343 ( Ky. 1968 ) (decided under prior law).

Fact that the commissioners placed a substantially higher value on the property did not necessarily indicate that the Department of Highway’s offer was unreasonable; thus, the trial court did not clearly err in finding that the Department negotiated in good faith in regard to the condemnation action. Rabourn v. Commonwealth, 2006 Ky. App. Unpub. LEXIS 137 (Ky. Ct. App. July 14, 2006).

Research References and Practice Aids

Northern Kentucky Law Review.

Ruh & Lockaby, Balancing Private Property Rights with “Public Use”: A Survey of Kentucky Courts’ Interpretation of the Power of Eminent Domain., 32 N. Ky. L. Rev. 743 (2005).

Treatises

Caldwell’s Kentucky Form Book, Prac. & Proc. Forms, 5th Ed., Order Appointing Commissioners, Form 307.07.

Caldwell’s Kentucky Form Book, Prac. & Proc. Forms, 5th Ed., Petition for Condemnation (Temporary and Permanent Easement), Form 307.01.

Caldwell’s Kentucky Form Book, Prac. & Proc. Forms, 5th Ed., Practice Context for Condemnation (Eminent Domain), § 307.00.

416.560. Initiation of condemnation proceedings — Costs — Right of entry — Damages.

  1. Notwithstanding  any other provision of the law, a department, instrumentality or agency of  a consolidated local government, city, county, or urban-county government,  other than a waterworks corporation the capital stock of which is wholly owned  by a city of the first class or a consolidated local government, having a  right of eminent domain under other statutes shall exercise such right only  by requesting the governing body of the consolidated local government, city,  county, or urban-county to institute condemnation proceedings on its behalf.  If the governing body of the consolidated local government, city, county,  or urban-county agrees, it shall institute such proceedings under KRS 416.570 ,  and all costs involved in the condemnation shall be borne by the department,  instrumentality, or agency requesting the condemnation.
  2. If  any department, instrumentality, or agency of a consolidated local government,  city, county, or urban-county government, other than a waterworks corporation  the capital stock of which is wholly owned by a city of the first class or  a consolidated local government, operates in more than one (1) governmental  unit, it shall request the governing body of the consolidated local government,  city, county, or urban-county government wherein the largest part of the individual  tract of the property sought to be condemned lies, to institute condemnation  proceedings on its behalf.
  3. A  department, instrumentality, or agency of the Commonwealth of Kentucky, other  than the Transportation Cabinet and local boards of education, having a right  of eminent domain under other statutes shall exercise such right only by requesting  the Finance and Administration Cabinet to institute condemnation proceedings  on its behalf. If the Finance and Administration Cabinet agrees, it shall  institute such proceedings under KRS 416.570 , and all costs involved in the  condemnation shall be borne by the department, instrumentality, or agency  requesting the condemnation.
  4. Prior  to the filing of the petition to condemn, the condemnor or its employees or  agents shall have the right to enter upon any land or improvement which it  has the power to condemn, in order to make studies, surveys, tests, sounding,  and appraisals, provided that the owner of the land or the party in whose  name the property is assessed has been notified ten (10) days prior to entry  on the property. Any actual damages sustained by the owner of a property interest  in the property entered upon by the condemnor shall be paid by the condemnor  and shall be assessed by the court or the court may refer the matter to commissioners  to ascertain and assess the damages sustained by the condemnee, which award  shall be subject to appeal.

History. Enact. Acts 1976, ch. 140, § 4; 1982, ch. 239, § 1, effective July 15, 1982; 2000, ch. 45, § 1, effective July 14, 2000; 2002, ch. 346, § 230, effective July 15, 2002.

NOTES TO DECISIONS

1.Watershed Conservancy District.

A watershed conservancy district was not a branch or instrumentality of state government so as to require it to proceed through the Department of Finance in all condemnation suits, pursuant to subsection (3) of this section. Fearin v. Fox Creek Valley Watershed Conservancy Dist., 667 S.W.2d 389, 1983 Ky. App. LEXIS 380 (Ky. Ct. App. 1983).

2.Sanitation District.

Sanitation district did not lack authority to initiate condemnation proceedings on its own behalf under KRS 416.560(1) because it was not a department, instrumentality or agency of local government, but rather, an autonomous political subdivision under KRS 220.110(1) with fully authority within its boundaries as to the construction and operation of sanitation improvements. Garriga v. Sanitation Dist. No. 1, 2003 Ky. App. LEXIS 305 (Ky. Ct. App. Dec. 5, 2003).

3.Evidence.

Where the landowner in condemnation proceeding demonstrated no exceptional circumstances preventing it from obtaining facts or opinions on the same subject by other means, the trial court properly excluded admission of the appraisal report of transportation cabinet employee since such report was an expert opinion pursuant to CR 26.02(4)(b). Commonwealth, Dep't of Transp., Bureau of Highways v. Crafton-Duncan, Inc., 668 S.W.2d 62, 1984 Ky. App. LEXIS 486 (Ky. Ct. App. 1984).

4.City or County Participation.

Under subsection (5) of KRS 183.133 , the county air board must comply with the procedure for condemnation set out in this section; the board does not have authority to condemn absent county participation. Bernard v. Russell County Air Bd., 718 S.W.2d 123, 1986 Ky. LEXIS 297 ( Ky. 1986 ).

5.Costs.

The fee of the condemnee’s expert appraisal witness was not a court cost and, therefore, the Commonwealth was not required to pay the fee. Commonwealth, Transp. Cabinet, Dep't of Highways v. Wireman, 714 S.W.2d 159, 1986 Ky. App. LEXIS 1189 (Ky. Ct. App. 1986).

6.Waterfront Development Corporation.

Waterfront Development Corporation (WDC) is a state instrumentality, but it is also a city and a county agency; as a city agency, the WDC is required to request the city’s governing body to institute condemnation proceedings on its behalf. Martingale, LLC v. City of Louisville, 151 S.W.3d 829, 2004 Ky. App. LEXIS 203 (Ky. Ct. App. 2004), cert. denied, 545 U.S. 1115, 125 S. Ct. 2913, 162 L. Ed. 2d 295, 2005 U.S. LEXIS 4688 (U.S. 2005).

“Costs” are the amounts paid to the court system or to officers of the court, not incidental or indirect fees which are at best colored as costs. Commonwealth, Transp. Cabinet, Dep't of Highways v. Wireman, 714 S.W.2d 159, 1986 Ky. App. LEXIS 1189 (Ky. Ct. App. 1986).

7.Damages.

When it has been proven that the owner of property, on which land is being taken by the power of eminent domain, has purchased such property with knowledge of that fact, he is not entitled, for the purpose of assessing damages, to have it considered a part of other property previously acquired by him. Commonwealth, Dep't of Highways v. Raybourn, 359 S.W.2d 611, 1962 Ky. LEXIS 200 ( Ky. 1962 ).

Where condemnee’s property was wrecked pursuant to an order authorizing possession and prior to a second order setting aside the authorizing order condemnees could not recover damages from the wreckers since the court had the power under former statute to authorize possession upon payment into court of the award of commissioners. Dinwiddie v. Urban Renewal & Community Development Agency, 393 S.W.2d 872, 1965 Ky. LEXIS 247 ( Ky. 1965 ) (decided under prior law).

Opinions of Attorney General.

The Department of Transportation does not, under this section, have the right to enter upon private property which has not as yet been acquired for highway right of way to make excavations for archaeological search. OAG 78-10 .

An air board is not a department, instrumentality or agency of such a government within the meaning of subsection (1) of this section. OAG 78-526 .

An air board need not proceed with a condemnation proceeding through the governing bodies of the city and county as suggested by subsection (1) of this section, and such a proceeding may be initiated by the board itself. OAG 78-526 .

Under the associated words doctrine, the word “instrumentality” appearing in subsection (1) of this section must be of the same class as the categories “department” and “agency,” and since the riverport authority provided for in KRS 65.510 et seq., although lacking taxing power, possesses power to contract, borrow, and finance its own projects, it is not a department, instrumentality or agency of any county or city within the meaning of subsection (1) and may initiate condemnation proceedings on its own behalf. OAG 79-133 .

Assuming that a riverport authority is an instrumentality or agency of the county, subsection (1) of this section and subsections (4) and (5) of KRS 65.530 are irreconcilable with respect to condemnation of property which the authority has been unable to purchase, since the first statute provides that the fiscal court would condemn and the second statute provides the riverport authority may, itself, condemn the property; however, since the legislature republished KRS 65.530 after the enactment of this section, it intended, as relates to the specific subject of riverport authorities, to impliedly repeal subsection (1) of this section to that extent since, whenever there are apparent irreconcilable conflicts in statutes, the later statute controls; thus, the riverport authority may proceed, with the consent of the fiscal court, to condemn the land under its own name. OAG 81-244 .

The Louisville Water Company, which is an agency and municipally-owned utility of the city of Louisville but which also operates outside the city and in Jefferson and Oldham Counties, including several small cities, would be subject to the requirements of this section before condemnation proceedings can be instituted. OAG 81-314 .

Although KRS 416.130(2) provides that a power company may condemn in the manner provided in the Eminent Domain Act and subsection (4) of this section, which is part of that act, does not contain any requirement of a bond in connection with a precondemnation survey of the land, the provision of KRS 416.130(1), requiring such a bond is controlling as being the later and more specific statute on the subject of prefile survey and damage to land; accordingly, a rural power cooperative was required to post bond before making a survey and appraisal of private property for the purpose of constructing a transmission line and prior to the filing of a petition for condemnation. OAG 81-383 .

Although KRS 416.130(2) provides that condemnation shall be brought in the manner provided in the Eminent Domain Act of Kentucky and subsection (1) provides for a bond to cover prefile damages, subsection (4) of this section merely declares a cause of action for any prefile damages, and thus there is no basic disharmony or real conflict, since the bond merely guarantees recovery for any damages under the terms of the bond. OAG 81-383 .

A watershed conservancy district existing pursuant to KRS 262.700 et seq., with its defined though limited powers of government, including the authority to tax, borrow money, issue bonds, purchase land and construct necessary structures, is a separate entity and not a department, instrumentality or agency of a city or county or of the Commonwealth in the sense contemplated by subsections (1), (2) and (3) of this section. A watershed conservancy district may, therefore, initiate condemnation proceedings on its own behalf, since subsections (1), (2) and (3) of this section have no application, assuming, of course, that the watershed conservancy district has received prior approval from the board of supervisors of the soil conservation district pursuant to KRS 262.745 . OAG 82-272 .

Research References and Practice Aids

Northern Kentucky Law Review.

Kentucky Law Survey: Education, 29 N. Ky. L. Rev. 115 (2002).

Ruh & Lockaby, Balancing Private Property Rights with “Public Use”: A Survey of Kentucky Courts’ Interpretation of the Power of Eminent Domain., 32 N. Ky. L. Rev. 743 (2005).

Treatises

Caldwell’s Kentucky Form Book, Prac. & Proc. Forms, 5th Ed., Practice Context for Condemnation (Eminent Domain), § 307.00.

Caldwell’s Kentucky Form Book, Prac. & Proc. Forms, 5th Ed., Petition for Condemnation of Underground Storage Reservoir, Form 354.04.

416.570. Filing of petition.

Except as otherwise provided in KRS 416.560 , a condemnor seeking to condemn property or the use and occupation thereof, shall file a verified petition in the Circuit Court of the county in which all or the greater portion of the property sought to be condemned is located, which petition shall state that it is filed under the provisions of KRS 416.550 to 416.670 and shall contain, in substance:

  1. Allegations  sufficient to show that the petitioner is entitled, under the provisions of  applicable law, to exercise the right of eminent domain and to condemn the  property, or the use and occupation thereof, sought to be taken in such proceedings;
  2. A  particular description of the property and the use and occupation thereof  sought to be condemned; and
  3. An  application to the court to appoint commissioners to award the amount of compensation  the owner of the property sought to be condemned is entitled to receive therefor.

History. Enact. Acts 1976, ch. 140, § 5.

NOTES TO DECISIONS

1.Constitutionality.

This section is not unconstitutionally vague on the theory that the requirements of a condemnation petition are insufficient to permit the public service commissioners to make a proper award. Duerson v. East Kentucky Power Coop., Inc., 843 S.W.2d 340, 1992 Ky. App. LEXIS 238 (Ky. Ct. App. 1992).

2.Procedure.

In an eminent domain case, the trial court erred in not disposing of all the claims concerning the right to take before the jury aspect of the case and in allowing a claim for damages to go to the jury. Commonwealth v. Cooksey, 948 S.W.2d 122, 1997 Ky. App. LEXIS 60 (Ky. Ct. App. 1997).

In eminent domain proceedings there are no statutory provisions or other authority for allowing the taking but limiting damages to monetary sums, for bifurcation of the jury trial, or for deciding if fraud exists in the negotiations if the jury award exceeds the commissioners’ recommendation. Commonwealth v. Cooksey, 948 S.W.2d 122, 1997 Ky. App. LEXIS 60 (Ky. Ct. App. 1997).

3.Bad Faith or Fraud.

The Eminent Domain statutes make no provisions for the jury to consider bad faith or fraud; any allegation of bad faith or fraud would necessarily have to come before the judge who would decide if it affects the state’s right to take. Commonwealth v. Cooksey, 948 S.W.2d 122, 1997 Ky. App. LEXIS 60 (Ky. Ct. App. 1997).

4.Denial of Right to Take.

In eminent domain proceedings a court will deny the right to take only where there has been gross abuse or manifest fraud. Commonwealth v. Cooksey, 948 S.W.2d 122, 1997 Ky. App. LEXIS 60 (Ky. Ct. App. 1997).

5.Defective Description.

Where defective description in original complaint of property sought to be condemned was cured by correct description in amended complaint and commissioners did in fact view and appraise the actual property condemned and properly described the property in their amended report, circuit court did not err in refusing to appoint new commissioners or to dismiss the original complaint without prejudice, where no exceptions were taken to the original complaint and motion to permit filing of exceptions after the time had expired was overruled. Whitesburg Municipal Housing Com. v. Hale, 371 S.W.2d 482, 1963 Ky. LEXIS 99 ( Ky. 1963 ) (decided under prior law).

6.Description Adequate.

In a case involving a pipeline easement, a trial court did not err by granting such because the property was adequately described in a condemnation petition; a trial court found that the testimony of a surveyor was sufficient where it located the centerline of the easement and location of the gas pipeline buried in the easement. Milam v. Viking Energy Holdings, LLC, 370 S.W.3d 530, 2012 Ky. App. LEXIS 99 (Ky. Ct. App. 2012).

Cited in:

Ratliff v. Fiscal Court of Caldwell County, 617 S.W.2d 36, 1981 Ky. LEXIS 252 ( Ky. 1981 ); Commonwealth, Dep’t of Transp., Bureau of Highways v. Catlett, 568 S.W.2d 759, 1978 Ky. App. LEXIS 553 (Ky. Ct. App. 1978); City of Bowling Green v. Cooksey, 858 S.W.2d 190, 1992 Ky. App. LEXIS 227 (Ky. Ct. App. 1992).

Research References and Practice Aids

Kentucky Law Journal.

Leathers, Rethinking Jurisdiction and Notice in Kentucky, 71 Ky. L.J. 755 (1982-83).

Northern Kentucky Law Review.

Ruh & Lockaby, Balancing Private Property Rights with “Public Use”: A Survey of Kentucky Courts’ Interpretation of the Power of Eminent Domain., 32 N. Ky. L. Rev. 743 (2005).

Treatises

Caldwell’s Kentucky Form Book, Prac. & Proc. Forms, 5th Ed., Petition for Condemnation of Underground Storage Reservoir, Form 354.04.

416.580. Commissioners — Appointment — Report — Compensation — Vacancy — Majority required — Eminent domain proceedings.

    1. The Circuit Court, or in the absence of the Circuit Judge from the county, the Circuit Court Clerk, shall appoint as commissioners three (3) impartial housekeepers of the county who are owners of land. They shall be sworn to faithfully and impartially discharge their duties under this section. The commissioners shall view the land or material sought to be condemned and award to the owner or owners such a sum as will fairly represent the reduction in the market value of the entire property, all of or a portion of which is sought to be condemned, said sum being the difference between the market value of the entire property immediately before the taking and the market value of the remainder of the property immediately after the taking thereof, together with the fair rental value of any temporary easements sought to be condemned. Within fifteen (15) days from the date of their appointment they shall return a written report to the office of the Circuit Court, stating the above values in their award and shall describe in their report the property sought to be condemned. They shall be allowed a reasonable fee which shall be taxed as costs. (1) (a) The Circuit Court, or in the absence of the Circuit Judge from the county, the Circuit Court Clerk, shall appoint as commissioners three (3) impartial housekeepers of the county who are owners of land. They shall be sworn to faithfully and impartially discharge their duties under this section. The commissioners shall view the land or material sought to be condemned and award to the owner or owners such a sum as will fairly represent the reduction in the market value of the entire property, all of or a portion of which is sought to be condemned, said sum being the difference between the market value of the entire property immediately before the taking and the market value of the remainder of the property immediately after the taking thereof, together with the fair rental value of any temporary easements sought to be condemned. Within fifteen (15) days from the date of their appointment they shall return a written report to the office of the Circuit Court, stating the above values in their award and shall describe in their report the property sought to be condemned. They shall be allowed a reasonable fee which shall be taxed as costs.
    2. If any person appointed to serve as commissioner fails, refuses or becomes incapable of acting, the court, or judge thereof shall forthwith appoint a qualified person to fill the vacancy. A majority of the commissioners appointed and qualified have the power to act and to make and sign the award and report. If a majority of the commissioners do not agree on a decision, three (3) new commissioners shall be appointed by the court on application by any of the parties to the action.
  1. In eminent domain proceedings instituted pursuant to KRS 99.700 to 99.730 , in determining the market of value blighted or deteriorated property, the commissioners shall consider:
    1. The estimated cost of repairs necessary to bring the property up to the minimum standards of the local housing or nuisance code as determined by an independent appraiser, general building or residential contractor or inspector; or
    2. The cost of demolition of the property, if the commissioners determine that demolition would be the most cost-effective manner of addressing the blighted or deteriorated structures on the property.

History. Enact. Acts 1976, ch. 140, § 6; 2016 ch. 127, § 10, effective July 15, 2016.

NOTES TO DECISIONS

1.Report As Evidence.

The commissioners’ report, executed while they were duly sworn, was sufficient evidence to support the jury’s award to landowners after condemnation of two easements, even though the commissioners later made inconsistent statements in court indicating a different value than the value quoted in the report. Lake Village Water Ass'n v. Sorrell, 815 S.W.2d 418, 1991 Ky. App. LEXIS 105 (Ky. Ct. App. 1991).

2.Valuation.

Commissioners did not err in determining the value of a bridge taken by a city in condemnation proceedings based only on the Kentucky portion of the bridge as the predecessor of the limited liability company (LLC) that owned the bridge purchased the bridge at a sheriff’s sale; as the sheriff could only levy on property located in Kentucky, the LLC did not purchase the portion of the bridge located in Indiana. Martingale, LLC v. City of Louisville, 151 S.W.3d 829, 2004 Ky. App. LEXIS 203 (Ky. Ct. App. 2004), cert. denied, 545 U.S. 1115, 125 S. Ct. 2913, 162 L. Ed. 2d 295, 2005 U.S. LEXIS 4688 (U.S. 2005).

3.Appointment.

Although the county court record did not contain an order appointing or reappointing commissioners but contained the revised report of the commissioners which was signed by each of them and in which it was stated that they were duly sworn it must be assumed by the reviewing court from the language of the report and from the judgment approving the report that the commissioners were properly appointed and sworn according to law. Price v. Commonwealth, Dep't of Highways, 385 S.W.2d 670, 1964 Ky. LEXIS 160 ( Ky. 1964 ) (decided under prior law).

4.Valuation.

Circuit court properly denied an owner’s motion for an evidentiary hearing and entered an interlocutory judgment to a public utility because the utility had the right to condemn the easement in the owner’s real property and was permitted to take possession of the easement upon payment of the compensation awarded, there was no need for, nor a right to, another hearing, the utility did not act arbitrarily when it petitioned the court to condemn the modified, but overlapping, easement in order to avoid a small cemetery found along the original route, and the owner did not seek an injunction or post a supersedeas bond to stay enforcement of the interlocutory judgment. Allard v. Big Rivers Elec. Corp., 602 S.W.3d 800, 2020 Ky. App. LEXIS 61 (Ky. Ct. App. 2020).

Cited in:

Commonwealth v. Cooksey, 948 S.W.2d 122, 1997 Ky. App. LEXIS 60 (Ky. Ct. App. 1997).

Opinions of Attorney General.

An employee of a city or county can act as a court commissioner appointed to appraise real estate pursuant to this section and receive compensation therefor, since the court commissioner position is an office of the court at most and thus not a state, county or municipal office; the holding of both positions does not violate KRS 61.080 or Ky. Const., § 165. OAG 81-368 .

The appointment by a Circuit Court judge of a city comptroller to the position of court commissioner to appraise real estate pursuant to this section would at most constitute appointment to an office of the court which is not a state, county or municipal office; accordingly, the holding of both offices would violate neither KRS 61.080 nor Ky. Const., § 165. OAG 81-368 .

Research References and Practice Aids

Northern Kentucky Law Review.

Ruh & Lockaby, Balancing Private Property Rights with “Public Use”: A Survey of Kentucky Courts’ Interpretation of the Power of Eminent Domain., 32 N. Ky. L. Rev. 743 (2005).

Treatises

Caldwell’s Kentucky Form Book, Prac. & Proc. Forms, 5th Ed., Practice Context for Condemnation (Eminent Domain), § 307.00.

Caldwell’s Kentucky Form Book, Prac. & Proc. Forms, 5th Ed., Petition for Condemnation (Temporary and Permanent Easement), Form 307.01.

Caldwell’s Kentucky Form Book, Prac. & Proc. Forms, 5th Ed., Interlocutory Order and Judgment, Easement, Form 307.05.

Caldwell’s Kentucky Form Book, Prac. & Proc. Forms, 5th Ed., Report of Commissioners in Condemnation Proceeding, Form 354.05.

416.590. Issuing summons.

Upon the application of the petitioner, and the filing of any necessary affidavits, the clerk of the court shall issue process against the owner to show cause why the petitioner does not have the right to condemn the lands, or the use and occupation thereof sought to be condemned. The summons shall contain a statement of the amount of the award and shall state that an answer or other pleading, if any, must be filed within twenty (20) days from date of service. The clerk shall make such orders as to nonresidents and persons under disability as are required by the statutes and Rules of Civil Procedure in actions against them in Circuit Courts.

History. Enact. Acts 1976, ch. 140, § 7.

NOTES TO DECISIONS

1.Defective Summons.

Oral notification concerning defective summons was not tantamount to a pleading for extension of time in which to file exceptions and exceptions to award not filed by condemnor within 20 days after report was filed were properly stricken where defendants failed to file an answer or other pleading or exceptions to the report. Whitesburg Mun. Hous. Comn'n v. Caudill, 369 S.W.2d 124, 1963 Ky. LEXIS 66 ( Ky. 1963 ) (decided under prior law).

Cited in:

Kentucky Utilities Co. v. Brashear, 726 S.W.2d 321, 1987 Ky. App. LEXIS 452 (Ky. Ct. App. 1987).

Research References and Practice Aids

Kentucky Law Journal.

Leathers, Rethinking Jurisdiction and Notice in Kentucky, 71 Ky. L.J. 755 (1982-83).

Northern Kentucky Law Review.

Ruh & Lockaby, Balancing Private Property Rights with “Public Use”: A Survey of Kentucky Courts’ Interpretation of the Power of Eminent Domain., 32 N. Ky. L. Rev. 743 (2005).

Treatises

Caldwell’s Kentucky Form Book, Prac. & Proc. Forms, 5th Ed., Petition for Condemnation (Temporary and Permanent Easement), Form 307.01.

Caldwell’s Kentucky Form Book, Prac. & Proc. Forms, 5th Ed., Practice Context for Condemnation (Eminent Domain), § 307.00.

416.600. Filing answer.

Any answer or other pleading filed by the owner in response to the summons shall be filed on or before the twenty (20) days after date of service and shall be confined solely to the question of the right of the petitioner to condemn the property sought to be condemned, but without prejudice to the owner’s right to except from the amount of the compensation awarded in the manner provided in KRS 416.550 to 416.670 .

History. Enact. Acts 1976, ch. 140, § 8.

NOTES TO DECISIONS

1.Failure to File Answer.

Since subsection (3) of KRS 416.610 confines any exception to the amount of compensation awarded, the condemnees’ statement which accepted the commissioners’ award, but requested a legal entrance to the remainder of their property was not an exception to the award; the condemnees should have filed an answer to the condemnation petition to challenge their remaining access, and failure to file an answer precluded them from raising the issue as an exception. Commonwealth, Transp. Cabinet, Dep't of Highways v. Wireman, 714 S.W.2d 159, 1986 Ky. App. LEXIS 1189 (Ky. Ct. App. 1986).

2.Bad Faith or Fraud.

The Eminent Domain statutes make no provisions for the jury to consider bad faith or fraud; any allegation of bad faith or fraud would necessarily have to come before the judge who would decide if it affects the state’s right to take. Commonwealth v. Cooksey, 948 S.W.2d 122, 1997 Ky. App. LEXIS 60 (Ky. Ct. App. 1997).

Cited in:

Ratliff v. Fiscal Court of Caldwell County, 617 S.W.2d 36, 1981 Ky. LEXIS 252 ( Ky. 1981 ); Stidham v. Commonwealth, Dep’t of Transp., Bureau of Highways, 579 S.W.2d 372, 1978 Ky. App. LEXIS 671 (Ky. Ct. App. 1978).

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, Prac. & Proc. Forms, 5th Ed., Answer to Petition for Condemnation and Exception to Report of Commissioners, Form 354.06.

416.610. Trial by court on pleadings — Interlocutory judgment.

  1. After  the owner has been summoned twenty (20) days, the court shall examine the  report of the commissioners to determine whether it conforms to the provisions  of KRS 416.580 . If the report of the commissioners is not in the proper form  the court shall require the commissioners to make such corrections as are  necessary.
  2. If  no answer or other pleading is filed by the owner or owners putting in issue  the right of the petitioner to condemn the property or the use and occupation  thereof sought to be condemned, the court shall enter an interlocutory judgment  which shall contain, in substance:
    1. A  finding that the petitioner has the right, under the provisions of KRS 416.550 to 416.670 and other applicable law to condemn the property or the use and  occupation thereof;
    2. A  finding that the report of the commissioners conforms to the provisions of  KRS 416.580 ;
    3. An  authorization to take possession of the property for the purposes and under  the conditions and limitations, if any, set forth in the petition upon payment  to the owner or to the clerk of the court the amount of the compensation awarded  by the commissioners;
    4. Proper  provision for the conveyance of the title to the land and material, to the  extent condemned, as adjudged therein in the event no exception is taken as  provided in KRS 416.620(1).
  3. Any  exception from such interlocutory judgment by either party or both parties  shall be confined solely to exceptions to the amount of compensation awarded  by the commissioners.
  4. If  the owner has filed answer or pleading putting in issue the right of the petitioner  to condemn the property or use and occupation thereof sought to be condemned,  the court shall, without intervention of jury, proceed forthwith to hear and  determine whether or not the petitioner has such right. If the court determines  that petitioner has such rights, an interlocutory judgment, as provided for  in subsection (2) of this section, shall be entered. If the court determines  that petitioner does not have such right, it shall enter a final judgment  which shall contain, in substance:
    1. A  finding that the report of the commissioners conforms to the provisions of  KRS 416.580 ;
    2. A  finding that the petitioner is not authorized to condemn the property or the  use and occupation thereof for the purposes and under the conditions and limitations  set forth in the petition, stating the particular ground or grounds on which  the petitioner is not so authorized;
    3. An  order dismissing the petition and directing the petitioner to pay all costs.

History. Enact. Acts 1976, ch. 140, § 9.

NOTES TO DECISIONS

1.Answer and Exceptions.

Where the homeowner’s exceptions to the commissioners’ report were incorporated in his answer, the whole could be considered a pleading, and since the Commonwealth did not file its motion to strike within the 20 days required by CR 12.06, after the homeowner filed his answer and exceptions, the exceptions should not have been stricken. Stidham v. Commonwealth, Dep't of Transp., Bureau of Highways, 579 S.W.2d 372, 1978 Ky. App. LEXIS 671 (Ky. Ct. App. 1978).

Even if the landowners’ attorneys were not present at the judgment nor notified of its entry, the property owners should have made inquiry of the progress of the eminent domain proceedings, as subsection (4) of this section required the court to “proceed forthwith” to hear and determine whether or not the Commonwealth utilities had a right to condemn; therefore, the 30-day time period for filing exceptions ran against the property owners. Kentucky Utilities Co. v. Brashear, 726 S.W.2d 321, 1987 Ky. App. LEXIS 452 (Ky. Ct. App. 1987).

2.Expedited Appeal.

The provisions of subsection (4) of this section allow a condemnee an immediate, expedited appeal on the question of the condemnor’s right to take, despite the absence of an express statutory right to appeal; Ky. Const., § 115, of which the Legislature was aware when this section was enacted, mandates an appeal in all civil and criminal cases, and moreover, in the absence of an immediate appeal, the condemnee cannot be returned to its original position because the condemnor is given the right of immediate possession and can proceed to achieve whatever construction or destruction was the purpose of the petition for condemnation. Ratliff v. Fiscal Court of Caldwell County, 617 S.W.2d 36, 1981 Ky. LEXIS 252 ( Ky. 1981 ).

3.Appealable Order.

An interlocutory judgment made pursuant to this section, which adjudged that a utility had the right to condemn an easement across the condemnees’ land for the purpose of constructing and maintaining electricity transmission lines and authorized the utility to take possession of the easement, was final and appealable as to the issue of the right to condemn and the right to immediate entry; accordingly, where the condemnees filed neither a timely notice of appeal nor a timely motion to set aside or vacate the judgment, the trial court was powerless to enlarge the time period allowed for the filing of such motions. Hagg v. Kentucky Utilities Co., 660 S.W.2d 680, 1983 Ky. App. LEXIS 363 (Ky. Ct. App. 1983).

Where the Circuit Court entered an interlocutory order and judgment pursuant to subsection (2) of this section holding that the Commonwealth had the right to condemn certain real property for use in a highway project, where property owner and Commonwealth objected to the award of the commissioners of $110,000, but neither contested the Commonwealth’s right to take the subject real property, where the Commonwealth paid the amount of the commissioners’ award into court, property owner withdrew the amount of the award and the highway project was completed, and where in 1987, the Commonwealth determined that it took only 3.895 acres, not the 4.884 acres of said property as described in the interlocutory judgment, the Commonwealth, pursuant to Civil Rule 15.01, was entitled to leave to amend its petition and for an order entering an amended interlocutory judgment, as the condemning authority should not have to pay for more land than it actually took. Hamilton v. Commonwealth Transp. Cabinet, Dep't of Highways, 799 S.W.2d 39, 1990 Ky. LEXIS 140 ( Ky. 1990 ).

While the word “interlocutory” normally implies a non-appealable order, a KRS 416.610(2)(c) order can be appealed if a matter is finally litigated by the judgment, or if it operates to divest some right in such manner as to put it out of the power of the court to place the parties in their original condition; if the right of immediate possession is exercised, in many instances, even if an appellate court later reverses the trial court’s determination of the condemnor’s right to take, the condemnee cannot be returned to his same position. Kipling v. City of White Plains, 80 S.W.3d 776, 2001 Ky. App. LEXIS 1167 (Ky. Ct. App. 2001).

Circuit court properly denied an owner’s motion for an evidentiary hearing and entered an interlocutory judgment to a public utility because the utility had the right to condemn the easement in the owner’s real property and was permitted to take possession of the easement upon payment of the compensation awarded, there was no need for, nor a right to, another hearing, the utility did not act arbitrarily when it petitioned the court to condemn the modified, but overlapping, easement in order to avoid a small cemetery found along the original route, and the owner did not seek an injunction or post a supersedeas bond to stay enforcement of the interlocutory judgment. Allard v. Big Rivers Elec. Corp., 602 S.W.3d 800, 2020 Ky. App. LEXIS 61 (Ky. Ct. App. 2020).

4.All Costs.

The phrase “all costs” in subdivision (4)(c) of this section does not include an award of attorney’s fees; as a general rule, attorney’s fees are not allowed in the absence of a statute or contract expressly providing therefor, and there is no statute or contract expressly providing for an award of attorney’s fees in a proceeding involving eminent domain. Commonwealth, Dep't of Transp., Bureau of Highways v. Knieriem, 707 S.W.2d 340, 1986 Ky. LEXIS 238 ( Ky. 1986 ).

5.Exception to Award.

Since subsection (3) of this section confines any exception to the amount of compensation awarded, the condemnees’ statement which accepted the commissioners’ award, but requested a legal entrance to the remainder of their property was not an exception to the award; the condemnees should have filed an answer to the condemnation petition to challenge their remaining access, and failure to file an answer precluded them from raising the issue as an exception. Commonwealth, Transp. Cabinet, Dep't of Highways v. Wireman, 714 S.W.2d 159, 1986 Ky. App. LEXIS 1189 (Ky. Ct. App. 1986).

6.Improper Procedure.

In an eminent domain case, the trial court erred in not disposing of all the claims concerning the right to take before the jury aspect of the case and in allowing a claim for damages to go to the jury. Commonwealth v. Cooksey, 948 S.W.2d 122, 1997 Ky. App. LEXIS 60 (Ky. Ct. App. 1997).

In eminent domain proceedings there are no statutory provisions or other authority for allowing the taking but limiting damages to monetary sums, for bifurcation of the jury trial, or for deciding if fraud exists in the negotiations if the jury award exceeds the commissioners’ recommendation. Commonwealth v. Cooksey, 948 S.W.2d 122, 1997 Ky. App. LEXIS 60 (Ky. Ct. App. 1997).

7.Denial of Right To Take.

In eminent domain proceedings a court will deny the right to take only where there has been gross abuse or manifest fraud. Commonwealth v. Cooksey, 948 S.W.2d 122, 1997 Ky. App. LEXIS 60 (Ky. Ct. App. 1997).

8.Dismissal.

In a condemnation case, a trial court erred when it dismissed a case for lack of prosecution because a statute was silent on the specific amount of time in which a trial on the exceptions and compensation was to be held, even though a property owner was entitled to a prompt trial on the issue of the condemnation itself. The property owner did not contest the right to take the property, but instead contested the valuation, and the trial court should have set the matter for a jury trial on compensation or made an interlocutory order and judgment final and appealable. Commonwealth v. Guess, 2015 Ky. App. LEXIS 63 (Ky. Ct. App. May 15, 2015), review denied, ordered not published, 2016 Ky. LEXIS 216 (Ky. Apr. 27, 2016).

Cited in:

Northern Kentucky Port Authority, Inc. v. Cornett, 625 S.W.2d 104, 1981 Ky. LEXIS 298 ( Ky. 1981 ); Foster v. Sanders, 557 S.W.2d 205, 1977 Ky. App. LEXIS 827 (Ky. Ct. App. 1977); Kentucky Utilities Co. v. Brashear, 726 S.W.2d 321, 1987 Ky. App. LEXIS 452 (Ky. Ct. App. 1987); Bush v. Commonwealth, Dep’t of Highways, Transp. Cabinet, 777 S.W.2d 608, 1989 Ky. App. LEXIS 132 (Ky. Ct. App. 1989).

Research References and Practice Aids

Kentucky Law Journal.

Leathers and Mooney, Civil Procedure, 74 Ky. L.J. 355 (1985-86).

Northern Kentucky Law Review.

Ruh & Lockaby, Balancing Private Property Rights with “Public Use”: A Survey of Kentucky Courts’ Interpretation of the Power of Eminent Domain., 32 N. Ky. L. Rev. 743 (2005).

Treatises

Caldwell’s Kentucky Form Book, Prac. & Proc. Forms, 5th Ed., Practice Context for Condemnation (Eminent Domain), § 307.00.

Caldwell’s Kentucky Form Book, Prac. & Proc. Forms, 5th Ed., Judgment in Condemnation Action, Form 354.07.

416.620. Trial of exceptions to interlocutory judgment — Questions as to compensation to be tried by jury — Appeals.

  1. Within  thirty (30) days from the date of entry of an interlocutory judgment authorizing  the petitioner to take possession of the property, exceptions may be filed  by either party or both parties by filing with the clerk of the Circuit Court  and serving upon the other party or parties a statement of exceptions, which  statement shall contain any exceptions the party has to the award made by  the commissioners. The statement of exceptions shall be tried, but shall be  limited to the questions which are raised in the original statements of the  exceptions, or as amended, but the owner shall not be permitted to raise any  question, nor shall the court reconsider any question so raised, concerning  the right of the petitioner to condemn the property. All questions of fact  pertaining to the amount of compensation to the owner, or owners, shall be  determined by a jury, which jury on the motion of either party shall be sent  by the court, in the charge of the sheriff, to view the land and material.  After a jury trial, and if possession previously has not been taken by the  condemnor of the land and material condemned, it may do so upon the payment  to the owner or to the clerk of the Circuit Court the amount of the compensation  adjudged by the Circuit Court to be due the owner.
  2. Appeals  may be taken to the Court of Appeals from the final judgment of the Circuit Court as in other cases except that an appeal by the owner shall not operate  as a supersedeas.
  3. The  payment by the condemnor of the amount of compensation awarded and the taking  possession of the lands and material condemned shall not prejudice its right  to except from the award of the commissioners or the judgment of any court,  nor shall the acceptance by the owner of the amount of the compensation awarded  prejudice his right to except from the award of the commissioners or the judgment  of any court.
  4. All  costs in the Circuit Court shall be adjudged against the condemnor.
  5. If  the condemnor takes possession of the property condemned and the amount of  compensation is thereafter increased over that awarded by the commissioners,  the condemnor shall pay interest to the owner at the rate of six percent (6%)  per annum upon the amount of such increase from the date the condemnor took  possession of the property. If the condemnor takes possession of the property  condemned and the amount of compensation is thereafter decreased below that  awarded by the commissioners, the condemnor shall be entitled to a personal  judgment against the owner for the amount of the decrease plus interest at  the rate of six percent (6%) per annum from the date the owner accepted the  amount of compensation the condemnor paid into court or to the owner. If the  owner at all times refuses to accept the payment tendered by the condemnor,  no interest shall be allowed in the judgment against the owner for the amount  of the decrease.
  6. Upon  the final determination of exceptions, or upon expiration of thirty (30) days  from entry of the interlocutory judgment if no exceptions are filed, the Circuit Court shall make such orders as may be proper for the conveyance of the title  to the extent condemned, to the property, and shall enter such final judgment  as may be appropriate.

History. Enact. Acts 1976, ch. 140, § 10.

NOTES TO DECISIONS

1.In General.

Because the owner had lost the right of possession of the property being taken upon the payment of the commissioner’s award into court and had no right to interest on the amount of the commissioner’s award, the Legislature clearly contemplated that the owner could immediately withdraw the amount of the award except where there are conflicting claimants to the condemned property. Foster v. Sanders, 557 S.W.2d 205, 1977 Ky. App. LEXIS 827 (Ky. Ct. App. 1977).

Where the Commonwealth failed to develop condemned property within the eight-year period specified in KRS 416.670 , the condemnees could not recover monetary damages for a delay in notifying them of their right to repurchase the property; the delay was not a continued taking compensable under KRS 416.620 because the condemnees retained no interest in the property. Martin v. Commonwealth, 199 S.W.3d 195, 2006 Ky. App. LEXIS 67 (Ky. Ct. App. 2006).

2.Interest.

This section recognizes the owner’s right to interest in the event of delay in the payment of compensation beyond the date of taking, but once the condemnor pays the amount of the commissioner’s award to the clerk of the court, the condemnor has no further liability for interest on that sum. Foster v. Sanders, 557 S.W.2d 205, 1977 Ky. App. LEXIS 827 (Ky. Ct. App. 1977).

The statutory interest provision of subsection (5) of this section controls when in conflict with the general statutory interest provision of KRS 360.040 ; consequently, six percent (6%) and not 12 percent, therefore, was the proper interest rate on judgment in condemnation suit. Commonwealth, Dep't of Transp., Bureau of Highways v. Crafton-Duncan, Inc., 668 S.W.2d 62, 1984 Ky. App. LEXIS 486 (Ky. Ct. App. 1984).

In a condemnation action, subsection (5) of this section requires that the interest rate of six percent (6%) shall apply to the amount of increase or decrease after entry of the final judgment as well as before the final judgment. Bush v. Commonwealth, Dep't of Highways, Transp. Cabinet, 777 S.W.2d 608, 1989 Ky. App. LEXIS 132 (Ky. Ct. App. 1989).

3.Filing of Exceptions.

This section is a limitations statute which prohibits the filing of exceptions at any time after 30 days from the date of interlocutory judgment but does not prohibit the filing of exceptions before the 30-day period. Stidham v. Commonwealth, Dep't of Transp., Bureau of Highways, 579 S.W.2d 372, 1978 Ky. App. LEXIS 671 (Ky. Ct. App. 1978).

The Circuit Court did not have discretion to permit the late filings of exceptions and deny the Commonwealth utilities’ motion for final judgment pursuant to subsection (6) of this section, resulting in a jury determination of an award in excess of the award of the commissioners. Kentucky Utilities Co. v. Brashear, 726 S.W.2d 321, 1987 Ky. App. LEXIS 452 (Ky. Ct. App. 1987).

4.Appealable Order.

An interlocutory judgment made pursuant to KRS 416.610 , which adjudged that a utility had the right to condemn an easement across the condemnees’ land for the purpose of constructing and maintaining electricity transmission lines and authorized the utility to take possession of the easement, was final and appealable as to the issue of the right to condemn and the right to immediate entry; accordingly, where the condemnees filed neither a timely notice of appeal nor a timely motion to set aside or vacate the judgment, the trial court was powerless to enlarge the time period allowed for the filing of such motions. Hagg v. Kentucky Utilities Co., 660 S.W.2d 680, 1983 Ky. App. LEXIS 363 (Ky. Ct. App. 1983).

5.Costs.

“Costs” are the amounts paid to the court system or to officers of the court, not incidental or indirect fees which are at best colored as costs. Commonwealth, Transp. Cabinet, Dep't of Highways v. Wireman, 714 S.W.2d 159, 1986 Ky. App. LEXIS 1189 (Ky. Ct. App. 1986).

The fee of the condemnee’s expert appraisal witness was not a court cost and, therefore, the Commonwealth was not required to pay the fee. Commonwealth, Transp. Cabinet, Dep't of Highways v. Wireman, 714 S.W.2d 159, 1986 Ky. App. LEXIS 1189 (Ky. Ct. App. 1986).

6.Statement Not Exception.

Since subsection (3) of KRS 416.610 confines any exception to the amount of compensation awarded, the condemnees’ statement which accepted the commissioners’ award, but requested a legal entrance to the remainder of their property was not an exception to the award; the condemnees should have filed an answer to the condemnation petition to challenge their remaining access, and failure to file an answer precluded them from raising the issue as an exception. Commonwealth, Transp. Cabinet, Dep't of Highways v. Wireman, 714 S.W.2d 159, 1986 Ky. App. LEXIS 1189 (Ky. Ct. App. 1986).

7.Writ of Prohibition Granted.

Statutory authority rests solely with the court-appointed commissioners to award just compensation to the owners of land being condemned; therefore, when the Circuit Court Judge ordered a mineral expert’s reevaluation report incorporated into the commissioners’ original report, even though the commissioners had reported to the court their decision to stand by their original report and award, the Circuit Court Judge usurped the statutory power and authority reserved by the legislature to the commissioners, and the Court of Appeals properly issued a writ of prohibition to prevent the Circuit Court from exceeding its lawful power and authority. Corns v. Transportation Cabinet, Dep't of Highways, 814 S.W.2d 574, 1991 Ky. LEXIS 116 ( Ky. 1991 ).

8.Evidence.

Evidence of plans and specifications of highway department, the condemnor, for particular project is admissible to permit jury to determine to what extent remaining land will be affected, but plans are not conclusive as to future uses of property that may be made by condemnor. Commonwealth, Dep't of Highways v. Lyons, 364 S.W.2d 336, 1963 Ky. LEXIS 205 ( Ky. 1963 ) (decided under prior law).

Topography of ground and susceptibility of land for use as a subdivision could be shown by a plat with lines marking proposed lots on tract purchased for a subdivision and half developed at time of condemnation for interstate highway. Commownealth, Dep't of Highways v. McCready, 371 S.W.2d 485, 1963 Ky. LEXIS 101 ( Ky. 1963 ) (decided under prior law).

Evidence of purchase price paid five (5) years and two (2) months before condemnation action was admissible. Commonwealth, Dep't of Highways v. Whitledge, 406 S.W.2d 833, 1966 Ky. LEXIS 220 ( Ky. 1966 ) (decided under prior law).

Evidence of formula used by gasoline industry based on gallons of gasoline sold to determine value of service station property was admissible. Standard Oil Co. v. Commonwealth, Dep't of Highways, 414 S.W.2d 570, 1966 Ky. LEXIS 14 ( Ky. 1966 ) (decided under prior law).

9.—Burden of Proof.

Where both parties appeal to the Circuit Court in a condemnation proceeding, the burden of proof upon a trial of the issue of damages before a jury is upon the condemnor. Commonwealth, Dep't of Highways v. Snyder, 309 S.W.2d 351, 1958 Ky. LEXIS 352 ( Ky. 1958 ) (decided under prior law).

Burden of proving bad faith of abandonment was on condemnee asserting such claim as affirmative defense. Commonwealth, Dep't of Highways v. Fultz, 360 S.W.2d 216, 1962 Ky. LEXIS 220 ( Ky. 1962 ) (decided under prior law).

The burden of proving the value of the land condemned for highway purposes and that damages were less than the sum awarded in county court was on Commonwealth on its appeal to Circuit Court. Commonwealth, Dep't of Highways v. Berryman, 363 S.W.2d 525, 1962 Ky. LEXIS 279 ( Ky. 1962 ) (decided under prior law).

10.—Value of Testimony.

It was improper to testify to “per lot” value of property not actually subdivided although the property was suitable for subdivision. Commonwealth, Dep’t of Highways v. Evans, 361 S.W.2d 766, 1962 Ky. LEXIS 252 ( Ky. 1962 ), overruled in part, Commonwealth, Dep’t of Highways v. Sherrod, 367 S.W.2d 844, 1963 Ky. LEXIS 33 ( Ky. 1963 ) (decided under prior law).

Witness may testify that he acted as commissioner and as to character of inspection that he made of premises, and then he may be interrogated as any other witness as to damages, and if he gives higher value at trial than award in which he acquiesced in county court, his testimony may be impeached by inquiring into amount of award. Commonwealth, Dep’t of Highways v. Evans, 361 S.W.2d 766, 1962 Ky. LEXIS 252 ( Ky. 1962 ), overruled in part, Commonwealth, Dep’t of Highways v. Sherrod, 367 S.W.2d 844, 1963 Ky. LEXIS 33 ( Ky. 1963 ) (decided under prior law).

Testimony of witness on value was not without probative value where it was plain from his testimony that he knew the type of coal seams that were under land, and average tons per acre of each seam in area where both seams were present. West Kentucky Coal Co. v. Commownealth, Dep't of Highways, 368 S.W.2d 738, 1963 Ky. LEXIS 52 ( Ky. 1963 ) (decided under prior law).

Testimony as to value of land condemned should be stricken when witness makes it unmistakably clear on cross-examination that his estimates are based entirely on incompetent and improper factors, but it cannot be stricken or ignored merely because he flounders a little. Commonwealth, Dep't of Highways v. McGeorge, 369 S.W.2d 126, 1963 Ky. LEXIS 68 ( Ky. 1963 ) (decided under prior law).

It was not error to permit condemnee’s witnesses to testify to the value of the land for subdivision purposes and make appropriate allowances for developing it by taking into account the number of lots that could be produced, comparable sales in similar subdivisions, allowance of a reasonable time in which to sell the lots and cost of development of the subdivision including installation of utilities and paved streets which testimony was similar to that used by condemnor’s witnesses who treated the land as subdivision lots instead of as farm land. Commownealth, Dep't of Highways v. McCready, 371 S.W.2d 485, 1963 Ky. LEXIS 101 ( Ky. 1963 ) (decided under prior law).

Witness, to be qualified to testify as to value of realty, must know property to be valued and value of property in vicinity, must understand standard of value, and must be possessed of ability to make a reasonable inference. Commonwealth, Dep't of Highways v. Slusher, 371 S.W.2d 851, 1963 Ky. LEXIS 114 ( Ky. 1963 ) (decided under prior law).

Appraisal witnesses on direct examination may, after proper qualification as to competence, testify to the before and after market value of property involved, and may relate any pertinent factors considered by them in arriving at values to which they have testified; in so doing they may state their estimate of amount by which a major structure enhances “before” value of land to which it is affixed, and in support of that estimate may testify as to the cost, original or reproduction, less depreciation, of the structure under certain conditions and limitations but it is not proper for appraisal witnesses to ascribe an itemized price tag to “damage” factors. Commonwealth, Dep't of Highways v. Cardinal Hill Nursery, Inc., 380 S.W.2d 249, 1964 Ky. LEXIS 299 ( Ky. 1964 ) (decided under prior law).

An expert witness may not separate the taking damages from the resulting damages in a condemnation suit. Commonwealth, Dep't of Highways v. Swift, 375 S.W.2d 691, 1964 Ky. LEXIS 425 ( Ky. 1964 ) (decided under prior law).

Estimate of a witness based solely or primarily on an improper factor is invalid and subject to a motion to strike but where other factors which are proper are employed that rule does not necessarily follow. Commonwealth, Dep't of Highways v. York, 390 S.W.2d 190, 1965 Ky. LEXIS 348 ( Ky. 1965 ) (decided under prior law).

Where witness arrived at the before value by improperly breaking down the component parts of the property but also relied on other proper factors to determine his before value estimate of that portion of his evidence which was based on proper factors was competent and was properly admitted to stand. Commonwealth, Dep't of Highways v. York, 390 S.W.2d 190, 1965 Ky. LEXIS 348 ( Ky. 1965 ) (decided under prior law).

11.—Expert Witnesses.

Admissibility and weight of opinion of expert valuation witness depends on his background and experience and thoroughness of his investigation. Commonwealth, Dep’t of Highways v. Citizens Ice & Fuel Co., 365 S.W.2d 113, 1963 Ky. LEXIS 218 ( Ky. 1963 ), overruled, Louisville v. Allen, 385 S.W.2d 179, 1964 Ky. LEXIS 142 ( Ky. 1964 ), overruled in part, Louisville v. Allen, 385 S.W.2d 179, 1964 Ky. LEXIS 142 ( Ky. 1964 ) (decided under prior law).

Comment of trial judge as expert witness was leaving stand that he ought to have been the professor instead of the student where it had been revealed in his testimony that he had attended two (2) night classes in appraisal problems conducted by the assistant director of the division of right-of-way and had taught appraisal at the University of Kentucky for five (5) years where he was referred to as “professor” indicated to the jury that he regarded the testimony of the expert witness more highly than that of the assistant director of the division of right-of-way and this was an improper invasion of the jury function of evaluating the evidence. Commonwealth, Dep't of Highways v. Eubank, 369 S.W.2d 15, 1963 Ky. LEXIS 57 ( Ky. 1963 ) (decided under prior law).

Cross-examination of expert witness for state concerning why he had placed a higher evaluation on comparable adjacent land just a week before was proper in order to test the witness’ knowledge of the land and to determine his qualifications as an expert witness. Commonwealth, Dep't of Highways v. Eubank, 369 S.W.2d 15, 1963 Ky. LEXIS 57 ( Ky. 1963 ) (decided under prior law).

Witnesses in condemnation suit need not be expert land appraisers in order to state their opinions as to real estate values. Commonwealth, Dep't of Highways v. Slusher, 371 S.W.2d 851, 1963 Ky. LEXIS 114 ( Ky. 1963 ) (decided under prior law).

11.5.Right to Jury.

Since KRS 416.650 provides that all proceedings under the eminent domain statutes are governed by the Kentucky Rules of Civil Procedure except where those statutes specifically or by necessary implication provide otherwise, CR 38.02 applies to eminent domain proceedings and requires a party to an eminent domain case to obtain a trial by jury by serving a timely demand, failing which, the party waives the right to a jury trial under CR 38.04. Louisville & Jefferson County Metro. Sewer Dist. v. Bischoff, 248 S.W.3d 533, 2007 Ky. LEXIS 265 ( Ky. 2007 ).

In an eminent domain proceeding, as the property owner did not file his demand for a jury trial until almost three months past the last pleading directed to the issue of compensation and 11 months after he filed his first pleading in this case, under CR 38.04, his failure to serve a timely demand under CR 38.02 constituted a waiver of his right to a jury trial. Louisville & Jefferson County Metro. Sewer Dist. v. Bischoff, 248 S.W.3d 533, 2007 Ky. LEXIS 265 ( Ky. 2007 ).

12.Jurors.

In condemnation proceedings implied bias of juror was not an absolute disqualification and the trial court was possessed of discretion in determining whether a prospective juror could render a fair and impartial verdict notwithstanding the existence of implied bias by reason of a blood relationship to one of the parties. Commonwealth v. Hall, 258 S.W.2d 479, 1953 Ky. LEXIS 840 ( Ky. 1953 ) (decided under prior law).

13.—View.

The word “shall” used in former statute was mandatory. Commonwealth v. Farra, 338 S.W.2d 696, 1960 Ky. LEXIS 407 ( Ky. 1960 ) (decided under prior law).

It was improper for court to send a material witness for the state along with the jury with directions to show the jury the vital points developed in his evidence and to permit the jurors to ask such witness question and request to see particular points of the property out of the courtroom and in absence of judge and counsel particularly since former statute required that the sheriff accompany the jury to view the land and material. Keeney v. Commonwealth, Dep't of Highways, 345 S.W.2d 481, 1961 Ky. LEXIS 269 ( Ky. 1961 ) (decided under prior law).

Because of much confusion in the record as to the size and shape of the land involved, the jury should have been given a view of the premises. Commonwealth, Dep't of Highways v. Raleigh, 375 S.W.2d 384, 1964 Ky. LEXIS 410 ( Ky. 1964 ) (decided under prior law).

Where residence building on condemned lot after taking was sold to landowners and then moved to another site 2,000 feet away, it was error to refuse jury view of premises. Commonwealth, Dep't of Highways v. Hackworth, 383 S.W.2d 372, 1964 Ky. LEXIS 44 ( Ky. 1964 ) (decided under prior law).

That the sheriff was a defendant in a pending condemnation action did not disqualify him to take the jury to view the premises in another case where there was no suggestion that he did not duly observe the court’s directions. Commonwealth, Dep't of Highways v. Conley, 386 S.W.2d 750, 1964 Ky. LEXIS 181 ( Ky. 1964 ) (decided under prior law).

Trial court had discretion to overrule motion for jury view of premises where route to farm was rough and inaccessible and some of jurors were physically unable to make the journey. Commonwealth, Dep't of Highways v. Jewell, 405 S.W.2d 678, 1966 Ky. LEXIS 259 ( Ky. 1966 ) (decided under prior law).

Where residence was taken by state and sold back to owner and then removed to another location, it was error to refuse request for jury view of remainder of property as it appeared after taking. Commonwealth, Dep't of Highways v. Bates, 408 S.W.2d 424, 1966 Ky. LEXIS 97 ( Ky. 1966 ) (decided under prior law).

In the exercise of its discretion the court may properly deny a view where the premises have been adequately described in the testimony and where visual evidence has been introduced which the court deems to be sufficient. In determining whether a jury view should or should not be permitted the court may properly consider whether there have been such changes in the premises as to impair the value of the view. Fisher v. Urban Renewal & Community Development Agency, 425 S.W.2d 744, 1968 Ky. LEXIS 435 ( Ky. 1968 ) (decided under prior law).

Where a jury was charged with determining the before and after value of land on which a building had been destroyed and a motion was made for the jury to view the property, it could not be said that a view would not be beneficial in making the determination and should be permitted. Commonwealth, Dep't of Highways v. Eberenz, 435 S.W.2d 753, 1968 Ky. LEXIS 212 ( Ky. 1968 ) (decided under prior law).

Where the premises had been substantially changed by the project, the trial court did not commit reversible error by permitting the jury to view the premises upon request by one of the parties. Commonwealth, Dep't of Highways v. Walker, 496 S.W.2d 344, 1973 Ky. LEXIS 381 ( Ky. 1973 ) (decided under prior law).

The fact that the property to be taken was not marked by stakes, that a jury view of the property would require a five-mile trip over a partially unpaved road, and that a jury view of the property would cause inconvenience and delay in the trial did not constitute unusual or extreme circumstances such as to justify the trial judge’s refusal to permit the jury to view the property. Commonwealth, Dep't of Highways v. Caudill, 523 S.W.2d 880, 1975 Ky. LEXIS 122 ( Ky. 1975 ) (decided under prior law).

In a condemnation action, reversal was required because the Transportation Cabinet clearly requested a viewing, and the trial court’s analysis was insufficient to invoke the narrow grounds of exception to the mandatory statutory language in this section. The trial court’s conclusion that the viewing was unnecessary because jurors were familiar with the location, and there were good descriptions of the property were hardly unusual factors. Commonwealth v. PTL Warehousing, LLC, 620 S.W.3d 883, 2021 Ky. App. LEXIS 55 (Ky. Ct. App. 2021).

14.Exceptions.

The provision relating to the filing of exceptions is construed as a requirement that the party appealing to the Circuit Court file his grounds for appeal. Commonwealth ex rel. Curlin v. Moyers, 280 S.W.2d 513, 1955 Ky. LEXIS 167 ( Ky. 1955 ) (decided under prior law).

Filing of exceptions to report of commissioners in county court on ground of inadequacy of compensation was not authorized. Commonwealth, Dep't of Highways v. Prather, 369 S.W.2d 118, 1963 Ky. LEXIS 64 ( Ky. 1963 ) (decided under prior law).

In condemnation proceeding only those issues raised in statement of appeal, or in original exceptions, may be considered by the Circuit Court. Robinette v. Commonwealth, Dep't of Highways, 380 S.W.2d 78, 1964 Ky. LEXIS 271 ( Ky. 1964 ) (decided under prior law).

In condemnation suit where exception by condemnor was to the award of commissioners for land taken and damages to the remainder on the ground that the award was excessive, it was not within the province of the Circuit Court to interpret the unchallenged items of residence and house to include all of the land taken and limit recovery to those items plus damages to the remaining strip of land. Davis v. Commonwealth, Dep't of Highways, 374 S.W.2d 513, 1963 Ky. LEXIS 181 ( Ky. 1963 ) (decided under prior law).

15.Appeals.
16.—Parties.

Upon failure of condemnees to appeal they lost the right to contest either the state’s right to condemn or the adequacy of the award and as their fractional interest in property was severable from other tenants in common who appealed, they were not necessary parties to the appeal. Riley v. Commonwealth, Dep't of Highways, 375 S.W.2d 245, 1963 Ky. LEXIS 185 ( Ky. 1963 ) (decided under prior law).

One of several codefendants in highway condemnation proceeding may appeal without joining all his codefendants as parties to appeal. Commonwealth, Dep't of Highways v. Kelley, 376 S.W.2d 539, 1964 Ky. LEXIS 458 ( Ky. 1964 ) (decided under prior law).

Construction company holding a long term lease of mineral rights and lien holders by sale contract and deed from condemnee, the fee simple owner, were proper parties at the commencement of condemnation proceedings and where no reason indicated that their presence could operate in any prejudicial manner the proceedings should not have been dismissed as to them. Commonwealth, Dep't of Highways v. Cardinal Hill Nursery, Inc., 380 S.W.2d 249, 1964 Ky. LEXIS 299 ( Ky. 1964 ) (decided under prior law).

17.—Dismissal.

Failure of appellants to file a copy of condemnation judgment with clerk of Circuit Court within 30 days from date of judgment and unreasonable eight-year lapse between time judgment was entered and time original appeal was filed warranted dismissal of appeal. Thompson v. Kentucky Power Co., 551 S.W.2d 815, 1977 Ky. App. LEXIS 704 (Ky. Ct. App. 1977) (decided under prior law).

18.Interest.

Where condemnor deposited in the county clerk’s office the amount of the commissioner’s award, the condemnor was under no duty to instruct the county court clerk to pay the amount to the owners of the land pending further litigation of the matter on appeal and consequently the condemnor was not required to pay interest on the amount so deposited notwithstanding the refusal of the county court clerk to pay it over. Commonwealth, Dep't of Highways v. Citizens Ice & Fuel Co., 394 S.W.2d 903, 1965 Ky. LEXIS 219 ( Ky. 1965 ) (decided under prior law).

Where damages awarded on appeal to Circuit Court were less than amount paid to landowner pursuant to county court judgment, condemnor was entitled to interest on the amount of the excess. Sloan v. Commonwealth, Dep't of Highways, 405 S.W.2d 294, 1966 Ky. LEXIS 253 ( Ky. 1966 ) (decided under prior law).

19.Attorney’s Fees.

Metropolitan sewer district acted in bad faith during condemnation negotiations by making an inadequate last offer to the condemnee of $4,000 when it had previously offered $60,000. However, the trial court did not abuse its discretion in finding that the district’s conduct was not so prejudicial as to justify award of counsel fees to the condemnee. Golden Foods, Inc. v. Louisville & Jefferson County Metro. Sewer Dist., 240 S.W.3d 679, 2007 Ky. App. LEXIS 459 (Ky. Ct. App. 2007).

Although attorney fees are generally not recoverable without a specific contractual provision or a fee-shifting statute, after the successful defense of a condemnation proceeding, a trial court may award attorney fees if the court determines that the condemnor has acted in bad faith or caused unreasonable delay. If a trial court finds such improper conduct, it should determine the extent that the condemnee has been prejudiced and whether he can be made reasonably whole by the imposition of costs and fees. Golden Foods, Inc. v. Louisville & Jefferson County Metro. Sewer Dist., 240 S.W.3d 679, 2007 Ky. App. LEXIS 459 (Ky. Ct. App. 2007).

20.Repayment of Excess.

Order pursuant to KRS 416.620 directing owners to repay the Commonwealth the difference of approximately $357,000 between the property value found in an interlocutory order and the property value as later found by a jury paid to the owners’ predecessor in interest was proper because the owners had agreed to be substituted for predecessor, and although the predecessor had spent all of the money and owners received none of it, the owners had accepted the burdens of the litigation. Hunsaker v. Commonwealth, 239 S.W.3d 68, 2007 Ky. LEXIS 237 ( Ky. 2007 ).

21.Dismissal.

In a condemnation case, a trial court erred when it dismissed a case for lack of prosecution because a statute was silent on the specific amount of time in which a trial on the exceptions and compensation was to be held, even though a property owner was entitled to a prompt trial on the issue of the condemnation itself. The property owner did not contest the right to take the property, but instead contested the valuation, and the trial court should have set the matter for a jury trial on compensation or made an interlocutory order and judgment final and appealable. Commonwealth v. Guess, 2015 Ky. App. LEXIS 63 (Ky. Ct. App. May 15, 2015), review denied, ordered not published, 2016 Ky. LEXIS 216 (Ky. Apr. 27, 2016).

Cited in:

Ratliff v. Fiscal Court of Caldwell County, 617 S.W.2d 36, 1981 Ky. LEXIS 252 ( Ky. 1981 ); Withers v. Commonwealth, Dep’t of Transp., Bureau of Highways, 656 S.W.2d 747, 1983 Ky. App. LEXIS 357 (Ky. Ct. App. 1983); Potter v. Breaks Interstate Park Com., 701 S.W.2d 403, 1985 Ky. LEXIS 284 ( Ky. 1985 ).

Opinions of Attorney General.

The Commonwealth, except for the provisions of this section, pertaining to proceedings for eminent domain, is exempt from paying costs, although it may, pursuant to KRS 453.010 , pay costs when such costs are approved and allowed by the judge of the court in which the case was filed. OAG 78-343 .

Research References and Practice Aids

Kentucky Law Journal.

Comments, A Challenge to Historic Preservation in Kentucky, 65 Ky. L.J. 895 (1976-77).

Northern Kentucky Law Review.

Ruh & Lockaby, Balancing Private Property Rights with “Public Use”: A Survey of Kentucky Courts’ Interpretation of the Power of Eminent Domain., 32 N. Ky. L. Rev. 743 (2005).

Treatises

Caldwell’s Kentucky Form Book, Prac. & Proc. Forms, 5th Ed., Final Judgment (Amount Decreased, but Not Withdrawn by Respondent), Form 307.06.

Caldwell’s Kentucky Form Book, Prac. & Proc. Forms, 5th Ed., Final Judgment (Amount Decreased; Commissioners’ Award Withdrawn), Form 307.07.

Caldwell’s Kentucky Form Book, Prac. & Proc. Forms, 5th Ed., Practice Context for Condemnation (Eminent Domain), § 307.00.

416.630. Money paid into court.

All money paid into court or paid or transferred to the clerk of a court under the provisions of KRS 416.550 to 416.670 shall be received by the clerk of the court and held subject to the order of the court, for which the clerk and his sureties on his official bond shall be responsible to the persons entitled thereto.

History. Enact. Acts 1976, ch. 140, § 11.

NOTES TO DECISIONS

Cited in:

Foster v. Sanders, 557 S.W.2d 205, 1977 Ky. App. LEXIS 827 (Ky. Ct. App. 1977).

416.640. Conflicting claimants to condemned land.

Where there are conflicting claimants to the land sought to be condemned and all such parties are before the court, each claimant, for the purposes of the condemnation proceeding only, shall be deemed to be an owner, and the procedure for the condemnation of the land shall be as provided in KRS 416.550 to 416.670 except that, before the condemnor shall be entitled to take possession of the land, it shall be required to pay the compensation awarded therein to the Circuit Court clerk to be held for the benefit of, and paid over to such persons as may thereafter be determined to be entitled to receive it. In such cases, the claimants may have their rights determined in a separate action, but the filing of such action or its pendency shall in no wise stay or delay said condemnation proceedings.

History. Enact. Acts 1976, ch. 140, § 12.

NOTES TO DECISIONS

1.Application.

This section does not deal with the situation in which there are multiple owners of different interests in the land being condemned and the dispute is over the value of their respective interests. Foster v. Sanders, 557 S.W.2d 205, 1977 Ky. App. LEXIS 827 (Ky. Ct. App. 1977).

2.Interest.

Where there was a possible dispute over the priority of lien debts, but not over ownership of the condemned property or the leasehold interests therein and there had been no allocation of the commissioner’s award between tracts devoted to separate uses, the payment of the award into court did not relieve the Commonwealth of its obligation to pay interest between the date it took possession and the date that ultimate compensation was determined and paid and, accordingly, the trial court erred in refusing to require interest. Foster v. Sanders, 557 S.W.2d 205, 1977 Ky. App. LEXIS 827 (Ky. Ct. App. 1977).

3.Conflicting Claimants.

If separate interests of different persons in a single tract can be readily determined or if separate tracts are devoted to unrelated uses, there should be an allocation of the award, but if the interests in a tract of land are so numerous and complex as to be “conflicting claimants” there is no burden on the condemnor to have the award allocated and the condemnor would not be liable for interest because of the delay required for a judicial determination of each owner’s share in the award. Foster v. Sanders, 557 S.W.2d 205, 1977 Ky. App. LEXIS 827 (Ky. Ct. App. 1977).

If there is a genuine issue with respect to the priority or validity of certain liens upon the property to be condemned, there would be “conflicting claimants” under this section, and to the extent there were such issues in a case the trial court did not err in refusing to pay out the entire amount of the award to the landowners or in refusing to pay specific lien claims. Foster v. Sanders, 557 S.W.2d 205, 1977 Ky. App. LEXIS 827 (Ky. Ct. App. 1977).

416.650. Proceedings governed by Rules of Civil Procedure.

All proceedings under KRS 416.550 to 416.670 shall be governed by the provisions of the Rules of Civil Procedure except where the provisions of KRS 416.550 to 416.670 specifically or by necessary implication provide otherwise.

History. Enact. Acts 1976, ch. 140, § 13.

NOTES TO DECISIONS

1.Costs and Attorney Fees.

Costs and attorney fees may be awarded in a voluntary dismissal of an attempted condemnation, pursuant to CR 41.01, upon a finding of bad faith or unreasonable delay by the condemnor. If a trial court should determine that the condemnor has acted in bad faith, it should also determine the extent to which the condemnee has been prejudiced by a dismissal and whether he could be made reasonably whole by the imposition of costs and fees as a term or condition to the granting of the dismissal. Northern Kentucky Port Authority, Inc. v. Cornett, 700 S.W.2d 392, 1985 Ky. LEXIS 258 ( Ky. 1985 ).

2.Jury Demand.

Since KRS 416.650 provides that all proceedings under the eminent domain statutes are governed by the Kentucky Rules of Civil Procedure except where those statutes specifically or by necessary implication provide otherwise, CR 38.02 applies to eminent domain proceedings and requires a party to an eminent domain case to obtain a trial by jury by serving a timely demand, failing which, the party waives the right to a jury trial under CR 38.04. Louisville & Jefferson County Metro. Sewer Dist. v. Bischoff, 248 S.W.3d 533, 2007 Ky. LEXIS 265 ( Ky. 2007 ).

Cited in:

Kentucky Utilities Co. v. Brashear, 726 S.W.2d 321, 1987 Ky. App. LEXIS 452 (Ky. Ct. App. 1987).

416.660. Standards for determining compensation — Changes in value — Taking date.

  1. In  all actions for the condemnation of lands under the provisions of KRS 416.550 to 416.670 , except temporary easements, there shall be awarded to the landowners  as compensation such a sum as will fairly represent the difference between  the fair market value of the entire tract, all or a portion of which is sought  to be condemned, immediately before the taking and the fair market value of  the remainder thereof immediately after the taking, including in the remainder  all rights which the landowner may retain in the lands sought to be condemned  where less than the fee simple interest therein is taken, together with the  fair rental value of any temporary easements sought to be condemned.
  2. Any  change in the fair market value prior to the date of condemnation which the  condemnor or condemnee establishes was substantially due to the general knowledge  of the imminence of condemnation or the construction of the project shall  be disregarded in determining fair market value. The taking date for valuation  purposes shall be either the date the condemnor takes the land, or the date  of the trial of the issue of just compensation, whichever occurs first.

History. Enact. Acts 1976, ch. 140, § 14.

NOTES TO DECISIONS

1.Loss Caused by Damage.

Where a city instituted proceedings to condemn landowner’s property and where between the time the report of the appraisers was filed and the date of the entry of an interlocutory judgment authorizing the city to take possession of the property, the property was vandalized or salvaged and was stripped of numerous items, thereby rendering the value of the building to be considerably less when the interlocutory judgment was entered than it was when appraised by the court-appointed appraisers, since the damage to the building had occurred prior to the trial of the issue of just compensation, the loss caused by damage to the building must be borne by the landowner unless he can establish that the city had actually taken his property before the damage occurred. Ford v. Bowling Green, 780 S.W.2d 613, 1989 Ky. LEXIS 104 ( Ky. 1989 ).

Trial court erred by allowing condemnees to recover trespass damages based on the condemnor’s entering their land before its amended condemnation petition was granted; as the land that was trespassed on was eventually taken through condemnation, only “reverse condemnation” damages were proper. Big Rivers Elec. Corp. v. Barnes, 147 S.W.3d 753, 2004 Ky. App. LEXIS 85 (Ky. Ct. App. 2004).

2.Fair Market Value.

The Eminent Domain Act provides for condemnation of real property upon payment of the difference in the fair market value of the condemnee’s property immediately before and immediately after the taking; fair market value of the property condemned is the test, and even where the building upon the property is to be torn down, a city should not be required to pay more for the property because it had a building upon it than the amount by which the building added to the fair market value of the property at the time of the taking. Ford v. Bowling Green, 780 S.W.2d 613, 1989 Ky. LEXIS 104 ( Ky. 1989 ).

When the state highway department condemned crossing easements across a railroad, the railroad’s expert’s measure of the diminution in the fair market value of the railroad’s right-of-way was improperly based on non-compensable expenses for maintaining and operating the crossings and speculative litigation and clean-up costs for predicted accidents at the crossings over the next 20 years, and, as a result, the railroad presented no competent valuation evidence showing the damages it was entitled to, so the highway department was entitled to summary judgment. Commonwealth v. R.J. Corman R.R. Company/Memphis Line, 116 S.W.3d 488, 2003 Ky. LEXIS 211 ( Ky. 2003 ).

When the state highway department condemned crossing easements across a railroad, even if the railroad was entitled to compensation for the costs of maintaining and operating the crossings and for future litigation costs related to accidents at the crossings, its expert impermissibly determined the damages to which the railroad was entitled by fixing prices for these individual items of damage and totaling them for a claim against the state, rather than focusing on how these harms affected the fair market value of the railroad’s property. Commonwealth v. R.J. Corman R.R. Company/Memphis Line, 116 S.W.3d 488, 2003 Ky. LEXIS 211 ( Ky. 2003 ).

Where land had 4.17 million tons of coal beneath it, which the condemnees’ expert opined could be mined economically in 10 to 20 years, the jury was entitled to accept this testimony, though the condemnor’s experts disputed it; therefore, the jury’s finding that the “highest and best use” of the land was as a coal reserve was supported by the evidence, and the $67,000 condemnation award was not excessive. Big Rivers Elec. Corp. v. Barnes, 147 S.W.3d 753, 2004 Ky. App. LEXIS 85 (Ky. Ct. App. 2004).

In a condemnation action, references by a property owner’s counsel to and questions concerning the effect of an airport runway project on development in the condemned area did not violate KRS 416.660 as the evidence was relevant for two reasons: (1) it provided a reason other than the property’s alleged unsuitability for the fact that the owner’s property had not been industrially developed, and (2) it explained why the owner’s appraiser had not been able to refer to comparable sales in the immediate vicinity of the owner’s property but had to look for comparable sales at other points along the airport’s perimeter. Baston v. County of Kenton ex rel. Kenton County Airport Bd., 319 S.W.3d 401, 2010 Ky. LEXIS 211 ( Ky. 2010 ).

KRS 416.660 does not require that increases or decreases in market value caused by the announcement of a government project be disregarded in the sense of being completely ignored. It requires, rather, that the announcement’s effect on the market be disregarded in the sense of being corrected for, of being removed, in determining the fair market value of the property. Baston v. County of Kenton ex rel. Kenton County Airport Bd., 319 S.W.3d 401, 2010 Ky. LEXIS 211 ( Ky. 2010 ).

3.Maintenance Costs.

When the state highway department condemned crossing easements across a railroad, the railroad was not entitled to compensation for the costs of maintaining and operating the crossings, as railroads had to acquiesce to safety regulations, though burdensome, as part of the consideration required for the railroad’s right to exercise the power of eminent domain and other franchises and privileges enjoyed. Commonwealth v. R.J. Corman R.R. Company/Memphis Line, 116 S.W.3d 488, 2003 Ky. LEXIS 211 ( Ky. 2003 ).

4.Practice And Procedure.

Condemnees’ attorney’s and expert’s intentional injection of evidence of a third-party purchase offer for the land, despite the trial court’s ruling that this evidence was inadmissible, had entitled the condemnor to a mistrial. Big Rivers Elec. Corp. v. Barnes, 147 S.W.3d 753, 2004 Ky. App. LEXIS 85 (Ky. Ct. App. 2004).

5.Measure of Compensation.

Difference between fair market of whole premises before taking and fair market value of remainder immediately afterwards was true measure of compensation to be awarded landowner and one was not permitted to slice off part of tract and value it without regard to entire tract. Commonwealth, Dep't of Highways v. Sherrod, 367 S.W.2d 844, 1963 Ky. LEXIS 33 ( Ky. 1963 ) (decided under prior law).

Where lots had possible uses other than their present use and were not absolutely essential to the conduct of owner’s business and similar property for the same use could be acquired by purchase or rental the fair market value furnished a fair measure of just compensation and the adaptability of the lots to the owner’s use was but a factor to consider in determining market value. Newport Municipal Housing Com. v. Turner Advertising, Inc., 334 S.W.2d 767, 1960 Ky. LEXIS 231 ( Ky. 1960 ) (decided under prior law).

Doctrine of additur could not be invoked to raise judgment for property condemned for urban renewal purposes to previous alleged offer by condemnor. Dinwiddie v. Urban Renewal & Community Development Agency, 393 S.W.2d 872, 1965 Ky. LEXIS 247 ( Ky. 1965 ) (decided under prior law).

Interrogatories of executive director of urban renewal agency and other purchases by the urban renewal agency in the area were inadmissible to show the selling or offering price of a condemned tract. Dinwiddie v. Urban Renewal & Community Development Agency, 393 S.W.2d 872, 1965 Ky. LEXIS 247 ( Ky. 1965 ) (decided under prior law).

The landowner was entitled to receive as just compensation the difference in the fair market value of the total tract of land immediately before and immediately after the taking of a portion of the land for school purposes. Usher & Gardner, Inc. v. Mayfield Independent Board of Education, 461 S.W.2d 560, 1970 Ky. LEXIS 641 ( Ky. 1970 ) (decided under prior law).

6.—Difference in Market Value.

Evidence of factors bearing on diminution of value should be addressed to how they will affect market value and not how they will hurt the owner or make less advantageous the use of the property for his particular purposes, or create conditions that he would like to remedy and no price should be put on the individual factors. Commonwealth, Dep't of Highways v. Sherrod, 367 S.W.2d 844, 1963 Ky. LEXIS 33 ( Ky. 1963 ) (decided under prior law).

Jury should be instructed to find the fair market value immediately before the taking, the fair market value after the taking, and the difference between the two. Commonwealth, Dep't of Highways v. Howard, 405 S.W.2d 20, 1966 Ky. LEXIS 238 ( Ky. 1966 ) (decided under prior law).

In determining the value of land, the proper method is to deduct the after value of the whole tract from its before value if the latter were larger, rather than by determining the before value and deducting the value of the part taken. The latter method does not permit the jury to credit the state with any increase in value attributable to the improvement. Commonwealth, Dep't of Highways v. Howard, 405 S.W.2d 20, 1966 Ky. LEXIS 238 ( Ky. 1966 ) (decided under prior law).

Landowners were not entitled to compensation for the loss in value of properties that neighbored their condemned parcels of land under an alternative method of valuing partial takings, whereby “taking damages,” the value of the part taken, were assessed apart from and then added to “resulting damages,” the value of the “harm” to the remainder; the landowners’ “lost value” claim would amount to a revival of the disallowed “taking damages-resulting damages” approach. Bianchi v. City of Harlan, 274 S.W.3d 368, 2008 Ky. LEXIS 128 ( Ky. 2008 ).

7.—Assessed Value.

Where landowner signed assessment list containing evaluation of his property which was later condemned, landowner would not be heard to say that he had not fixed value of his property. Commonwealth, Dep't of Highways v. Lanter, 364 S.W.2d 652, 1963 Ky. LEXIS 208 ( Ky. 1963 ) (decided under prior law).

If the landowner had turned in a value for assessment, evidence of the assessed value was admissible in condemnation proceedings and it was not necessary that the landowner made a computation and employ a formula to independently determine value. West Kentucky Coal Co. v. Commownealth, Dep't of Highways, 368 S.W.2d 738, 1963 Ky. LEXIS 52 ( Ky. 1963 ) (decided under prior law).

8.—Enhancement in Value from Improvement.

Circuit court erred in instructing jury in condemnation action that measure of damages was difference in value of remaining land immediately before and after taking, less any enhancement resulting from improvement, since difference in market value of entire tract before and after taking less any enhancement in value from improvement, was proper measure of damages. Commonwealth, Dep't of Highways v. King, 375 S.W.2d 688, 1964 Ky. LEXIS 424 ( Ky. 1964 ) (decided under prior law).

In highway condemnation suit increase in value of the condemned property by nearness to interchanges of proposed highway was admissible in evidence. Cincinnati, N. O. & T. P. R. Co. v. Commonwealth, Dep't of Highways, 376 S.W.2d 307, 1964 Ky. LEXIS 445 ( Ky. 1964 ) (decided under prior law).

9.—Comparable Sales.

Cross-examination of state’s witness by counsel for landowner with respect to prices paid other property owners for rights of way would have been improper and prejudicial and questions directed not to sales prices but to appraisals the witness had made of other property in the area without a showing that the other places mentioned by counsel in the cross-examination were comparable with the property being condemned were incompetent but under the circumstances answers did not have enough meaning or significance to be prejudicial. Commonwealth, Dep’t of Highways v. Evans, 361 S.W.2d 766, 1962 Ky. LEXIS 252 ( Ky. 1962 ), overruled in part, Commonwealth, Dep’t of Highways v. Sherrod, 367 S.W.2d 844, 1963 Ky. LEXIS 33 ( Ky. 1963 ) (decided under prior law).

If witness was qualified as expert on real estate valuation it was not always absolutely essential to either admissibility or sufficiency of his opinion that it be supported by comparable sales. Commonwealth, Dep’t of Highways v. Citizens Ice & Fuel Co., 365 S.W.2d 113, 1963 Ky. LEXIS 218 ( Ky. 1963 ), overruled, Louisville v. Allen, 385 S.W.2d 179, 1964 Ky. LEXIS 142 ( Ky. 1964 ), overruled in part, Louisville v. Allen, 385 S.W.2d 179, 1964 Ky. LEXIS 142 ( Ky. 1964 ) (decided under prior law).

Knowledge of comparable sales was not the sole acceptable basis for estimate of land value. Commonwealth, Dep't of Highways v. Elizabethtown Amusements, Inc., 367 S.W.2d 449, 1963 Ky. LEXIS 24 ( Ky. 1963 ) (decided under prior law).

Evidence of voluntary sales of other property in neighborhood of condemned property and of somewhat similar nature, such transactions having been consummated within a year or two (2) of institution of condemnation was competent and admissible on issue of value. Commonwealth, Dep't of Highways v. Taylor, 368 S.W.2d 732, 1963 Ky. LEXIS 50 ( Ky. 1963 ) (decided under prior law).

Evidence of comparable sales may be offered on either one (1) of two (2) theories: (1) As independent substantive evidence of the value of the property to which the comparison relates; or (2) As foundation evidence supporting the opinion of the expert witness and where the evidence comes in under the second theory, there is less reason for being strict in regard to similarity, because the evidence serves the purpose only of supporting the credibility of the estimate of value given by the witness. West Kentucky Coal Co. v. Commownealth, Dep't of Highways, 368 S.W.2d 738, 1963 Ky. LEXIS 52 ( Ky. 1963 ) (decided under prior law).

Testimony of two (2) witnesses as to before-and-after-taking value of property partially condemned for highway purposes was not inadmissible because the witnesses did not have knowledge of comparable sales where they were well acquainted with property values in the county. Commonwealth, Dep't of Highways v. Prather, 369 S.W.2d 118, 1963 Ky. LEXIS 64 ( Ky. 1963 ) (decided under prior law).

It was the general rule that transaction involving potential condemnor was inadmissible as comparable sale because it lacked element of voluntariness and freedom from compulsion. Commonwealth, Dep't of Highways v. McGeorge, 369 S.W.2d 126, 1963 Ky. LEXIS 68 ( Ky. 1963 ) (decided under prior law).

The exclusionary rule against comparable sales where purchaser had power of eminent domain amounted to conclusive presumption that prices paid do not reflect free and voluntary transactions. Commonwealth, Dep't of Highways v. McGeorge, 369 S.W.2d 126, 1963 Ky. LEXIS 68 ( Ky. 1963 ) (decided under prior law).

Where it was condemnors who offered evidence of sale of comparable land to school board, question was not whether school board’s power of condemnation had influenced price but whether board’s freedom of choice as to location had been so restricted that it was caused to pay more than land was worth. Commonwealth, Dep't of Highways v. McGeorge, 369 S.W.2d 126, 1963 Ky. LEXIS 68 ( Ky. 1963 ) (decided under prior law).

In condemnation suit where landowners were permitted to show for comparative valuation purposes a fairly recent transaction in which school board had purchased property the question of whether the school board transaction was free and voluntary from the standpoint of the purchaser was a matter for the consideration of the jury. Commonwealth, Dep't of Highways v. McGeorge, 369 S.W.2d 126, 1963 Ky. LEXIS 68 ( Ky. 1963 ) (decided under prior law).

A recent sale of so-called comparable land in the same locale to that condemned was competent evidence in a condemnation suit. Commonwealth, Dep't of Highways v. Slusher, 371 S.W.2d 851, 1963 Ky. LEXIS 114 ( Ky. 1963 ) (decided under prior law).

The reasoning which forbids consideration of forced sales generally, renders it incompetent for either party to put in evidence the amount paid by the condemnor to the owners of neighboring lands taken at the same time, and as part of the same proceedings however similar they may be to that in controversy and whether the payment was made as the result of voluntary settlement, an award, or the verdict of a jury. Commonwealth, Dep't of Highways v. Slusher, 371 S.W.2d 851, 1963 Ky. LEXIS 114 ( Ky. 1963 ) (decided under prior law).

It was not error to permit expert witness to cite for comparative purposes three (3) sales of property located in an adjacent county at distances of six (6), ten (10) and 12 miles from property subject to condemnation. Commonealth, Dep't of Highways v. Finley, 371 S.W.2d 854, 1963 Ky. LEXIS 115 ( Ky. 1963 ) (decided under prior law).

Comparable sales are extremely valuable evidence in condemnation cases and are not lightly to be excluded. Commonwealth, Dep't of Highways v. Oakland United Baptist Church, 372 S.W.2d 412, 1963 Ky. LEXIS 136 ( Ky. 1963 ) (decided under prior law).

It was reversible error to reject testimony of state’s witnesses in condemnation proceedings as to the sale prices of the property described as being comparable property. Commonwealth, Dep't of Highways v. Lemar, 375 S.W.2d 678, 1964 Ky. LEXIS 420 ( Ky. 1964 ) (decided under prior law).

Landowners’ valuation evidence was not rendered incompetent or insufficient for not resting upon comparable sales. Commonwealth, Dep't of Highways v. Brubaker, 375 S.W.2d 404, 1964 Ky. LEXIS 417 ( Ky. 1964 ) (decided under prior law).

It was reversible error for court to refuse to admit prices paid at recent sales of comparable property and where there was no evidence that sales had been made under compulsion there was a rebuttable presumption that the prices were freely fixed and the sales were voluntary. Commonwealth, Dep't of Highways v. Shackleford, 380 S.W.2d 77, 1964 Ky. LEXIS 270 ( Ky. 1964 ) (decided under prior law).

Use of improper factor of income in determining value of property before taking was not error where expert witness used proper factor of comparable sales as another factor by which he determined the before value. Commonwealth, Dep't of Highways v. Howard, 405 S.W.2d 20, 1966 Ky. LEXIS 238 ( Ky. 1966 ) (decided under prior law).

10.—Leasehold.

“Loss of business” through condemnation of leasehold did not constitute proper item of recovery. Compensable loss of tenant was “amount by which fair market value of unexpired term of lease exceeds rent reserved for same period.” Commonwealth, Dep't of Highways v. Fultz, 360 S.W.2d 216, 1962 Ky. LEXIS 220 ( Ky. 1962 ) (decided under prior law).

In cases involving condemnation of leased property all of the issues may be tried together because the major fact determinations will relate to the value of the property as a whole, before and after the taking, and the allocation between landlord and tenant will be mainly a matter of mathematical computation by the court. Commonwealth, Dep't of Highways v. Sherrod, 367 S.W.2d 844, 1963 Ky. LEXIS 33 ( Ky. 1963 ) (decided under prior law).

Proper measure for determining damages to a leasehold interest in condemnation proceedings was to determine the fair market value of the leasehold by subtracting the fair market value of the land as a whole if sold subject to the lease from the fair market value of the land as a whole if sold free and clear of the lease. Commonwealth, Dep't of Highways v. Sherrod, 367 S.W.2d 844, 1963 Ky. LEXIS 33 ( Ky. 1963 ) (decided under prior law).

Where lessee was carrying on restaurant business and a portion of the land was condemned so that it was no longer suitable for restaurant purposes he could not claim damages for the loss of his restaurant business but could only claim the depreciation in market value of the lease which would be the difference between the former market value of the lease and the after market value. Commonwealth, Dep't of Highways v. Sherrod, 367 S.W.2d 844, 1963 Ky. LEXIS 33 ( Ky. 1963 ) (decided under prior law).

Where only part of the leased property was condemned the landowner was not entitled to loss of profits, he was limited to loss of market value of land not condemned. Commonwealth, Dep't of Highways v. Sherrod, 367 S.W.2d 844, 1963 Ky. LEXIS 33 ( Ky. 1963 ) (decided under prior law).

If owner of land negotiated lease at rental higher than fair rental value, with result that property would sell for more than normal market value, excess over normal value had to be considered profit for which owner was not to be compensated, and such owner had to be restricted in recovery to fair market value. Commonwealth, Dep't of Highways v. Sherrod, 367 S.W.2d 844, 1963 Ky. LEXIS 33 ( Ky. 1963 ) (decided under prior law).

11.Evidence of Value.

Where an easement was condemned on a farm that had sold for $431 per acre and the farm had good subdivision potential, a verdict of $446 an acre for the easement would be within the evidence. East Kentucky Rural Electric Cooperative Corp. v. Bowles, 469 S.W.2d 763, 1971 Ky. LEXIS 310 ( Ky. 1971 ) (decided under prior law).

Where a witness as to before and after valuation of land condemned for an easement was not aware that houses could be built on the easement but, after the fact was called to his attention, took it into consideration but did not change the valuation, the situation did not justify striking the testimony of the witness. East Kentucky Rural Electric Cooperative Corp. v. Bowles, 469 S.W.2d 763, 1971 Ky. LEXIS 310 ( Ky. 1971 ) (decided under prior law).

12.Date of Taking.

Day on which public hearing was held to inform community of public improvement to be undertaken constituted date of taking upon which jury should fix the “before” value of the property to arrive at total amount of recovery. Commonwealth, Dep’t of Highways v. Wood, 380 S.W.2d 73, 1964 Ky. LEXIS 266 ( Ky. 1964 ), overruled, Commonwealth, Dep’t of Highways v. Claypool, 405 S.W.2d 674, 1966 Ky. LEXIS 258 ( Ky. 1966 ), overruled in part, Commonwealth, Dep’t of Highways v. Claypool, 405 S.W.2d 674, 1966 Ky. LEXIS 258 ( Ky. 1966 ) (decided under prior law).

NOTES TO UNPUBLISHED DECISIONS

1.Evidence of Value.

Unpublished decision: In a condemnation case where the amount of compensation due was at issue, an owner made a prima facie showing that the taking caused it to suffer a permanent injury to its remaining property; in analyzing the unity of use/purpose question, it was error to consider only the present use of the property by a short-term tenant. A prior transfer between interrelated companies of a three parcel tract was not competent or reliable evidence of the present fair market value of a single parcel tract nine years later. Putnam & Sons, LLC v. Paducah Indep. Sch. Dist., 2015 Ky. App. Unpub. LEXIS 876 (Ky. Ct. App. Nov. 20, 2015), rev'd, 520 S.W.3d 367, 2017 Ky. LEXIS 282 ( Ky. 2017 ).

Research References and Practice Aids

Northern Kentucky Law Review.

Ruh & Lockaby, Balancing Private Property Rights with “Public Use”: A Survey of Kentucky Courts’ Interpretation of the Power of Eminent Domain, 32 N. Ky. L. Rev. 743 (2005).

Treatises

Caldwell’s Kentucky Form Book, Prac. & Proc. Forms, 5th Ed., Practice Context for Condemnation (Eminent Domain), § 307.00.

416.670. Limitations on condemnation powers — Rights of current landowner.

  1. Development  shall be started on any property which has been acquired through condemnation  within a period of eight (8) years from the date of the deed to the condemnor  or the date on which the condemnor took possession, whichever is earlier,  for the purpose for which it was condemned. The failure of the condemnor to  so begin development shall entitle the current landowner to repurchase the  property at the price the condemnor paid to the landowner for the property.  The current owner of the land from which the condemned land was taken may  reacquire the land as aforementioned.
  2. Any  condemnor who fails to develop property acquired by condemnation or who fails  to begin design on highway projects pursuant to KRS Chapter 177 within a period  of eight (8) years after acquisition, shall notify the current landowner of  the provisions of subsection (1) of this section. If the current landowner  refuses to purchase property described in this section, public notice shall  be given in a manner prescribed in KRS Chapter 424 within thirty (30) days  of the refusal, and the property shall be sold at auction. Provided, however,  that this section shall not apply to property acquired for purposes of industrial  development pursuant to KRS Chapter 152.
  3. If  there are two (2) or more current owners of the land from which the condemned  land was taken because the remaining land was subdivided, and if they have  a common boundary with the condemned land, the condemned land shall be reacquired  by allowing all owners of a parcel of the remaining land with a common boundary  and from which the condemned land was taken to offer sealed bids for the condemned  land within thirty (30) days of notification by the condemnor. The condemnor  shall accept the highest and best sealed bid equal to or greater than the  price paid at the time of condemnation. If there are no sealed bids or if  all sealed bids are below the original price paid by the condemnor for the  property, the property shall be sold at auction.

History. Enact. Acts 1976, ch. 140, § 15; 1978, ch. 384, § 117, effective June 17, 1978; 1980, ch. 231, § 1, effective July 15, 1980.

NOTES TO DECISIONS

1.Condemning Authority Acting As Land Broker.

Mere convenience is not a sufficient justification for the condemning authority to act as a land broker for private interests. Miles v. Dawson, 830 S.W.2d 368, 1991 Ky. LEXIS 191 ( Ky. 1991 ).

2.Calculation of Price.

The pertinent part of the statute states that condemnee landowner is entitled to repurchase the property at the price the state paid to the landowner for the property. Implicit in this calculation is a pro rata method of determining the repurchase price. This section of the statute further supports the legislative intent to return unused property to its original owners. Miles v. Dawson, 830 S.W.2d 368, 1991 Ky. LEXIS 191 ( Ky. 1991 ).

The calculation of repurchase price is a matter of law, not a finding of fact. City of Covington v. Hardebeck, 883 S.W.2d 499, 1994 Ky. App. LEXIS 53 (Ky. Ct. App. 1994).

3.Right to Repurchase.

Prior private property owner has a statutory right of redemption pursuant to this section to repurchase that part of real property originally condemned but not developed for the purpose for which it was condemned. Miles v. Dawson, 830 S.W.2d 368, 1991 Ky. LEXIS 191 ( Ky. 1991 ).

Where this section provides that development must be started on “any property” which has been acquired through condemnation within a period of eight (8) years, and if not, the land owner is entitled to repurchase, does not mean “all,” and landowner is entitled to repurchase that portion of the property which has not been developed, even though another portion of the property acquired has been developed. Miles v. Dawson, 830 S.W.2d 368, 1991 Ky. LEXIS 191 ( Ky. 1991 ).

Original owners of property acquired by city through eminent domain were entitled to repurchase a portion of the property containing a billboard which had not been committed to a public use within eight (8) years of its condemnation. City of Covington v. Hardebeck, 883 S.W.2d 499, 1994 Ky. App. LEXIS 53 (Ky. Ct. App. 1994).

There was no improper retroactive application of this section where the court allowed the former owners of property condemned by the Transportation Cabinet to repurchase the unused part of condemned property, notwithstanding that the condemnation occurred prior to the amendment of the statute which allowed such repurchase; it was the failure of the Transportation Cabinet to begin development within eight (8) years, and not the condemnation, which entitled the former owners the opportunity to repurchase the surplus property. Kelly v. Thompson, 983 S.W.2d 457, 1998 Ky. LEXIS 128 ( Ky. 1998 ).

The right to repurchase does not apply where property is sold by agreement, notwithstanding that such sale is completed under threat of condemnation. Coleman v. City of Pikeville, 994 S.W.2d 524, 1999 Ky. App. LEXIS 69 (Ky. Ct. App. 1999).

The plaintiffs did not have a right to repurchase property that they sold to an urban renewal agency after the agency was dissolved, the property was transferred to the defendant city and the project for which the property was acquired was abandoned. Coleman v. City of Pikeville, 994 S.W.2d 524, 1999 Ky. App. LEXIS 69 (Ky. Ct. App. 1999).

Failure to begin development, not the condemnation, triggered the redemption right, so where the eight (8) year development period ended after the 1980 amendment to KRS 416.670 , the condemnees acquired the right to redeem property condemned by the Kentucky Transportation Cabinet. Vandertoll v. Commonwealth, 110 S.W.3d 789, 2003 Ky. LEXIS 118 ( Ky. 2003 ).

4.—Monetary Damages.

Where the Commonwealth failed to develop condemned property within the eight-year period specified in KRS 416.670 , the condemnees could not recover monetary damages for a delay in notifying them of their right to repurchase the property; the delay was not a continued taking compensable under KRS 416.620 because the condemnees retained no interest in the property. Martin v. Commonwealth, 199 S.W.3d 195, 2006 Ky. App. LEXIS 67 (Ky. Ct. App. 2006).

5.Commencement of Development.

The trial court’s determination that the dumping of 66,000 cubic feet of fill material on a 1.348 acre parcel constituted the starting of development was not clearly erroneous. Coleman v. City of Pikeville, 994 S.W.2d 524, 1999 Ky. App. LEXIS 69 (Ky. Ct. App. 1999).

Where an airport board removed structures, trees, and junk from condemned property, it timely began development that precluded repurchase by the former owner; therefore, summary judgment was properly granted. Yahnig v. City of Somerset, 129 S.W.3d 846, 2003 Ky. App. LEXIS 93 (Ky. Ct. App. 2003).

6.Statute of Limitation.

An action to repurchase condemned property is an action upon a liability created by KRS 416.670 ; the right to bring an action to repurchase condemned property accrues upon the condemnor’s failure to begin development within eight (8) years, and the appropriate period of limitations is the five (5) year period in KRS 413.120(2). Martin v. Commonwealth, 2001 Ky. App. LEXIS 1245 (Ky. Ct. App. Nov. 30, 2001), aff'd sub nom. Vandertoll v. Commonwealth, 110 S.W.3d 789, 2003 Ky. LEXIS 118 ( Ky. 2003 ).

KRS 416.670(2) clearly places the duty on the condemning authority to give notice to the former landowner that development of condemned property has occurred. Martin v. Commonwealth, 2001 Ky. App. LEXIS 1245 (Ky. Ct. App. Nov. 30, 2001), aff'd sub nom. Vandertoll v. Commonwealth, 110 S.W.3d 789, 2003 Ky. LEXIS 118 ( Ky. 2003 ).

KRS 413.120(2) five-year statute of limitations applied to enforcement of the condemnees’ right to redeem property condemned by the Kentucky Transportation Cabinet, but did not begin to run until the Kentucky Transportation Cabinet had effected required statutory notice of to the condemnees of their redemption rights. Vandertoll v. Commonwealth, 110 S.W.3d 789, 2003 Ky. LEXIS 118 ( Ky. 2003 ).

7.Abandonment of Condemnation.

Where commissioners, in making award, took into consideration property adjoining the property sought to be condemned, which adjoining property had been omitted from the description in the condemnation complaint, the condemnor could abandon the proceedings, even after judgment, so long as possession had not been taken or the award paid and the property owner, in absence of bad faith or unreasonable delay, could not collect damages by reason of the abandonment. Handy v. Hazard, 408 S.W.2d 455, 1966 Ky. LEXIS 110 ( Ky. 1966 ) (decided under prior law).

Cited in:

Fearin v. Fox Creek Valley Watershed Conservancy Dist., 667 S.W.2d 389, 1983 Ky. App. LEXIS 380 (Ky. Ct. App. 1983).

Research References and Practice Aids

Kentucky Law Journal.

Kentucky Law Survey, Bratt, Property, 73 Ky. L.J. 459 (1984-85).

Northern Kentucky Law Review.

Ruh & Lockaby, Balancing Private Property Rights with “Public Use”: A Survey of Kentucky Courts’ Interpretation of the Power of Eminent Domain, 32 N. Ky. L. Rev. 743 (2005).

Treatises

Caldwell’s Kentucky Form Book, Prac. & Proc. Forms, 5th Ed., Order Appointing Commissioners, Form 307.07.

Caldwell’s Kentucky Form Book, Prac. & Proc. Forms, 5th Ed., Petition for Condemnation (Temporary and Permanent Easement), Form 307.01.

416.675. Public use required — No condemnation for indirect benefit — Exemption.

  1. Every grant of authority contained in the Kentucky Revised Statutes to exercise the power of eminent domain shall be subject to the condition that the authority be exercised only to effectuate a public use of the condemned property.
  2. “Public use” shall mean the following:
    1. Ownership of the property by the Commonwealth, a political subdivision of the Commonwealth, or other governmental entity;
    2. The possession, occupation, or enjoyment of the property as a matter of right by the Commonwealth, a political subdivision of the Commonwealth, or other governmental entity;
    3. The acquisition and transfer of property for the purpose of eliminating blighted areas, slum areas, or substandard and insanitary areas in accordance with KRS Chapter 99;
    4. The use of the property for the creation or operation of public utilities or common carriers; or
    5. Other use of the property expressly authorized by statute.
  3. No provision in the law of the Commonwealth shall be construed to authorize the condemnation of private property for transfer to a private owner for the purpose of economic development that benefits the general public only indirectly, such as by increasing the tax base, tax revenues, or employment, or by promoting the general economic health of the community. However, this provision shall not prohibit the sale or lease of property to private entities that occupy an incidental area within a public project or building, provided that no property may be condemned primarily for the purpose of facilitating an incidental private use.
  4. The exercise of the power of eminent domain for the acquisition of property financed by state road funds or federal highway funds shall be exempt from the provisions of this section.

History. Enact. Acts 2006, ch. 73, § 1, effective July 12, 2006.

416.680. Short title.

KRS 416.540 to 416.670 shall be known as the “Eminent Domain Act of Kentucky.”

History. Enact. Acts 1976, ch. 140, § 1.

Penalties

416.990. Penalties.

Any person who places any obstruction, including poles, wires, signboards, fences, gas, water, sewerage, oil or other pipelines, on any part of the right-of-way of any state highway, or under any such highway, before obtaining the permit required by subsection (3) of KRS 416.140 , or who fails to remove any obstruction when given notice as provided in that subsection, shall be fined not less than ten dollars ($10) nor more than one hundred dollars ($100), and each day the obstruction is continued without a permit or after such notice to remove shall constitute a separate offense.

History. 1599c-1.

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, Prac. & Proc. Forms, 5th Ed., Practice Context for Condemnation (Eminent Domain), § 307.00.

CHAPTER 417 Arbitration and Award

417.010. Submission of controversy to arbitration by agreement. [Repealed.]

Compiler’s Notes.

This section (69) was repealed by Acts 1984, ch. 278, ch. 22, effective July 13, 1984.

417.011. Controversies which may be arbitrated — Procedure for submission. [Repealed.]

Compiler’s Notes.

This section (C.C. 451(1): trans. Acts 1952, ch. 84, § 1, effective July 1, 1953) was repealed by Acts 1984, ch. 278, ch. 22, effective July 13, 1984:

417.012. Oath of arbitrators and umpire. [Repealed.]

Compiler’s Notes.

This section (C.C. 451(2): trans. Acts 1952, ch. 84, § 1, effective July 1, 1953) was repealed by Acts 1984, ch. 278, ch. 22, effective July 13, 1984:

417.013. Supoenas — Attendance of witnesses may be coerced. [Repealed.]

Compiler’s Notes.

This section (C.C. 451(3): trans. Acts 1952, ch. 84, § 1, effective July 1, 1953) was repealed by Acts 1984, ch. 278, ch. 22, effective July 13, 1984:

417.014. Controversies may be submitted by fiduciaries. [Repealed.]

Compiler’s Notes.

This section (C.C. 451(4): trans. Acts 1952, ch. 84, § 1, effective July 1, 1953; 1982, ch. 141, § 131, effective July 1, 1982) was repealed by Acts 1984, ch. 278, ch. 22, effective July 13, 1984:

417.015. Procedure if arbitrator does not act. [Repealed.]

Compiler’s Notes.

This section (C.C. 451(5): trans. Acts 1952, ch. 84, § 1, effective July 1, 1953) was repealed by Acts 1984, ch. 278, ch. 22, effective July 13, 1984:

417.016. Meetings and powers of arbitrators and umpires — Award. [Repealed.]

Compiler’s Notes.

This section (C.C. 451(6): trans. Acts 1952, ch. 84, § 1, effective July 1, 1953) was repealed by Acts 1984, ch. 378, ch. 22, effective July 13, 1984:

417.017. Entry of award as judgment. [Repealed.]

Compiler’s Notes.

This section (C.C. 451(7): trans. Acts 1952, ch. 84, § 1, effective July 1, 1953; 1976 (Ex. Sess.), ch. 14, § 420, effective January 2, 1978) was repealed by Acts 1984, ch. 278, ch. 22, effective July 13, 1984:

417.018. Power of court over awards. [Repealed.]

Compiler’s Notes.

This section (C.C. 451(8): trans. Acts 1952, ch. 84, § 1, effective July 1, 1953) was repealed by Acts 1984, ch. 278, ch. 22, effective July 13, 1984:

417.019. Controversies within jurisdiction of justice of the peace — Appeal. [Repealed.]

Compiler’s Notes.

This section (C.C. 451(9); Acts 1952, ch. 84, § 1) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978.

417.020. Form of submission agreement. [Repealed.]

Compiler’s Notes.

This section (70) was repealed by Acts 1984, ch. 278, § 22, effective July 13, 1984.

417.030. Time and place of meeting of arbitrators; notice to parties; oath; conduct of hearing. [Repealed.]

Compiler’s Notes.

This section (71: amend. Acts 1978, ch. 384, § 583, effective June 17, 1978) was repealed by Acts 1984, ch. 278, § 22, effective July 13, 1984.

417.040. Form and effect of the award — Jurisdiction of courts. [Repealed.]

Compiler’s Notes.

This section (72, 73: amend. Acts 1952, ch. 216, § 1, effective June 19, 1952) was repealed by Acts 1984, ch. 278, § 22, effective July 13, 1984.

417.045. Title.

This chapter may be cited as the “Uniform Arbitration Act.”

History. Enact. Acts 1984, ch. 278, § 21, effective July 13, 1984.

NOTES TO DECISIONS

0.5.Constitutionality.

Home buyers did not demonstrate that KRS 417.045 et seq., regarding arbitration, violated the separation of powers doctrine in Ky. Const. §§ 27 and 28 because Ky. Const. § 250 specifically vested the legislature with the authority to create an arbitration system in Kentucky. Dutschke v. Jim Russell Realtors, Inc., 281 S.W.3d 817, 2008 Ky. App. LEXIS 248 (Ky. Ct. App. 2008).

1.Award Rendered Outside Commonwealth.

A Kentucky court may not, under the Uniform Arbitration Act, enforce an arbitrator’s award rendered outside the Commonwealth following a hearing also outside the Commonwealth. Tru Green Corp. v. Sampson, 802 S.W.2d 951, 1991 Ky. App. LEXIS 16 (Ky. Ct. App. 1991).

2.Arbitration Not Within Scope of Antitrust Claims.

Arbitration clause contained in provider agreements between health insurance providers and doctors did not apply to the doctors’ antitrust claims brought against the providers asserting that the providers conspired to fix and lower the insurance reimbursement rates paid to hospitals and physicians, in violation of KRS 367.175 , where the antitrust violations did not arise from or relate to the service provider contracts and that the doctors’ claims were maintainable without reference to their individual provider agreements. Anthem Health Plans of Ky., Inc. v. Acad. of Med., 2004 Ky. App. LEXIS 315 (Ky. Ct. App. Oct. 29, 2004), cert. denied, 549 U.S. 942, 127 S. Ct. 374, 166 L. Ed. 2d 252, 2006 U.S. LEXIS 7422 (U.S. 2006).

3.Right to Jury Trial.

Home buyers did not demonstrate that KRS 417.045 et seq., regarding arbitration, violated the buyers’ right to a jury trial in Ky. Const. § 7 because § 7 contemplated that there could be exceptions to the right, and Ky. Const. § 250, providing for the establishment of a system of arbitration, which, by definition, did not include a trial by jury, was such an exception. Dutschke v. Jim Russell Realtors, Inc., 281 S.W.3d 817, 2008 Ky. App. LEXIS 248 (Ky. Ct. App. 2008).

Guardian has the authority to enter into collateral agreements which may affect the jural rights of her ward, and a guardian’s decision to execute an optional arbitration agreement must be in the ward’s best interest. Therefore, arbitration could have been compelled in a negligence and personal injury case because a guardian had the authority to execute an optional arbitration agreement on behalf of her ward for admission to a long-term care facility. LP Pikeville, LLC v. Wright, 2014 Ky. App. LEXIS 57 (Ky. Ct. App. Apr. 4, 2014).

4.Wrongful Death Claims.

Under Kentucky precedent, wrongful death claims were not subject to arbitration; while appellant claimed that this case law singled out arbitration agreements in violation of the Federal Arbitration Act (FAA), the case did not, and the court was bound by precedents established in the opinions of the Kentucky Supreme Court. Kindred Nursing Ctrs. Ltd. P'ship v. Cox, 486 S.W.3d 892, 2015 Ky. App. LEXIS 85 (Ky. Ct. App. 2015).

Research References and Practice Aids

Comparative Legislation.

Uniform Arbitration Act.

Ill. I.C. Ann. Stat. ch. 10, §§ 101-123 (Smith-Hurd 1975).

Ind. I.C., §§ 34-4-2-1 to 34-4-2-22 (Burns 1986).

Mo. Ann. Stat. §§ 435.350 to 435.470 (Vernon 1991 Supp.).

Tenn. T.C.A. §§ 29-5-301 to 29-5-320.

Kentucky Bench & Bar.

Stipanowich, Recent Developments in Commercial Arbitration, Volume 52, No. 1, Winter 1987-88 Ky. Bench & B. 15.

Woodall, Mediation Practice in Kentucky, Vol. 70, No. 2, March 2006, Ky. Bench & Bar 8.

Young and Walker, Building the Ethical Infrastructure to Support Court-Connected Mediation: Kentucky Supreme Court Takes Important Steps, Vol. 70, No. 2, March 2006, Ky. Bench & Bar 12.

Bales, An Introduction to Arbitration, Vol. 70, No. 2, March 2006, Ky. Bench & Bar 16.

Ballantine and Hall, Kentucky Supreme Court Adopts Separability Doctrine for Agreements to Arbitrate, Vol. 70, No. 2, March 2006, Ky. Bench & Bar 27.

Mihalek & McCauley, Why Statutes of Limitations Are Not Applicable in Kentucky Arbitrations, Volume 75, Number 2, March 2011, Ky. Bench & Bar 8.

Jakubowicz & McCubbin, Why Kentucky’s Statutes of Limitations Should Apply to Claims Raised in Arbitration, Volume 75, Number 2, March 2011, Ky. Bench & Bar 14.

Clay & Mattingly, Is a Broad Arbitration Clause Still Effective after Granite Rock?, Volume 75, Number 2, March 2011, Ky. Bench & Bar 24.

Kentucky Law Journal.

Stipanowich, Arbitration, 74 Ky. L.J. 319 (1985-86).

Notes, Arbitration: Kentucky Courts Should Not Liberally Vacate Awards — Carrs Fork v. Kodak Mining, 85 Ky. L.J. 697 (1996-97).

417.050. Validity of arbitration agreement — Exempt agreements.

A written agreement to submit any existing controversy to arbitration or a provision in written contract to submit to arbitration any controversy thereafter arising between the parties is valid, enforceable, and irrevocable, save upon such grounds as exist at law for the revocation of any contract. This chapter does not apply to:

  1. Arbitration agreements contained within the collective bargaining agreements entered into by employers and the respective representatives of member employees;
  2. Insurance contracts. Nothing in this subsection shall be deemed to invalidate or render unenforceable contractual arbitration provisions between two (2) or more insurers, including reinsurers; and
  3. Arbitration agreements entered by any industrial insured captive insurer that is created under the Product Liability Risk Retention Act of 1981, 15 U.S.C. secs. 3901 et seq., as amended.

History. Enact. Acts 1984, ch. 278, § 1, effective July 13, 1984; 1996, ch. 131, § 1, effective July 15, 1996; 2019 ch. 75, § 2, effective June 27, 2019; 2019 ch. 166, § 4, effective June 27, 2019.

Legislative Research Commission Notes.

(6/27/2019). This statute was amended by 2019 Ky. Acts chs. 75 and 166, which do not appear to be in conflict and have been codified together.

NOTES TO DECISIONS

1.In General.

Arbitration award was set aside, and the cause was remanded to the trial court because the trial court failed to determine whether a written agreement existed between a bank and a bank credit cardholder to arbitrate their dispute, after the cardholder denied the existence of such a written agreement. Fischer v. MBNA Am. Bank, N.A., 248 S.W.3d 567, 2007 Ky. App. LEXIS 83 (Ky. Ct. App. 2007).

Homeowners to whom a contractor’s warranties of work done for previous owners were transferred were estopped from disavowing the arbitration language of the warranty while simultaneously seeking enforcement of the warranty provisions. Their decision to seek warranty repairs brought with it the obligation to resolve disputes in accordance with the contracts’ terms. Olshan Found. Repair & Waterproofing v. Otto, 276 S.W.3d 827, 2009 Ky. App. LEXIS 4 (Ky. Ct. App. 2009).

The provisions of the Kentucky statute, KRS 336.700(2) and KRS 417.050 , expressly make it unlawful for employers to require employees to enter into arbitration agreements and make such agreements unenforceable. These provisions unmistakably conflict with § 2 of the Federal Arbitration Act and violate the Supremacy Clause. Johnson v. Career Sys. Devs./DJI J.V., 2010 U.S. Dist. LEXIS 4052 (W.D. Ky. Jan. 19, 2010).

Arbitration Agreement was a valid contract, independent of the purchase contract between the homeowners and manufacturer, and not rendered unenforceable by the merger and integration clause of the purchase contract; the Arbitration Agreement was a valid contract under the provisions of the Kentucky Uniform Arbitration Act, and the Federal Arbitration Act. Energy Homes, Div. of Southern Energy Homes, Inc. v. Peay, 406 S.W.3d 828, 2013 Ky. LEXIS 370 ( Ky. 2013 ).

2.Burden of Proof.

The burden of establishing the existence of an arbitration agreement that conforms to statutory requirements rests with the party seeking to enforce it, but once prima facie evidence thereof has been presented, the statutory presumption of its validity accrues, and the burden of going forward with evidence to rebut the presumption then shifts to the party seeking to avoid the agreement, and this is a heavy burden. Valley Constr. Co. v. Perry Host Management Co., 796 S.W.2d 365, 1990 Ky. App. LEXIS 128 (Ky. Ct. App. 1990).

3.Preemption.

Motion to compel arbitration was properly denied, as McCarran-Ferguson Act negated, or “reverse preempted,” the apparent preemption by the Federal Arbitration Act (FAA) of the exemption from arbitration of insurance contracts contained in the Kentucky Uniform Arbitration Act. Scott v. Louisville Bedding Co., 404 S.W.3d 870, 2013 Ky. App. LEXIS 105 (Ky. Ct. App. 2013).

Convention on the Recognition and Enforcement of Foreign Arbitral Awards did not preempt Kentucky Uniform Arbitration Act to require arbitration for same reason Federal Arbitration Act did not, as it did not specifically relate to business of insurance. Further, although insurers were incorporated in Switzerland, their principal places of business were in the United States and thus, they did not fall within the Convention. Scott v. Louisville Bedding Co., 404 S.W.3d 870, 2013 Ky. App. LEXIS 105 (Ky. Ct. App. 2013).

Commonwealth has expressly prohibited political subdivisions from requiring arbitration as a condition of employment, specifically including those submitting future actions for violations of state and federal statutory rights to arbitration; while in the private employment context federal law prevails, that federal law does not pre-empt the authority of the Commonwealth to deny the authority of its political subdivisions to enter into arbitration agreements in the employment context. N. Ky. Area Dev. Dist. v. Snyder, 2017 Ky. App. LEXIS 174 (Ky. Ct. App. May 12, 2017), aff'd on other grounds, 570 S.W.3d 531, 2018 Ky. LEXIS 363 ( Ky. 2018 ).

4.Construction Contract.

An arbitration agreement applied under KRS 417.050 , even though the parties’ dispute as to costs of a construction project was one “arising out of or relating to” the parties’ contractual agreement “or breach thereof”; the costs of the project arose out of or were related to the agreement for purposes of KRS 417.060(1) purposes. Consultants & Builders, Inc. v. Paducah Fed. Credit Union, 266 S.W.3d 837, 2008 Ky. App. LEXIS 295 (Ky. Ct. App. 2008).

5.Insurance Contracts.

A performance bond was not an insurance contract within the meaning of the statute where the bond clearly and specifically incorporated by reference the construction contract. Buck Run Baptist Church, Inc. v. Cumberland Sur. Ins. Co., 983 S.W.2d 501, 1998 Ky. LEXIS 160 ( Ky. 1998 ).

Homeowners’ motion to dismiss the insurance company’s petition to compel arbitration was granted because the documents that formed the warranty agreement bore all the indicia of an insurance contract; moreover, the agreement was clearly a contract of adhesion containing terms dictated solely by the insurance company and, as such, it was the type of contract to which KRS 417.050(2) was intended to apply. Nat'l Home Ins. Co. v. King, 291 F. Supp. 2d 518, 2003 U.S. Dist. LEXIS 21462 (E.D. Ky. 2003 ).

Homeowners’ motion to dismiss insurance company’s petition to compel arbitration was granted because there appeared to be nothing in the Federal Risk Retention Act, 15 U.S.C.S. § 3901 et seq., that would shield the insurance company from the effect of KRS 417.050 because consistent with the protection afforded risk retention groups under the Act, the Kentucky statutes regulating risk retention groups exempted such groups from various requirements related to their formation and operation that would otherwise apply to insurance companies. Nat'l Home Ins. Co. v. King, 291 F. Supp. 2d 518, 2003 U.S. Dist. LEXIS 21462 (E.D. Ky. 2003 ).

Employer was not “insurer” as defined in Kentucky Insurance Code because individual self-insurance was not insurance and thus, the exemption from arbitration in Kentucky Uniform Arbitration Act applied to an agreement between the employer and a trust whereby the employer obtained indemnity from the risk of being self-insured. Scott v. Louisville Bedding Co., 404 S.W.3d 870, 2013 Ky. App. LEXIS 105 (Ky. Ct. App. 2013).

Circuit court properly determined that an annuity agreement was an insurance contract, rather than a security product, where filed documents described the portfolio as a fixed account with regular payments of the same amount, thereby establishing that the agreement was a fixed product and consistent with an insurance product. As a result, the circuit court did not err in denying a motion to compel arbitration pursuant to Ky. Rev. Stat. Ann. § 417.050(2). Legacy Consulting Grp., LLC v. Gutzman (In re Estate of McGaughey), 2020 Ky. App. LEXIS 64 (Ky. Ct. App. May 29, 2020), aff'd, 636 S.W.3d 447, 2021 Ky. LEXIS 430 ( Ky. 2021 ).

6.Sales Contracts.

The Kentucky Consumer Protection Act (KRS Chapter 367) does not create an overriding exception to the arbitration act and, therefore, an arbitration provision in a contract for the sale and purchase of a mobile home was valid and enforceable. Conseco Fin. Servicing Corp. v. Wilder, 47 S.W.3d 335, 2001 Ky. App. LEXIS 60 (Ky. Ct. App. 2001).

The ability under the arbitration clause of the seller of a mobile home to seek judicial redress of its likeliest claims while reserving the right to arbitrate any claim by the purchasers did not render the clause oppressively one-sided and unconscionable. Conseco Fin. Servicing Corp. v. Wilder, 47 S.W.3d 335, 2001 Ky. App. LEXIS 60 (Ky. Ct. App. 2001).

Trial court properly granted summary judgment pursuant to CR 56 in favor of the sellers, listing agents, and real estate agent in the prospective purchasers’ appeal of an arbitrator’s award in favor of the sellers, listing agents, and real estate agent alleging that the purchasers were not bound by the arbitration clause in the contract for the sale of real property because they did not sign the contract; the arbitration clause was enforceable under the statute of frauds, KRS 371.010 , and under KRS 417.050 , because only the sellers, who were charged with the sale of the real property, had to sign the contract that was accepted by the purchasers, and the evidence indicated that the purchasers acted as though they had accepted the contract, as they had made a loan application, set a closing date, and signed a request for repairs to the property. Sweeney v. Theobald, 128 S.W.3d 498, 2004 Ky. App. LEXIS 32 (Ky. Ct. App. 2004).

A claim of fraudulent inducement to enter into a sales contract is subject to an arbitration clause contained within the contract. Louisville Peterbilt, Inc. v. Cox, 132 S.W.3d 850, 2004 Ky. LEXIS 91 ( Ky. 2004 ).

Where defendant claimed that the sales contract entered between the parties contained an enforceable agreement to arbitrate pursuant to KRS 417.050 the trial court had authority to determine whether or not arbitration could be compelled in the proceeding that had been filed with the trial court. General Steel Corp. v. Collins, 196 S.W.3d 18, 2006 Ky. App. LEXIS 182 (Ky. Ct. App. 2006).

Because an arbitration clause failed to put a car dealer’s customer on notice that she was waiving her constitutional right to trial by jury and an appeal to the courts as of right, the clause was unenforceable, as it was so misleading as to amount to a deliberate deception precluding any mutuality of intent or understanding. Paul Miller Ford, Inc. v. Rutherford, 2007 Ky. App. LEXIS 494 (Ky. Ct. App. Dec. 28, 2007).

7.Subject Matter Jurisdiction.

Trial court did not have subject matter jurisdiction and, thus, could not enforce an arbitration award when parties to arbitration agreement did not specify that Kentucky was to be the place of arbitration. Artrip v. Samons Constr., Inc., 54 S.W.3d 169, 2001 Ky. App. LEXIS 591 (Ky. Ct. App. 2001).

The Circuit Court lacked jurisdiction to order a limited liability company and its sole member to arbitrate their dispute with a seller, owner, and condominium council as described in a “Home Owners Limited Warranty” (HOLW) because the HOLW did not constitute the making of an agreement described in the Act, KRS 417.050 , which was a predicate for jurisdiction under KRS 417.200 . When the HOLW limited the effect of the member’s signature to a mere acknowledgment of receipt and not an assent to the terms thereof; the parties need not suffer the expense and delay of the arbitration hearing, only to find that the award is unenforceable, and when the issue arises prior to the arbitration hearing, and the agreement upon which arbitration is sought fails to comply with the literal provisions of KRS 417.200 , the courts of Kentucky are without jurisdiction to enforce the agreement to arbitrate. Ally Cat, LLC v. Chauvin, 274 S.W.3d 451, 2009 Ky. LEXIS 10 ( Ky. 2009 ).

8.Purchasing Agreements.

Court granted the corporation’s motion to compel arbitration where: (1) the facts did not support the manufacturer’s claim that there was no good faith effort to resolve the parties’ disputes through negotiation and/or mediation because upon termination of their agreement, both sides made a good faith effort to settle their disputes; (2) because the corporation initiated its lawsuit in North Carolina five months after it invoked its right to arbitrate the current dispute, any purported waiver occurred after the corporation had already invoked its right to arbitrate; and (3) any commercial dealings between the parties had their origins in, and were dictated by, the Master Purchasing Agreement (MPA), and the plain language of the dispute resolution clause clearly indicated the parties’ intention to arbitrate any disputes that arose under the MPA. Moreover, because all claims raised by the manufacturer were subject to a valid, enforceable, arbitration provision, it was not necessary to stay the proceedings pending binding arbitration, and because the MPA provided that the arbitrator’s decision was final and binding, dismissal without prejudice was warranted. BBS Techs., Inc. v. Remington Arms Co., 2005 U.S. Dist. LEXIS 29412 (E.D. Ky. Nov. 22, 2005).

9.Waiver of Arbitration Rights.

While a lender’s litigation conduct did not demonstrate a prompt and decisive invocation of arbitration rights, the lender’s conduct was not clearly inconsistent with an intent to seek arbitration so that the lender did not impliedly waive its arbitration rights by its conduct in litigation. Am. Gen. Home Equity, Inc. v. Kestel, 253 S.W.3d 543, 2008 Ky. LEXIS 146 ( Ky. 2008 ).

Lender’s filing of a foreclosure action in the Circuit Court by itself did not constitute waiver of its arbitration rights because Kentucky was a judicial foreclosure state requiring the filing of a Circuit Court action to pursue foreclosure as a remedy. Am. Gen. Home Equity, Inc. v. Kestel, 253 S.W.3d 543, 2008 Ky. LEXIS 146 ( Ky. 2008 ).

Circuit court erred in denying a Medicaid managed care organization's request to enforce an arbitration agreement between it and a hospital because the insurer did not waive its right to invoke or enforce the arbitration clause in the provider agreement with its litigation conduct; no litigation activity had taken place with the exception of the filing of motions to dismiss. WellCare Health Ins. Co. of Ky. v. Trigg Cty. Hosp., Inc., 532 S.W.3d 163, 2017 Ky. App. LEXIS 566 (Ky. Ct. App. 2017).

10.Unconscionability.

Arbitration clauses in a mortgage and a note were unconscionable and unenforceable under KRS 417.050 , as they prevented the mortgagors from meaningfully pursuing any statutory claims for violations of the Home Ownership Equity Protection Act, 15 U.S.C.S. § 1639, the Truth In Lending Act, 15 U.S.C.S. § 1601, the Kentucky Consumer Protection Act, KRS 367.110 et seq., and usury; an arbitrator could not modify the contract or award anything other than actual damages. Mortg. Elec. Registration Sys. v. Abner, 260 S.W.3d 351, 2008 Ky. App. LEXIS 233 (Ky. Ct. App. 2008).

Arbitration provision of a customer’s “payday loan” contract with a check-cashing company was substantively unconscionable and thus unenforceable under KRS 417.050 , as it encompassed an intentional tort with so little connection to the underlying agreement that it could not have been foreseen by the customer when he signed the agreement. Valued Servs. of Ky., LLC v. Watkins, 309 S.W.3d 256, 2009 Ky. App. LEXIS 117 (Ky. Ct. App. 2009).

Arbitration agreement was procedurally unconscionable, as it was a contract of adhesion made between parties with disparate bargaining power, and the waiver of the right to pursue a civil action in court was a material contractual term, which was stated in fine print within the boilerplate of the printed form. Valued Servs. of Ky., LLC v. Watkins, 309 S.W.3d 256, 2009 Ky. App. LEXIS 117 (Ky. Ct. App. 2009).

11.Medical Facilities.

Under KRS 417.050 , arbitration agreements signed by a patient’s friend when the patient was admitted to medical facilities were neither valid nor enforceable as to the patient; the patient was both physically and mentally competent to sign the agreements, the patient’s signature was required by the arbitration agreements, the medical facilities should not have asked the friend to sign the agreements, and there was no evidence that the friend was authorized to sign the agreements in the patient’s stead. Mt. Holly Nursing Ctr. v. Crowdus, 281 S.W.3d 809, 2008 Ky. App. LEXIS 236 (Ky. Ct. App. 2008).

Because the record was devoid of evidence indicating that a daughter had the authority to sign an arbitration agreement on behalf of her father, there was no binding, written contract with regard to the arbitration agreement that the nursing home could enforce under KRS 417.050 and KRS 417.060 . Beverly Health & Rehab. Servs. v. Smith, 2009 Ky. App. LEXIS 49 (Ky. Ct. App. Apr. 10, 2009).

Because a decedent’s power of attorney did not authorize the decedent’s agent to do more than make financial, property-related, and healthcare decisions, a trial court correctly determined that the optional arbitration agreement the agent purported to execute on the decedent’s behalf when admitting the decedent to a nursing home was beyond the scope of the agent’s authority. Donna Ping v. Beverly Enters., 376 S.W.3d 581, 2012 Ky. LEXIS 108 ( Ky. 2012 ), cert. denied, 569 U.S. 954, 133 S. Ct. 1996, 185 L. Ed. 2d 879, 2013 U.S. LEXIS 3242 (U.S. 2013).

Long-term care facility was not entitled to compel arbitration of litigation brought by a resident when the resident’s attorney-in-fact, pursuant to a durable power of attorney (POA), signed an arbitration agreement in the admission of the resident to the facility because the express grant of authority and the express limitations on that authority in the POA was not sufficiently broad under Kentucky law to confer upon the attorney-in-fact the authority to execute the pre-dispute arbitration agreement on the resident’s behalf. Golden Gate Nat'l Senior Care, LLC v. Dolan, 579 S.W.3d 874, 2019 Ky. App. LEXIS 119 (Ky. Ct. App. 2019).

Because appellee’s father granted appellee, his agent and son, all powers as were necessary or desirable to provide for his care, which would encompass the father’s admission into a nursing home when he was no longer able to physically care for himself, and because appellant required a facility resident or his agent to agree to arbitration of future disputes, under the Federal Arbitration Act and the Kentucky Uniform Arbitration Act, the arbitration agreement was valid and enforceable based on appellee’s authority to sign a necessary, non-optional arbitration agreement in order to obtain the father’s admittance into appellant’s facility. LP Louisville East, LLC v. Patton, 605 S.W.3d 300, 2020 Ky. LEXIS 513 ( Ky. 2020 ).

Because appellee signed the arbitration agreement with appellant’s facility in his individual capacity in addition to signing as his father’s authorized representative, the arbitration agreement was valid and enforceable as to appellee’s individual wrongful death action. LP Louisville East, LLC v. Patton, 605 S.W.3d 300, 2020 Ky. LEXIS 513 ( Ky. 2020 ).

Court of appeals erred in ruling an arbitration agreement was not enforceable against a resident’s estate because the resident’s power of attorney authorized the administrator to enter into the mandatory arbitration agreement when exercising his agency powers as to the resident’s “maintenance” and “health” by admitting him to a long-term care facility; the administrator had the authority to sign a necessary, non-optional arbitration agreement in order to obtain admittance into the facility. LP Louisville E., LLC v. Patton, 2020 Ky. LEXIS 514 (Ky. Aug. 20, 2020).

Because an administrator signed an arbitration agreement in both his representative and individual capacities, the court of appeals properly ruled that the arbitration agreement was enforceable as to his individual wrongful death claim against a long-term care facility; the administrator was free to enter into an arbitration agreement regarding his own wrongful death claim. LP Louisville E., LLC v. Patton, 2020 Ky. LEXIS 514 (Ky. Aug. 20, 2020).

Since an administrator presented no evidence that a long-term care facility attempted to conceal the signature line notation, deceive him, or fraudulently induce him to sign the arbitration agreement, the supreme court rejected that argument that he did not sign the agreement in his individual capacity. LP Louisville E., LLC v. Patton, 2020 Ky. LEXIS 514 (Ky. Aug. 20, 2020).

12.Class Action Waiver.

Class action ban was enforceable, because in cases governed by the Federal Arbitration Act, the decision of the United States Supreme Court in Conception precluded enforcement of a state policy invalidating upon grounds of unconscionability, a contractual waiver of class action participation, where the unconscionability was based solely upon the fact that the dispute involved a large number of de minimis claims which were unlikely to be individually litigated. Schnuerle v. Insight Communs., Co. L.P., 376 S.W.3d 561, 2012 Ky. LEXIS 104 ( Ky. 2012 ).

In a wrongful death case against a nursing home, an arbitration agreement was not valid because parents could not enter a contract on behalf of their disabled daughter, there was no actual authority on the part of the parents to enter into a contract on behalf of the daughter, a signatory was not a guardian of the disabled adult, and the parents could not appoint the signatory as a power of attorney; even though the parents had the right to make health care decisions under KRS 311.631(1), entering into an arbitration agreement was not a health care decision. Because the parents were unable to name an attorney-in-fact on behalf of their disabled daughter, there was no apparent authority either. GGNSC Stanford, LLC v. Rowe, 388 S.W.3d 117, 2012 Ky. App. LEXIS 177 (Ky. Ct. App. 2012).

13.Held Invalid.

Motion to compel arbitration was properly denied in a negligence case against a health care center because there was no valid arbitration agreement under KRS 417.050 ; a patient was unable to ratify the signature on the arbitration agreement due to incompetence, and the Kentucky Cabinet for Health and Family Services was not a principal based upon its judicial appointment as an agent. The elements of estoppel were not met where it was clear that a power of attorney given to the patient’s son was limited to criminal charges, there was no language of durability, and preemption by the Federal Arbitration Act was not shown based on KRS 417.200 where subject matter jurisdiction was not an issue in the case. Kindred Nursing Ctrs., L.P. v. Leffew, 398 S.W.3d 463, 2013 Ky. App. LEXIS 64 (Ky. Ct. App. 2013).

Arbitration agreement that the decedent's son, acting as the decedent's attorney-in-fact, had signed was not an enforceable agreement to arbitrate her personal injury and statutory claims against a nursing home where the power-of-attorney document did not constitute a clear manifestation of the decedent's intent to confer the power to enter into an arbitration agreement. GGNSC Frankfort, LLC v. Richardson, 2016 Ky. App. LEXIS 162 (Ky. Ct. App. Sept. 16, 2016), vacated, 2018 Ky. LEXIS 485 (Ky. Oct. 25, 2018).

Cited in:

Fayette County Farm Bureau Federation v. Martin, 758 S.W.2d 713, 1988 Ky. App. LEXIS 150 (Ky. Ct. App. 1988); Kindred Hosps. Ltd. P’ship v. Lutrell, 190 S.W.3d 916, 2006 Ky. LEXIS 100 ( Ky. 2006 ); Commonwealth ex rel. Stumbo v. Philip Morris, USA, 244 S.W.3d 116, 2007 Ky. App. LEXIS 424 (Ky. Ct. App. 2007).

Dixon v. Daymar Colls. Grp., LLC, 2015 Ky. LEXIS 73 (Apr. 2, 2015).

Research References and Practice Aids

Kentucky Bench & Bar.

Ballantine and Hall, Kentucky Supreme Court Adopts Separability Doctrine for Agreements to Arbitrate, Vol. 70, No. 2, March 2006, Ky. Bench & Bar 27.

Sales, The Scope of the Power of Courts to Enforce Agreements to Arbitrate in Kentucky, Volume 75, No. 2, March 2011, Ky. Bench & Bar 19.

Kentucky Law Journal.

Stipanowich, Arbitration, 74 Ky. L.J. 319 (1985-86).

Notes, Arbitration: Kentucky Courts Should Not Liberally Vacate Awards — Carrs Fork v. Kodak Mining, 85 Ky. L.J. 697 (1996-97).

Northern Kentucky Law Review.

Article: Arbitration, Agency Authority & the Effect on Nursing Homes: A Survey of a Recent Kentucky Court of Appeals Decision, see 35 N. Ky. L. Rev. 239 (2008).

Treatises

Caldwell’s Kentucky Form Book, Prac. & Proc. Forms, 5th Ed., Practice Context for Arbitration—Action to Compel Arbitration, § 65.00.

417.060. Proceedings to compel or stay arbitration.

  1. On  application of a party showing an agreement described in KRS 417.050 , and  the opposing party’s refusal to arbitrate, the court shall order the parties  to proceed with arbitration. If the opposing party denies the existence of  the agreement to arbitrate, the court shall proceed summarily to the determination  of the issue so raised. The court shall order arbitration if found for the  moving party; otherwise, the application shall be denied.
  2. On  application, the court may stay an arbitration proceeding commenced or threatened  on a showing that there is no agreement to arbitrate. Such an issue, when  in substantial and bona fide dispute, shall be forthwith and summarily tried  and the stay ordered if found for the moving party. If found for the opposing  party, the court shall order the parties to proceed to arbitration.
  3. If  an issue referable to arbitration under the alleged agreement is involved  in an action or proceeding pending in a court having jurisdiction to hear  applications under subsection (1) of this section, the application shall be  made therein. Otherwise and subject to KRS 417.210 , the application may be  made in any court of competent jurisdiction.
  4. Any  action or proceeding involving an issue subject to arbitration shall be stayed  if an order for arbitration or an application therefor has been made under  this section; or if the issue is severable, the stay may be with respect thereto  only. When the application is made in such action or proceeding, the order  for arbitration shall include such stay.
  5. An  order for arbitration shall not be refused on the ground that the claim in  issue lacks merit or bona fides or because any fault or grounds for the claim  sought to be arbitrated have not been shown.

History. Enact. Acts 1984, ch. 278, § 2, effective July 13, 1984.

NOTES TO DECISIONS

1.Appealability.

Absence of language of finality did not affect the appealability of an order denying a stay of proceedings as well as a denial of a motion to compel arbitration. Valley Constr. Co. v. Perry Host Management Co., 796 S.W.2d 365, 1990 Ky. App. LEXIS 128 (Ky. Ct. App. 1990).

Where an arbitration clause in a purchase agreement was collateral to a property transfer and it was reasonable to suppose that the parties intended post-closing performance of the clause, the trial court misapplied the merger doctrine; KRS 417.220 permitted an appeal from the trial court’s order denying a company’s application to compel arbitration. Dress Co. v. Osburg, 144 S.W.3d 831, 2003 Ky. App. LEXIS 268 (Ky. Ct. App. 2003).

KRS 417.220 provided for an interlocutory appeal of a trial court’s order denying a KRS 417.060 motion to compel arbitration, and thus the court entertained this appeal. Kindred Nursing Ctrs. L.P. v. Brown, 411 S.W.3d 242, 2011 Ky. App. LEXIS 61 (Ky. Ct. App. 2011).

2.Timeliness of Demand.

The timeliness of a demand for arbitration is an issue for the arbitration panel to decide, rather than the courts. Beyt, Rish, Robbins Group v. Appalachian Regional Healthcare, Inc., 854 S.W.2d 784, 1993 Ky. App. LEXIS 57 (Ky. Ct. App. 1993).

Home seller failed to comply with KRS 417.060(1) and (3) as he did not request the court to refer the matter to arbitration in timely fashion; thus, he failed to take the procedural and statutory steps required to enforce his contractual right to compel arbitration and instead voluntarily waived his rights thereto. Jackson v. Mackin, 277 S.W.3d 626, 2009 Ky. App. LEXIS 5 (Ky. Ct. App. 2009).

3.Overcharges and Costly Inefficiency.

Where a magazine publisher and a printer entered into a commercial contract which provided that dispute arising out of the agreement would be submitted to arbitration and further provided that the agreement would be governed by, construed, and enforced in accordance with the laws of Kentucky, a subsequent dispute involving allegations of overcharging and costly inefficiency qualified as matters for arbitration under the agreement and pursuant to Kentucky law. Bartell Media Corp. v. Fawcett Printing Corp., 342 F. Supp. 196, 1972 U.S. Dist. LEXIS 15597 (S.D.N.Y. 1972) (decided under prior law).

4.Construction of Arbitration Provision.

Where defendant claimed that the contract contained an agreement to arbitrate pursuant to KRS 417.050 the trial court had authority to determine whether or not arbitration could be compelled in the proceeding that had been filed with the trial court. General Steel Corp. v. Collins, 196 S.W.3d 18, 2006 Ky. App. LEXIS 182 (Ky. Ct. App. 2006).

Because an arbitration clause failed to put a car dealer’s customer on notice that she was waiving her constitutional right to trial by jury and an appeal to the courts as of right, the clause was unenforceable, as it was so misleading as to amount to a deliberate deception precluding any mutuality of intent or understanding. Paul Miller Ford, Inc. v. Rutherford, 2007 Ky. App. LEXIS 494 (Ky. Ct. App. Dec. 28, 2007).

5.Lack of Order.

Arbitration award was set aside, and the cause was remanded to the trial court because the trial court failed to determine whether a written agreement existed between a bank and a bank credit cardholder to arbitrate their dispute, after the cardholder denied the existence of such a written agreement. Fischer v. MBNA Am. Bank, N.A., 248 S.W.3d 567, 2007 Ky. App. LEXIS 83 (Ky. Ct. App. 2007).

6.Construction Contract.

An arbitration agreement applied under KRS 417.050 , even though the parties’ dispute as to the costs of a construction project was one “arising out of or relating to” the parties’ contractual agreement “or breach thereof”; the costs of the project arose out of or were related to the agreement for purposes of KRS 417.060(1). Consultants & Builders, Inc. v. Paducah Fed. Credit Union, 266 S.W.3d 837, 2008 Ky. App. LEXIS 295 (Ky. Ct. App. 2008).

7.Jurisdiction.

Trial court did not lose subject matter jurisdiction of the action as a result of the arbitration clause because no application was made by either a home seller or buyer under KRS 417.060 to compel arbitration. Jackson v. Mackin, 277 S.W.3d 626, 2009 Ky. App. LEXIS 5 (Ky. Ct. App. 2009).

Trial court’s orders referring buyers’ claims to arbitration and denying buyers’ motion to vacate arbitration award were void and not subject to appellate review because the buyers’ motions were brought in their original suit which had been dismissed earlier, and not by an initial application as required by KRS 417.190 to invoke trial court’s jurisdiction; because the buyers did not move to alter, amend, or vacate the trial court’s initial judgment dismissing their suit within 10 days, did not file a notice of appeal within 30 days, and did not seek application to compel arbitration while the trial court still retained jurisdiction, the trial court had no jurisdiction to enter its later orders. Pavkovich v. Shenouda, 280 S.W.3d 584, 2009 Ky. App. LEXIS 40 (Ky. Ct. App. 2009).

8.Execution of Agreement.

Because the record was devoid of evidence indicating that a daughter had the authority to sign an arbitration agreement on behalf of her father, there was no binding, written contract with regard to the arbitration agreement that the nursing home could enforce under KRS 417.050 and KRS 417.060 . Beverly Health & Rehab. Servs. v. Smith, 2009 Ky. App. LEXIS 49 (Ky. Ct. App. Apr. 10, 2009).

Court found no error in the conclusion that a mother, or her incapacitated adult son, was not estopped from denying the validity of an alternative dispute resolution agreement, which the mother signed before she was appointed guardian; appellants could not rely on the mother’s signature alone without an explanation of her authority to bind her son, an apparent authority claim was not preserved and failed in any event, and the court affirmed the denial of appellants’ motion to compel arbitration. Kindred Nursing Ctrs. L.P. v. Brown, 411 S.W.3d 242, 2011 Ky. App. LEXIS 61 (Ky. Ct. App. 2011).

9.Waiver.

Appellant demanded a trial by jury, then stayed the litigation and submitted the dispute to arbitration, and while once the arbitration award had been entered, the trial court had little latitude to evaluate the substance of the award, that argument was moot; the trial court erred by ruling that appellant had not waived her right to arbitration, and it was incumbent upon the court to set aside its earlier order compelling arbitration to void the arbitration proceedings in their entirety and to proceed with the litigation of this case in the judicial forum that appellant had elected. Imhoff v. Lexington Pub. Library Bd. of Trs., 2016 Ky. App. LEXIS 7 (Ky. Ct. App. Jan. 15, 2016), review denied, ordered not published, 2016 Ky. LEXIS 365 (Ky. Aug. 17, 2016).

Circuit court erred in denying a Medicaid managed care organization's request to enforce an arbitration agreement between it and a hospital because the insurer did not waive its right to invoke or enforce the arbitration clause in the provider agreement with its litigation conduct; no litigation activity had taken place with the exception of the filing of motions to dismiss. WellCare Health Ins. Co. of Ky. v. Trigg Cty. Hosp., Inc., 532 S.W.3d 163, 2017 Ky. App. LEXIS 566 (Ky. Ct. App. 2017).

Cited in:

Louisville Peterbilt, Inc. v. Cox, 132 S.W.3d 850, 2004 Ky. LEXIS 91 ( Ky. 2004 ).

Research References and Practice Aids

Kentucky Bench & Bar.

Clay & Mattingly, Is a Broad Arbitration Clause Still Effective after Granite Rock?, Volume 75, Number 2, March 2011, Ky. Bench & Bar 24.

Kentucky Law Journal.

Stipanowich, Arbitration, 74 Ky. L.J. 319 (1985-86).

Northern Kentucky Law Review.

Article: Arbitration, Agency Authority & the Effect on Nursing Homes: A Survey of a Recent Kentucky Court of Appeals Decision, see 35 N. Ky. L. Rev. 239 (2008).

Treatises

Caldwell’s Kentucky Form Book, Prac. & Proc. Forms, 5th Ed., Practice Context for Arbitration—Action to Compel Arbitration, § 65.00.

Caldwell’s Kentucky Form Book, Prac. & Proc. Forms, 5th Ed., Practice Context for Arbitration—Action to Vacate Award, § 64.00.

417.070. Appointment of arbitrators by court.

If the arbitration agreement provides a method of appointment of arbitrators, this method shall be followed. In the absence thereof, or if the agreed method fails or for any reason cannot be followed, or when an arbitrator appointed fails or is unable to act and his successor has not been duly appointed, the court on application of a party shall appoint one (1) or more arbitrators. An arbitrator so appointed has all the powers of one specifically named in the agreement.

History. Enact. Acts 1984, ch. 278, § 3, effective July 13, 1984.

417.080. Majority action by arbitrators.

The powers of the arbitrators may be exercised by a majority unless otherwise provided by the agreement or by this chapter.

History. Enact. Acts 1984, ch. 278, § 4, effective July 13, 1984.

417.090. Hearing.

Unless otherwise provided by the agreement:

  1. The  arbitrators shall appoint a time and place for the hearing and cause notification  to the parties to be served personally or by certified mail not less than  five (5) days before the hearing. Appearance at the hearing waives such notice.  The arbitrators may adjourn the hearing from time to time as necessary and,  on request of a party and for good cause, or upon their own motion may postpone  the hearing to a time not later than the date fixed by the agreement for making  the award, unless the parties consent to a later date. The arbitrators may  hear and determine the controversy upon the evidence produced notwithstanding  the failure of a party duly notified to appear. The court on application may  direct the arbitrators to proceed promptly with the hearing and determination  of the controversy.
  2. The  parties are entitled to be heard, to present evidence material to the controversy  and to cross-examine witnesses appearing at the hearing.
  3. The  hearing shall be conducted by all the arbitrators but a majority may determine  any question and render a final award. If, during the course of the hearing,  an arbitrator for any reason ceases to act, the remaining arbitrator or arbitrators  appointed to act as neutrals may continue with the hearing and determination  of the controversy.

History. Enact. Acts 1984, ch. 278, § 5, effective July 13, 1984.

NOTES TO DECISIONS

1.Waiver of Hearing.

The directive that the parties submit to the arbitrators as requested was not sufficiently clear to constitute a waiver of the statutory requirement that the arbitrators conduct a hearing; the parties are entitled to a hearing and it was incumbent upon the arbitrators to designate its time and place. Graham v. Wall, 938 S.W.2d 892, 1997 Ky. App. LEXIS 13 (Ky. Ct. App. 1997).

2.Due Process.

Fundamental due process provisions governing arbitration proceedings may not directly apply to arbitration clauses in employment contracts; nevertheless, those provisions reflect the common perception that arbitration is an adversarial process with the fundamental components of due process including a hearing with an opportunity to present evidence and cross-examine witnesses, and to have representation by counsel if desired. Ky. Shakespeare Festival, Inc. v. Dunaway, 490 S.W.3d 691, 2016 Ky. LEXIS 255 ( Ky. 2016 ).

3—Compliance.

Arbitrator’s decision to exclude the testimony of a geologist and engineer was not a failure to hear evidence because the decision was based on the relevance of the testimony as to the issues before the arbitrator and not a refusal to hear material evidence that substantially prejudiced a home buyer’s claim against the seller. Don Booth of the Breland Grp. v. K&D Builders, Inc., 626 S.W.3d 601, 2021 Ky. LEXIS 159 ( Ky. 2021 ).

417.100. Representation by attorney.

A party has the right to be represented by an attorney at any proceeding or hearing under this chapter. A waiver thereof prior to the proceeding or hearing is ineffective.

History. Enact. Acts 1984, ch. 278, § 6, effective July 13, 1984.

NOTES TO DECISIONS

1.Due Process.

Fundamental due process provisions governing arbitration proceedings may not directly apply to arbitration clauses in employment contracts; nevertheless, those provisions reflect the common perception that arbitration is an adversarial process with the fundamental components of due process including a hearing with an opportunity to present evidence and cross-examine witnesses, and to have representation by counsel if desired. Ky. Shakespeare Festival, Inc. v. Dunaway, 490 S.W.3d 691, 2016 Ky. LEXIS 255 ( Ky. 2016 ).

417.110. Witnesses, subpoenas and depositions.

  1. The  arbitrators may issue subpoenas for the attendance of witnesses and for the  production of books, records, documents and other evidence, and shall have  the power to administer oaths. Subpoenas so issued shall be served and, upon  application to the court by a party or the arbitrators, enforced, in the manner  provided by law for the service and enforcement of subpoenas in a civil action.
  2. On  application of a party and for use as evidence, the arbitrators may permit  a deposition to be taken, in the manner and upon the terms designated by the  arbitrators, of a witness who cannot be subpoenaed or is unable to attend  the hearing.
  3. All  provisions of law compelling a person under subpoena to testify are applicable.
  4. Fees  for attendance as a witness shall be the same as for a witness in the Circuit Court.

History. Enact. Acts 1984, ch. 278, § 7, effective July 13, 1984.

Research References and Practice Aids

Kentucky Law Journal.

Stipanowich, Arbitration, 74 Ky. L.J. 319 (1985-86).

417.120. Award.

  1. The  award shall be in writing and signed by the arbitrators joining in the award.  The arbitrators shall deliver a copy to each party personally or by certified  mail, or as provided in the agreement.
  2. An  award shall be made within the time fixed therefor by the agreement or, if  not so fixed, within such time as the court orders on application of a party.  The parties may extend the time in writing either before or after the expiration  thereof. A party waives the objection that an award was not made within the  time required unless he notifies the arbitrators of his objection prior to  the delivery of the award to him.

History. Enact. Acts 1984, ch. 278, § 8, effective July 13, 1984.

NOTES TO DECISIONS

1.Award.

Because termination of an arbitration for nonpayment of fees did not constitute an arbitration award under KRS 417.120 , an owner was not obligated to challenge the arbitrator’s termination of the proceedings under KRS 417.160 ; accordingly, the trial court properly dismissed the counterclaims filed by a contractor and an architect seeking confirmation of an arbitration award. Medcom Contr. Servs. v. Shepherdsville Christian Church Disciples of Christ, Inc., 290 S.W.3d 681, 2009 Ky. App. LEXIS 114 (Ky. Ct. App. 2009).

417.130. Change of award by arbitrators.

On application of a party to the arbitrators or, if an application to the court is pending under KRS 417.150 , 417.160 or 417.170 , on submission to the arbitrators by the court under such conditions as the court may order, the arbitrators may modify or correct the award upon the grounds stated in paragraphs (a) and (b) of subsection (1) of KRS 417.170 , or for the purpose of clarifying the award. The application shall be made within twenty (20) days after delivery of the award to the applicant. Written notice thereof shall be given forthwith to the opposing party, stating he must serve his objections thereto, if any, within ten (10) days from the notice. The award so modified or corrected is subject to the provisions of KRS 417.150 , 417.160 and 417.170.

History. Enact. Acts 1984, ch. 278, § 9, effective July 13, 1984.

NOTES TO DECISIONS

1.Grounds for Modifying Award.

Arbitrator exceeded his powers in modifying an arbitration award where there were no grounds for modification because while the arbitrator determined that the original award was improperly determined, that was not a permitted reason to modify the award per statute, and by the arbitrator exceeding the enumerated statutory powers, a trial court erred in so confirming the modification of the original award. Moreover, while the arbitrator stated that no new evidence was considered, the modification was one that could only have been made by a reconsideration of the evidence, which was not allowed. Swetnam Design Constr., Inc. v. Saurer, 382 S.W.3d 73, 2012 Ky. App. LEXIS 207 (Ky. Ct. App. 2012).

417.140. Fees and expenses of arbitration.

Unless otherwise provided in the agreement to arbitrate, the arbitrators’ expenses, fees and other expenses incurred in the conduct of the arbitration shall be paid as provided in the award. Attorneys’ fees shall not be awarded unless a provision therefor is contained in the written agreement submitted to arbitration.

History. Enact. Acts 1984, ch. 278, § 10, effective July 13, 1984.

417.150. Confirmation of an award.

Upon application of a party, the court shall confirm an award unless, within the time limits hereinafter imposed, grounds are urged for vacating or modifying or correcting the award, in which case the court shall proceed as provided in KRS 417.160 and 417.170 .

History. Enact. Acts 1984, ch. 278, § 11, effective July 13, 1984.

NOTES TO DECISIONS

1.Award Rendered Outside Commonwealth.

A Kentucky court may not, under the Uniform Arbitration Act, enforce an arbitrator’s award rendered outside the Commonwealth following a hearing also outside the Commonwealth. Tru Green Corp. v. Sampson, 802 S.W.2d 951, 1991 Ky. App. LEXIS 16 (Ky. Ct. App. 1991).

2.Arbitration.

Although applicable state court precedent was not the law when the arbitration was compelled, it was the law when the arbitration actually began. Thus, the arbitrator exceeded his authority by deciding the fraudulent inducement issue in the dispute between the home buyers and a seller. Saneii v. Robards, 289 F. Supp. 2d 855, 2003 U.S. Dist. LEXIS 19742 (W.D. Ky. 2003 ).

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, Prac. & Proc. Forms, 5th Ed., Order Enforcing Arbitration Award, Form 66.04.

Caldwell’s Kentucky Form Book, Prac. & Proc. Forms, 5th Ed., Practice Context for Arbitration—Action to Enforce or Confirm Arbitration Award, § 66.00.

417.160. Vacating an award.

  1. Upon  application of a party, the court shall vacate an award where:
    1. The  award was procured by corruption, fraud or other undue means;
    2. There  was evident partiality by an arbitrator appointed as a neutral or corruption  in any of the arbitrators or misconduct prejudicing the rights of any party;
    3. The  arbitrators exceeded their powers;
    4. The  arbitrators refused to postpone the hearing upon sufficient cause being shown  therefor or refused to hear evidence material to the controversy or otherwise  so conducted the hearing, contrary to the provisions of KRS 417.090 , as to  prejudice substantially the rights of a party; or
    5. There  was no arbitration agreement and the issue was not adversely determined in  proceedings under KRS 417.060 and the party did not participate in the arbitration  hearing without raising the objection; but the fact that the relief was such  that it could not or would not be granted by a court is not ground for vacating  or refusing to confirm the award.
  2. An  application under this section shall be made within ninety (90) days after  delivery of a copy of the award to the applicant; except that, if predicated  upon corruption, fraud or other undue means, it shall be made within ninety  (90) days after such grounds are known or should have been known.
  3. In  vacating the award on grounds other than stated in paragraph (a) of subsection  (1) of this section, the court may order a rehearing before new arbitrators  chosen as provided in the agreement, or in the absence thereof, by the court  in accordance with KRS 417.070 ; or, if the award is vacated on grounds set  forth in paragraphs (c) and (d) of subsection (1) of this section, the court  may order a rehearing before the arbitrators who made the award or their successors  appointed in accordance with KRS 417.070 . The time within which the agreement  requires the award to be made is applicable to the rehearing and commences  on the date of the order.
  4. If  the application to vacate is denied and no motion to modify or correct the  award is pending, the court shall confirm the award.

History. Enact. Acts 1984, ch. 278, § 12, effective July 13, 1984.

NOTES TO DECISIONS

1.Fraud.

Under the Uniform Arbitration Act, an award may be so grossly inadequate or excessive as to be in effect a fraud and subject to vacation by a court although no actual fraud is claimed. Carrs Fork Corp. v. Kodak Mining Co., 809 S.W.2d 699, 1991 Ky. LEXIS 32 ( Ky. 1991 ) decided under former 417.018 .

2.Notice.

The failure of a lessor to give the lessee of mining lands notice, prior to filing suit, that a forfeiture would be demanded unless the terms of the lease regarding development were followed, precludes the action for forfeiture. The filing of a lawsuit is not proper notice when a lessor seeks forfeiture on due diligence grounds. Thus, an arbitration award terminating the lease would be vacated. Carrs Fork Corp. v. Kodak Mining Co., 809 S.W.2d 699, 1991 Ky. LEXIS 32 ( Ky. 1991 ), overruled in part, Nami Res. Co., L.L.C. v. Asher Land & Mineral, L.T.D., 554 S.W.3d 323, 2018 Ky. LEXIS 353 ( Ky. 2018 ) (decision under prior law).

3.Error.

It was error for an arbitration panel to fail to find that a lessor waived any complaint of failure to operate a mining lease with diligence from 1976 through 1981 by the acceptance of royalties under the lease for the years in question. Carrs Fork Corp. v. Kodak Mining Co., 809 S.W.2d 699, 1991 Ky. LEXIS 32 ( Ky. 1991 ) decided under former 417.018 .

Trial court had no equitable power to vacate an arbitration award, as the arbitration agreement at issue was entered into after the effective date of the Kentucky Uniform Arbitration Act, and therefore could be set aside based only on grounds listed in the Act. 3D Enters. Contr. Corp. v. Lexington-Fayette Urban County Gov't, 134 S.W.3d 558, 2004 Ky. LEXIS 109 ( Ky. 2004 ).

Trial court erred in vacating an arbitration award on grounds that the arbitrators exceeded their powers under KRS 417.160(1)(c), as the issues of applicability of a no-damages-for-delay clause and change orders were arbitrable under the agreement and had been squarely presented to the arbitrators. 3D Enters. Contr. Corp. v. Lexington-Fayette Urban County Gov't, 134 S.W.3d 558, 2004 Ky. LEXIS 109 ( Ky. 2004 ).

4.Exclusive Remedy.

Exclusive remedy for homeowners’ dissatisfaction with the actions of an arbitrator was to seek review of the arbitration award in Circuit Court pursuant to KRS 417.160 ; the homeowners’ suit against the arbitration service was barred by the arbitral-immunity doctrine. Higdon v. Constr. Arbitration Assocs., Ltd., 71 S.W.3d 131, 2002 Ky. App. LEXIS 402 (Ky. Ct. App. 2002).

5.Grounds to Vacate Award.

All arbitration awards arising from agreements entered into after the effective date of the Kentucky Uniform Arbitration Act may only be set aside by a court pursuant to those grounds listed in the Act; however, the Carrs Fork rule still applies with regard to the vacation of arbitration awards arising from agreements entered into prior to the effective date of the Act. 3D Enters. Contr. Corp. v. Lexington-Fayette Urban County Gov't, 134 S.W.3d 558, 2004 Ky. LEXIS 109 ( Ky. 2004 ).

Where there was no suggestion presented that an arbitration award was tainted as required by KRS 417.160 or miscalculated as contemplated by KRS 417.170 , confirmation of the award was proper; an arbitrator’s resolution of factual disputes and his application of the law were not subject to judicial review. ConAgra Poultry Co. v. Grissom Transp., Inc., 186 S.W.3d 243, 2006 Ky. App. LEXIS 69 (Ky. Ct. App. 2006).

Circuit court did not err in confirming an arbitration award on a claim that the arbitrator had not considered all of the evidence material to the controversy pursuant to Ky. Rev. Stat. Ann. § 417.160(1)(d) where it was undisputed that the arbitrator heard all of the putative buyer's evidence, and the buyer was essentially seeking a review of the arbitrator's findings of fact. Meers v. Semonin Realtors, 525 S.W.3d 545, 2017 Ky. App. LEXIS 406 (Ky. Ct. App. 2017).

Circuit court did not err in confirming the award on the partiality claim where the past employment of the arbitrator's daughter in the realtor's office did not constitute a sufficient level of partiality or cause any prejudice to the buyer's rights, and in fact, it appeared that the arbitrator had not awarded the realtor the whole amount of damages claimed, but only awarded it half of the claimed amount. Meers v. Semonin Realtors, 525 S.W.3d 545, 2017 Ky. App. LEXIS 406 (Ky. Ct. App. 2017).

6.Counterclaim.

The KUAA clearly provides that a party has ninety days after delivery of an arbitration award to challenge the award. There is no legal barrier that would preclude a party adversely affected by an award of an arbitrator to assert a counterclaim challenging the award, if the prevailing party files an application with the court to confirm the award during the ninety-day period the aggrieved party has available to challenge the arbitration award. Fischer v. MBNA Am. Bank, N.A., 248 S.W.3d 567, 2007 Ky. App. LEXIS 83 (Ky. Ct. App. 2007).

7.Judicial Review.

Home buyers did not demonstrate that KRS 417.045 et seq., regarding arbitration, violated the provisions of Ky. Const. § 2 by failing to provide for meaningful judicial review of arbitration decisions because KRS 417.160 and KRS 417.170 provided for such review, and the level of judicial review provided was consistent with the underlying purposes of arbitration generally, one of which was to avoid the time and expense involved with courtroom litigation. Dutschke v. Jim Russell Realtors, Inc., 281 S.W.3d 817, 2008 Ky. App. LEXIS 248 (Ky. Ct. App. 2008).

Because termination of an arbitration for nonpayment of fees did not constitute an arbitration award under KRS 417.120 , an owner was not obligated to challenge the arbitrator’s termination of the proceedings under KRS 417.160 ; accordingly, the trial court properly dismissed the counterclaims filed by a contractor and an architect seeking confirmation of an arbitration award. Medcom Contr. Servs. v. Shepherdsville Christian Church Disciples of Christ, Inc., 290 S.W.3d 681, 2009 Ky. App. LEXIS 114 (Ky. Ct. App. 2009).

Arbitrator exceeded his powers in modifying an arbitration award where there were no grounds for modification because while the arbitrator determined that the original award was improperly determined, that was not a permitted reason to modify the award per statute, and by the arbitrator exceeding the enumerated statutory powers, a trial court erred in so confirming the modification of the original award. Moreover, while the arbitrator stated that no new evidence was considered, the modification was one that could only have been made by a reconsideration of the evidence, which was not allowed. Swetnam Design Constr., Inc. v. Saurer, 382 S.W.3d 73, 2012 Ky. App. LEXIS 207 (Ky. Ct. App. 2012).

Appellant demanded a trial by jury, then stayed the litigation and submitted the dispute to arbitration, and while once the arbitration award had been entered, the trial court had little latitude to evaluate the substance of the award, that argument was moot; the trial court erred by ruling that appellant had not waived her right to arbitration, and it was incumbent upon the court to set aside its earlier order compelling arbitration to void the arbitration proceedings in their entirety and to proceed with the litigation of this case in the judicial forum that appellant had elected. Imhoff v. Lexington Pub. Library Bd. of Trs., 2016 Ky. App. LEXIS 7 (Ky. Ct. App. Jan. 15, 2016), review denied, ordered not published, 2016 Ky. LEXIS 365 (Ky. Aug. 17, 2016).

Home buyer was not entitled to vacate an arbitration decision because the arbitrator did not exceed the arbitrator’s power in the application of the merger doctrine to the buyer’s claim for breach of contract damages or rescission against the seller, when the arbitrator fully and fairly reviewed whether the fraud exception to merger provided the buyer a claim against the seller, and when the arbitrator found that the buyer’s claim against the seller for statutory damages was unsupported. Don Booth of the Breland Grp. v. K&D Builders, Inc., 626 S.W.3d 601, 2021 Ky. LEXIS 159 ( Ky. 2021 ).

Arbitrator’s decision to exclude the testimony of a geologist and engineer was not a failure to hear evidence because the decision was based on the relevance of the testimony as to the issues before the arbitrator and not a refusal to hear material evidence that substantially prejudiced a home buyer’s claim against the seller. Don Booth of the Breland Grp. v. K&D Builders, Inc., 626 S.W.3d 601, 2021 Ky. LEXIS 159 ( Ky. 2021 ).

8.Subject Matter Jurisdiction.

Trial court’s orders referring buyers’ claims to arbitration and denying buyers’ motion to vacate arbitration award were void and not subject to appellate review because the buyers’ motions were brought in their original suit which had been dismissed earlier, and not by an initial application as required by KRS 417.190 to invoke trial court’s jurisdiction; because the buyers did not move to alter, amend, or vacate the trial court’s initial judgment dismissing their suit within 10 days, did not file a notice of appeal within 30 days, and did not seek application to compel arbitration while the trial court still retained jurisdiction, the trial court had no jurisdiction to enter its later orders. Pavkovich v. Shenouda, 280 S.W.3d 584, 2009 Ky. App. LEXIS 40 (Ky. Ct. App. 2009).

9.Proceedings on Remand.

After the circuit court failed to identify the grounds for vacating an arbitrator’s award, no error occurred on remand when a special judge confirmed the award after making detailed findings of fact and conclusions of law. Ison v. Robinson, 411 S.W.3d 766, 2013 Ky. App. LEXIS 139 (Ky. Ct. App. 2013).

Research References and Practice Aids

Kentucky Law Journal.

Stipanowich, Arbitration, 74 Ky. L.J. 319 (1985-86).

Notes, Arbitration: Kentucky Courts Should Not Liberally Vacate Awards — Carrs Fork v. Kodak Mining, 85 Ky. L.J. 697 (1996-97).

Treatises

Caldwell’s Kentucky Form Book, Prac. & Proc. Forms, 5th Ed., Practice Context for Arbitration—Action to Enforce or Confirm Arbitration Award, § 66.00.

417.170. Modification or correction of award.

  1. Upon  application made within ninety (90) days after delivery of a copy of the award  to the applicant, the court shall modify or correct the award where:
    1. There  was an evident miscalculation of figures or an evident mistake in the description  of any person, thing or property referred to in the award;
    2. The  arbitrators have awarded upon a matter not submitted to them and the award  may be corrected without affecting the merits of the decision upon the issues  submitted; or
    3. The  award is imperfect in a matter of form, not affecting the merits of the controversy.
  2. If  the application is granted, the court shall modify and correct the award so  as to effect its intent and shall confirm the award as so modified and corrected.  Otherwise, the court shall confirm the award as made.
  3. An  application to modify or correct an award may be joined in the alternative  with an application to vacate the award.

History. Enact. Acts 1984, ch. 278, § 13, effective July 13, 1984.

NOTES TO DECISIONS

1.Grounds for Vacating Award.

Where there was no suggestion presented that an arbitration award was tainted as required by KRS 417.160 or miscalculated as contemplated by KRS 417.170 , confirmation of the award was proper; an arbitrator’s resolution of factual disputes and his application of the law were not subject to judicial review. ConAgra Poultry Co. v. Grissom Transp., Inc., 186 S.W.3d 243, 2006 Ky. App. LEXIS 69 (Ky. Ct. App. 2006).

Arbitration award was set aside, and the cause was remanded to the trial court because the trial court failed to determine whether a written agreement under KRS 417.050 existed between a bank and a bank credit cardholder to arbitrate their dispute, after the cardholder denied the existence of such a written agreement. Fischer v. MBNA Am. Bank, N.A., 248 S.W.3d 567, 2007 Ky. App. LEXIS 83 (Ky. Ct. App. 2007).

2.Grounds for Modifying Award.

Arbitrator exceeded his powers in modifying an arbitration award where there were no grounds for modification because while the arbitrator determined that the original award was improperly determined, that was not a permitted reason to modify the award per statute, and by the arbitrator exceeding the enumerated statutory powers, a trial court erred in so confirming the modification of the original award. Moreover, while the arbitrator stated that no new evidence was considered, the modification was one that could only have been made by a reconsideration of the evidence, which was not allowed. Swetnam Design Constr., Inc. v. Saurer, 382 S.W.3d 73, 2012 Ky. App. LEXIS 207 (Ky. Ct. App. 2012).

3.Challenge Through Counterclaim.

The KUAA clearly provides that a party has ninety days after delivery of an arbitration award to challenge the award. There is no legal barrier that would preclude a party adversely affected by an award of an arbitrator to assert a counterclaim challenging the award, if the prevailing party files an application with the court to confirm the award during the ninety-day period the aggrieved party has available to challenge the arbitration award. Fischer v. MBNA Am. Bank, N.A., 248 S.W.3d 567, 2007 Ky. App. LEXIS 83 (Ky. Ct. App. 2007).

3.Judicial Review.

Home buyers did not demonstrate that KRS 417.045 et seq., regarding arbitration, violated the provisions of Ky. Const. § 2 by failing to provide for meaningful judicial review of arbitration decisions because KRS 417.160 and KRS 417.170 provided for such review, and the level of judicial review provided was consistent with the underlying purposes of arbitration generally, one of which was to avoid the time and expense involved with courtroom litigation. Dutschke v. Jim Russell Realtors, Inc., 281 S.W.3d 817, 2008 Ky. App. LEXIS 248 (Ky. Ct. App. 2008).

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, Prac. & Proc. Forms, 5th Ed., Practice Context for Arbitration—Action to Enforce or Confirm Arbitration Award, § 66.00.

Caldwell’s Kentucky Form Book, Prac. & Proc. Forms, 5th Ed., Practice Context for Arbitration—Action to Vacate Award, § 64.00.

417.180. Judgment or decree on award.

Upon the granting of an order confirming, modifying or correcting, an award, judgment or decree shall be entered in conformity therewith and be enforced as any other judgment or decree. Costs of the application and of the proceedings subsequent thereto, and disbursements may be awarded by the court.

History. Enact. Acts 1984, ch. 278, § 14, effective July 13, 1984.

NOTES TO DECISIONS

1.Challenge.

Where card holder challenged the arbitration award by timely filing in federal court, although the action was subsequently dismissed for lack of jurisdiction, the savings provision found in KRS 413.270 preserved the card holder’s right to challenge the arbitration award in state court. Fischer v. MBNA Am. Bank, N.A., 248 S.W.3d 567, 2007 Ky. App. LEXIS 83 (Ky. Ct. App. 2007).

The KUAA clearly provides that a party has ninety days after delivery of an arbitration award to challenge the award. There is no legal barrier that would preclude a party adversely affected by an award of an arbitrator to assert a counterclaim challenging the award, if the prevailing party files an application with the court to confirm the award during the ninety-day period the aggrieved party has available to challenge the arbitration award. Fischer v. MBNA Am. Bank, N.A., 248 S.W.3d 567, 2007 Ky. App. LEXIS 83 (Ky. Ct. App. 2007).

Cited in:

Fayette County Farm Bureau Federation v. Martin, 758 S.W.2d 713, 1988 Ky. App. LEXIS 150 (Ky. Ct. App. 1988); Commonwealth ex rel. Stumbo v. Philip Morris, USA, 244 S.W.3d 116, 2007 Ky. App. LEXIS 424 (Ky. Ct. App. 2007).

Research References and Practice Aids

Kentucky Bench & Bar.

Francis, SCR 3.815 — Settling Lawyer Disputes, Vol. 57, No. 4, Fall 1993, Ky. Bench & Bar 43.

Treatises

Caldwell’s Kentucky Form Book, Prac. & Proc. Forms, 5th Ed., Order Enforcing Arbitration Award, Form 66.04.

417.190. Applications to court.

Except as otherwise provided, an application to the court under this chapter shall be by motion and shall be heard in the manner and upon the notice provided by law or rule of court for the making and hearing of motions in civil cases. Unless the parties have agreed otherwise, notice of an initial application for an order shall be served in the manner provided by law for the service of a summons in civil cases.

History. Enact. Acts 1984, ch. 278, § 15, effective July 13, 1984.

NOTES TO DECISIONS

1.Jurisdiction.

Trial court’s orders referring buyers’ claims to arbitration and denying buyers’ motion to vacate arbitration award were void and not subject to appellate review because the buyers’ motions were brought in their original suit which had been dismissed earlier, and not by an initial application as required by KRS 417.190 to invoke trial court’s jurisdiction; because the buyers did not move to alter, amend, or vacate the trial court’s initial judgment dismissing their suit within 10 days, did not file a notice of appeal within 30 days, and did not seek application to compel arbitration while the trial court still retained jurisdiction, the trial court had no jurisdiction to enter its later orders. Pavkovich v. Shenouda, 280 S.W.3d 584, 2009 Ky. App. LEXIS 40 (Ky. Ct. App. 2009).

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, Prac. & Proc. Forms, 5th Ed., Practice Context for Arbitration—Action to Compel Arbitration, § 65.00.

Caldwell’s Kentucky Form Book, Prac. & Proc. Forms, 5th Ed., Practice Context for Arbitration—Action to Vacate Award, § 64.00.

417.200. Court — Jurisdiction.

The term “court” means any court of competent jurisdiction of this state. The making of an agreement described in KRS 417.050 providing for arbitration in this state confers jurisdiction on the court to enforce the agreement under this chapter and to enter judgment on an award thereunder.

History. Enact. Acts 1984, ch. 278, § 16, effective July 13, 1984.

NOTES TO DECISIONS

1.In General.

Clause authorizing the parties to agree on an arbitration’s location, which may in turn result in a Kentucky arbitration, is insufficient to satisfy KRS 471.200. Padgett v. Steinbrecher, 355 S.W.3d 457, 2011 Ky. App. LEXIS 217 (Ky. Ct. App. 2011).

2.Construction.

The plain meaning of this section is that the agreement, wherever made, must provide for the arbitration itself to be in the Commonwealth in order to confer subject matter jurisdiction on a Kentucky court; at that point, one looks to Ky. Const., § 112(5) and KRS 23A.010 to determine that the Circuit Court is the court of competent jurisdiction of this state; it would not promote uniformity for the court to interpret this section in a different manner. Tru Green Corp. v. Sampson, 802 S.W.2d 951, 1991 Ky. App. LEXIS 16 (Ky. Ct. App. 1991).

The Circuit Court lacked jurisdiction to order a limited liability company and its sole member to arbitrate their dispute with a seller, owner, and condominium council as described in a “Home Owners Limited Warranty” (HOLW) because the HOLW did not constitute the making of an agreement described in the Act, KRS 417.050 , which was a predicate for jurisdiction under KRS 417.200 . When the HOLW limited the effect of the member’s signature to a mere acknowledgment of receipt and not an assent to the terms thereof, the parties need not suffer the expense and delay of the arbitration hearing, only to find that the award is unenforceable, and when the issue arises prior to the arbitration hearing, and the agreement upon which arbitration is sought fails to comply with the literal provisions of KRS 417.200 , the courts of Kentucky are without jurisdiction to enforce the agreement to arbitrate. Ally Cat, LLC v. Chauvin, 274 S.W.3d 451, 2009 Ky. LEXIS 10 ( Ky. 2009 ).

3.Award Rendered Outside Commonwealth.

A Kentucky court may not, under the Uniform Arbitration Act, enforce an arbitrator’s award rendered outside the Commonwealth following a hearing also outside the Commonwealth. Tru Green Corp. v. Sampson, 802 S.W.2d 951, 1991 Ky. App. LEXIS 16 (Ky. Ct. App. 1991).

4.Jurisdiction.

Even though an arbitration clause in an operating agreement directed an arbitrator to apply the American Arbitration Association rules in effect in Kentucky, it did not include a purported forum selection clause explicitly requiring the arbitration to occur in Kentucky. The arbitration clause simply failed to designate where the arbitration was to take place, and such failure was fatal to the arbitration clause’s enforceability in Kentucky. Padgett v. Steinbrecher, 355 S.W.3d 457, 2011 Ky. App. LEXIS 217 (Ky. Ct. App. 2011).

Motion to compel arbitration was properly denied in a negligence case against a health care center because there was no valid arbitration agreement under KRS 417.050 ; a patient was unable to ratify the signature on the arbitration agreement due to incompetence, and the Kentucky Cabinet for Health and Family Services was not a principal based upon its judicial appointment as an agent. The elements of estoppel were not met where it was clear that a power of attorney given to the patient’s son was limited to criminal charges, there was no language of durability, and preemption by the Federal Arbitration Act was not shown based on KRS 417.200 where subject matter jurisdiction was not an issue in the case. Kindred Nursing Ctrs., L.P. v. Leffew, 398 S.W.3d 463, 2013 Ky. App. LEXIS 64 (Ky. Ct. App. 2013).

Parties’ arbitration agreement was invalid as the arbitration was statutorily required take place in Kentucky, despite a Tennessee choice-of-law provision in the parties’ agreement. Frankfort Med. Inv’rs, LLC v. Thomas, 2019 Ky. App. LEXIS 101 (June 14, 2019).

Research References and Practice Aids

Kentucky Bench & Bar.

Sales, The Scope of the Power of Courts to Enforce Agreements to Arbitrate in Kentucky, Volume 75, No. 2, March 2011, Ky. Bench & Bar 19.

417.210. Venue.

An initial application shall be made to the court of the county in which the agreement provides the arbitration hearing shall be held, or, if the hearing has been held, in the county in which it was held. Otherwise, the application shall be made in the county where the adverse party resides or has a place of business or, if he has no residence or place of business in this state, to the court of any county. All subsequent applications shall be made to the court hearing the initial application, unless the court otherwise directs.

History. Enact. Acts 1984, ch. 278, § 17, effective July 13, 1984.

417.220. Appeals.

  1. An  appeal may be taken from:
    1. An  order denying an application to compel arbitration made under KRS 417.060 ;
    2. An  order granting an application to stay arbitration made under subsection (2)  of KRS 417.060 ;
    3. An  order confirming or denying confirmation of an award;
    4. An  order modifying or correcting an award;
    5. An  order vacating an award without directing a rehearing; or
    6. A  judgment or decree entered pursuant to the provisions of this chapter.
  2. The  appeal shall be taken in the manner and to the same extent as from orders  or judgments in a civil action.

History. Enact. Acts 1984, ch. 278, § 18, effective July 13, 1984.

NOTES TO DECISIONS

1.Applicability.

KRS 417.220 created a statutory interlocutory right of appeal where no such right otherwise existed; extraordinary relief from an order denying arbitration sought by a manufacturer was inconsistent with the statutory remedy allowed, since that remedy defeated the contention that there was no adequate remedy by appeal. Cavalier Homes of Ala. v. Coleman, 181 S.W.3d 558, 2005 Ky. LEXIS 388 ( Ky. 2005 ).

2.Order Compelling Arbitration.

An order compelling arbitration is not final and appealable. Fayette County Farm Bureau Federation v. Martin, 758 S.W.2d 713, 1988 Ky. App. LEXIS 150 (Ky. Ct. App. 1988).

An employer could not appeal an interlocutory order denying a motion to compel arbitration in a wrongful discharge action. Bridgestone/Firestone, Inc. v. McQueen, 3 S.W.3d 366, 1999 Ky. App. LEXIS 87 (Ky. Ct. App. 1999).

Appeal from an order compelling arbitration and staying a motion for declaratory judgment was dismissed because the order was not a final and appealable order as it specifically stayed rather than dismissed the litigation pending completion of the arbitration proceeding. Commonwealth ex rel. Stumbo v. Philip Morris, USA, 244 S.W.3d 116, 2007 Ky. App. LEXIS 424 (Ky. Ct. App. 2007).

Unlike an order denying a motion to compel arbitration that is explicitly held to be appealable under KRS 417.220(1)(a), an order compelling arbitration is not immediately appealable. Am. Gen. Home Equity, Inc. v. Kestel, 253 S.W.3d 543, 2008 Ky. LEXIS 146 ( Ky. 2008 ).

KRS 417.220 provided for an interlocutory appeal of a trial court’s order denying a KRS 417.060 motion to compel arbitration, and thus the court entertained this appeal. Kindred Nursing Ctrs. L.P. v. Brown, 411 S.W.3d 242, 2011 Ky. App. LEXIS 61 (Ky. Ct. App. 2011).

Appellate court had jurisdiction to hear an appeal in an arbitration dispute because a motion to dismiss in favor of arbitration was construed as a motion to compel arbitration. There was a policy to review a trial court’s order which foreclosed a party’s right to arbitration. Padgett v. Steinbrecher, 355 S.W.3d 457, 2011 Ky. App. LEXIS 217 (Ky. Ct. App. 2011).

Rehabilitation facility was entitled to a writ of mandamus because the facility demonstrated irreparable injury where there was no statutory provision for the appeal of an order deferring a ruling on a motion to compel arbitration, and while the trial court acted within its jurisdiction to order pretrial discovery without ruling on the facility's motion to compel arbitration, it acted erroneously by deferring its ruling on the motion to compel arbitration and allowing pretrial discovery to proceed. Stanton Health Facilities, LP v. Fletcher, 454 S.W.3d 312, 2015 Ky. App. LEXIS 2 (Ky. Ct. App. 2015).

3.Language of Finality.

Absence of language of finality did not affect the appealability of an order denying a stay of proceedings as well as a denial of a motion to compel arbitration. Valley Constr. Co. v. Perry Host Management Co., 796 S.W.2d 365, 1990 Ky. App. LEXIS 128 (Ky. Ct. App. 1990).

4.Misapplication of Merger Doctrine.

Where an arbitration clause in a purchase agreement was collateral to a property transfer and it was reasonable to suppose that the parties intended post-closing performance of the clause, the trial court misapplied the merger doctrine; KRS 417.220 permitted an appeal from the trial court’s order denying a company’s application to compel arbitration. Dress Co. v. Osburg, 144 S.W.3d 831, 2003 Ky. App. LEXIS 268 (Ky. Ct. App. 2003).

5.Mechanisms for Appeals.

A party may appeal the decision of a trial court which implicates any of the enumerated items in KRS 417.220(1) by utilizing either a motion for interlocutory relief pursuant to CR 65.07, or a notice of appeal pursuant to CR 73, as long as that party fulfills the requirements and meets the burdens in so making the appeal, but a party may only choose one route. Kindred Hosps. Ltd. P'ship v. Lutrell, 190 S.W.3d 916, 2006 Ky. LEXIS 100 ( Ky. 2006 ).

A party prosecuting an interlocutory appeal from an order denying a motion to compel arbitration under the Kentucky Uniform Arbitration Act (KUAA) may proceed either under CR 65.07, which addresses interlocutory relief, or under the general appellate procedure set out in CR 73. Thus, when a motion to compel arbitration was expressly brought under the KUAA and the Federal Arbitration Act, an interlocutory appeal was properly brought via CR 73. Olshan Found. Repair & Waterproofing v. Otto, 276 S.W.3d 827, 2009 Ky. App. LEXIS 4 (Ky. Ct. App. 2009).

6.Jurisdiction.

Filing of an appeal in a negligence case did not divest a trial court of jurisdiction to enter a subsequent order because the appeal was an inappropriate interlocutory appeal; only certain appeals were timely and appropriately brought, pursuant to CR 73.02 and KRS 22A.020 , 417.220 . Moctar v. Yellow Cab of Louisville, 2012 Ky. App. LEXIS 175 (Ky. Ct. App. Sept. 21, 2012), review denied, ordered not published, 2013 Ky. LEXIS 431 (Ky. Sept. 18, 2013).

Supreme Court of Kentucky lacked jurisdiction to consider the merits of a corporate officer’s appeal because he attempted to appeal from a non-final order and his defamation and abuse of process claims against the chief executive officer fell outside the scope of the parties’ agreement to arbitrate. Linden v. Griffin, 436 S.W.3d 521, 2014 Ky. LEXIS 151 ( Ky. 2014 ), modified, 2014 Ky. LEXIS 368 (Ky. Aug. 21, 2014).

Cited in:

Louisa v. Newland, 705 S.W.2d 916, 1986 Ky. LEXIS 246 ( Ky. 1986 ); Louisville Peterbilt, Inc. v. Cox, 132 S.W.3d 850, 2004 Ky. LEXIS 91 ( Ky. 2004 ); Morgan Keegan & Co. v. Force, — S.W.3d —, 2007 Ky. App. LEXIS 203 (Ky. Ct. App. 2007); Kindred Nursing Ctrs. Ltd. P’ship v. Cox, 2015 Ky. App. LEXIS 85 (June 5, 2015); WellCare Health Ins. Co. of Ky. v. Trigg Cty. Hosp., Inc., 532 S.W.3d 163, 2017 Ky. App. LEXIS 566 (Ky. Ct. App. 2017); Golden Gate Nat'l Senior Care, LLC v. Dolan, 579 S.W.3d 874, 2019 Ky. App. LEXIS 119 (Ky. Ct. App. 2019).

Research References and Practice Aids

Kentucky Bench & Bar.

Sales, The Scope of the Power of Courts to Enforce Agreements to Arbitrate in Kentucky, Volume 75, No. 2, March 2011, Ky. Bench & Bar 19.

417.230. Chapter 417 not retroactive.

This chapter applies only to agreements made subsequent to the taking effect of this chapter.

History. Enact. Acts 1984, ch. 278, § 19, effective July 13, 1984.

Research References and Practice Aids

Kentucky Law Journal.

Stipanowich, Arbitration, 74 Ky. L.J. 319 (1985-86).

Notes, Arbitration: Kentucky Courts Should Not Liberally Vacate Awards — Carrs Fork v. Kodak Mining, 85 Ky. L.J. 697 (1996-97).

417.240. Uniformity of interpretation.

This chapter shall be so construed as to effectuate its general purpose to make uniform the law of those states which enact it.

History. Enact. Acts 1984, ch. 278, § 20, effective July 13, 1984.

NOTES TO DECISIONS

Cited in:

Tru Green Corp. v. Sampson, 802 S.W.2d 951, 1991 Ky. App. LEXIS 16 (Ky. Ct. App. 1991).

Research References and Practice Aids

Kentucky Law Journal.

Stipanowich, Arbitration, 74 Ky. L.J. 319 (1985-86).

Notes, Arbitration: Kentucky Courts Should Not Liberally Vacate Awards — Carrs Fork v. Kodak Mining, 85 Ky. L.J. 697 (1996-97).

CHAPTER 418 Summary Proceedings — Declaratory Judgments

418.005. Judgment may be obtained on motion.

A judgment may be obtained, on motion, by a surety against his principal or cosurety for money paid; by a client against his attorney for money collected or property received; by a party or officer against a surety for costs; and by a party against an officer for money collected or property received, and for the damages which such party is entitled to recover; and in all other cases specially authorized by statute; and the service of the notice shall be regarded as the commencement of the proceeding.

History. C.C. 444: trans. Acts 1952, ch. 84, § 1, effective July 1, 1953.

NOTES TO DECISIONS

1.Construction.

A motion is recognizable as quite a formidable weapon of attack for it is an application for an order, and far-reaching judgments may be rendered summarily on a motion. Park Hill Realty Co. v. Lykins, 290 Ky. 498 , 161 S.W.2d 602, 1942 Ky. LEXIS 407 ( Ky. 1942 ).

In a statutory summary proceeding by client against attorney and by party against officer for money collected or property received, relief can be obtained by strictly complying with requirements of statute and such requirements will be strictly construed. Carroll v. Sullivan, 310 Ky. 289 , 220 S.W.2d 590, 1949 Ky. LEXIS 909 ( Ky. 1949 ).

2.Application.

A surety on a bond to keep the peace cannot be proceeded against by motion. Combs v. Commonwealth, 71 S.W. 504, 24 Ky. L. Rptr. 1310 (1903).

A master commissioner of circuit court does not have, by virtue of his office, capacity to sue a surety on bond of administrator of a decedent’s estate, and the consolidation of such a suit with original settlement suit did not authorize the treatment of the petition in the action as a notice and motion for judgment against the surety. Fidelity & Deposit Co. v. Barrett, 271 Ky. 163 , 111 S.W.2d 631, 1937 Ky. LEXIS 217 ( Ky. 1937 ).

This section is applicable to recovery of money or property coming into the hands of officers by the process of a court or into the hands of an attorney by virtue of his employment. Carroll v. Sullivan, 310 Ky. 289 , 220 S.W.2d 590, 1949 Ky. LEXIS 909 ( Ky. 1949 ).

This section does not apply to situations where client paid kickback to his attorney who was also a water commissioner in connection with obtaining contracts with the water district. Howard v. Sanson, 375 S.W.2d 828, 1963 Ky. LEXIS 192 ( Ky. 1963 ).

3.Surety Against Principal.

A surety who had been compelled by judgment to pay his principal’s obligation had the right to obtain judgment in the same action against principal by motion after due service of notice. Grubbs v. Slater, 266 S.W.2d 85, 1953 Ky. LEXIS 1276 (Ky. Ct. App. 1953).

4.Surety Against Cosurety.

Where in an action on a note against two (2) sureties, judgment was recovered against one of them, he may, after satisfying it and after notice, proceed on a motion for judgment for his claim for contribution against his cosurety. Fritts v. Kirchdorfer, 136 Ky. 643 , 124 S.W. 882, 1910 Ky. LEXIS 525 ( Ky. 1910 ).

5.Attorney for Money Collected.

Where by statute title to all school property is vested in the county board of education, any money, due under a judgment recovered by the commonwealth in an action to recover into the common school funds of a county money claimed to be due for a violation of a bond, belonged to the county board of education, which is the real party in interest and the real client of the county attorney, and it may obtain judgment on a motion against such attorney for money collected or property received. Board of Education v. Allin, 134 Ky. 763 , 121 S.W. 676, 1909 Ky. LEXIS 437 ( Ky. 1909 ).

6.Attorneys’ Fees.

An attorney’s lien for fee may be noted of record in an original action by motion, but it is necessary that notice be given and an opportunity had to be heard. Johnston v. Stephens, 206 Ky. 83 , 266 S.W. 881, 1924 Ky. LEXIS 257 ( Ky. 1924 ).

An attorney may proceed against client, for fees for services rendered in the litigation, by summary proceedings. Richardson v. Lee's Adm'r, 278 Ky. 656 , 129 S.W.2d 147, 1939 Ky. LEXIS 475 ( Ky. 1939 ).

In a proceeding against the administrator of an estate to recover attorney’s fees for services claimed to have been rendered the deceased, a pleading could be treated as a summary proceeding on motion. Richardson v. Lee's Adm'r, 278 Ky. 656 , 129 S.W.2d 147, 1939 Ky. LEXIS 475 ( Ky. 1939 ).

7.Against Surety.

Where plaintiff recovered judgment under this section as authorized by KRS 425.350 (now repealed) against the surety on a bond given in accordance with KRS 425.305 (now repealed), the court erred in granting, during the subsequent term, the surety’s motion to set aside the judgment against him, the proper remedy for the surety being an action under KRS 23.035 (now repealed) to vacate the judgment. Malnowski v. Stacy, 231 Ky. 23 , 20 S.W.2d 1008, 1929 Ky. LEXIS 202 ( Ky. 1929 ).

The liability of a surety on a bond executed in accordance with KRS 425.305 (now repealed) does not accrue until a judgment in the action on which the attachment was sued out and the bond executed is entered against the principal in that bond, but after such judgment is entered, the liability of the surety may be enforced either by an action on the bond or by summary proceedings. Nunnelley v. Nunnelley, 246 Ky. 250 , 54 S.W.2d 931, 1932 Ky. LEXIS 748 ( Ky. 1932 ).

In an action on a forthcoming bond where notice was given to the surety and to the attorney of the principal, who could not be served, judgment was proper against the surety. United States Fidelity & Guaranty Co. v. Albert, 248 Ky. 375 , 58 S.W.2d 644, 1933 Ky. LEXIS 250 ( Ky. 1933 ).

8.Creditor Against Debtor and Surety.

Where judgment creditor filed a motion pursuant to this section and KRS 422.220 for recovery against judgment debtor and surety on his bond for release of attached property, evidence established that the bond had been executed to perform the judgment of the court under subsection (1) of KRS 425.305 (now repealed). Perfection Hardwood Flooring Co. v. Bowling, 300 S.W.2d 550, 1957 Ky. LEXIS 454 ( Ky. 1957 ).

9.Money Collected by Sheriff.

Where a plaintiff proceeds by motion under this section against a sheriff for money collected on execution for the plaintiff and paid by the sheriff to persons claiming against the plaintiff, a claim that the money was properly owed by the plaintiff to the payees is not a defense for the sheriff, since he has no discretion in paying over the money to the plaintiff. Champion v. Dunn, 229 Ky. 148 , 16 S.W.2d 791, 1929 Ky. LEXIS 705 ( Ky. 1929 ).

10.Mortgage Foreclosure Sale.

The court may enforce payment of the amount of the purchase money at a mortgage foreclosure sale which the judgment requires to be paid in cash, by summary proceedings. Hoefflin v. Kentucky Title Sav. Bank & Trust Co., 153 Ky. 495 , 155 S.W. 1159, 1913 Ky. LEXIS 869 ( Ky. 1913 ).

11.Refund of Overpayment by Commissioner.

The court has power to order a party to refund money paid him by the commissioner by mistake. Boreing's Adm'r v. McHargue, 152 Ky. 360 , 153 S.W. 463, 1913 Ky. LEXIS 666 ( Ky. 1913 ).

12.Custody and Support of Infants.

A judgment relating to the custody and support of infant children may be modified or set aside at any time on notice and motion, the power of the court not being limited to the term at which judgment was entered since the questions of custody and support are left indefinitely in the original trial court, and these matters may be brought up on motion. Hatcher v. Hatcher, 312 Ky. 568 , 228 S.W.2d 461, 1950 Ky. LEXIS 708 ( Ky. 1950 ).

13.Notice.

Notice of motion against sheriff for failure to pay county creditor was required to contain the requisites of a petition. Terrill v. Cecil, 60 Ky. 347 , 1860 Ky. LEXIS 91 ( Ky. 1860 ) (decided under prior law).

In motions against a sheriff or other officer for failing to return executions for 30 days after the return day thereof, the notice must contain all the requisites of a petition. Johnson v. Bradley, 74 Ky. 666 , 1876 Ky. LEXIS 17 ( Ky. 1876 ) (decided under prior law).

In a motion by the purchaser of land sold under execution for a writ of possession, the notice takes the place of the petition, and in such summary proceedings, to be sufficient, it must set out a state of facts that would entitle the plaintiff to the relief demanded. Bunnell v. Thompson, 75 Ky. 116 , 1876 Ky. LEXIS 42 ( Ky. 1876 ) (decided under prior law).

Where administrator entered his appearance, by pleading to a motion or petition by attorney for services rendered under contract with deceased employer and was allowed time for pleas and proof, summons and notice were waived. Richardson v. Lee's Adm'r, 278 Ky. 656 , 129 S.W.2d 147, 1939 Ky. LEXIS 475 ( Ky. 1939 ).

Notice in summary proceedings must contain all requisites of petition in regular action. Carroll v. Sullivan, 310 Ky. 289 , 220 S.W.2d 590, 1949 Ky. LEXIS 909 ( Ky. 1949 ).

14.Pleadings.

Where a surety brought an action for indemnity for debt not due, his motion to supplement the original judgment to include the amount he subsequently paid was proper without a supplemental pleading setting up the amount due, where no timely objection was made to that procedure. Cloud v. Middleton, 241 Ky. 595 , 44 S.W.2d 559, 1931 Ky. LEXIS 126 ( Ky. 1931 ).

The proceeding under this section is summary and no special pleading is required other than such steps as are herein set forth. Southern Coal & Coke Co. v. Bracht, 267 Ky. 123 , 101 S.W.2d 667, 1937 Ky. LEXIS 287 ( Ky. 1937 ).

Where the principal merely objected to the filing of an unverified motion, and did not request a rule to require proper verification, his failure to do so waived any complaint he might have had on that score, nor did the failure to verify render the filing invalid. Grubbs v. Slater, 266 S.W.2d 85, 1953 Ky. LEXIS 1276 (Ky. Ct. App. 1953).

15.Administrative Remedies.

Court did not have jurisdiction in declaratory judgment proceedings brought by surface miner for a declaration of rights which raised issues that were pending in administrative proceedings before the Natural Resources and Environmental Protection Cabinet on the date the declaratory judgment was filed, since the secretary and Cabinet are vested with the full power and authority to enforce the state’s surface mining and reclamation laws, while the courts are vested in such proceeding with only the authority to review final orders on appeal. White v. Shepherd, 940 S.W.2d 909, 1997 Ky. App. LEXIS 25 (Ky. Ct. App. 1997).

16.—Exhaustion.

In action by surface miners for declaration rights and injunctive relief where miner was not attacking the validity of surface mining statutes or regulations, or showing that they could not successfully defend against pending administrative proceedings, but instead were claiming that the statutes and regulations did not apply to them, they were not entitled to rely on the exception to the general rule which required them to exhaust their administrative remedies and trial court did not err by dismissing their action for failing to first exhaust their administrative remedies. White v. Shepherd, 940 S.W.2d 909, 1997 Ky. App. LEXIS 25 (Ky. Ct. App. 1997).

17.Prisoner Rights.

Where a chain of custody of a urinalysis was not flawed, an inmate’s loss of good-time credits for unauthorized drug use was not a violation of due process; the inmate received all due process to which the inmate was entitled and the trial court did not err in denying the inmate’s petition for a declaratory judgment. Rhodes v. Phillips, 2003 Ky. App. Unpub. LEXIS 955 (Ky. Ct. App. May 23, 2003).

18.Purchaser of Land.

The purchaser of land under judgment of the court, although not a party to the suit, could become one, after the confirmation of the sale for the recovery of the rent accruing after his purchase, against the tenant who occupied the land, by motion, upon notice properly executed upon him. Cooper v. Baker, 65 Ky. 244 , 1867 Ky. LEXIS 65 ( Ky. 1867 ) (decided under prior law).

19.Surety.

Where bond had been executed to retain possession of personal property as permitted by law that provided that defendant could retain property by executing bond, the surety on the bond could not be proceeded against by motion. Gay v. Morgan, 67 Ky. 606 , 1868 Ky. LEXIS 203 ( Ky. 1868 ) (decided under prior law).

Cited in:

American Airlines, Inc. v. Louisville & Jefferson County Air Bd., 269 F.2d 811, 1959 U.S. App. LEXIS 3478 (6th Cir. 1959); Prudential Resources Corp. v. Plunkett, 583 S.W.2d 97, 1979 Ky. App. LEXIS 425 (Ky. Ct. App. 1979); National Ins. Underwriters v. Lexington Flying Club, Inc., 603 S.W.2d 490, 1979 Ky. App. LEXIS 537 (Ky. Ct. App. 1980); Brownsboro Rd. Restaurant, Inc. v. Jerrico, Inc., 674 S.W.2d 40, 1984 Ky. App. LEXIS 533 (Ky. Ct. App. 1984).

Research References and Practice Aids

Cross-References.

Lost records, supplying of, KRS 422.210 to 422.240 .

Treatises

Caldwell’s Kentucky Form Book, Prac. & Proc. Forms, 5th Ed., Bond of Purchaser of Property Sold by Order of Court, Form 151.15.

Caldwell’s Kentucky Form Book, Prac. & Proc. Forms, 5th Ed., Complaint in Action by Surety Against a Co-Surety for Contribution, Form 201.02.

Caldwell’s Kentucky Form Book, Prac. & Proc. Forms, 5th Ed., Notice by Surety, After Paying Debt, of Motion Against Principal for Judgment, Form 201.05.

Caldwell’s Kentucky Form Book, Prac. & Proc. Forms, 5th Ed., Order as to Sheriff’s Report of Fees and Commissions (Another Form), Form 18.16.

Caldwell’s Kentucky Form Book, Prac. & Proc. Forms, 5th Ed., Practice Context for Principal and Surety, § 201.00.

Caldwell’s Kentucky Form Book, Prac. & Proc. Forms, 5th Ed., Surety’s Notice of Motion Against Co-Surety for Contribution, Form 201.01.

418.010. Service and form of notice.

  1. Notice  of such motion shall be served on the party against whom judgment is sought,  at least ten (10) days before the motion is made. The motion and notice thereof  shall be served by an officer authorized to serve a summons, and the service  and return shall be made in the manner prescribed for service of summons by  the Rules of Civil Procedure.
  2. The  notice shall state the nature and grounds of the motion, and the day on which  it will be made.

History. C.C. 445, 446: trans. and amend. Acts 1952, ch. 84, §§ 1, 18, effective July 1, 1953.

NOTES TO DECISIONS

1.Application.

The service of notice under this section of the statute applies only to summary proceedings and judgment on motion, and it is not applicable to motion defined in CR 7.02 for allowance of executor’s fee and attorney’s fee in settlement of estate where the executor and the attorney were present in court and participating in the proceedings. Greenway v. Irvine's Ex'r, 234 Ky. 597 , 28 S.W.2d 760, 1929 Ky. LEXIS 457 ( Ky. 1929 ).

2.Notice.
3.—Failure to Give.

Where a surety was not notified of a motion for judgment by notice on a claimant’s bond in execution proceedings, the judgment against the surety was erroneous. Butcher v. Corbin Hardware & Furniture Co., 244 Ky. 632 , 51 S.W.2d 931, 1932 Ky. LEXIS 486 ( Ky. 1932 ).

4.—Sufficiency.

In a motion by the purchaser of land sold under execution for a writ of possession, the notice takes the place of a petition, and to be sufficient, one of its essential elements is to show the land had been conveyed to the purchaser; the defects in the notice cannot be cured by the proof. Bunnell v. Thompson, 75 Ky. 116 , 1876 Ky. LEXIS 42 ( Ky. 1876 ) (decided under prior law).

Where court extended the time in which defense was required to be made beyond the ten-day period prescribed by this section, the five-day written notice given by plaintiff, following the institution of suit, of his intention to move for judgment was harmless. Chestnut v. Reynolds, 291 Ky. 231 , 163 S.W.2d 456, 1942 Ky. LEXIS 201 ( Ky. 1942 ).

Where notice, giving full notice of what would be sought, was written and served, a written motion to supplement original judgment for custody and support of infant children was not required. Hatcher v. Hatcher, 312 Ky. 568 , 228 S.W.2d 461, 1950 Ky. LEXIS 708 ( Ky. 1950 ).

5.— —Writ of Possession.

To obtain a writ of possession it is sufficient if the notice sets forth a complete and definite statement of the steps taken in order to obtain the execution, the court in which it was brought, that it had jurisdiction, the parties defendant to the action, the rendition of the judgment, the execution’s levy and sale under it, the property sold and its description and the conveyance from the sheriff. Mooar v. Covington City Nat'l Bank, 80 Ky. 305 , 3 Ky. L. Rptr. 674 , 1882 Ky. LEXIS 54 (Ky. Ct. App. 1882).

6.— —Execution.

It is incumbent upon an execution defendant in notice of motion to quash levy of execution asserting right of homestead in land levied upon, to comply with the statute conferring the right of homestead, and he must negate specified exception contained in the statute that the debt or liability existed prior to the purchase of the land. The defect is not cured by the other party supplying the deficiency by his response. Marshall v. Tully, 193 Ky. 246 , 235 S.W. 726, 1921 Ky. LEXIS 216 ( Ky. 1921 ).

7.—Service.
8.— —Mandamus.

It is not necessary that the notice in a mandamus proceeding be given ten (10) days before a term of court, it may be given at any time, but cannot be heard by the court until the expiration of ten (10) days. McChesney v. Hager, 104 S.W. 714, 31 Ky. L. Rptr. 1038 (1907).

Notice of a motion for mandamus must be served on the party against whom the judgment is sought ten (10) days before motion is made. Scott v. Singleton, 171 Ky. 117 , 188 S.W. 302, 1916 Ky. LEXIS 306 ( Ky. 1916 ).

The right to grant a final writ is circumscribed by the requirement of ten-days’ notice, and the defendants should have been given the time thus allowed when they insisted upon it, where the plaintiffs were seeking a writ of mandamus to require the defendants to grant them a city license to sell liquor at retail by the package. Louisa v. Shrout, 278 Ky. 631 , 129 S.W.2d 150, 1939 Ky. LEXIS 476 ( Ky. 1939 ).

9.—Waiver by Appearance.

Where notice was given upon a bond executed to release a distress for rent and the party appeared and entered his defense and trial was held, he waived his right to object to the notice because it was defective, upon appeal, although it will be tried de novo. Brown v. Gibson, 78 Ky. 602 , 1 Ky. L. Rptr. 335 , 1880 Ky. LEXIS 69 (Ky. Ct. App. 1880).

When information has been filed in the county clerk’s office against a delinquent taxpayer who refuses to list his property for taxation, as required by statute, it is the ministerial duty of county court clerk to issue summons requiring delinquent to appear, and he may be compelled by mandamus proceedings to perform his duty, and although the notice is defective, he waives his right to object by entering his appearance to the proceeding. Fleming v. Sinclair, 58 S.W. 370, 22 Ky. L. Rptr. 499 , 1900 Ky. LEXIS 639 ( Ky. 1900 ).

Cited in:

Commonwealth v. Dummitt, 237 S.W.2d 544, 1951 Ky. LEXIS 773 ( Ky. 1951 ).

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, Prac. & Proc. Forms, 5th Ed., Notice of Motion Against a Constable and his Sureties for his Failure to Execute a Distress—Warrant, and his Failure to Collect Claims or Pay Money Collected, Form 18.11.

Caldwell’s Kentucky Form Book, Prac. & Proc. Forms, 5th Ed., Surety’s Notice of Motion Against Co-Surety for Contribution, Form 201.01.

418.015. No written pleadings required — Judgment.

The motion may be heard and determined upon or without written pleadings, and judgment shall be given according to law and the rules of equity.

History. C. C. 449: trans. Acts 1952, ch. 84, § 1, effective July 1, 1953.

NOTES TO DECISIONS

1.Written Pleadings.

Judgment may be had on motion by a surety against his cosurety for money paid, and the motion may be determined upon or without written pleadings, and a proceeding against a cosurety by cross petition for contribution after judgment against him is only an irregularity. Fritts v. Kirchdorfer, 136 Ky. 643 , 124 S.W. 882, 1910 Ky. LEXIS 525 ( Ky. 1910 ).

An action to satisfy a judgment for debt and seeking possession of property on which the execution defendant resided and was claiming a homestead under the statute, is a summary proceeding and the pleadings are not required to be in writing. J. M. Robinson, Norton & Co. v. Burnett, 174 Ky. 766 , 192 S.W. 871, 1917 Ky. LEXIS 253 ( Ky. 1917 ).

2.—Discretion of Court.

In a proceeding by motion upon claimants bond, it is within the discretion of the court to determine whether it shall be heard upon, or without, written pleadings. Couchman's Adm'r v. Maupin, 78 Ky. 33 , 1879 Ky. LEXIS 53 ( Ky. 1879 ).

3.—Determination by Parties.

In an action for rent due for storage of personal property where the property has been levied upon in the assignee of the owner filed a claimant’s bond, a motion for judgment on the bond may be heard upon, or without, written pleading, but if the parties see proper to commence such pleadings, the case should be treated as if written pleadings had been required. Sargent v. Farrar's Assignee, 11 Ky. Op. 2, 2 Ky. L. Rptr. 212 , 1881 Ky. LEXIS 95 (Ky. Ct. App. Feb. 1, 1881).

A motion for a writ of possession upon a deed executed by the sheriff under an execution sale of land may be heard and determined in the Circuit Court upon, or without, written pleadings, but if the parties determine that it is proper to proceed by pleadings the case should be treated as if written pleadings were required and the action is triable by the chancellor in equity. Ashcraft v. Bowling, 193 Ky. 31 , 234 S.W. 945, 1921 Ky. LEXIS 180 ( Ky. 1921 ).

4.—Defenses.

Where motion by an execution purchaser for writ of possession, under KRS 426.260 , of lands purchased at sale was resisted upon the ground that purchaser had made an agreement with him to purchase the land and hold it in trust for him and allow him to redeem by payment of purchaser’s debt and interest, such motion was triable by the chancellor under the summary proceedings provisions, and the defense being purely an equitable one need not be in writing and the burden of proof was upon the defendant. Scott v. Mitchell, 39 S.W. 507, 19 Ky. L. Rptr. 218 (1897).

Where an execution defendant interposes a defense to a motion for writ of possession, that there existed an unsatisfied mortgage upon the land and that the purchaser only acquired a lien with ten percent (10%) interest thereon, it is not necessary that the defense to the motion be in writing. Kennedy v. Weber, 64 S.W. 514, 23 Ky. L. Rptr. 879 , 1901 Ky. LEXIS 450 (Ky. Ct. App. 1901).

5.—Response to Notice.

Where an attachment bondsman was required by rule to appear in court to show cause, if he could, why judgment should not be rendered against him on the bond, it was not necessary for him to file a response to the notice, and judgment taken against him at a later date than set out in notice was void. Nunnelley v. Nunnelley, 224 Ky. 345 , 6 S.W.2d 273, 1928 Ky. LEXIS 596 ( Ky. 1928 ).

6.Judgment.

Where the defendant bondsman appeared on the day specified in a rule against him to show cause why judgment should not be rendered against him on his bond and the plaintiff failed to appear, the rule was deemed abandoned and the court erred in granting the plaintiff judgment at a later date than that set out in the notice when the defendant was not present. Nunnelley v. Nunnelley, 224 Ky. 345 , 6 S.W.2d 273, 1928 Ky. LEXIS 596 ( Ky. 1928 ).

7.Appeal.

A motion by a surety against his cosurety for contribution is a common law proceeding, and in order to obtain a review of the proceedings on appeal, there must be filed, grounds and motion, for a new trial. Carr v. Brownlee, 102 Ky. 160 , 42 S.W. 1099, 19 Ky. L. Rptr. 1163 , 1897 Ky. LEXIS 67 ( Ky. 1897 ).

While it is not necessary for pleadings to be in writing in a motion for judgment on claimant’s bond in execution proceedings, court on appeal can only consider matters that are in the record and those contained in the bill of exceptions. Butcher v. Corbin Hardware & Furniture Co., 244 Ky. 632 , 51 S.W.2d 931, 1932 Ky. LEXIS 486 ( Ky. 1932 ).

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, Prac. & Proc. Forms, 5th Ed., Bond of Purchaser of Property Sold by Order of Court, Form 151.15.

Caldwell’s Kentucky Form Book, Prac. & Proc. Forms, 5th Ed., Complaint in Action by Surety Against a Co-Surety for Contribution, Form 201.02.

Caldwell’s Kentucky Form Book, Prac. & Proc. Forms, 5th Ed., Notice by Surety, After Paying Debt, of Motion Against Principal for Judgment, Form 201.05.

Caldwell’s Kentucky Form Book, Prac. & Proc. Forms, 5th Ed., Surety’s Notice of Motion Against Co-Surety for Contribution, Form 201.01.

418.020. Agreed case may be submitted to court — Affidavit — Proceedings.

Parties to a question which might be the subject of a civil action may, without action, state the question and the facts upon which it depends, and present a submission thereof to any court which would have jurisdiction if an action had been brought. But it must appear by affidavit that the controversy is real, and the proceedings in good faith, to determine the rights of the parties. The court shall, thereupon, hear and determine the case, and render judgment as if an action were pending.

History. C. C. 637: trans. Acts 1952, ch. 84, § 1, effective July 1, 1953.

NOTES TO DECISIONS

1.Construction.

This section deals with an agreed case which might be the subject of a civil suit and not with a case where the action is actually brought; thus, in a petition in equity to determine ownership of land and for sale thereof, which is a suit under KRS 418.040 to 418.090 , the Declaratory Judgment Act, the affidavit provided by this section is not required. Noell v. Webster, 260 Ky. 823 , 86 S.W.2d 1013, 1935 Ky. LEXIS 569 ( Ky. 1935 ).

Case brought under KRS 418.020 is an agreed case only in the sense that parties engaged in a real controversy can mutually agree to ward off a potential civil action by asking the court to render judgment as if an action were pending. Section 418.020 allows parties in good faith disagreement with one another to seek a judicial resolution of their controversy, but it does not allow parties with no controversy between them to seek a judicial affirmation of their mutually-held position. Appalachian Racing, LLC v. Family Trust Found. of Ky., Inc., 423 S.W.3d 726, 2014 Ky. LEXIS 88 ( Ky. 2014 ).

2.Jurisdiction.

Incumbent was not entitled to a writ of mandamus because a candidate's declaratory judgment action was not a challenge to his bona fides, but was a challenge to the statute that prevented him from being a bona fide candidate, the incumbent failed to satisfy the threshold criteria for obtaining relief by an original action, and there was no sufficient showing that the court lacked subject-matter jurisdiction or acted erroneously within its jurisdiction to the incumbent's irreparable detriment. Davis v. Wingate, 2014 Ky. App. LEXIS 147 (Ky. Ct. App. June 10, 2014), aff'd, 437 S.W.3d 720, 2014 Ky. LEXIS 352 ( Ky. 2014 ).

3.Application.

Testimony did not authorize the conclusion that the parties intended a proceeding under this section or a common-law arbitration of their differences or to make the county judge their sole arbitrator by divesting him of his original judicial functions in the matter for, at most, the testimony disclosed only an effort on the part of the respective parties to ascertain the opinion of the county judge in advance of a settlement that was then and there incumbent upon the guardian to make after his removal became final. Stringer v. Stringer, 273 Ky. 251 , 116 S.W.2d 324, 1938 Ky. LEXIS 619 ( Ky. 1938 ).

4.—Proper.

Declaratory judgment action was entirely appropriate and brought against the proper party of county attorney where county attorney repeatedly requested county development authority member to resign from the authority and repeatedly threatened to criminally prosecute her because of her status as a shareholder, director and officer of business relocating its manufacturing facility in the county and despite her compliance with the authority’s conflict of interest policy. Hammond v. Smith, 930 S.W.2d 408, 1996 Ky. App. LEXIS 163 (Ky. Ct. App. 1996).

5.Proper.

Declaratory action was properly brought under KRS 418.020 by racing associations that sought to determine the validity of a new regulation pertaining to gambling. A justiciable controversy existed because the associations were concerned about possible criminal violations; and with regard to separation of powers, such determinations of validity fall within the judiciary’s role. Family Trust Found., of Ky. Inc. v. Ky. Horse Racing Comm'n, 2012 Ky. App. Unpub. LEXIS 1009 (Ky. Ct. App. June 15, 2012), aff'd in part and rev'd in part, 423 S.W.3d 726, 2014 Ky. LEXIS 88 ( Ky. 2014 ).

6.Statement of Question and Facts.

An action seeking to determine the conflict of an ordinance enacted by a city council providing the amount of the salary of gas expert and the general law passed by the legislature, pursuant to the constitution, regarding the governing of municipalities of that class city, may be submitted to the court by the parties thereto, by stating the question and facts on which it depends, but any matters of law stated in the agreement are not binding on the court; it must determine the law for itself. Louisville v. Vreeland, 140 Ky. 400 , 131 S.W. 195, 1910 Ky. LEXIS 284 ( Ky. 1910 ).

The stipulation of the facts obviated the necessity for further pleading, and entitled the parties to rely upon right arising out of the facts stated. Lindsey v. Home Ins. Co., 244 Ky. 580 , 51 S.W.2d 924, 1932 Ky. LEXIS 483 ( Ky. 1932 ). See Cowan v. Pursifull, 250 Ky. 670 , 63 S.W.2d 788, 1933 Ky. LEXIS 748 ( Ky. 1933 ).

The legal question presented for adjudication in an agreed case under this section should be very clear and specific. Matthews v. Ward, 350 S.W.2d 500, 1961 Ky. LEXIS 112 ( Ky. 1961 ).

7.Splitting Actions.

The rule against splitting actions is for the benefit of the defendant who may, if he chooses, consent that several actions may be brought when one would answer. So if the parties make up an agreed case, under the statute, and the defendant consents that only one item of damage, among several that were caused by a wrongful act, may be submitted in the agreed case, the judgment in the agreed case will not bar an action by the injured party to recover damages for the other items of loss sustained. Harp v. Southern R. Co., 150 Ky. 564 , 150 S.W. 663, 1912 Ky. LEXIS 934 ( Ky. 1912 ).

8.Appeal.

An appeal to Court of Appeals in an agreed case brought under this section where the amount in controversy is less than $2,500 must be prosecuted by motion for appeal under the provisions of KRS 21.080 (now repealed) and RCA1.180. Matthews v. Ward, 350 S.W.2d 500, 1961 Ky. LEXIS 112 ( Ky. 1961 ).

9.—Election of School Board Members.

The Court of Appeals had the authority to review the merits of a declaratory judgment action concerning the election of school board members and alternate board members in a merged district because of the confusion which would result if the situation were not rectified. Appeal of Muhlenberg County Bd. of Education, 714 S.W.2d 168, 1986 Ky. App. LEXIS 1194 (Ky. Ct. App. 1986).

10.Real Controversy.

Where in a proceeding for the construction of a will to determine what estate the devisee took thereunder, the record failed to show that a controversy existed, and no affidavit was filed as required by this section, the court had no jurisdiction to render judgment. Ex parte Whalen, 39 S.W. 35, 18 Ky. L. Rptr. 1112 (1897).

There can be a “justiciable controversy” when an advance determination would eliminate or minimize the risk of wrong action or mistakes by any of the parties; justiciability turns on evaluating the appropriateness of issues for decision and the hardship of denying relief and jurisdiction can be imposed even though there may be a legislative remedy. McConnell v. Commonwealth, 655 S.W.2d 43, 1983 Ky. App. LEXIS 339 (Ky. Ct. App. 1983), overruled, Appalachian Racing, LLC v. Family Trust Found. of Ky., Inc., 423 S.W.3d 726, 2014 Ky. LEXIS 88 ( Ky. 2014 ).

It is not the function of the court to render advisory or academic opinions and it cannot be in the business of reviewing or intervening in the desired or proposed executive decision making process. McConnell v. Commonwealth, 655 S.W.2d 43, 1983 Ky. App. LEXIS 339 (Ky. Ct. App. 1983), overruled, Appalachian Racing, LLC v. Family Trust Found. of Ky., Inc., 423 S.W.3d 726, 2014 Ky. LEXIS 88 ( Ky. 2014 ).

Agreed case to determine whether infrared breath tester was “chemical test” presented a “justiciable controversy” because advance determination would minimize the risk of wrong action by the parties, and because a useful public purpose could be served by a judicial adjudication at the time; the requested declaration was both reasonable and necessary within the purview and design of this section. McConnell v. Commonwealth, 655 S.W.2d 43, 1983 Ky. App. LEXIS 339 (Ky. Ct. App. 1983), overruled, Appalachian Racing, LLC v. Family Trust Found. of Ky., Inc., 423 S.W.3d 726, 2014 Ky. LEXIS 88 ( Ky. 2014 ).

Despite the absence of designated antagonistic parties in an agreed case brought by county and state officials to resolve question of whether infrared breath tester qualified as “chemical test” under KRS 186.565 (now repealed), the issue had an immediacy and a useful public purpose could be served by a judicial adjudication; the issue was an immediate, prominent, and nonacademic concern to the public which the petitioning officials served and jurisdiction of the court in such case fell in the discretion of the court. McConnell v. Commonwealth, 655 S.W.2d 43, 1983 Ky. App. LEXIS 339 (Ky. Ct. App. 1983), overruled, Appalachian Racing, LLC v. Family Trust Found. of Ky., Inc., 423 S.W.3d 726, 2014 Ky. LEXIS 88 ( Ky. 2014 ).

In a case involving whether the Kentucky Horse Racing Commission has the statutory authority to license the operation of mechanical and electronic devices for wagering on previously run horse races, the trial court erred when it concluded, prior to the intervention of a foundation, that the petition presented a justiciable controversy. However, the intervention of the foundation cured the constitutional infirmity, and the full participation by the foundation before the appellate courts presented a justiciable controversy. Appalachian Racing, LLC v. Family Trust Found. of Ky., Inc., 423 S.W.3d 726, 2014 Ky. LEXIS 88 ( Ky. 2014 ).

11.Vacancy in Office.

Where a sheriff of a county failed to execute bond as required by statute and the county judge declared the office vacant and appointed another to serve, and both were claiming the office, they may institute an action and submit an agreed statement of facts to the court and have it determined, upon such facts, as to which one is entitled to the office of sheriff of the county. Schuff v. Pflanz, 99 Ky. 97 , 35 S.W. 132, 18 Ky. L. Rptr. 25 , 1896 Ky. LEXIS 59 ( Ky. 1896 ).

12.Affidavit.

The circuit court had no jurisdiction to hear and decide an agreed case, under the statute, unless there was an affidavit filed, stating that the controversy was real, and the proceedings were in good faith to determine the rights of the parties. Jones v. Hoffman, 57 Ky. 656 , 1857 Ky. LEXIS 79 ( Ky. 1857 ) (decided under prior law).

When parties agreed upon a case containing the facts upon which the controversy depended, it was required to appear by affidavit that the controversy was real and the proceedings were in good faith to determine the rights of the parties, but the circuit court had jurisdiction when no such affidavit was made in an agreed case and where the agreement only substituted a brief statement on the record for written pleadings, and did not dispense with proof of the facts upon which the judgment of the court was sought. Canaday v. Hopkins, Committee, 70 Ky. 108 , 1870 Ky. LEXIS 7 ( Ky. 1870 ) (decided under prior law).

Cited in:

Bell v. Louisville Bd. of Fire Underwriters, 146 Ky. 841 , 143 S.W. 388, 1912 Ky. LEXIS 154 ( Ky. 1912 ); Louisville v. L. R. Figg Co., 152 Ky. 541 , 153 S.W. 763, 1913 Ky. LEXIS 689 (1913); McKee v. Western Union Tel. Co., 158 Ky. 143 , 164 S.W. 348, 1914 Ky. LEXIS 577 , 51 L.R.A. (n.s.) 439 ( Ky. 1914 ); Cochran’s Ex’x v. Commonwealth, 241 Ky. 656 , 44 S.W.2d 603, 1931 Ky. LEXIS 147 , 78 A.L.R. 710 ( Ky. 1931 ); Unemployment Compensation Co. v. Consolidation Coal Co., 287 Ky. 330 , 152 S.W.2d 971, 1941 Ky. LEXIS 538 ( Ky. 1941 ); Dobbins v. Louisville, 313 Ky. 720 , 233 S.W.2d 423, 1950 Ky. LEXIS 968 ( Ky. 1950 ); Queenan v. Louisville, 313 Ky. 816 , 233 S.W.2d 1010, 1950 Ky. LEXIS 998 ( Ky. 1950 ); Galewood v. Pickett, 314 Ky. 125 , 234 S.W.2d 489, 1950 Ky. LEXIS 1035 (Ky. 1950); Price v. Louisville, 237 S.W.2d 840, 1951 Ky. LEXIS 778 ( Ky. 1951 ); Shamburger v. Commonwealth, 240 S.W.2d 636, 1951 Ky. LEXIS 1014 ( Ky. 1951 ); Shamburger v. Duncan, 244 S.W.2d 759, 1951 Ky. LEXIS 1247 (Ky. 1951); Schmidt v. Shelby County, 246 S.W.2d 141, 1952 Ky. LEXIS 620 ( Ky. 1952 ); Chrisman v. Cumberland Coach Lines, 249 S.W.2d 782, 1952 Ky. LEXIS 865 ( Ky. 1952 ); Ralston v. Middlesboro, 251 S.W.2d 233, 1952 Ky. LEXIS 902 (Ky. 1952); Maysville v. Kenton, 252 S.W.2d 39, 1952 Ky. LEXIS 976 (Ky. 1952); Shamburger v. Duncan, 253 S.W.2d 388, 1952 Ky. LEXIS 1090 (Ky. 1952); Riehl v. Kentucky Unemployment Compensation Com., 256 S.W.2d 354, 1952 Ky. LEXIS 1150 (Ky. 1952); Duncan v. Queenan, 259 S.W.2d 60, 1953 Ky. LEXIS 930 ( Ky. 1953 ); Louisville Municipal Housing Com. v. Public Housing Administration, 261 S.W.2d 286, 1953 Ky. LEXIS 997 ( Ky. 1953 ); Board of Education v. Citizens Fidelity Bank & Trust Co., 263 S.W.2d 112, 1953 Ky. LEXIS 1148 (Ky. 1953); Southern Bell Tel. & Tel. Co. v. Commonwealth, 266 S.W.2d 308, 1954 Ky. LEXIS 795 ( Ky. 1954 ); Curtis v. Van Arsdale, 277 S.W.2d 19, 1955 Ky. LEXIS 454 ( Ky. 1955 ); Iroquois Post, A. L. v. Louisville, 279 S.W.2d 13, 1955 Ky. LEXIS 502 ( Ky. 1955 ); Board of Education v. Tierney, 280 S.W.2d 201, 1955 Ky. LEXIS 148 (Ky. 1955); Hennessy v. Stewart, 283 S.W.2d 719, 1955 Ky. LEXIS 327 (Ky. 1955); Sharp's Adm'r v. Sharp's Adm'r, 284 S.W.2d 673, 1955 Ky. LEXIS 38 (Ky. 1955); Japs v. Board of Education, 291 S.W.2d 825, 1956 Ky. LEXIS 402 ( Ky. 1956 ); Hancock v. Queenan, 294 S.W.2d 92, 1956 Ky. LEXIS 117 ( Ky. 1956 ); Barnes v. Adams, 305 S.W.2d 754, 1957 Ky. LEXIS 325 ( Ky. 1957 ); Curtis v. Louisville & Jefferson County Metropolitan Sewer Dist., 311 S.W.2d 378, 1958 Ky. LEXIS 185 ( Ky. 1958 ); Krumpelman v. Louisville & Jefferson County Metropolitan Sewer Dist., 314 S.W.2d 557, 1958 Ky. LEXIS 310 ( Ky. 1958 ); Wright v. Oates, 314 S.W.2d 952, 1958 Ky. LEXIS 324 (Ky. 1958); Industrial Development Authority v. Eastern Kentucky Regional Planning Com., 332 S.W.2d 274, 1960 Ky. LEXIS 142 ( Ky. 1960 ); Veith v. Louisville, 355 S.W.2d 295, 1962 Ky. LEXIS 64 ( Ky. 1962 ); Grimm v. Moloney, 358 S.W.2d 496, 1962 Ky. LEXIS 180 ( Ky. 1962 ); Gregory v. Lewisport, 369 S.W.2d 133, 1963 Ky. LEXIS 70 ( Ky. 1963 ); Fyffe v. Fyffe, 375 S.W.2d 407, 1964 Ky. LEXIS 419 ( Ky. 1964 ); Powell v. Offutt, 380 S.W.2d 209, 1964 Ky. LEXIS 281 ( Ky. 1964 ); Hallahan v. Sawyer, 390 S.W.2d 664, 1965 Ky. LEXIS 368 ( Ky. 1965 ); City Utility Com. v. Civil Service Com., 396 S.W.2d 801, 1965 Ky. LEXIS 133 ( Ky. 1965 ); Texas American Energy Corp. v. Citizens Fidelity Bank & Trust Co., 736 S.W.2d 25, 1987 Ky. LEXIS 235 ( Ky. 1987 ); AK Steel Corp. v. Commonwealth, 87 S.W.3d 15, 2002 Ky. App. LEXIS 1921 (Ky. Ct. App. 2002).

Research References and Practice Aids

Journal of Mineral Law & Policy.

Comments, Injected Gas: Realty or Personalty, 3 J.M.L. & P., 571 (1988).

Treatises

Caldwell’s Kentucky Form Book, Prac. & Proc. Forms, 5th Ed., Practice Context for Agreed Case, § 40.00.

418.025. Record.

The case, the submission and the judgment shall constitute the record.

History. C. C. 638: trans. Acts 1952, ch. 84, § 1, effective July 1, 1953.

NOTES TO DECISIONS

Cited in:

Schmidt v. Shelby County, 246 S.W.2d 141, 1952 Ky. LEXIS 620 ( Ky. 1952 ).

418.030. Judgment — Appeal.

The judgment shall be with costs, and may be enforced, and shall be subject to reversal, in the same manner as if it had been rendered in an action, unless otherwise provided in the submission.

History. C. C. 639: trans. Acts 1952, ch. 84, § 1, effective July 1, 1953.

NOTES TO DECISIONS

1.Elections.

In an agreed case submitted under KRS 418.020 and this section, the trial court judgment that a vacancy occurred in the office of judge of circuit court more than three months before the general election and that the county clerk had to place the names of the nominees for the office upon the ballots was affirmed. Hancock v. Queenan, 294 S.W.2d 92, 1956 Ky. LEXIS 117 ( Ky. 1956 ).

2.Motion for Appeal.

An appeal in an agreed case brought under KRS 418.020 , where the amount in controversy is less than $2,500, must be prosecuted by motion for appeal under the provisions of KRS 21.080 (now repealed) and RCA 1.180. Matthews v. Ward, 350 S.W.2d 500, 1961 Ky. LEXIS 112 ( Ky. 1961 ).

418.040. Plaintiff may obtain declaration of rights if actual controversy exists.

In any action in a court of record of this Commonwealth having general jurisdiction wherein it is made to appear that an actual controversy exists, the plaintiff may ask for a declaration of rights, either alone or with other relief; and the court may make a binding declaration of rights, whether or not consequential relief is or could be asked.

History. C. C. 639a-1: amend. Acts 1922, ch. 83, § 1; trans. Acts 1952, ch. 84, § 1.

NOTES TO DECISIONS

Analysis

1.Constitutionality.

Declaratory judgment act, KRS 418.040 to 418.090 , is constitutional. Black v. Elkhorn Coal Corp., 233 Ky. 588 , 26 S.W.2d 481, 1930 Ky. LEXIS 603 ( Ky. 1930 ).

2.Purpose.

It was not the purpose of the declaratory judgment act to impose on courts the burden of answering abstract and speculative propositions of law simply to satisfy the curiosity or fears of parties about possible controversies that may or may not arise out of their executed contract. Shearer v. Backer, 207 Ky. 455 , 269 S.W. 543, 1925 Ky. LEXIS 112 ( Ky. 1925 ).

Primary purpose of the declaratory judgment act is to relieve litigants of the common-law rule that no declaration of rights may be judicially adjudged unless a right has been violated, for the violation of which, relief may be granted. The statute is only applicable, however, when “it is made to appear that an actual controversy exists.” De Charette v. St. Matthews Bank & Trust Co., 214 Ky. 400 , 283 S.W. 410, 1926 Ky. LEXIS 354 ( Ky. 1926 ).

Declaratory judgment action was never intended as a substitute for a new trial, or other steps that code requires to be taken in the same action, or for an appeal to the Court of Appeals. Back's Guardian v. Bardo, 234 Ky. 211 , 27 S.W.2d 960, 1930 Ky. LEXIS 151 ( Ky. 1930 ).

The purpose of the declaratory judgment act was to have a declaration of rights not theretofore determined, and not to determine whether rights theretofore adjudicated had been properly adjudicated. Back's Guardian v. Bardo, 234 Ky. 211 , 27 S.W.2d 960, 1930 Ky. LEXIS 151 ( Ky. 1930 ). See Ferree v. Ferree, 273 Ky. 238 , 115 S.W.2d 1055, 1938 Ky. LEXIS 598 ( Ky. 1938 ).

The purpose of the declaratory judgment act is to make courts more serviceable in the settlement of controversies and afford relief from uncertainty and insecurity with respect to rights. Continental Ins. Co. v. Riggs, 277 Ky. 361 , 126 S.W.2d 853, 1939 Ky. LEXIS 676 ( Ky. 1939 ).

3.Construction.

The declaratory judgment act is to be liberally interpreted and administered, and should not be used as a technical bar to the administration of justice. Continental Ins. Co. v. Riggs, 277 Ky. 361 , 126 S.W.2d 853, 1939 Ky. LEXIS 676 ( Ky. 1939 ).

Declaratory judgment statute is very liberal with respect to both procedural and judicial discretion but courts should not decide speculative rights or duties although future contingencies may develop an actual justiciable controversy, and act expressly provides that Court of Appeals may in its discretion direct dismissal of the case in the trial court where it is considered to be necessary or proper under the circumstances, the same being without prejudice. Board of Education v. Muncy, 239 S.W.2d 471, 1951 Ky. LEXIS 893 ( Ky. 1951 ).

As a rule, the court has broad discretion to grant declaratory relief. The party seeking relief must show that an actual, justiciable controversy exists; proceedings for a declaratory judgment must not merely seek advisory answers to abstract questions. Mammoth Med., Inc. v. Bunnell, 265 S.W.3d 205, 2008 Ky. LEXIS 224 ( Ky. 2008 ).

Although the adult citizen sought a declaration pursuant to KRS 418.040 that the statutes and regulations allowing the adult citizen to be investigated based an unidentified hotline caller’s claim that the adult citizen had sexually abused a minor were unconstitutional, and assertions that the statutes and regulations were unconstitutional could avoid the normal KRS 13B.140(2) exhaustion-of-administrative remedies requirement, that did not mean the adult citizen’s contention was ripe for review. Indeed, the state supreme court found that in its discretion pursuant to KRS 418.065 it could find that review of the trial and appellate court’s judgment finding the statutes and regulations were constitutional were not ripe for review and order further proceedings, as the administrative proceedings had not even been concluded. W.B. v. Commonwealth, 388 S.W.3d 108, 2012 Ky. LEXIS 200 ( Ky. 2012 ).

4.Application.

Although action was purportedly brought under the declaratory judgment act, the action was in no way a declaratory judgment action where an amended petition for commission against vendor was filed and the action was transferred to the ordinary docket and the time for filing of record on appeal under the declaratory judgment act did not apply. Pigg v. Roberts, 311 Ky. 858 , 226 S.W.2d 35, 1950 Ky. LEXIS 570 ( Ky. 1950 ).

Inmate’s declaratory judgment action, despite alleging that his Fourteenth Amendment due process rights were violated, was actually premised on a state law personal injury claim; thus, it was subject to a one-year limitations period under KRS 413.140 . Million v. Raymer, 136 S.W.3d 460, 2004 Ky. LEXIS 146 ( Ky. 2004 ).

Inmate transferred from a Virginia correctional facility to a Kentucky correctional facility was not entitled to have Virginia’s prison disciplinary rules and regulations applied while incarcerated in the Kentucky facility under the Interstate Corrections Compact (ICC), KRS 196.610 , because both the implementing transfer contract and art. IV(e) of the ICC indicated that the prison rules and regulations of the receiving state, Kentucky, applied and requiring receiving states to learn the policies and procedures of each sending state would have thwarted the ICC’s purpose of developing a cooperative prison program; thus, the inmate’s request for declaratory relief was properly decided adversely to the inmate. Vigue v. Underwood, 139 S.W.3d 168, 2004 Ky. App. LEXIS 24 (Ky. Ct. App. 2004).

Since a federal declaratory judgment would resolve the parties’ dispute about whether an insurance policy covered a child’s injuries, and since the issue of insurance coverage was not before the state court in the child’s lawsuit against the insureds, and since the court could resolve the controversy based on undisputed facts, even though the controversy was governed by the Kentucky law and the insurer could have brought a declaratory judgment action in state court per KRS 418.040 , the district court exercised its discretion to exercise jurisdiction over the insurance dispute pursuant to the Declaratory Judgment Act, 28 U.S.C.S. § 2201(a). Nationwide Mut. Fire Ins. Co. v. Creech, 431 F. Supp. 2d 710, 2006 U.S. Dist. LEXIS 31877 (E.D. Ky. 2006 ).

Single declaratory judgment action pursuant to KRS 418.040 and the civil rules was the appropriate vehicle for determination of all issues regarding implementation of the death penalty which were not cognizable in a defendant’s criminal action; when a capital defendant filed a declaratory judgment action, he had to join all claims then available to him with regard to the implementation of his judgment because res judicata would apply full force to bar successive declaratory judgment actions. Bowling v. Ky. Dep't of Corr., 301 S.W.3d 478, 2009 Ky. LEXIS 291 ( Ky. 2009 ), writ denied, 336 S.W.3d 98, 2011 Ky. LEXIS 31 ( Ky. 2011 ).

5.Exclusiveness of Remedy.

Courts have no jurisdiction to declare an employee’s rights as to time for which he should be allowed compensation, since Workers’ Compensation Board has exclusive original jurisdiction to determine matters within purview of workers’ compensation act. Moore v. Louisville Hydro-Electric Co., 226 Ky. 20 , 10 S.W.2d 466, 1928 Ky. LEXIS 19 ( Ky. 1928 ).

In proceeding under the declaratory judgment act for construction of a statute, the purpose is to give effect to the legislative intent and the will of the Legislature, not its words, are the law; thus, the letter of a statute will not be followed where it leads to an absurd conclusion. Martin v. Louisville Motors, 276 Ky. 696 , 125 S.W.2d 241, 1939 Ky. LEXIS 584 ( Ky. 1939 ).

A declaratory judgment act is not a substitute or alternative for such actions as are particularly provided for, to be brought in a particular way, and one claiming the right to possession of land is not entitled to substitute declaratory procedure for such, as is specifically provided. Sullenger v. Sullenger's Adm'x, 287 Ky. 232 , 152 S.W.2d 571, 1941 Ky. LEXIS 511 ( Ky. 1941 ).

Declaratory relief is not an exclusive but an alternative remedy and will not be denied merely because another remedy is available. Maas v. Maas, 305 Ky. 490 , 204 S.W.2d 798, 1947 Ky. LEXIS 844 ( Ky. 1947 ).

Since under this section a court may make a binding declaration of rights, whether or not consequential relief is or could be asked, a declaratory judgment is not conditioned on the possibility of obtaining executory relief. Maas v. Maas, 305 Ky. 490 , 204 S.W.2d 798, 1947 Ky. LEXIS 844 ( Ky. 1947 ).

Right to bring declaratory judgment action did not supersede right to entertain a proper bill of interpleader to determine the distribution of royalties under three (3) oil and gas leases where the widow and mother of lessors claimed dower interest in the royalties. Yost v. Ratliff, 246 S.W.2d 447, 1951 Ky. LEXIS 1277 ( Ky. 1951 ).

The right to bring a declaratory judgment action does not supersede other appropriate remedies. Yost v. Ratliff, 246 S.W.2d 447, 1951 Ky. LEXIS 1277 ( Ky. 1951 ).

Except when clear statutory remedies are exclusive, a combination of declaratory judgment action with other remedies is generally permissible and advantageous in that the merits will be considered if any one of the remedies sought is found to be appropriate. Fontaine v. Department of Finance, 249 S.W.2d 799, 1952 Ky. LEXIS 872 ( Ky. 1952 ).

The existence of another adequate remedy does not preclude a judgment for declaratory relief in appropriate cases, for it is only where a special statute is clearly intended to provide an exclusive remedy that relief under the declaratory judgment act is not available. Iroquois Post, A. L. v. Louisville, 279 S.W.2d 13, 1955 Ky. LEXIS 502 ( Ky. 1955 ).

Where a prisoner sought to reduce his sentence by forcing the board of corrections to award him “good time” credit for time spent in jail prior to his conviction and sentence, habeas corpus was not an exclusive remedy and the prisoner could appropriately seek a declaratory judgment. Polsgrove v. Kentucky Bureau of Corrections, 559 S.W.2d 736, 1977 Ky. LEXIS 560 ( Ky. 1977 ).

6.Injunctive Relief.

An action for injunctive relief to prevent multifarious prosecutions can be maintained when validity of a statute or ordinance is involved and such relief can be granted in a proceeding under declaratory judgment act. Harrodsburg v. Southern R. Co., 278 Ky. 10 , 128 S.W.2d 233, 1939 Ky. LEXIS 389 ( Ky. 1939 ).

7.Actual Controversy.

Declaratory judgment act plainly contemplates that there shall be an actual interest in the subject matter of the action, or between persons whose rights or duties are affected by the statute sought to be construed. Axton v. Goodman, 205 Ky. 382 , 265 S.W. 806, 1924 Ky. LEXIS 106 ( Ky. 1924 ).

Where none of defendants has any duties to perform nor any rights that will be affected by the presence or absence of inspectors or challengers at polls, the case presents a mere difference of opinion, and not an actual controversy between parties in interest. Axton v. Goodman, 205 Ky. 382 , 265 S.W. 806, 1924 Ky. LEXIS 106 ( Ky. 1924 ).

Courts are not provided for the settlement of arguments or differences of opinion, but actual legal controversies involving legal rights. Kelly v. Jackson, 206 Ky. 815 , 268 S.W. 539, 1925 Ky. LEXIS 1039 ( Ky. 1925 ).

Questions already adjudicated by a court having jurisdiction of the subject matter and the parties cannot thereafter be the subject of “an actual controversy” between such parties and their privies, within the meaning of the declaratory judgment act. Shearer v. Backer, 207 Ky. 455 , 269 S.W. 543, 1925 Ky. LEXIS 112 ( Ky. 1925 ).

The court will not decide speculative rights or duties which may or may not arise in the future, but only rights and duties about which there is a present actual controversy presented by adversary parties, and in which a binding judgment concluding the controversy may be entered. Black v. Elkhorn Coal Corp., 233 Ky. 588 , 26 S.W.2d 481, 1930 Ky. LEXIS 603 ( Ky. 1930 ). Also see Axton v. Goodman, 205 Ky. 382 , 265 S.W. 806, 1924 Ky. LEXIS 106 ( Ky. 1924 ); Shearer v. Backer, 207 Ky. 455 , 269 S.W. 543, 1925 Ky. LEXIS 112 ( Ky. 1925 ); Nichols v. Rogers, 292 Ky. 428 , 166 S.W.2d 867, 1942 Ky. LEXIS 103 ( Ky. 1942 ); Veith v. Louisville, 355 S.W.2d 295, 1962 Ky. LEXIS 64 ( Ky. 1962 ).

The declaratory judgment act does not confer or purport to confer nonjudicial power on court, but the existence of an actual controversy respecting justiciable questions is a condition precedent to an action under the act. Black v. Elkhorn Coal Corp., 233 Ky. 588 , 26 S.W.2d 481, 1930 Ky. LEXIS 603 ( Ky. 1930 ).

If an actual controversy exists and the controversy is one of the justiciable character necessary to meet the demands if the act, the remedy may be invoked. Jefferson County ex rel. Coleman v. Chilton, 236 Ky. 614 , 33 S.W.2d 601, 1930 Ky. LEXIS 789 ( Ky. 1930 ).

Questions which have been adjudicated by a court having jurisdiction of the subject matter cannot thereafter be the subject of an actual controversy within the meaning of this section between those parties for their privies. Jefferson County ex rel. Coleman v. Chilton, 236 Ky. 614 , 33 S.W.2d 601, 1930 Ky. LEXIS 789 ( Ky. 1930 ).

An actual controversy existed between city and county governing authorities relative to care of paupers residing within the city limits and either could seek a settlement of the controversy under the declaratory judgment act. Richmond v. Madison County Fiscal Court, 290 Ky. 293 , 161 S.W.2d 58, 1942 Ky. LEXIS 398 ( Ky. 1942 ). See Paducah v. McCracken County, 305 Ky. 539 , 204 S.W.2d 942, 1947 Ky. LEXIS 857 ( Ky. 1947 ).

The court in a declaratory judgment action will not decide speculative rights or duties which may or may not arise in the future, but only rights and duties about which there is a present actual controversy presented by adversary parties. Commonwealth ex rel. Watkins v. Winchester Water Works Co., 303 Ky. 420 , 197 S.W.2d 771, 1946 Ky. LEXIS 849 ( Ky. 1946 ).

In a suit for a declaration of rights seeking the construction of a will where significant questions concerning the construction of the will are properly presented, a general demurrer must be taken to admit that an actual controversy existed. Jasper v. Jasper, 275 S.W.2d 412, 1954 Ky. LEXIS 1249 ( Ky. 1954 ).

Where the city of Louisville and the Louisville Water Company, Inc. sought a declaration of rights against the Kentucky department of highways to determine the respective share of each in the expense of relocating and installing fire hydrants, there was a sufficient public interest to justify a declaratory judgment. Louisville v. Commonwealth Dep't of Highways, 468 S.W.2d 295, 1971 Ky. LEXIS 332 ( Ky. 1971 ).

Since relief by way of declaratory judgment is conditioned on the existence of an actual controversy, it is not incumbent on the court to decide questions that may never arise. Alexander v. Hicks, 488 S.W.2d 336, 1972 Ky. LEXIS 37 ( Ky. 1972 ).

Where there was a real and immediate actual controversy existing as to what constituted compliance with zoning laws and whether the landowners properly complied with the statute in lodging the plat for record, and whether the county clerk complied in putting it to record, the complaint was a proper one for judicial determination. McCord v. Pineway Farms, 569 S.W.2d 690, 1978 Ky. App. LEXIS 564 (Ky. Ct. App. 1978).

An actual controversy existed where landowners challenged in Circuit Court the constitutionality of the tax assessment as being arbitrary and unfair, resulting in an $8,000,000.00 increase in tax liability. Barrett v. Reynolds, 817 S.W.2d 439, 1991 Ky. LEXIS 146 ( Ky. 1991 ).

Circuit court properly dismissed two death-row inmates' declaratory judgment complaint because their strong interest in being considered for clemency created an actual controversy as to whether the state officials' alleged failure to adopt clemency standards and procedures violated the federal Due Process Clause, they did not state a claim for relief where the near complete reliance on the Governor for clemency determinations was not at odds with the minimal procedural safeguards, and they did not advance a reason to suppose that the Governor could not or would not provide procedures and decisions to avoid the sort of arbitrariness that might taint a clemency determination. Foley v. Beshear, 462 S.W.3d 389, 2015 Ky. LEXIS 1636 ( Ky. 2015 ), cert. denied, 577 U.S. 1069, 136 S. Ct. 797, 193 L. Ed. 2d 723, 2016 U.S. LEXIS 29 (U.S. 2016).

8.—Absence.

Where no election had been called and no one had any present right to vote on any question that anyone was disputing, the amended petition presented only a moot question and declaratory judgment that certain voters should be permitted to vote was reversed with directions to dismiss the amended petition. Kelly v. Jackson, 206 Ky. 815 , 268 S.W. 539, 1925 Ky. LEXIS 1039 ( Ky. 1925 ).

Question of whether restrictions on alienation had expired could not be determined in an action for declaratory judgment where no one questioned either title or possession, nor was it apparent from the record that there was anyone in existence who could do so and the only existent controversy with anyone that was disclosed was the right of seller to collect and the duty of purchaser to pay the purchase price and this had been disposed of. Shearer v. Backer, 207 Ky. 455 , 269 S.W. 543, 1925 Ky. LEXIS 112 ( Ky. 1925 ).

The declaration of the parties’ rights with respect to the liability of the testatrix’s estate for the balance due on her deceased husband’s mortgage, which was dependent upon whether the property brought a sufficient amount to satisfy the mortgage lien, was not within the scope of the declaratory judgment act since there was no bona fide controversy until a deficiency, if any, had been determined following the sale. Fidelity & Columbia Trust Co. v. Grabfelder, 282 Ky. 730 , 140 S.W.2d 362, 1940 Ky. LEXIS 249 ( Ky. 1940 ).

The court was not in error in refusing to answer queries which sought advice as to whether a certain warrant drawn against the livestock fund, created for the payment of claims for stock killed or injured by dogs, and signed by the county clerk, would or would not have preference over such as had later been issued and duly signed by the sheriff, since no such controversy was set up in the pleading, and holders or any one of a class of holders of such properly signed warrants were not before the court. Renaker v. Thompson, 287 Ky. 241 , 152 S.W.2d 575, 1941 Ky. LEXIS 512 ( Ky. 1941 ).

Where only actual controversy was as to whether financial statement should be published at all, and there was no controversy as to form and contents of statement, no declaration should be made as to form and contents, or as to sufficiency of published statement. Nichols v. Rogers, 292 Ky. 428 , 166 S.W.2d 867, 1942 Ky. LEXIS 103 ( Ky. 1942 ).

There was no actual controversy which is necessary to give a court jurisdiction of a declaratory judgment action where there was no showing that there had been any action on the part of the department of highways such as would indicate even an intention to take action which would necessitate the removal or relocation of the pipelines involved, and a mere expression of fear or expectation on the part of the waterworks company that such action may be taken in the future was not sufficient to meet the actual controversy requirements of this section. Commonwealth ex rel. Watkins v. Winchester Water Works Co., 303 Ky. 420 , 197 S.W.2d 771, 1946 Ky. LEXIS 849 ( Ky. 1946 ).

The Circuit Court should not have made a declaration on the question of whether the salary of a city manager to be chosen in three (3) years would be limited by Ky. Const., § 246, since no semblance of or an actual controversy could be said to presently exist. Ayotte v. Danville, 411 S.W.2d 929, 1967 Ky. LEXIS 494 ( Ky. 1967 ).

Agreement between Kentucky Health and Geriatric Authority and American Convalescent Centers was not final or legally enforceable, being merely a plan of action; consequently, action for declaratory judgment of rights was premature. Greer v. Kentucky Health & Geriatric Authority, 467 S.W.2d 340, 1971 Ky. LEXIS 366 ( Ky. 1971 ).

Corrections Department was entitled to summary judgment on inmate petition for declaratory judgment concerning disciplinary sanctions imposed upon him where inmate did not raise specific and genuine issues of material fact sufficient to overcome presumption that Department had acted correctly. Smith v. O'Dea, 939 S.W.2d 353, 1997 Ky. App. LEXIS 9 (Ky. Ct. App. 1997).

In a case where an inmate sought a declaration that Kentucky’s self-defense statutes, as they existed at the time of his 1991 trial, were unconstitutional under Ky. Const. § 1, relief was not appropriate because no actual controversy was pled. The constitutionality of the self-defense statutes had no foreseeable application to the inmate, who was under six death sentences. Foley v. Commonwealth, 306 S.W.3d 28, 2010 Ky. LEXIS 53 ( Ky. 2010 ).

9.Justiciable Controversy.

The court does not have jurisdiction to decide a question unless in a declaratory judgment action there is a real or justiciable controversy involving specific rights of particular parties. Revis v. Daugherty, 215 Ky. 823 , 287 S.W. 28, 1926 Ky. LEXIS 818 ( Ky. 1926 ). See Commonwealth ex rel. Watkins v. Winchester Water Works Co., 303 Ky. 420 , 197 S.W.2d 771, 1946 Ky. LEXIS 849 ( Ky. 1946 ); Elrod v. Willis, 303 Ky. 724 , 198 S.W.2d 967, 1946 Ky. LEXIS 926 ( Ky. 1946 ); Veith v. Louisville, 355 S.W.2d 295, 1962 Ky. LEXIS 64 ( Ky. 1962 ).

To render controversy justiciable, plaintiff must aver his legal rights in the premises and that defendant claims other or contrary rights, or occupies some official relation thereto with imposed duties which, if exercised, would impair, thwart, obstruct, or defeat plaintiff in his rights. Revis v. Daugherty, 215 Ky. 823 , 287 S.W. 28, 1926 Ky. LEXIS 818 ( Ky. 1926 ).

The declaratory judgment act is constituted on the specific ground that the court would be exercising a judicial power only if, in making a binding declaration of rights, it was deciding a justiciable controversy. Black v. Elkhorn Coal Corp., 233 Ky. 588 , 26 S.W.2d 481, 1930 Ky. LEXIS 603 ( Ky. 1930 ). See Veith v. Louisville, 355 S.W.2d 295, 1962 Ky. LEXIS 64 ( Ky. 1962 ).

Every dispute between lawyers on a subject of law, whether adjective or substantive, is not a justiciable controversy to be settled in a declaratory action. Jefferson County ex rel. Coleman v. Chilton, 236 Ky. 614 , 33 S.W.2d 601, 1930 Ky. LEXIS 789 ( Ky. 1930 ).

Courts will not take jurisdiction in actions brought under the statute unless the alleged controverted questions are justiciable ones which do not include abstract legal questions designed merely to furnish information to the inquirer and which, if jurisdiction was taken, would convert courts into a sort of law school for the instruction of the inquisitive mind. Commonwealth v. Crow, 263 Ky. 322 , 92 S.W.2d 330, 1936 Ky. LEXIS 167 ( Ky. 1936 ).

Sustaining a motion to dismiss the complaint as amended is not the best method of disposing of a declaratory judgment action if the complaint presents a justiciable controversy. Cameron v. Lebow, 338 S.W.2d 399, 1960 Ky. LEXIS 397 ( Ky. 1960 ).

Justiciability turns on evaluating the appropriateness of issues for decision and the hardship of denying relief. Commonwealth v. Carroll County Fiscal Court, 633 S.W.2d 720, 1982 Ky. App. LEXIS 216 (Ky. Ct. App. 1982).

Question of whether county fiscal court had a duty to provide a jail constituted a justiciable controversy over present rights, duties and liabilities, and a declaration on the issue was reasonable and necessary within the purview and design of this section. Commonwealth v. Carroll County Fiscal Court, 633 S.W.2d 720, 1982 Ky. App. LEXIS 216 (Ky. Ct. App. 1982).

Under Robinson v. Ehrler, 691 S.W.2d 200, 1985 Ky. LEXIS 249 ( Ky. 1985 ) , a city and its officials could only proceed with a KRS 418.040 declaratory judgment action if they showed that an election was void, rather than merely voidable. Any allegations of error that fell within the parameters of KRS 120.250 had to be brought in an action pursuant to that statute. City of Pikeville v. Pike County, 297 S.W.3d 47, 2009 Ky. App. LEXIS 37 (Ky. Ct. App. 2009).

In a declaratory judgment action involving trustees and the constraints of former KRS 386.180 , there was a justiciable controversy over present rights, duties or liabilities. The Trustees had not yet sought reasonable fees outside of the former statute’s required maximums, but that did not preclude the case from being resolved; the beneficiaries must compensate the trustees for their services, and the parties disagreed on how that was to be done. Jarvis v. Nat'l City, 410 S.W.3d 148, 2013 Ky. LEXIS 394 ( Ky. 2013 ).

10.—Absence.

Where petition failed to present a justiciable controversy, lower court should have dismissed petition for want of jurisdiction. Revis v. Daugherty, 215 Ky. 823 , 287 S.W. 28, 1926 Ky. LEXIS 818 ( Ky. 1926 ).

An action for a declaration that certain political candidates are disqualified is not cognizable by a court where no justiciable right of the plaintiffs is affected and no actual controversy exists between the plaintiffs and the defendants. Dietz v. Zimmer, 231 Ky. 546 , 21 S.W.2d 999, 1929 Ky. LEXIS 329 ( Ky. 1929 ).

Where, in suit for declaration of rights and injunction restraining filing of list of notes omitted from assessment and issuing attachment, petition merely concluded that “all” of petitioner’s property had been listed for taxation, the petition states nothing from which court can declare a justiciable controversy and demurrer was properly sustained thereto. Commercial Credit Co. v. Martin, 275 Ky. 548 , 122 S.W.2d 135, 1938 Ky. LEXIS 467 ( Ky. 1938 ).

Where document called a “petition” was nothing more than a letter written to the court for advice in the circumstances, no justiciable controversy was presented. Worden v. Louisville, 279 Ky. 712 , 131 S.W.2d 923, 1939 Ky. LEXIS 330 ( Ky. 1939 ).

The petition in a suit against the administratrix of an estate and others for a declaration of rights as to the intestate’s property failed to bring before the court a really justiciable controversy which would have justified the court in making an effort to truly and completely determine the rights of the parties when it showed that there might be a question at some time of the right of the two (2) nieces of the intestate who held deeds to the real property to retain the property conveyed, because of an alleged illegal procurement of the deeds, and it failed to show any issue as to two (2) of the defendants, together with presenting question as to who was entitled to the property about which there was no controversy. Sullenger v. Sullenger's Adm'x, 287 Ky. 232 , 152 S.W.2d 571, 1941 Ky. LEXIS 511 ( Ky. 1941 ).

In declaratory judgment action, court properly sustained demurrer to petition of members of police department under this section to have appointments of successful applicants for higher positions in city police department set aside because city manager had unqualified right to select any member of department to fill positions and the examinations were only of a qualification nature and created no right to appointment. Seiter v. Covington, 290 Ky. 699 , 162 S.W.2d 524, 1942 Ky. LEXIS 475 ( Ky. 1942 ).

The declaratory judgment act confers no right upon residents, taxpayers and citizens to question the eligibility of one nominated in the primary to have his name go on the ballot in the general election, since only a person entitled to the office, the Attorney General or the Commonwealth’s Attorney has authority to bring a suit to question the statutory or constitutional qualifications of a person to hold office. Wells v. Lewis, 300 Ky. 675 , 190 S.W.2d 28, 1945 Ky. LEXIS 627 ( Ky. 1945 ). See Friley v. Becker, 300 Ky. 749 , 190 S.W.2d 355, 1945 Ky. LEXIS 648 ( Ky. 1945 ).

Where there was no showing that there had been any action on the part of the department of highways such as would indicate even an intention to take action which would necessitate the removal or relocation of pipelines, there was at most only an expression of fear or expectation on the part of the plaintiff that such action might be taken in the future which did not present a “justiciable controversy” to give the court jurisdiction in a declaratory judgment action. Commonwealth ex rel. Watkins v. Winchester Water Works Co., 303 Ky. 420 , 197 S.W.2d 771, 1946 Ky. LEXIS 849 ( Ky. 1946 ).

Absent an actual indictment, labor union that was under investigation by the Attorney General for possible campaign finance violations had no legally cognizable basis for declaratory judgment; the mere stigma of a possible indictment was not grounds for a declaratory judgment action. General Drivers, Local Union No. 89 v. Chandler, 968 S.W.2d 680, 1998 Ky. App. LEXIS 40 (Ky. Ct. App. 1998).

Where deeds in the record clearly show that the Commonwealth had fee simple title to the road at issue, deeded to the Commonwealth by the predecessors in title to owners challenging an annexation, and where the owners’ assertion of a reversionary interest was a mere expectancy, and did not create standing as there was no present or substantial direct interest affecting the owners, there was not a “justiciable controversy” giving the trial court jurisdiction of the action for declaratory judgment purposes. Fourroux v. City of Shepherdsville, 148 S.W.3d 303, 2004 Ky. App. LEXIS 301 (Ky. Ct. App. 2004).

Since a motion filed in a Kentucky court to transfer jurisdiction over child support issues from Kansas to Kentucky did not request any substantive relief such as modification of child support, it was not analogous to a declaratory judgment action, and there was no actual controversy respecting justiciable questions as required by KRS 418.040 . Nordike v. Nordike, 231 S.W.3d 733, 2007 Ky. LEXIS 165 ( Ky. 2007 ).

Exception to the mootness doctrine for cases that were capable of repetition, yet evading review was not applied on appeal when a county government’s declaratory judgment action against a newspaper asking for closed council meetings under the litigation exception to the Open Meetings Act was dismissed as moot because the county government did not show that a similarly-situated party would be subject to the same action again. Lexington-Fayette Urban County Gov't v. Lexhl, L.P., 315 S.W.3d 331, 2009 Ky. App. LEXIS 218 (Ky. Ct. App. 2009).

11.Answer or Counterclaim.

Defendants can, in an answer or counterclaim, demand a declaratory judgment on their own behalf, whether or not the plaintiff has asked for one. Greenwell v. Terra Nova, 314 Ky. 813 , 236 S.W.2d 883, 1951 Ky. LEXIS 707 ( Ky. 1951 ).

12.Jurisdiction.

Federal district court in Kentucky had jurisdiction of the parties and the subject matter in a declaratory judgment action by Connecticut corporation against Kentucky residents to determine rights under automobile liability policy issued by the Connecticut corporation. Hartford Accident & Indem. Co. v. Hudson, 124 F. Supp. 666, 1954 U.S. Dist. LEXIS 2910 (D. Ky. 1954 ).

Declaratory judgment action involved construction and effect of the judgments of the criminal branch of the Jefferson Circuit Court and, under the act, should have been filed in that branch of court. Hatzell v. Dover, 208 Ky. 149 , 270 S.W. 723, 1925 Ky. LEXIS 234 ( Ky. 1925 ).

The fact that the Governor certified resolution of Legislature ratifying proposed amendment to the Federal Constitution to the Secretary of State of the United States after suit was filed did not deprive the courts of the jurisdiction already attached to determine the controversy and to make a declaration of rights. Wise v. Chandler, 270 Ky. 1 , 108 S.W.2d 1024, 1937 Ky. LEXIS 16 ( Ky. 1 937 ), cert. dismissed, 303 U.S. 634, 58 S. Ct. 831, 82 L. Ed. 1095, 1938 U.S. LEXIS 94 (U.S. 1938), cert. dismissed, 307 U.S. 474, 59 S. Ct. 992, 83 L. Ed. 1407, 1939 U.S. LEXIS 460 (U.S. 1939).

Under Ky. Const., § 110, Court of Appeals has no original jurisdiction to entertain declaratory judgment actions. Walz v. Northcutt, 278 Ky. 616 , 129 S.W.2d 124, 1939 Ky. LEXIS 466 ( Ky. 1939 ).

It was not the filing of Ohio judgment and the spreading of it upon the Circuit Court order book which gave the Circuit Court jurisdiction where a declaratory judgment proceeding had been filed and the Circuit Court had already taken jurisdiction and the Court of Appeals had reversed the circuit court’s first judgment in the declaratory judgment proceeding and directed that the cause be remanded and the case continued to await the construction of husband’s will by Ohio court and to then dispose of the case in accordance therewith, and dissatisfied heirs could not complain that mandate of Court of Appeals was not complied with. Dotson v. Dotson's Adm'r, 297 Ky. 561 , 180 S.W.2d 285, 1944 Ky. LEXIS 739 ( Ky. 1944 ). See Dotson's Adm'r v. Ferrell, 293 Ky. 470 , 169 S.W.2d 320, 1942 Ky. LEXIS 10 ( Ky. 1942 ).

Defendants waived any jurisdictional objections to declaratory judgment action by failing to file a special demurrer. Todd County v. Bond Bros., 300 Ky. 224 , 188 S.W.2d 325, 1945 Ky. LEXIS 521 ( Ky. 1945 ).

Although it is generally considered that a court has a discretion in exercising power to adjudge in declaratory judgment cases, a court will not take jurisdiction to render a declaratory judgment where another statutory remedy has been especially provided for the character of case presented, nor where the purpose is to affect proceedings which may be taken or pending before a public board which is vested with full power to act in the premises. Black v. Utter, 300 Ky. 803 , 190 S.W.2d 541, 1945 Ky. LEXIS 656 ( Ky. 1945 ).

The Court of Appeals has no authority to consider an original action for a declaratory judgment, because its jurisdiction is limited by Ky. Const., § 111(2) to appellate jurisdiction only, and, under this section, the Circuit Court, not the Court of Appeals is the appropriate forum in which to seek a declaration of rights. Courier-Journal & Louisville Times Co. v. Peers, 747 S.W.2d 125 ( Ky. 1988 ).

Where the estate of a decedent filed a complaint for determination of paternity of a child allegedly fathered by the decedent, although the family court did not have jurisdiction over a paternity action under KRS 406.021 or KRS 406.180 , as the estate was not the proper party to file such a suit, and neither the child nor mother ever lived in the United States, the court had jurisdiction under KRS 418.040 to enter a declaratory judgment as to the child’s paternity. Uninsured Employers' Fund v. Bradley, 244 S.W.3d 741, 2007 Ky. App. LEXIS 403 (Ky. Ct. App. 2007).

Writ of prohibition could not have been granted where appellant had to mediate a criminal matter because neither a county attorney nor a mediator were judicial officers; even if the claims were construed as seeking declaratory or injunctive relief under KRS 418.040 or CR 65.01, they were filed in the wrong court. The Kentucky Court of Appeals was without jurisdiction to address appellant’s claims. Minix v. Roberts, 350 S.W.3d 449, 2011 Ky. LEXIS 134 ( Ky. 2011 ).

Court of appeals erred in granting a health care plan's petition for a writ prohibiting the circuit court from enforcing an order staying discovery in declaratory judgment litigation because the circuit court had subject matter jurisdiction since the award of partial summary judgment and the appeal did not implicate whether it had authority to hear the case. the underlying claims related to the plan's action for ascertaining its right to an early termination of a Medicaid contract. Commonwealth v. Wingate, 460 S.W.3d 843, 2015 Ky. LEXIS 16 ( Ky. 2015 ), modified, 2015 Ky. LEXIS 1703 (Ky. May 14, 2015).

Franklin Circuit Court had subject matter jurisdiction over and was the proper venue for a judicial candidate’s declaratory judgment action for interpretation of the applicable election statutes. Ky. State Bd. of Elections v. Faulkner, 591 S.W.3d 398, 2018 Ky. LEXIS 525 ( Ky. 2018 ).

Because a petition for declaratory judgment by the Board of Trustees of the Kentucky Retirement Systems presented an actual and serious controversy between the parties regarding whether former state university maintenance workers, who were employed by a private company that managed the university’s facilities, were still employees of the university and because the university was afforded no other avenue of relief, the petition was an appropriate means of settling the dispute, and the circuit court properly asserted jurisdiction over the matter. Ky. Ret. Sys. v. W. Ky. Univ., 2021 Ky. App. LEXIS 93 (Ky. Ct. App. Aug. 20, 2021).

13.Venue.

Declaratory judgment was not void where it involved land situated in another county but parties voluntarily appeared and did not object. De Charette v. St. Matthews Bank & Trust Co., 214 Ky. 400 , 283 S.W. 410, 1926 Ky. LEXIS 354 ( Ky. 1926 ).

Declaratory judgment act has in no way modified provisions of law as to county in which an action must be brought. Edwards v. Bernstein, 231 Ky. 100 , 21 S.W.2d 133, 1929 Ky. LEXIS 220 ( Ky. 1929 ).

Declaratory action brought by wife in Kentucky seeking determination that her deceased husband, an Indiana resident, was not of unsound mind on date of marriage and that she, under Indiana law, was entitled to all his property was a suit involving title to real estate and should have been brought in the county in which the property was situated. Birch v. Birch, 239 S.W.2d 483, 1951 Ky. LEXIS 899 ( Ky. 1951 ).

14.Parties.

It is in accordance with the spirit and purpose of the declaratory judgment act that where an important public question is involved, it should be decided by the court and disposed of by an adjudication of the court as early as practicable and where it will not adversely affect the parties, the court will do so, although beneficiaries are not made parties either individually or by representation. Board of Education v. Louisville, 288 Ky. 656 , 157 S.W.2d 337, 1941 Ky. LEXIS 198 ( Ky. 1941 ).

Where all parties were necessary defendants and their rights would be affected by the decision when made, even though some would be more seriously affected than others, the court had jurisdiction of all parties where two (2) of the defendants were served in the county, although the other defendants lived elsewhere in the state. Commonwealth ex rel. Meredith v. Reeves, 289 Ky. 73 , 157 S.W.2d 751, 1941 Ky. LEXIS 21 ( Ky. 1941 ).

In action under this section, former individual members of lodge were properly before the court by representation where, according to the allegations of the petition, those members were very numerous, the records of lodge had been lost or misplaced, many of them had moved and their addresses were unknown and it would have been impracticable to have brought all of them before the court by service of process. Henderson v. Gem of Kentucky Lodge G. U. O. of O. F., 290 Ky. 709 , 162 S.W.2d 539, 1942 Ky. LEXIS 481 ( Ky. 1942 ).

Where all parties having any possible interest were before the court in a declaratory judgment action, it was permissible for them to ratify a contract of sale and agree that deed should be made to the purchaser and, this having been done, purchaser would take good title under the deed. Henderson v. Gem of Kentucky Lodge G. U. O. of O. F., 290 Ky. 709 , 162 S.W.2d 539, 1942 Ky. LEXIS 481 ( Ky. 1942 ).

With the individual members of the lodge before the court by representation, all persons having any possible interest were parties to action for declaratory judgment since the unincorporated association, as well as the corporation, was a party plaintiff and since the District Grand Lodge of which the local lodge was a subordinate was also a party. Henderson v. Gem of Kentucky Lodge G. U. O. of O. F., 290 Ky. 709 , 162 S.W.2d 539, 1942 Ky. LEXIS 481 ( Ky. 1942 ).

Allegations in petition for declaratory judgment were sufficient to show an actual controversy existed where action was brought by two (2) members of the rural electric cooperative, one a member voting in favor of resolution to borrow funds from the United States government and the other a person having an application for membership before the board of directors which it was unable to grant because of lack of funds. Warren Rural Electric Cooperative Corp. v. Harrison, 312 Ky. 702 , 229 S.W.2d 473, 1950 Ky. LEXIS 745 ( Ky. 1950 ).

Where an estate obtained a judgment declaring that its decedent, killed while working for an uninsured employer, had fathered a child, although the Kentucky Uninsured Employers’ Fund received a copy of the complaint and would have been a proper party to the suit, since under KRS 342.760 it was liable to pay death benefits to the decedent’s children, since it failed to intervene it had no equitable basis to bring an independent action under CR 60.03 to set aside the judgment. Uninsured Employers' Fund v. Bradley, 244 S.W.3d 741, 2007 Ky. App. LEXIS 403 (Ky. Ct. App. 2007).

15.Pleadings.

In a declaratory judgment action where the litigants do not file such pleadings and make such proof as is necessary for decision of the case, the court may refuse to make a declaration and either request additional pleadings and proof or dismiss the case. Supreme Tent of Knights of Maccabees, etc. v. Dupriest, 235 Ky. 46 , 29 S.W.2d 599, 1930 Ky. LEXIS 299 ( Ky. 1930 ).

In a declaratory judgment action, an answer to the petition must be construed most strongly against the pleader. Jefferson County Fiscal Court v. Thomas, 279 Ky. 458 , 130 S.W.2d 60, 1939 Ky. LEXIS 258 ( Ky. 1939 ).

A pleading will be construed more strongly against the pleader and where petition for declaratory judgment was susceptible of the construction that plaintiff used its trucks in the transportation of road materials to be used by contractors other than itself, it was not reasonable to presume that it made use of its trucks for others without compensation; hence, it was engaged in the transportation of the road materials for hire and was subject to weight tax. Webb's Transfer Line, Inc. v. Commonwealth, 282 Ky. 121 , 137 S.W.2d 1096, 1940 Ky. LEXIS 133 ( Ky. 1940 ).

In a declaratory judgment action where neither the allegations in the pleadings nor the proof placed sufficient facts before the court to enable it to determine whether or not the annual income and revenue of the county would allow it to meet rental and to pay its essential governmental expenses and other necessary expenses to be met without exceeding its income and revenue and thereby violating Ky. Const., § 157, the court could not approve the transaction. Wells v. Pendleton County, 283 Ky. 546 , 142 S.W.2d 178, 1940 Ky. LEXIS 384 ( Ky. 1940 ).

Suit to enjoin defendants from buying an existing water plant was in form and substance one under this section and the allegations of the pleadings could be taken as an agreed statement of fact around which the legal issue revolved where demurrer to plaintiff’s petition was overruled, defendant answered, plaintiff’s demurrer to defendant’s answer was overruled and there was no further pleading. Olson v. Preston St. Water Dist., 291 Ky. 155 , 163 S.W.2d 307, 1942 Ky. LEXIS 195 ( Ky. 1942 ).

Taxpayer’s petition in action under this section against county court clerk and surety on his bond to recover unreasonable and exorbitant expenditures from the income of the office over a period of five (5) years previous to the filing of the action was sufficient due to the official relations existing between the fiscal court and the county court clerk, although it failed to state the amount of money due by the clerk, or to whom he wrongfully paid it, or whether he improperly withheld for his own benefit money rightfully going to the county or expended the county’s funds for illegal purposes. Land v. Lewis, 291 Ky. 800 , 165 S.W.2d 553, 1942 Ky. LEXIS 316 ( Ky. 1942 ).

Pleading in declaratory relief action is sufficient if it shows that a bona fide controversy exists between the parties and the facts and subject matter out of which it arises. Sherrard v. Jefferson County Board of Education, 294 Ky. 469 , 171 S.W.2d 963, 1942 Ky. LEXIS 2 ( Ky. 1942 ).

Under the provisions of the declaratory judgment act, the same strictness in pleadings and practice is not required as may be required in other cases. Sherrard v. Jefferson County Board of Education, 294 Ky. 469 , 171 S.W.2d 963, 1942 Ky. LEXIS 2 ( Ky. 1942 ).

Pleadings in declaratory relief action must be construed most strongly against the pleader and, where plaintiff’s amended petition averred he was temporarily engaged in hauling sand and gravel from the river to various defense plants beyond the city and would be so engaged for practically three (3) months, it averred he was engaged in the business of operating his trucks over the city streets and that he was not a mere transient and it did not state facts showing that his trucks were not subject to license tax imposed by city ordinance. Rogers v. Louisville, 296 Ky. 238 , 176 S.W.2d 387, 1943 Ky. LEXIS 129 ( Ky. 1943 ).

Declaratory judgment in action to settle an alleged controversy between executor of life tenant of a tract of land cultivated on shares and the remaindermen that defendant who was a remainderman was entitled to the severed crops was reversed and remanded where the record did not show that defendant was the sole remainderman nor the relationship of the life tenant to the cultivators of the crop such as landlord and tenant, landowner and cropper, partner or tenant in common. Thomas' Ex'r v. Goss, 300 Ky. 539 , 189 S.W.2d 857, 1945 Ky. LEXIS 601 ( Ky. 1945 ).

It is not necessary that a declaratory judgment action be in any particular form or that the phrase “the court declares the rights of plaintiffs (or defendants) to be” shall be used so long as the court actually passes upon or adjudges the issues raised by the pleadings. Carter v. Nance, 304 Ky. 256 , 200 S.W.2d 457, 1947 Ky. LEXIS 616 ( Ky. 1947 ).

A petition for declaratory judgment failed to state a cause of action where it alleged that defendant, after leaving plaintiff’s employ, performed services for former clients of plaintiff, the names of which were necessarily matters of common knowledge, but failed to allege an employment contract with covenant not to compete or that defendant on his own account had entered into negotiations or a contract with any of plaintiff’s customers while he was employed by plaintiff. Birn v. Runion, 310 Ky. 805 , 222 S.W.2d 657, 1949 Ky. LEXIS 1021 ( Ky. 1949 ).

Where, in original pleading for declaration of rights and injunction against use of school as coeducational high school, male alumni society could have asked for recovery of money it had contributed toward purchase of school lot and for a declaration of rights on covenant in deed that school was to be used for white male pupils, the question could be raised by amended pleading. Society of Alumni of L. M. H. S., Inc. v. Board of Education, 247 S.W.2d 369, 1952 Ky. LEXIS 690 ( Ky. 1952 ).

In proceedings for declaration of rights, either party is at liberty to deny facts which are believed to be inaccurate but, if they are not denied, the trial court, upon submission of the case for judgment, has the right to consider all facts which were properly alleged. Knight v. Sale, 257 S.W.2d 889, 1953 Ky. LEXIS 803 ( Ky. 1953 ).

Strict application of the rules of pleading are not followed in actions under this section, so a party may state the complete facts in his petition together with the contentious of the various parties. Knight v. Sale, 257 S.W.2d 889, 1953 Ky. LEXIS 803 ( Ky. 1953 ).

16.Consolidation of Actions.

Court erred in refusing to consolidate action against utility company for mandatory injunction requiring it to transfer on its books to the plaintiff certain shares of stock in the name of a person of unsound mind and declaratory action by utility company against person of unsound mind and another concerning the same shares of stock and in refusing to hear proof as to mental condition when the assignments were made. Kentucky Utilities Co. v. Skaggs, 293 Ky. 622 , 169 S.W.2d 809, 1943 Ky. LEXIS 670 ( Ky. 1943 ).

17.Joinder of Issues.

Where parties in declaratory action treat the issues as joined and take proof thereon, the court will consider issues as joined. Schwartz Amusement Co. v. Independent Order of Odd Fellows, Howard Lodge, 278 Ky. 563 , 128 S.W.2d 965, 1939 Ky. LEXIS 460 ( Ky. 1939 ).

Pleadings in action for declaratory judgment did not raise an issue between the parties and neither the Circuit Court nor Court of Appeals had jurisdiction to declare the rights of the parties where taxpayer who brought action had no interest and ex-serviceman who had an interest intervened and joined issues with the taxpayer but failed to join issues with the codefendants. Elrod v. Willis, 303 Ky. 724 , 198 S.W.2d 967, 1946 Ky. LEXIS 926 ( Ky. 1946 ).

18.Removal.

The federal courts have no jurisdiction to entertain a proceeding for a declaration of rights of parties or to act under the provisions of the declaratory judgment law of Kentucky. Liberty Warehouse Co. v. Grannis, 273 U.S. 70, 47 S. Ct. 282, 71 L. Ed. 541, 1927 U.S. LEXIS 682 (U.S. 1927).

Regardless of procedural differences, a declaratory judgment action commenced in state court may be removed to federal court. Southern Harlan Coal Co. v. Alabama Fuel & Iron Co., 58 F. Supp. 600, 1945 U.S. Dist. LEXIS 2581 (D. Ky. 1945 ).

19.Judgments.

Where right or power of congregation to remove bodies buried in old cemetery to new one to enable establishment of city park on old cemetery site was not referred to nor passed upon in declaratory judgment, there was nothing prejudicial to any claimed right of objecting descendant of person buried there or others similarly situated and the judgment was affirmed on appeal. Mendel v. Congregation Adath Israel, 213 Ky. 371 , 281 S.W. 163, 1926 Ky. LEXIS 520 ( Ky. 1926 ).

Where a water company’s rates were determined to be proper under its franchise by a declaratory judgment, the judgment was binding as a determination of the validity of the franchise, although the validity of the franchise was not specifically raised in that action. Combs v. Prestonsburg Water Co., 260 Ky. 169 , 84 S.W.2d 15, 1935 Ky. LEXIS 427 ( Ky. 1935 ).

In declaratory judgment action, if chancellor reaches the right judgment, it will be affirmed even though he reaches it for the wrong reasons. Keesee v. Smith, 289 Ky. 609 , 159 S.W.2d 56, 1941 Ky. LEXIS 38 ( Ky. 1941 ).

Judgments brought under the declaratory judgment act are just as effective and binding as suits brought under any other section of the law. Herd v. Lyttle, 310 Ky. 788 , 222 S.W.2d 834, 1949 Ky. LEXIS 1026 ( Ky. 1949 ).

Where appeal was not filed within the prescribed time, denial of appeal for want of jurisdiction left in effect the declaratory judgment of the lower court. Herd v. Lyttle, 310 Ky. 788 , 222 S.W.2d 834, 1949 Ky. LEXIS 1026 ( Ky. 1949 ).

Court has jurisdiction to enter money judgment in a declaratory judgment action. E. F. Prichard Co. v. Heidelberg Brewing Co., 314 Ky. 100 , 234 S.W.2d 486, 1950 Ky. LEXIS 1034 ( Ky. 1950 ).

Motion of board of education to dismiss its appeal should have been sustained insofar as it affected two (2) teachers whose tenure was suspended where the board and the two (2) teachers composed their differences and the teachers had been reinstated in accordance with the judgment of the Circuit Court but the effect of the dismissal of the appeal was the equivalent of an affirmance and left the judgment in full force and effect which should not be done insofar as the judgment affected the declaration of rights with respect to preferential status and tenure as among the several teachers, parties to the appeal; therefore, the judgment was reversed as to that part with directions to vacate it as to that portion. Board of Education v. Muncy, 239 S.W.2d 471, 1951 Ky. LEXIS 893 ( Ky. 1951 ).

Where, during appeal by board of education from judgment of trial court declaring that board’s action suspending contracts of teachers was void and that they should be reinstated and declaring the preferential rights to teach of each of the faculty members, teachers were reinstated, this fact made unnecessary a determination of their rights and made the question of preference academic and thus the board’s appeal would be dismissed and that part of the judgment dealing with preference would be vacated. Board of Education v. Muncy, 239 S.W.2d 471, 1951 Ky. LEXIS 893 ( Ky. 1951 ).

After a binding declaration of rights has been made by a declaratory judgment, a party cannot treat the judgment as a mere piece of advice and proceed to attempt to exercise rights denied him by the judgment with the view that whether he can exercise the rights so denied him can be litigated separately from the question of whether he had the rights in the first instance. McMillan v. Bailey-Darby Coal Corp., 251 S.W.2d 225, 1952 Ky. LEXIS 900 ( Ky. 1952 ).

In action by minor on obtaining her majority to set aside declaratory judgment allowing executor to sell certain real estate on ground the minor child was not a pretermitted child, finding of fact by trial court that the declaratory judgment was not obtained by fraud was sufficiently supported by the record. Schultz v. Schultz, 361 S.W.2d 107, 1962 Ky. LEXIS 230 ( Ky. 1962 ).

Where, upon the consolidation of two (2) nonprofit corporate entities, one of the trusts for one of the corporations failed, a provision in a judgment of a declaration of rights that the new corporation could receive any devises, bequests or grants contained in any will or other instrument in trust or otherwise was too broad and speculative. Eitel v. John N. Norton Memorial Infirmary, 441 S.W.2d 438, 1969 Ky. LEXIS 324 ( Ky. 1969 ).

A declaratory judgment action may be maintained to determine the priority of mortgages covering the same property, to determine whether the incurring of an additional loan violates a mortgage agreement, or to determine whether a lender’s subordination of its loan to a subsequent lender is effective and/or violates the original mortgage agreement; a declaratory judgment action may be maintained if it determines the rights, duties, or liabilities of the parties as to matters in controversy, even though it does not terminate litigation. Bank One Ky. NA v. Woodfield Fin. Consortium LP, 957 S.W.2d 276, 1997 Ky. App. LEXIS 87 (Ky. Ct. App. 1997).

20.—Bond.

Plaintiff in a declaratory judgment action was not in a position to complain of the fact that a bond was required of him as a condition of his being permitted to enter and remove timber under a contract of sale where he would materially interfere with defendant’s coal mining rights, since ordinarily the defendant would be entitled to injunctive relief rather than being relegated to a remedy by way of damages. McMillan v. Bailey-Darby Coal Corp., 251 S.W.2d 225, 1952 Ky. LEXIS 900 ( Ky. 1952 ).

Specific conditions of bond that ditches or gullies be filed and that tops, limbs and branches be removed from the premises did not impose an undue burden upon plaintiff contrary to the established custom and practice in the timber industry. McMillan v. Bailey-Darby Coal Corp., 251 S.W.2d 225, 1952 Ky. LEXIS 900 ( Ky. 1952 ).

21.Appeal.

Where petitioner did not file motion for transfer of action to proper branch of court and did not amend petition on being given opportunity to do so by the court, he could not complain on appeal of the action of the Circuit Court in not transferring the case. Hatzell v. Dover, 208 Ky. 149 , 270 S.W. 723, 1925 Ky. LEXIS 234 ( Ky. 1925 ).

Where suit was begun as one for declaratory judgment, but defendants by counterclaim and cross petition sought equitable relief, and plaintiffs concurred, plaintiffs could not later obtain dismissal of defendants’ appeal because it was not perfected within 60-day declaratory judgment time limit. Bowles v. Stilley's Ex'r, 254 S.W.2d 504, 1953 Ky. LEXIS 599 ( Ky. 1953 ), (decision prior to 1952 amendment to KRS 418.060 ).

A declaratory judgment could not be sought for the first time on appeal of a workmen’s compensation case. Yocom v. Campbell, 536 S.W.2d 470, 1976 Ky. LEXIS 82 ( Ky. 1976 ).

Whether decision of Health Facilities and Health Services Certificate of Need and Licensure Board granting hospital’s ancillary services license application was consistent with the state health plan is an issue of fact which is the proper subject of an appeal rather than that of a declaratory judgment action. Baptist Hospital, Inc. v. Humana of Kentucky, Inc., 672 S.W.2d 669, 1984 Ky. App. LEXIS 532 (Ky. Ct. App. 1984).

22.Acquisition of Utility Company.

A city’s rights with respect to a proposed acquisition of a utility company may be determined in a declaratory judgment action. Kentucky Utilities Co. v. Paducah, 308 Ky. 305 , 214 S.W.2d 258, 1948 Ky. LEXIS 908 ( Ky. 1948 ).

23.Annexation.

Annexation rights may be determined in a declaratory judgment action. Louisville v. St. Matthews, 316 S.W.2d 210, 1958 Ky. LEXIS 31 ( Ky. 1958 ).

24.Rights and Duties of Officers.

The rights and duties of state, county and municipal officers may be determined in a declaratory judgment action. Corbin v. Underwood, 221 Ky. 413 , 298 S.W. 1090, 1927 Ky. LEXIS 743 ( Ky. 1 927). See Louisville v. Keaney, 267 Ky. 557 , 102 S.W.2d 996, 1937 Ky. LEXIS 346 ( Ky. 1 937 ); Howton v. Morrow, 269 Ky. 1, 106 S.W.2d 81, 1937 Ky. LEXIS 5 48 ( Ky. 1937 ); Shannon v. Combs, 273 Ky. 514 , 117 S.W.2d 219, 1938 Ky. LEXIS 680 ( Ky. 1938 ); Fulton v. Shanklin, 275 Ky. 772 , 122 S.W.2d 733, 1938 Ky. LEXIS 490 ( Ky. 1938 ); Jefferson County Fiscal Court v. Louisville, 276 Ky. 64 , 122 S.W.2d 1026, 1938 Ky. LEXIS 5 33 (Ky. 1938); Altes' Ex'x v. Beauchamp, 277 Ky. 491 , 126 S.W.2d 867, 1939 Ky. LEXIS 679 ( Ky. 1939 ); Northcutt v. Howard, 279 Ky. 219 , 130 S.W.2d 70, 1939 Ky. LEXIS 261 ( Ky. 1939 ); Warren v. Blatt, 280 Ky. 185 , 132 S.W.2d 933, 1939 Ky. LEXIS 95 (Ky. 1939); Louisville v. German, 286 Ky. 477 , 150 S.W.2d 931, 1940 Ky. LEXIS 5 ( Ky. 1940 ); Farris v. Nichols, 286 Ky. 196 , 150 S.W.2d 484, 1941 Ky. LEXIS 229 ( Ky. 1941 ); Goodpaster v. Southern Ins. Agency, Inc., 293 Ky. 420 , 169 S.W.2d 1, 1943 Ky. LEXIS 620 ( Ky. 1943 ); Jefferson County Fiscal Court v. Trager, 302 Ky. 361 , 194 S.W.2d 851, 1946 Ky. LEXIS 686 ( Ky. 1946 ); Department of Revenue v. Miller, 303 Ky. 822 , 199 S.W.2d 622, 1947 Ky. LEXIS 564 ( Ky. 1947 ); Weber v. True, 304 Ky. 681 , 202 S.W.2d 174, 1947 Ky. LEXIS 704 ( Ky. 1947 ); Miller v. Sturgill, 304 Ky. 823 , 202 S.W.2d 632, 1947 Ky. LEXIS 738 (Ky. 1947); Barnes v. Crowe, 240 S.W.2d 604, 1951 Ky. LEXIS 992 ( Ky. 1951 ); Arnett v. De Weese, 304 S.W.2d 784, 1957 Ky. LEXIS 281 ( Ky. 1957 ).

25.Bond Issues.

Questions concerning bond issues may be determined in a declaratory judgment action. Havely v. Lexington, 264 Ky. 737 , 95 S.W.2d 598, 1936 Ky. LEXIS 400 ( Ky. 19 36 ). See Security Trust Co. v. Paris, 264 Ky. 846 , 95 S.W.2d 781, 1936 Ky. LEXIS 408 ( Ky. 19 36 ); Middendorf v. Jameson, 265 Ky. 111 , 95 S.W.2d 1057, 1936 Ky. LEXIS 41 7 (Ky. 1936); Matz v. Newport, 265 Ky. 126 , 95 S.W.2d 1071, 1936 Ky. LEXIS 422 (Ky. 1936); Fidelity & Columbia Trust Co. v. Louisville R. Co., 265 Ky. 820 , 97 S.W.2d 825, 1936 Ky. LEXIS 584 (Ky. 1936); Lock v. Middlesboro, 267 Ky. 19, 101 S.W.2d 203, 1937 Ky. LEXIS 279 ( Ky. 1937 ); Shearin v. Ballard County, 267 Ky. 737 , 103 S.W.2d 292, 1937 Ky. LEXIS 393 ( Ky. 1937 ); Penrod v. Sturgis, 269 Ky. 315 , 107 S.W.2d 277, 1937 Ky. LEXIS 608 (Ky. 1937); Richardson v. Monroe County, 271 Ky. 368 , 112 S.W.2d 47, 1937 Ky. LEXIS 244 (Ky. 1937), overruled, Bell v. Board of Education, 343 S.W.2d 804, 1961 Ky. LEXIS 433 ( Ky. 1961 ); Jonson v. Fiscal Court of Muhlenberg, 272 Ky. 9 , 113 S.W.2d 453, 1938 Ky. LEXIS 69 ( Ky. 1938 ); Root v. Newport, 273 Ky. 604 , 117 S.W.2d 594, 1938 Ky. LEXIS 69 0 ( Ky. 1938 ); Williams v. Taylor Count, 274 Ky. 217 , 118 S.W.2d 526, 1938 Ky. LEXIS 244 (Ky. 1938); Booth v. Owensboro, 274 Ky. 325 , 118 S.W.2d 684, 1938 Ky. LEXIS 258 (Ky. 1938); State Bank & Trust Co. v. Madison County, 275 Ky. 501 , 122 S.W.2d 99, 1938 Ky. LEXIS 455 (Ky. 1938); Speer v. Kentucky Children's Home, 278 Ky. 225 , 128 S.W.2d 558, 1939 Ky. LEXIS 398 ( Ky. 1939 ); Funk v. Strathmoor Village, 278 Ky. 627 , 129 S.W.2d 151, 1939 Ky. LEXIS 477 ( Ky. 1939 ); First & Peoples Bank v. Russell, 279 Ky. 849 , 132 S.W.2d 304, 1939 Ky. LEXIS 35 5 (Ky. 1939); Ashland v. Board of Education, 286 Ky. 69 , 149 S.W.2d 728, 1941 Ky. LEXIS 206 ( Ky. 1941 ); Holt v. Covington, 286 Ky. 727 , 151 S.W.2d 780, 1941 Ky. LEXIS 327 ( Ky. 1941 ); Mitchell v. Glasgow, 288 Ky. 512 , 156 S.W.2d 824, 1941 Ky. LEXIS 136 (Ky. 1941); Tuggle v. Barbourville, 294 Ky. 351 , 171 S.W.2d 1008, 1943 Ky. LEXIS 457 ( Ky. 1943 ); Cole v. McCracken County, 297 Ky. 797 , 181 S.W.2d 461, 1944 Ky. LEXIS 835 ( Ky. 1944 ); Sparks v. Sparks, 300 Ky. 392 , 189 S.W.2d 354, 1945 Ky. LEXIS 555 ( Ky. 1945 ); Hill v. Providence, 307 Ky. 537 , 211 S.W.2d 846, 1948 Ky. LEXIS 794 ( Ky. 1948 ); Martin County v. Cassady, 307 Ky. 728 , 212 S.W.2d 281, 1948 Ky. LEXIS 823 ( Ky. 1948 ); Selle v. Henderson, 309 Ky. 599 , 218 S.W.2d 645, 1949 Ky. LEXIS 772 ( Ky. 1949 ); Hill v. Pineville, 314 Ky. 359 , 235 S.W.2d 776, 1951 Ky. LEXIS 654 ( Ky. 1951 ); Magoffin County v. Rigsby, 303 S.W.2d 545, 1957 Ky. LEXIS 266 ( Ky. 1957 ); Corbin v. Johnson, 316 S.W.2d 217, 1958 Ky. LEXIS 35 ( Ky. 1958 ); Miller v. Louisville, 321 S.W.2d 237, 1959 Ky. LEXIS 269 ( Ky. 1959 ); Lyon v. County of Warren, 325 S.W.2d 302, 1959 Ky. LEXIS 41 ( Ky. 1959 ); Raque v. Louisville, 402 S.W.2d 697, 1966 Ky. LEXIS 375 ( Ky. 1966 ); Barnes v. Jacobsen, 417 S.W.2d 224, 1967 Ky. LEXIS 247 ( Ky. 1967 ).

26.Boundary Lines.

The correct location of lines in a survey were determined in a declaratory judgment action. Republic Steel Corp. v. Wheeler, 308 Ky. 855 , 215 S.W.2d 994, 1948 Ky. LEXIS 1060 ( Ky. 1948 ).

27.Contracts.

The validity of a contract and the rights and duties of the parties involved may be determined in a declaratory judgment action. Proctor v. Avondale Heights Co., 200 Ky. 447 , 255 S.W. 81, 1923 Ky. LEXIS 115 ( Ky. 1923 ). See Potter v. Dark Tobacco Growers' Co-op. Ass'n, 201 Ky. 441 , 257 S.W. 33, 1923 Ky. LEXIS 329 ( Ky. 1923 ); Pennsylvania R. Co. v. Louisville, 277 Ky. 402 , 126 S.W.2d 840, 1939 Ky. LEXIS 672 ( Ky. 1939 ); Jefferson County Fiscal Court v. Jefferson County, 278 Ky. 785 , 129 S.W.2d 554, 1939 Ky. LEXIS 497 ( Ky. 1939 ); Gillig v. Stofer, 279 Ky. 349 , 130 S.W.2d 762, 1939 Ky. LEXIS 273 (Ky. 1939); Ball v. Cecil, 285 Ky. 438 , 148 S.W.2d 273, 1941 Ky. LEXIS 396 ( Ky. 1941 ); Resthaven Memorial Cemetery, Inc. v. Jennings, 291 Ky. 201 , 163 S.W.2d 488, 1942 Ky. LEXIS 214 ( Ky. 1942 ); Hoellman v. Abel, 293 Ky. 776 , 170 S.W.2d 26, 1943 Ky. LEXIS 694 ( Ky. 1943 ); Kenton County v. Covington, 302 Ky. 503 , 195 S.W.2d 93, 1946 Ky. LEXIS 714 ( Ky. 1946 ); Elkhorn & Jellico Coal Co. v. Sandlick Coal Co., 305 Ky. 348 , 204 S.W.2d 330, 1947 Ky. LEXIS 814 ( Ky. 1947 ); E. F. Prichard Co. v. Heidelberg Brewing Co., 307 Ky. 833 , 212 S.W.2d 293, 1948 Ky. LEXIS 828 ( Ky. 1948 ); Distillery Rectifying & Wine Workers International Union v. Brown-Forman Distillers Corp., 308 Ky. 380 , 213 S.W.2d 610, 1948 Ky. LEXIS 869 ( Ky. 1948 ); Hoskins v. Walker, 255 S.W.2d 480, 1953 Ky. LEXIS 653 ( Ky. 1953 ); Warren County Fiscal Court v. Warren County Tuberculosis Sanitorium Corp., 272 S.W.2d 331, 1954 Ky. LEXIS 1089 ( Ky. 1954 ); Absher v. Illinois C. R. Co., 371 S.W.2d 950, 1963 Ky. LEXIS 130 ( Ky. 1963 ).

28.Control of State Fair.

In action to have separated and declared the duty, power, and right of the state board and those of the commissioner of agriculture over the Kentucky state fair, judgment that state board of agriculture had complete control and management, including the right to appoint and remove employees at pleasure, and could conduct and manage the fair as it saw fit independent of the will and wishes of the commissioner of agriculture except as chairman of the board was affirmed. Ferguson v. Chandler, 266 Ky. 694 , 99 S.W.2d 732, 1936 Ky. LEXIS 709 ( Ky. 1936 ).

29.Corporate Recapitalization.

In action under this section seeking declaration of right of corporation to carry into effect a proposed plan of recapitalization where corporation in their answer stated the plan was valid, plaintiff admitted the facts set out in defendant’s answer by demurring generally to the answer and when court overruled plaintiff’s demurrer and defendants failed to plead further, judgment that plan was valid was proper. Francke v. Axton-Fisher Tobacco Co., 289 Ky. 687 , 160 S.W.2d 23, 1942 Ky. LEXIS 630 ( Ky. 1942 ).

30.County Board of Education.

County board of education was liable for judgment for construction of a schoolhouse in an independent school district merged with the county school district. Board of Education v. Nelson, 268 Ky. 83 , 103 S.W.2d 691, 1937 Ky. LEXIS 413 ( Ky. 1937 ).

County board of education was determined in declaratory relief action to have authority to determine an efficient educational system and to have wide discretion in choosing the method of supplying an efficient system. Dodge v. Jefferson County Board of Education, 298 Ky. 1 , 181 S.W.2d 406, 1944 Ky. LEXIS 815 ( Ky. 1 944 ).

31.Custody of Child.

The question of whether the surviving father or the maternal grandparent is entitled to the custody of a child is a controversy which may be properly decided in a declaratory judgment action. Carter v. Nance, 304 Ky. 256 , 200 S.W.2d 457, 1947 Ky. LEXIS 616 ( Ky. 1947 ).

32.Deeds.

Questions with respect to rights under deeds may be determined in a declaratory judgment action. Reid v. Reid, 230 Ky. 835 , 20 S.W.2d 1015, 1929 Ky. LEXIS 190 ( Ky. 1929 ). See Maynard v. McHenry, 271 Ky. 642 , 113 S.W.2d 13, 1938 Ky. LEXIS 37 ( Ky. 1938 ); Stambaugh v. Stambaugh, 288 Ky. 491 , 156 S.W.2d 827, 1941 Ky. LEXIS 138 ( Ky. 1941 ); Hall v. Hazlewood, 288 Ky. 691 , 157 S.W.2d 301, 1941 Ky. LEXIS 190 ( Ky. 1941 ); Maddox v. Keeler, 296 Ky. 440 , 177 S.W.2d 568, 1944 Ky. LEXIS 560 ( Ky. 1944 ); Trosper v. Shoemaker, 312 Ky. 344 , 227 S.W.2d 176, 1949 Ky. LEXIS 1261 ( Ky. 1949 ); Maas v. Maas' Adm'r, 255 S.W.2d 497, 1952 Ky. LEXIS 1141 ( Ky. 1952 ); Easley v. Melton, 262 S.W.2d 686, 1953 Ky. LEXIS 1119 ( Ky. 1953 ); Rowe v. Bird, 304 S.W.2d 775, 1957 Ky. LEXIS 277 ( Ky. 1957 ).

33.Authority of Guardian or Committee.

A committee for an insane person could properly bring an action to determine its right to mortgage property of the ward either as a suit for declaratory judgment or in the ordinary equity form. Hay's Committee v. Hay's Guardian, 260 Ky. 586 , 86 S.W.2d 313, 1935 Ky. LEXIS 520 ( Ky. 1935 ).

34.Elections.

Questions dealing with elections may be determined in a declaratory judgment action. Eagle v. Cox, 268 Ky. 58 , 103 S.W.2d 682, 1937 Ky. LEXIS 411 ( Ky. 1937 ); Ward v. Siler, 272 Ky. 424 , 114 S.W.2d 516, 1938 Ky. LEXIS 139 ( Ky. 1938 ). See Hallahan v. Sawyer, 390 S.W.2d 664, 1965 Ky. LEXIS 368 ( Ky. 1965 ).

35.Escheats.

Declaratory judgment that act dealing with escheats of bank deposits was valid in part was affirmed on appeal. Anderson Nat'l Bank v. Reeves, 293 Ky. 735 , 170 S.W.2d 350, 1942 Ky. LEXIS 12 ( Ky. 1942 ).

36.Fair Labor Standards Act.

Where petition alleged that defendants had forcibly entered the premises of the plaintiff, threatened the plaintiff with both criminal and civil prosecution unless they recognized the contention claimed by the department, threatened to force them to pay huge sums of money alleged to be due under the fair labor standards act and were by such methods threatening to destroy plaintiff’s business unless the plaintiff agreed to their contention that its business was subject to the provisions of the act and stated that plaintiff’s business was not subject to the act, the allegations of the petition must be accepted as admitted upon defendant’s motion to dismiss and the allegations showed that an actual controversy existed. Kentucky Cottage Industries v. Hagan, 41 F. Supp. 451, 1941 U.S. Dist. LEXIS 2697 (D. Ky. 1941 ).

37.Fiscal Court.

Questions with respect to the authority and duties of a fiscal court may be determined in a declaratory judgment action. Jefferson County ex rel. Grauman v. Jefferson County Fiscal Court, 269 Ky. 444 , 107 S.W.2d 320, 1937 Ky. LEXIS 625 ( Ky. 1937 ). See Jefferson County Fiscal Court v. Jefferson County, 278 Ky. 68 , 128 S.W.2d 230, 1939 Ky. LEXIS 388 ( Ky. 1939 ); Veith v. Tinnell, 306 Ky. 484 , 207 S.W.2d 325, 1947 Ky. LEXIS 1014 ( Ky. 1947 ); Steinfeld v. Jefferson County Fiscal Court, 312 Ky. 614 , 229 S.W.2d 319, 1950 Ky. LEXIS 722 ( Ky. 1950 ); Farmers State Bank v. Owsley County, 314 Ky. 856 , 238 S.W.2d 471, 1951 Ky. LEXIS 815 ( Ky. 1951 ); Enterprise Publishing Co. v. Harlan County, 310 S.W.2d 551, 1958 Ky. LEXIS 400 ( Ky. 1958 ).

38.Fishing Licenses.

In declaratory judgment action, it was adjudged that persons who were not owners, owner’s children or lessees were required to conform to KRS 150.470 relating to size and number of fish to obtain a license to fish in private ponds and game conservators could enter private property to enforce the statute. Draffen v. Black, 302 Ky. 775 , 196 S.W.2d 362, 1946 Ky. LEXIS 746 ( Ky. 1946 ).

39.Gifts.

In declaratory judgment action commenced by donee in Circuit Court against donor’s executrix and sole legatee and removed to federal court, decedent’s gift to donee, his nephew, was valid under Tennessee law, the state of decedent’s residence, where decedent, after a paralytic stroke, told the nephew to get the box containing $12,073 in cash from the basement, to take it home and keep it as his own and nephew got the box, took it home and deposited it for safekeeping in a bank in Kentucky. Slusmeyer v. Slusmeyer, 99 F. Supp. 484, 1951 U.S. Dist. LEXIS 4120 (D. Ky. 1951 ), aff'd, 200 F.2d 559, 1952 U.S. App. LEXIS 2328 (6th Cir. Ky. 1952 ).

In action by administrator under this section in regard to purported gifts made by suicide, judgment was that gifts were not gifts causa mortis and some were and some were not gifts inter vivos. Pikeville Nat'l Bank & Trust Co. v. Shirley, 281 Ky. 150 , 135 S.W.2d 426, 1939 Ky. LEXIS 29 ( Ky. 1939 ).

40.Insolvent Bank.

Declaratory judgment that distribution of assets in the hands of agent of insolvent bank should first be made to shareholders who paid in full in the amounts to which their payments exceeded the payments made by the others who did not pay in full was affirmed. Russell v. Levi, 286 Ky. 51 , 149 S.W.2d 734, 1941 Ky. LEXIS 208 ( Ky. 1941 ).

41.Insurance Policies.

In declaratory judgment action to determine rights of parties in regard to an insurance policy, letter of insured to insurer requesting change and unsigned memorandum of insurer stating beneficiary was changed were sufficient to change the beneficiary although not in strict compliance with the provisions of the policy. Pikeville Nat'l Bank & Trust Co. v. Shirley, 281 Ky. 158 , 135 S.W.2d 431, 1939 Ky. LEXIS 30 ( Ky. 1939 ).

In a personal injury action where a state administrative law judge and a state court had determined that the injured party was not an employee of the insured at the time of the accident, a federal declaratory judgment finding that the insurer was not required to defend or indemnify the insured because the injured party was an employee at the time of the accident was inappropriate because (1) a declaratory judgment would not settle the controversy; (2) a declaratory judgment would not resolve all the underlying legal relations; (3) any resolution that could be achieved by the declaratory judgment would come at the cost of increasing the friction between state and federal courts; and (4) a superior remedy existed in the state court as the state did provide a procedure for a declaration of rights under KRS 418.040 . Bituminous Cas. Corp. v. J & L Lumber Co., 373 F.3d 807, 2004 FED App. 0199P, 2004 U.S. App. LEXIS 13324 (6th Cir. Ky. 2004 ).

Where insureds sought underinsured motorist coverage in a state court suit, and the insurer sought a declaration in the court regarding its obligation to provide underinsured motorist coverage, abstention was warranted under the Declaratory Judgment Act, 28 U.S.C.S. § 2201, because (1) a declaratory judgment would not settle the controversy among the parties, (2) the insurer would not be prejudiced by abstention, (3) the state court was in a better position to evaluate the factual issues because they rested solely on state law and states regulated insurance companies for the protection of their residents, and (4) the insurer could bring a declaratory judgment action in state court under KRS 418.040 . Progressive Cas. Ins. Co. v. Franklin, 2005 U.S. Dist. LEXIS 16334 (W.D. Ky. Aug. 8, 2005).

Although an insurance policy contained an exclusion for pollution, that clause was ambiguous where the terms dust and debris were undefined, such that it was unclear whether they constituted pollution for purposes of the insurer’s declaratory judgment action under KRS 418.040 ; a determination that the insurer was obligated to provide coverage for an underlying action against the insured was improper. Certain Underwriters at Lloyd's v. Abundance Coal, Inc., 352 S.W.3d 594, 2011 Ky. App. LEXIS 116 (Ky. Ct. App. 2011).

42.Judicial Sales.

In declaratory action to determine purchaser at judicial sale where property was sold to two (2) different persons under two (2) different descriptions, the first person to pay cash and receive the deed before learning of the mistake was a good faith purchaser for value without notice and was the owner of the tract. Adams v. Ross, 239 S.W.2d 233, 1951 Ky. LEXIS 863 ( Ky. 1951 ).

43.Jurors.

In action under this section against clerk of circuit court involving construction of law prescribing the procedure for drawing juries in courts having continuous sessions, judgment that names of jurors after being drawn from the drum of wheel were not immediately available for examination by any citizen of the county or state was affirmed. Moore v. Alsmiller, 289 Ky. 682 , 160 S.W.2d 10, 1942 Ky. LEXIS 626 ( Ky. 1942 ).

44.Leases.

Questions regarding construction of leases may be determined in a declaratory judgment action. Calloway v. Bryant, 204 Ky. 160 , 263 S.W. 687, 1924 Ky. LEXIS 403 ( Ky. 1924 ). See Akins v. Covington, 265 Ky. 740 , 97 S.W.2d 588, 1936 Ky. LEXIS 562 ( Ky. 1936 ); Davenport v. National Fluorspar Co., 267 Ky. 713 , 103 S.W.2d 84, 1937 Ky. LEXIS 367 ( Ky. 1937 ); Schwartz Amusement Co. v. Independent Order of Odd Fellows, Howard Lodge, 278 Ky. 563 , 128 S.W.2d 965, 1939 Ky. LEXIS 460 ( Ky. 1939 ); Walter v. Ashland Oil & Refining Co., 300 Ky. 43 , 187 S.W.2d 425, 1945 Ky. LEXIS 765 ( Ky. 1945 ).

45.Mortgages.

Where action involved judicial direction to a mortgage trustee, a definition of its powers, and the construction and operation of the mortgage, the controversy was a proper subject for the exercise of judicial power. Black v. Elkhorn Coal Corp., 233 Ky. 588 , 26 S.W.2d 481, 1930 Ky. LEXIS 603 ( Ky. 1930 ).

46.Ordinances.

The validity of ordinances may be determined in a declaratory judgment action. Louisville v. Louisville Auto. Club, Inc., 290 Ky. 241 , 160 S.W.2d 663, 1942 Ky. LEXIS 392 ( Ky. 1942 ). See Louisville & N. R. Co. v. Hazard, 304 Ky. 370 , 200 S.W.2d 917, 1947 Ky. LEXIS 648 ( Ky. 1947 ); Farnsley v. Henderson, 240 S.W.2d 82, 1951 Ky. LEXIS 951 ( Ky. 1951 ).

47.Partnerships.

In action under this section, it was determined that partners were entitled to have a deposit in an insolvent bank applied to a setoff against a note which one of the partners executed in this individual name for the benefit of the partnership and owed to the bank at the time the bank was placed in the hands of the banking and securities commissioner for liquidation. Marcum v. Wilhoit, 290 Ky. 532 , 162 S.W.2d 10, 1942 Ky. LEXIS 447 ( Ky. 1942 ).

48.Public School Funds.

In declaratory judgment action based upon the allegations of petition as to the purposes and objects of an association and those purposes and objects as disclosed by the copy of the constitution filed with the petition, the court on appeal determined that annual membership dues in the association could be paid out of public school funds but that appellants could controvert these allegations and, if they did so successfully, they would be entitled to a judgment denying the relief sought, but in any event the demurrer to the petition should be overruled. Schuerman v. State Board of Education, 284 Ky. 556 , 145 S.W.2d 42, 1940 Ky. LEXIS 514 ( Ky. 1940 ).

49.Quiet Title.

Although it was evident from the pleadings and the judgment that in essence the suit was to quiet title, and it could have been tried and adjudicated as such, no reason appeared why it could not also be prosecuted as a declaratory judgment proceeding. North East Coal Co. v. Blevins, 312 Ky. 628 , 229 S.W.2d 162, 1950 Ky. LEXIS 716 ( Ky. 1950 ).

50.Transactions Under Assumed Name.

Corporation was determined in a declaratory relief action to have right to transact business under an assumed name in absence of any statute prohibiting it to do so and was entitled to file a certificate of doing business under an assumed name with the county clerk. Meredith v. Universal Plumbing & Constr. Co., 272 Ky. 283 , 114 S.W.2d 94, 1938 Ky. LEXIS 113 ( Ky. 1938 ).

51.Reclassification of Stock.

On an appeal of a class action under the declaratory judgment statute by three (3) stockholders against insurance corporation and officers for obtaining rendition of a judgment declaring whether or not it was lawful to split up the corporate stock of the company into a greater number of shares, the judgment declaring that the stock could be legally reclassified was affirmed. Davis v. Commonwealth Life Ins. Co., 284 S.W.2d 809, 1955 Ky. LEXIS 46 ( Ky. 1955 ).

52.Redistricting.

Pleadings which merely alleged that governor was considering calling into extraordinary session the general assembly for sole and express purpose of redistricting the Commonwealth presented a justiciable controversy. Combs v. Matthews, 364 S.W.2d 647, 1963 Ky. LEXIS 206 ( Ky. 1963 ).

53.Sale of Real Estate.

Declaratory judgment, in action by mother against her three-year-old daughter’s guardian ad litem for a declaratory judgment to determine plaintiff’s right to sell land in which she held a life estate with contingent remainder to her next of kin, granted the right to sell, since the house produced only $4.50 monthly income and the property was not susceptible of subdivision without impairment. Presnell's Guardian v. Scantland, 297 Ky. 412 , 180 S.W.2d 281, 1944 Ky. LEXIS 736 ( Ky. 1944 ).

54.Local Assessments.

Assessments made against property for costs of a street improvement were declared legally made in an action under this section. Coke v. Dowell, 281 Ky. 362 , 136 S.W.2d 3, 1940 Ky. LEXIS 31 ( Ky. 1940 ).

55.Taxation.

Questions with respect to the imposition and use of taxes may be determined in a declaratory judgment action. Falls City Brewing Co. v. Reeves, 40 F. Supp. 35, 1941 U.S. Dist. LEXIS 2844 (D. Ky. 1941 ). See Hurry Up Broadway Co. v. Shannon, 267 Ky. 302 , 102 S.W.2d 30, 1937 Ky. LEXIS 315 ( Ky. 1937 ); Newlin v. Stuart, 273 Ky. 626 , 117 S.W.2d 608, 1938 Ky. LEXIS 694 ( Ky. 1938 ); Maloney Davidson Co. v. Martin, 274 Ky. 449 , 118 S.W.2d 708, 1938 Ky. LEXIS 268 ( Ky. 1938 ); Martin v. Storrs, 277 Ky. 199 , 126 S.W.2d 445, 1939 Ky. LEXIS 650 ( Ky. 1939 ); Great Atlantic & Pacific Tea Co. v. Kentucky Tax Com., 278 Ky. 367 , 128 S.W.2d 581, 1939 Ky. LEXIS 406 ( Ky. 1939 ); Webb v. Eminence, 282 Ky. 849 , 140 S.W.2d 622, 1940 Ky. LEXIS 265 ( Ky. 1940 ); Whitelaw v. Burke, 290 Ky. 372 , 161 S.W.2d 595, 1942 Ky. LEXIS 404 ( Ky. 1942 ); Reeves v. Service Lines, Inc., 291 Ky. 410 , 164 S.W.2d 593, 1942 Ky. LEXIS 236 ( Ky. 1942 ); Inter-County Rural Electric Co-operative Corp. v. Reeves, 294 Ky. 458 , 171 S.W.2d 978, 1943 Ky. LEXIS 446 ( Ky. 1943 ); Russell v. Fannin, 296 Ky. 236 , 176 S.W.2d 384, 1943 Ky. LEXIS 127 ( Ky. 1943 ); Board of Trustees v. Newport, 300 Ky. 125 , 187 S.W.2d 806, 1945 Ky. LEXIS 801 ( Ky. 1945 ); George v. Bernheim Distilling Co., 300 Ky. 179 , 188 S.W.2d 321, 1945 Ky. LEXIS 519 ( Ky. 1945 ); Friedman v. Owensboro, 308 Ky. 315 , 213 S.W.2d 793, 1948 Ky. LEXIS 871 ( Ky. 1948 ); Louisville v. Louisville Taxicab & Transfer Co., 238 S.W.2d 121, 1951 Ky. LEXIS 795 ( Ky. 1951 ); Reeves v. Coldway Carriers, Inc., 240 S.W.2d 47, 1951 Ky. LEXIS 938 ( Ky. 1951 ); Fontaine v. Department of Finance, 249 S.W.2d 799, 1952 Ky. LEXIS 872 ( Ky. 1952 ); Iroquois Post, A. L. v. Louisville, 279 S.W.2d 13, 1955 Ky. LEXIS 502 ( Ky. 1955 ); Meahl v. Henderson, 290 S.W.2d 593, 1956 Ky. LEXIS 331 ( Ky. 1956 ); Padgett v. Sensing, 438 S.W.2d 501, 1969 Ky. LEXIS 405 ( Ky. 1969 ).

A class action is a proper vehicle for a declaratory judgment as to the validity of a tax assessment or rate; however, an action for a refund of taxes paid may not proceed as a class action. Bischoff v. Newport, 733 S.W.2d 762, 1987 Ky. App. LEXIS 525 (Ky. Ct. App. 1987).

56.Form of Government.

A single taxpayer within the affected territory may bring a declaratory action under this section in cases involving an attack upon a public expending measure or contemplated act by some official and to carry out which involves the expenditure of public funds raised by taxation, on the grounds that the statute so attacked or the step proposed to be taken by the officer is unauthorized and will involve the illegal and wrongful expenditure of public funds. Beauchamp v. Silk, 275 Ky. 91 , 120 S.W.2d 765, 1938 Ky. LEXIS 370 ( Ky. 1938 ).

Although a taxpayer and voter may not question the eligibility of a candidate or the title of the holder of an office, he may, in good faith and as a representative of a class, maintain a suit under the declaratory judgment act to determine the system of local government under which he and other citizens of the municipality shall be governed. Payne v. Davis, 254 S.W.2d 710, 1953 Ky. LEXIS 606 ( Ky. 1953 ).

57.Title to Land.

Questions with regard to the determination of title to land may be determined in a declaratory judgment action. Goode v. Bonta, 267 Ky. 739 , 103 S.W.2d 266, 1937 Ky. LEXIS 383 ( Ky. 1937 ). See Shepherd v. Moore, 283 Ky. 181 , 140 S.W.2d 810, 1940 Ky. LEXIS 289 ( Ky. 1940 ); Southeastern Greyhound Lines, Inc. v. Lexington, 299 Ky. 510 , 186 S.W.2d 201, 1945 Ky. LEXIS 470 ( Ky. 1945 ); James v. Franklin, 244 S.W.2d 472, 1951 Ky. LEXIS 1222 ( Ky. 1951 ).

KRS 413.040 was the proper procedure for residents to bring an action against the county and county fiscal court alleging that the county had unlawfully incorporated the private drive into the county road system; the fiscal court took no formal action of the kind that was appealable under KRS 178.100 . Whitley v. Robertson County, 396 S.W.3d 890, 2013 Ky. LEXIS 94 ( Ky. 2013 ).

Court of Appeals erred in reversing a circuit court judgment involving whether a road was a private drive or a county road because the owner simply asked the fiscal court to affirm that the road had never officially be taken into the county’s road system, the fiscal court chose not to act upon his request, the county and the fiscal court were the land-owner’s adversaries in the controversy, and there was no reason why the dispute could not be prosecuted as a declaratory judgment proceeding. Whitley v. Robertson County, 406 S.W.3d 11, 2013 Ky. LEXIS 456 ( Ky. 2013 ).

58.Trusts.

Questions with regard to the construction and administration of trusts may be determined in a declaratory judgment action. Caperton v. Smith's Trustee, 268 Ky. 223 , 104 S.W.2d 440, 1937 Ky. LEXIS 437 ( Ky. 1937 ). See Kitchen v. New York Trust Co., 292 Ky. 706 , 168 S.W.2d 5, 1943 Ky. LEXIS 735 ( Ky. 1943 ); Citizens Fidelity Bank & Trust Co. v. Isaac W. Bernheim Foundation, 305 Ky. 802 , 205 S.W.2d 1003, 1947 Ky. LEXIS 931 ( Ky. 1947 ); Camden v. First Nat'l Bank & Trust Co., 311 Ky. 557 , 224 S.W.2d 644, 1949 Ky. LEXIS 1168 ( Ky. 1949 ); Seelbach v. Citizens Fidelity Bank & Trust Co., 269 S.W.2d 178, 1954 Ky. LEXIS 945 ( Ky. 1954 ); Minary v. Minary, 395 S.W.2d 588, 1965 Ky. LEXIS 153 ( Ky. 1965 ).

Circuit court made the requisite certification of jurisdiction to retain a trust administration case and decide it on the merits because the circuit court made sufficient findings on the record related to its certification of jurisdiction, and the record support its findings; a beneficiary was provided with, and took advantage of, the opportunity to argue the jurisdictional issue both orally at the hearing dates and in his court filings. Beardmore v. JPMorgan Chase Bank, N.A., 2017 Ky. App. LEXIS 60 (Ky. Ct. App. Mar. 31, 2017), review denied, ordered not published, 2018 Ky. LEXIS 204 (Ky. June 6, 2018).

59.Validity of Statutes.

The validity of a statute may be determined in a declaratory judgment action. Kentucky Tax Com. v. Great Atlantic & Pacific Tea Co., 280 Ky. 606 , 133 S.W.2d 947, 1939 Ky. LEXIS 180 ( Ky. 1939 ). See Board of Aldermen v. Hunt, 284 Ky. 720 , 145 S.W.2d 814, 1940 Ky. LEXIS 551 ( Ky. 1940 ); Board of Registration Comm'rs v. Burton, 286 Ky. 202 , 150 S.W.2d 4, 1940 Ky. LEXIS 3 ( Ky. 1940 ); Bowman v. Frost, 289 Ky. 826 , 158 S.W.2d 945, 1942 Ky. LEXIS 557 ( Ky. 1942 ); Somsen v. Sanitation Dist. of Jefferson County, 303 Ky. 284 , 197 S.W.2d 410, 1946 Ky. LEXIS 828 ( Ky. 1946 ).

60.Voting.

Declaratory judgment that KRS 125.010 to 125.990 (now repealed), known as the Voting Machine Act, is constitutional was affirmed. Grauman v. Jefferson County Fiscal Court, 294 Ky. 149 , 171 S.W.2d 36, 1943 Ky. LEXIS 402 ( Ky. 1943 ).

61.Water Rates and Services.

It was determined in declaratory judgment action that rates and services of water company for water sold to consumers outside city limits were subject to the jurisdiction of the public service commission. Louisville Water Co. v. Preston Street Road Water Dist., 256 S.W.2d 26, 1953 Ky. LEXIS 713 ( Ky. 1953 ), overruled, McClellan v. Louisville Water Co., 351 S.W.2d 197, 1961 Ky. LEXIS 160 ( Ky. 1961 ).

62.Wills.

Questions with respect to the validity and construction of wills may be determined in a declaratory judgment action. Kentucky Trust Co. v. Sweeney, 163 F. Supp. 450, 1958 U.S. Dist. LEXIS 2908 (D. Ky. 1958 ). See Oehlschlaeger v. Oehlschlaeger's Ex'r, 269 Ky. 596 , 108 S.W.2d 528, 1937 Ky. LEXIS 64 7 ( Ky. 1937 ); Ruh's Ex'rs v. Ruh, 270 Ky. 792 , 110 S.W.2d 1097, 1937 Ky. LEXIS 170 ( Ky. 1937 ); Knebelkamp v. Acosta, 272 Ky. 506 , 114 S.W.2d 737, 1938 Ky. LEXIS 149 ( Ky. 1938 ); Biggs v. Fidelity & Columbia Trust Co., 273 Ky. 54 , 115 S.W.2d 298, 1938 Ky. LEXIS 574 ( Ky. 1938 ); Baldwin's Coex'rs v. Curry, 272 Ky. 827 , 115 S.W.2d 333, 1938 Ky. LEXIS 204 (Ky. 1938); Fugazzi v. Fugazzi's Committee, 275 Ky. 6 2, 120 S.W.2d 779, 1938 Ky. LEXIS 375 (Ky. 1938); Tillman v. Blackburn, 276 Ky. 550 , 124 S.W.2d 755, 1939 Ky. LEXIS 544 ( Ky. 1939 ); Pfeiffer v. Gates, 281 Ky. 445 , 136 S.W.2d 542, 1940 Ky. LEXIS 47 ( Ky. 1940 ); George v. George, 283 Ky. 381 , 141 S.W.2d 558, 1940 Ky. LEXIS 340 ( Ky. 1940 ); Oliver v. Oliver, 286 Ky. 6 , 149 S.W.2d 540, 1941 Ky. LEXIS 204 ( Ky. 1941 ); Wachs v. Security Trust Co., 287 Ky. 303 , 152 S.W.2d 969, 1941 Ky. LEXIS 537 ( Ky. 1941 ); Gaither v. Gaither, 288 Ky. 145 , 155 S.W.2d 746, 1941 Ky. LEXIS 64 (Ky. 1941); Crawford v. Crawford, 290 Ky. 54 2, 162 S.W.2d 4, 1942 Ky. LEXIS 445 ( Ky. 1942 ); Hardin v. Sherley, 292 Ky. 275 , 166 S.W.2d 425, 1942 Ky. LEXIS 77 ( Ky. 1942 ); Craven v. Louisville Trust Co., 293 Ky. 163 , 168 S.W.2d 723, 1943 Ky. LEXIS 583 ( Ky. 1943 ); Beeler v. Fidelity & Columbia Trust Co., 293 Ky. 361 , 169 S.W.2d 16, 1943 Ky. LEXIS 625 ( Ky. 1943 ); Breetz v. Hill, 293 Ky. 526 , 169 S.W.2d 632, 1943 Ky. LEXIS 669 (Ky. 1943); Fidelity & Columbia Trust Co. v. Vivian, 294 Ky. 390 , 171 S.W.2d 987, 1943 Ky. LEXIS 449 (Ky. 1943); Anderson v. Ratliff, 297 Ky. 42 , 178 S.W.2d 946, 1944 Ky. LEXIS 660 ( Ky. 1944 ); Meade v. Rowe's Ex'r & Trustee, 298 Ky. 111 , 182 S.W.2d 30, 1944 Ky. LEXIS 845 ( Ky. 1944 ); McLeod v. Andrews, 303 Ky. 46 , 196 S.W.2d 473, 1946 Ky. LEXIS 758 ( Ky. 1946 ); Johnson v. Foley, 302 Ky. 848 , 196 S.W.2d 733, 1946 Ky. LEXIS 77 2 ( Ky. 1946 ); Duncan v. Cole, 303 Ky. 746 , 199 S.W.2d 438, 1947 Ky. LEXIS 551 ( Ky. 1947 ); Martin v. Harris, 305 Ky. 235 , 203 S.W.2d 78, 1947 Ky. LEXIS 804 ( Ky. 1947 ); Laurent v. Randolph, 306 Ky. 134 , 206 S.W.2d 480, 1947 Ky. LEXIS 969 (Ky. 1947); Whisman v. Roberts' Ex'r, 306 Ky. 433 , 208 S.W.2d 305, 1948 Ky. LEXIS 576 ( Ky. 1948 ); Vanhoose v. Brooks, 306 Ky. 639 , 208 S.W.2d 963, 1948 Ky. LEXIS 627 ( Ky. 1948 ); Miller's Ex'x v. Miller, 310 Ky. 721 , 221 S.W.2d 654, 1949 Ky. LEXIS 1000 ( Ky. 1949 ); Cuddy v. McIntyre, 312 Ky. 606 , 229 S.W.2d 315, 1950 Ky. LEXIS 720 ( Ky. 1950 ); Powell v. Childers, 314 Ky. 45 , 234 S.W.2d 158, 1950 Ky. LEXIS 1008 ( Ky. 1950 ); Greenwell v. Terra Nova, 314 Ky. 813 , 236 S.W.2d 883, 1951 Ky. LEXIS 707 ( Ky. 1951 ); Benjamin v. Goff, 314 Ky. 639 , 236 S.W.2d 905, 1951 Ky. LEXIS 714 ( Ky. 1951 ); Schuler v. Getzendaner, 314 Ky. 682 , 236 S.W.2d 964, 1951 Ky. LEXIS 738 (Ky. 1951); Citizens Fidelity Bank & Trust Co. v. Schellberg, 238 S.W.2d 142, 1951 Ky. LEXIS 803 (Ky. 1951); Cassidy v. Vannatta's Ex'r, 242 S.W.2d 619, 1951 Ky. LEXIS 1055 (Ky. 1951); Haysley v. Rogers, 255 S.W.2d 649, 1952 Ky. LEXIS 1146 ( Ky. 1952 ); Moore v. Morris, 258 S.W.2d 908, 1953 Ky. LEXIS 891 ( Ky. 1953 ), overruled, Melton v. Wyatt, 517 S.W.2d 242, 1974 Ky. LEXIS 23 ( Ky. 1974 ); Brock v. House, 318 S.W.2d 409, 1958 Ky. LEXIS 133 ( Ky. 1958 ); Ellenstein v. Rider, 327 S.W.2d 945, 1959 Ky. LEXIS 81 ( Ky. 1959 ).

In a declaratory rights action pursuant to KRS 418.040 , filed by the administrator of a testator’s estate, where the testator’s will provided, “Upon the death of the last of my children, all of my estate shall be sold and divided among my grandchildren, per stirpes,” the testator’s children provided the stirpital root, and the proceeds of the estate was split in one-fifth shares per child of the testator with surviving issue, and then split equally among each child’s surviving children. Cheek v. Love, 346 S.W.3d 300, 2010 Ky. App. LEXIS 174 (Ky. Ct. App. 2010).

63.Power of Appointment.

Questions with respect to powers of appointment may be determined in a declaratory judgment action. Ligget v. Fidelity & Columbia Trust Co., 274 Ky. 387 , 118 S.W.2d 720, 1938 Ky. LEXIS 271 ( Ky. 1938 ). See MacLean v. Citizens Fidelity Bank & Trust Co., 437 S.W.2d 766, 1969 Ky. LEXIS 459 ( Ky. 1969 ).

64.Wrongful Death Proceeds.

Action to determine whether common-law judgment could be collected out of sum received by administrator for wrongful death presented actual controversy and was not a collateral attack on judgment. Emmerke's Adm'r v. Denunzio, 302 Ky. 832 , 196 S.W.2d 599, 1946 Ky. LEXIS 760 ( Ky. 1946 ).

65.Future Rights.

Future or prospective rights may not be determined in a declaratory judgment action. Kelly v. Jackson, 206 Ky. 815 , 268 S.W. 539, 1925 Ky. LEXIS 103 9 ( Ky. 1925 ). See Sullenger v. Sullenger's Adm'x, 287 Ky. 232 , 152 S.W.2d 571, 1941 Ky. LEXIS 511 ( Ky. 1941 ); Nichols v. Rogers, 292 Ky. 428 , 166 S.W.2d 867, 1942 Ky. LEXIS 103 ( Ky. 1942 ); Carter v. Nance, 304 Ky. 256 , 200 S.W.2d 457, 1947 Ky. LEXIS 616 ( Ky. 1947 ); Covington v. Sohio Petroleum Co., 279 S.W.2d 746, 1955 Ky. LEXIS 528 ( Ky. 1955 ), overruled, McClellan v. Louisville Water Co., 351 S.W.2d 197, 1961 Ky. LEXIS 160 ( Ky. 1961 ); Veith v. Louisville, 355 S.W.2d 295, 1962 Ky. LEXIS 64 ( Ky. 1962 ); Freeman v. Danville Tobacco Board of Trade, Inc., 380 S.W.2d 215, 1964 Ky. LEXIS 284 ( Ky. 1964 ).

66.Pending Suit.

Issues which are involved in a pending suit may not be determined in a declaratory action. McSurely v. Ratliff, 282 F. Supp. 848, 1967 U.S. Dist. LEXIS 7817 (E.D. Ky. 1967 ), appeal denied, 390 U.S. 412, 88 S. Ct. 1112, 19 L. Ed. 2d 1272, 1968 U.S. LEXIS 2173 (1968), appeal dismissed, McSurely v. Ratliff, 390 U.S. 412, 88 S. Ct. 1112, 19 L. Ed. 2d 1272, 1968 U.S. LEXIS 2173 (1968), modified on other grounds, McSurely v. McClellan, 553 F.2d 1277, 1976 U.S. App. LEXIS 5753 (1976). See Jefferson County ex rel. Coleman v. Chilton, 236 Ky. 614 , 33 S.W.2d 601, 1930 Ky. LEXIS 789 ( Ky. 1930 ); Hunt-Forbes Constr. Co. v. Ashland, 250 Ky. 41 , 61 S.W.2d 873, 1933 Ky. LEXIS 616 (1933); Bringardner Lumber Co. v. Knuckles, 253 Ky. 292 , 69 S.W.2d 345, 1934 Ky. LEXIS 640 ( Ky. 1934 ); Ashland v. Beckham, 271 Ky. 96 , 111 S.W.2d 575, 1937 Ky. LEXIS 198 ( Ky. 1937 ); Gibbs v. Tyree, 287 Ky. 656 , 154 S.W.2d 732, 1941 Ky. LEXIS 604 ( Ky. 1941 ); Heyser v. Brown, 299 Ky. 82 , 184 S.W.2d 893, 1945 Ky. LEXIS 389 ( Ky. 1945 ); Travelers Ins. Co. v. Carter, 314 Ky. 392 , 235 S.W.2d 1003, 1951 Ky. LEXIS 663 ( Ky. 1951 ); Schick v. Schick, 240 S.W.2d 533, 1951 Ky. LEXIS 961 ( Ky. 1951 ); Pritchett v. Marshall, 375 S.W.2d 253, 1963 Ky. LEXIS 187 ( Ky. 1963 ).

67.Prior Judgment.

Questions regarding the validity and effect of a prior judgment may not be determined in a declaratory judgment action. Lyons' Adm'r v. Greenblatt, 213 Ky. 567 , 281 S.W. 487, 1926 Ky. LEXIS 567 ( Ky. 1926 ). See Back's Guardian v. Bardo, 234 Ky. 211 , 27 S.W.2d 960, 1930 Ky. LEXIS 151 ( Ky. 1930 ); C. I. T. Corp. v. House, 258 Ky. 86 , 79 S.W.2d 392, 1935 Ky. LEXIS 116 ( Ky. 1935 ); Ferree v. Ferree, 273 Ky. 238 , 115 S.W.2d 1055, 1938 Ky. LEXIS 598 ( Ky. 1938 ); Ferree v. Ferree, 285 Ky. 825 , 149 S.W.2d 719, 1941 Ky. LEXIS 476 ( Ky. 1941 ); Mears v. Hord, 293 Ky. 176 , 168 S.W.2d 736, 1943 Ky. LEXIS 588 ( Ky. 1943 ).

68.Patent Rights.

Lower court properly dismissed declaratory judgment action based upon patent rights on ground that federal courts have exclusive jurisdiction of all cases arising under patent right laws of the United States. Cheatham Electric Switching Device Co. v. Kentucky Switch & Signal Co., 213 Ky. 23 , 280 S.W. 469, 1926 Ky. LEXIS 441 ( Ky. 1926 ).

69.Time Limitations.

Where an inmate alleged that the Department of Corrections improperly denied a petition to enter a KRS 197.045 sex offender treatment program, the inmate alleged the sort of constitutional tort that was subject to a one-year limitations period; because the inmate’s reapplications were essentially requests to reconsider the initial decision, the trial court properly determined that KRS 418.040 et seq. applied, and that the declaratory action was untimely under KRS 413.140 . Tyler v. Taylor, 128 S.W.3d 495, 2003 Ky. App. LEXIS 304 (Ky. Ct. App. 2003).

While KRS 418.040 did not set out a standard statute of limitations for all declaratory judgment actions, the underlying theory of law asserted in the petition determined what statute of limitations applied. Million v. Raymer, 136 S.W.3d 460, 2004 Ky. LEXIS 146 ( Ky. 2004 ).

70.Negligence Cases.

Declaratory relief is not ordinarily available in respect of allegations of past negligence and damage, nor will an action for declaratory relief generally be available to a prospective defendant in a negligence action seeking to obtain a declaration of nonliability as to the prospective plaintiff. Mammoth Med., Inc. v. Bunnell, 265 S.W.3d 205, 2008 Ky. LEXIS 224 ( Ky. 2008 ).

71.Inmate Rights.

Circuit court erred by dismissing an inmate’s petition for a declaration of rights under KRS 418.040 , because the inmate’s due process rights were violated in a disciplinary proceeding when the hearing officer misconstrued the inmate’s assertion of his Fifth Amendment right as a waiver of his right to call witnesses. Boards-Bey v. White, 2012 Ky. App. LEXIS 115 (Ky. Ct. App. July 13, 2012), aff'd on other grounds, 426 S.W.3d 569, 2014 Ky. LEXIS 149 ( Ky. 2014 ).

72.Postconviction Proceedings.

KRS 418.040 is not a substitute for direct appeal, RCr P. 11.42, and CR 60.02 proceedings, nor a device to set the stage for such proceedings. That is not to say, however, that the declaratory judgment procedure may not be used by prison inmates for limited purposes unrelated to a direct collateral attack on a criminal judgment; however, piecemeal litigation through successive declaratory judgment actions is precluded. Foley v. Commonwealth, 306 S.W.3d 28, 2010 Ky. LEXIS 53 ( Ky. 2010 ).

73.Discovery.

Trial court did not abuse its discretion when it failed to permit additional discovery because once a motion was made under the declaratory provisions, it had to be justiciable—ready to be decided when made. When the movant made the motion, the movant was tacitly agreeing that the issue was ripe for a ruling without the need for further discovery. Merritt v. Catholic Health Initiatives, Inc., 2017 Ky. App. LEXIS 703 (Ky. Ct. App. Nov. 17, 2017).

74.Sovereign immunity.

Circuit court acted within its jurisdiction when it entered declaratory judgment regarding the status of the University of Kentucky vis-`-vis the executive branch of state government because the State was not sovereignly immune from a declaratory judgment action. Univ. of Ky. v. Moore, 599 S.W.3d 798, 2019 Ky. LEXIS 437 ( Ky. 2019 ).

Cited in:

Wallace v. Wallace’s Adm’x, 267 Ky. 65 , 100 S.W.2d 809, 1936 Ky. LEXIS 754 ( Ky. 1936 ); Louisville & N.R.R. v. Powers, 268 Ky. 491 , 105 S.W.2d 591, 1937 Ky. LEXIS 494 (1937); Bringardner Lumber Co. v. Knuckles, 269 Ky. 567 , 108 S.W.2d 511, 1937 Ky. LEXIS 641 ( Ky. 1937 ); Clay County v. Sizemore, 278 Ky. 120 , 128 S.W.2d 556, 1939 Ky. LEXIS 397 ( Ky. 1939 ); Burke v. Stitzel-Weller Distillery, 284 Ky. 676 , 145 S.W.2d 861, 1940 Ky. LEXIS 565 ( Ky. 1940 ); Harwood v. Dick, 286 Ky. 423 , 150 S.W.2d 704, 1941 Ky. LEXIS 255 ( Ky. 1941 ); Morgan County v. Governor of Kentucky, 288 Ky. 532 , 156 S.W.2d 498, 1941 Ky. LEXIS 133 ( Ky. 1941 ); Turner v. Ewald, 290 Ky. 833 , 162 S.W.2d 181, 1942 Ky. LEXIS 456 ( Ky. 1942 ); Dotson’s Adm’r v. Ferrell, 293 Ky. 470 , 169 S.W.2d 320, 1942 Ky. LEXIS 10 ( Ky. 1942 ); Helsley v. McKenzie, 299 Ky. 712 , 187 S.W.2d 279 (1945); Jefferson County Fiscal Court v. Trager, 300 Ky. 606 , 189 S.W.2d 955, 1945 Ky. LEXIS 613 ( Ky. 1945 ); Cooke v. Gaidry, 309 Ky. 727 , 218 S.W.2d 960, 1949 Ky. LEXIS 797 , 10 A.L.R.2d 778 ( Ky. 1949 ); Little v. Commonwealth, 495 S.W.2d 498, 1973 Ky. LEXIS 399 ( Ky. 1973 ); Norton-Children’s Hospitals, Inc. v. First Kentucky Trust Co., 557 S.W.2d 895, 1977 Ky. App. LEXIS 842 (Ky. Ct. App. 1977); Murray v. Murray, 564 S.W.2d 5, 1978 Ky. LEXIS 344 ( Ky. 1978 ); Lee v. Commonwealth, 565 S.W.2d 634, 1978 Ky. App. LEXIS 511 (Ky. Ct. App. 1978); Board of Trustees v. Public Employees Council No. 51 American Federation of States, etc, 571 S.W.2d 616, 1978 Ky. LEXIS 393 ( Ky. 1978 ); Maupin v. Stansbury, 575 S.W.2d 695, 1978 Ky. App. LEXIS 663 (Ky. Ct. App. 1978); First Nat’l Bank v. General Assembly Mission Board of Presbyterian Church, Inc., 610 S.W.2d 927, 1980 Ky. App. LEXIS 4 11 (Ky. Ct. App. 1980); Commissioners of Sinking Fund v. Hopson, 613 S.W.2d 621, 1980 Ky. App. LEXIS 4 29 (Ky. Ct. App. 1980); Samuel T. Isaac & Associates, Inc. v. Federal Nat’l Mortg. Asso., 647 S.W.2d 495, 1982 Ky. App. LEXIS 284 (Ky. Ct. App. 1982); Field v. Evans, 675 S.W.2d 3, 1983 Ky. App. LEXIS 370 (Ky. Ct. App. 1983); Cabinet for Human Resources v. Lexington-Fayette Urban County Government, 679 S.W.2d 244, 1984 Ky. App. LEXIS 619 (Ky. Ct. App. 1984); Kentucky Milk Marketing & Antimonopoly Com. v. Kroger Co., 691 S.W.2d 893, 1985 Ky. LEXIS 224 ( Ky. 1985 ); Berea College Utilities v. Berea, 691 S.W.2d 235, 1985 Ky. App. LEXIS 588 (Ky. Ct. App. 1985); HealthAmerica Corp. of Kentucky v. Humana Health Plan, Inc., 697 S.W.2d 946, 1985 Ky. LEXIS 241 ( Ky. 1985 ); Cabinet for Human Resources Kentucky Health Facilities v. Provincial Convent of Good Shepherd, Inc., 701 S.W.2d 137, 1985 Ky. App. LEXIS 616 (Ky. Ct. App. 1985); Wells v. Kentucky Local Correctional Facilities Constr. Authority, 730 S.W.2d 951, 1987 Ky. App. LEXIS 499 (Ky. Ct. App. 1987); Revenue Cabinet v. Cox, 738 S.W.2d 114, 1987 Ky. App. LEXIS 516 (Ky. Ct. App. 1987); Hendrix v. Fireman’s Fund Ins. Co., 823 S.W.2d 937, 1991 Ky. App. LEXIS 111 (Ky. Ct. App. 1991); Vega v. Kosair Charities Committee, Inc., 832 S.W.2d 895, 1992 Ky. App. LEXIS 141 (Ky. Ct. App. 1992); Abernathy v. Nicholson, 899 S.W.2d 85, 1995 Ky. LEXIS 76 ( Ky. 1995 ); Hopkinsville-Christian County Planning Comm’n v. Christian County Bd. of Educ., 903 S.W.2d 531, 1995 Ky. App. LEXIS 142 (Ky. Ct. App. 1995); Weiand v. Board of Trustees of Ky. Retirement Sys., 936 S.W.2d 778, 1997 Ky. App. LEXIS 4 (Ky. Ct. App. 1997); Robertson v. Vinson, 58 S.W.3d 432, 2001 Ky. LEXIS 174 ( Ky. 2001 ); Nash v. Campbell County Fiscal Court, 345 S.W.3d 811, 2011 Ky. LEXIS 57 ( Ky. 2011 ); Merritt v. Catholic Health Initiatives, Inc., 612 S.W.3d 822, 2020 Ky. LEXIS 462 ( Ky. 2020 ); Cameron v. Beshear, 628 S.W.3d 61, 2021 Ky. LEXIS 240 ( Ky. 2021 ).

Notes to Unpublished Decisions

Analysis

1.Insurance Policies.

Unpublished decision: District court did not abuse its discretion in exercising jurisdiction over an insurer’s action under the Declaratory Judgment Act, 28 U.S.C.S. § 2201(a), in which the insurer sought a declaration that it had no duty to defend or indemnify the insured in a state court negligence action arising from a sailing accident; although the insurance coverage issue was governed by Kentucky law and KRS 418.040 provided a procedure for a declaration of rights, the district court properly concluded that the other factors clearly weighed in favor of the district court’s exercise of jurisdiction. Summary judgment for the insurer was proper because an exclusion provision in the homeowner policy precluded coverage; the uninsured sailboat owned by a third-party was in the care of the insured when it ran aground on a reef. W. Am. Ins. Co. v. Prewitt, 208 Fed. Appx. 393, 2006 FED App. 0887N, 2006 U.S. App. LEXIS 30285 (6th Cir. Ky. 2006 ).

2.Inmate Rights.

Unpublished decision: A State inmate was not deprived of due process where the prison discipline imposed for an alleged assault did not impose atypical and significant hardship on the inmate, nor implicate a protected liberty interest. Marksberry v. Chandler, 126 S.W.3d 747, 2003 Ky. App. LEXIS 273 (Ky. Ct. App. 2003).

Research References and Practice Aids

Kentucky Law Journal.

Kentucky Law Survey: Cooper, Civil Procedure, 66 Ky. L.J. 531 (1977-1978).

Harned and Bachert, Workers’ Compensation, 74 Ky. L.J. 491 (1985-86).

Treatises

Caldwell’s Kentucky Form Book, Prac. & Proc. Forms, 5th Ed., Complaint in Class Action to Declare City Occupational Tax Unconstitutional and to Enjoin Same, Form 355.08.

Caldwell’s Kentucky Form Book, Prac. & Proc. Forms, 5th Ed., Complaint in Declaratory Judgment Action to Have Deed Declared Mortgage, Form 310.11.

418.045. Persons who may obtain declaration of rights — Enumeration not exclusive.

Any person interested under a deed, will or other instrument of writing, or in a contract, written or parol; or whose rights are affected by statute, municipal ordinance, or other government regulation; or who is concerned with any title to property, office, status or relation; or who as fiduciary, or beneficiary is interested in any estate, provided always that an actual controversy exists with respect thereto, may apply for and secure a declaration of his right or duties, even though no consequential or other relief be asked. The enumeration herein contained does not exclude other instances wherein a declaratory judgment may be prayed and granted under KRS 418.040 , whether such other instance be of a similar or different character to those so enumerated.

History. C. C. 639a-2: amend. Acts 1922, ch. 83, § 2; trans. Acts 1952, ch. 84, § 1.

NOTES TO DECISIONS

1.In General.

Although the scope of the Kentucky Declaratory Judgment Act is liberal and wide, there are, however, limits. Declaratory judgment does not fit every occasion and does not replace the existing system of remedies and actions. For example, an action for a declaratory judgment cannot be instituted to secure a determination of substantive rights involved in a pending suit. Mammoth Med., Inc. v. Bunnell, 265 S.W.3d 205, 2008 Ky. LEXIS 224 ( Ky. 2008 ).

The “enumeration not exclusive” sentence in KRS 418.045 merely clarifies the principle that the section, enumerating certain specific situations, is not exclusive as to other situations. It, however, by itself, does not expand the scope of the Kentucky Declaratory Judgment Act beyond that of other states that have adopted the Uniform Act. Mammoth Med., Inc. v. Bunnell, 265 S.W.3d 205, 2008 Ky. LEXIS 224 ( Ky. 2008 ).

2.Deeds.

A second substituted amendment in a declaratory judgment action attempting to set aside a deed executed by plaintiff to his father while he was in prison upon allegations it was procured from plaintiff by false and fraudulent representations allegedly made to him by his brother was sufficient to state a cause of action under this section. Maas v. Maas, 305 Ky. 490 , 204 S.W.2d 798, 1947 Ky. LEXIS 844 ( Ky. 1947 ).

It could not be doubted that controversy existed under this section between parties relating to an alley between their properties. McAllister v. Rennison, 305 Ky. 497 , 204 S.W.2d 808, 1947 Ky. LEXIS 848 ( Ky. 1947 ).

No one other than parties to a deed restricting use of grantor’s other property for a moving picture theater for 21 years could possibly have had any interest which would have been affected by the outcome of declaratory judgment action for judgment declaring the rights of the parties under the deed, and the city, its residents or successors in title were not required to be made parties to the action. Ladd v. Pittsburgh Consol. Coal Co., 309 Ky. 405 , 217 S.W.2d 807, 1949 Ky. LEXIS 712 ( Ky. 1949 ).

3.Wills.

Defendants properly asked in their counterclaim filed in action for settlement of decedent’s estate and construction of will for declaration of rights under writing executed after institution of action for construction of will, allegedly settling all disputes as to construction of will. Greenwell v. Terra Nova, 314 Ky. 813 , 236 S.W.2d 883, 1951 Ky. LEXIS 707 ( Ky. 1951 ).

Where there was an actual controversy between the beneficiary on one side, and the trustee and another beneficiary on the other side, the beneficiary of a spendthrift trust under a will which provided for a forfeiture of rights of any person who received under the will who sought to contest or annul any provision of the will was entitled to bring a declaratory judgment action on the question of whether he could sue for a construction of the will and enforcement of rights under the will without a forfeiture of his rights. Dravo v. Liberty Nat'l Bank & Trust Co., 267 S.W.2d 95, 1954 Ky. LEXIS 833 ( Ky. 1954 ).

A suit for construction of a will involving controversial questions and valuable property rights dependent upon a proper construction of the will was an appropriate one under the declaratory judgment act and the rights and duties of the parties should have been adjudicated by the circuit court. Jasper v. Jasper, 275 S.W.2d 412, 1954 Ky. LEXIS 1249 ( Ky. 1954 ).

In a suit for a declaration of rights involving the construction of a will of the deceased, the petition should not have been dismissed because it did not ask for consequential relief in view of this section. Jasper v. Jasper, 275 S.W.2d 412, 1954 Ky. LEXIS 1249 ( Ky. 1954 ).

Court approved a settlement agreement pursuant to Fed. R. Bankr. P. 9019 because it was fair and equitable and in the best interests of the estate and creditors. However, the approval did not include any determination as to the validity of a newly executed will because the court did not have the authority to do so under the probate exception and KRS 418.045 did not compel a declaratory judgment where the testator was still living. In re Brown, 484 B.R. 322, 2012 Bankr. LEXIS 3972 (Bankr. E.D. Ky. 2012 ), aff'd, 2013 U.S. Dist. LEXIS 74323 (E.D. Ky. May 28, 2013).

4.Instrument of Writing.

This section was not intended to permit the determination as to the right to possession of a paper but only rights arising out of the writing contained in an instrument or paper. Travelers Ins. Co. v. Carter, 314 Ky. 392 , 235 S.W.2d 1003, 1951 Ky. LEXIS 663 ( Ky. 1951 ).

5.Contracts.

Third parties could not by an amended petition maintain a declaration of rights on the issues as presented by the pleadings in an action for specific performance in which defendants had by cross petition sought damages for breach of another contract from third parties since every issue upon which they sought a declaration of rights was presented by the pending equitable action in which the trial court could render judgment with the right of review in the Court of Appeals. Bringardner Lumber Co. v. Knuckles, 253 Ky. 292 , 69 S.W.2d 345, 1934 Ky. LEXIS 640 ( Ky. 1934 ).

A proceeding under the declaratory judgment act to have determined the right of a former employee to solicit business from clients of his former employer for whom he did any work while employed by said former employer in the latter’s consulting management engineering business was proper. Birn v. Runion, 310 Ky. 805 , 222 S.W.2d 657, 1949 Ky. LEXIS 1021 ( Ky. 1949 ).

The requirements that plaintiff execute a bond to defendant to pay damages, fill ditches and gullies and remove tops, limbs and branches from premises did not impose an undue burden upon plaintiff where trial court had determined that defendant was entitled under a lease to mine coal without hindrance and that plaintiff could not exercise his rights under a contract for sale of timber without materially interfering with defendant’s rights. McMillan v. Bailey-Darby Coal Corp., 251 S.W.2d 225, 1952 Ky. LEXIS 900 ( Ky. 1952 ).

6.Municipal Ordinance.

The validity of a municipal ordinance may be determined in a declaratory judgment action brought by any person whose rights are affected, if a controversy actually exists. Bowling Green v. Milliken, 257 Ky. 245 , 77 S.W.2d 777, 1934 Ky. LEXIS 542 ( Ky. 1934 ).

Where property owners refused to comply with a city ordinance requiring them to connect with the sanitary sewer system, an actual controversy existed and a declaratory judgment action by either the city or the property owners would be binding on both the city and the affected property owners. Bowling Green v. Milliken, 257 Ky. 245 , 77 S.W.2d 777, 1934 Ky. LEXIS 542 ( Ky. 1934 ).

Where the police court judge sustained a demurrer to an action for violation of an ordinance requiring property owner to connect to a sanitary sewer, which the property owner had refused to do, on the ground that the ordinance was invalid and the fine provided by the ordinance for violation was not large enough to authorize appeal, the city could not properly bring an original action in the Court of Appeals for a writ of prohibition against the police court judge because it had adequate remedies by either a declaratory judgment action or an action against the property owners for a mandatory injunction requiring them to make the connection. Bowling Green v. Milliken, 257 Ky. 245 , 77 S.W.2d 777, 1934 Ky. LEXIS 542 ( Ky. 1934 ).

The Circuit Court had jurisdiction to hear and determine an injunction against the enforcement of a license tax ordinance. Mayfield v. Reed, 278 Ky. 5 , 127 S.W.2d 847, 1939 Ky. LEXIS 367 ( Ky. 1939 ).

The Circuit Court had jurisdiction of an action under the declaratory judgment act brought by a railway company against city and certain officers thereof for a declaration of rights and an injunction against prosecution of criminal proceedings for violating a city ordinance. Harrodsburg v. Southern R. Co., 278 Ky. 10 , 128 S.W.2d 233, 1939 Ky. LEXIS 389 ( Ky. 1939 ).

Where in action regarding question of validity of revenue bonds issued to finance construction of new municipal power plant, citizens, taxpayers and consumers of electricity of third-class city were too numerous to permit each of them to be brought before the court by personal process, it was proper to bring class action against one person having the same interest as the entire class as a representative of the class and any failure on his part to raise a question affecting the interest of the class would have the same effect on his own interest. Selle v. Henderson, 309 Ky. 599 , 218 S.W.2d 645, 1949 Ky. LEXIS 772 ( Ky. 1949 ).

Federal courts lack jurisdiction of an action challenging the validity of a municipal tax where, as here, the Legislature has provided the taxpayer with an adequate remedy in the state courts. King v. Sloane, 545 F.2d 7, 1976 U.S. App. LEXIS 6307 (6th Cir. Ky. 1976 ).

7.Orders.
8.—Fiscal Court.

Declaratory judgment action to test the authority of the fiscal court to enter order for payment to road engineer could not be maintained since the right to so test it is amply provided for by the appeal given by KRS 23.020 (now repealed). Oldham County ex rel. Wooldridge v. Arvin, 244 Ky. 551 , 51 S.W.2d 657, 1932 Ky. LEXIS 463 ( Ky. 1932 ).

Where by amended petition the plaintiff requested a declaration of rights concerning the proper construction of law fixing advertising rates at $1.25 per linear inch and the validity of a subsequent order of the fiscal court prescribing $1.00 per linear inch would be paid for published legal notices and advertisements, the order created an actual controversy between the plaintiff and the fiscal court with respect to the legal rate which would be paid for such future services since the order was a general order and did not involve a specific claim so no ascertainable amount was in controversy and the plaintiff could not appeal from the order under KRS 23.030 (now repealed) authorizing an appeal where the amount in controversy exceeds $25.00 and, secondly, this was exactly the type of controversy recognized by KRS 418.040 and this section as authorizing a declaratory judgment action. Enterprise Publishing Co. v. Harlan County, 310 S.W.2d 551, 1958 Ky. LEXIS 400 ( Ky. 1958 ).

A declaratory judgment action attacking the validity of law authorizing compensation to members of the fiscal court, and fiscal court order providing for compensation in accordance with such law was proper as an appeal from the fiscal court order was not the only proper way to make such attack. Crafton v. Bratcher, 329 S.W.2d 70, 1959 Ky. LEXIS 143 ( Ky. 1959 ).

9.—Interstate Commerce Commission.

Where no administrative remedy existed, the state court had jurisdiction under this section to require arbitration of rights under a protective order of the interstate commerce commission. Pinsly v. Thompson, 397 S.W.2d 61, 1965 Ky. LEXIS 61 ( Ky. 1965 ).

10.Governmental Regulation.

Licensee under alcoholic beverage control act may seek a declaration of his rights previous to conducting his business in a manner prohibited by a regulation of the department, but after the board has acquired jurisdiction of the question by citing licensee for a violation, he may obtain relief only in the manner prescribed by KRS 243.560 to 243.590 . Heyser v. Brown, 299 Ky. 82 , 184 S.W.2d 893, 1945 Ky. LEXIS 389 ( Ky. 1945 ).

11.Title to Property.

Although it was evident from the pleadings and the judgment that in essence the suit was to quiet title, and it could have been tried and adjudicated as such, no reason appeared why it could not also be prosecuted as a declaratory judgment proceeding. North East Coal Co. v. Blevins, 312 Ky. 628 , 229 S.W.2d 162, 1950 Ky. LEXIS 716 ( Ky. 1950 ).

12.Title to Office.

Since this section expressly includes, among those who are entitled to seek a declaration of their rights or duties, any person “who is concerned with any title to property, office, status or relation,” the right to a declaration of rights was available to the plaintiff, who was an appointee to the office of superintendent of county schools. Chestnut v. Reynolds, 291 Ky. 231 , 163 S.W.2d 456, 1942 Ky. LEXIS 201 ( Ky. 1942 ).

A suit by other members of county board of education to have the actions of another member declared to constitute an abandonment of his office was maintainable under this section. Hall v. Allen, 313 Ky. 441 , 231 S.W.2d 702, 1950 Ky. LEXIS 898 ( Ky. 1950 ).

The existence of another remedy does not preclude a judgment for declaratory relief in cases where it is appropriate but where a special statute is clearly intended to provide an exclusive remedy, relief under the declaratory judgment act is not available; however, even though KRS 156.480 provides for automatic forfeiture of an incumbent’s right to office which is self-executing, the fact of the existence of grounds of forfeiture must be determined by a judicial tribunal and a complaint for a declaration of rights under this section discloses a justiciable controversy between the parties where both claim a right to the office and such an action is not a suit to oust an incumbent but to test title to the office and is proper. Arnett v. De Weese, 304 S.W.2d 784, 1957 Ky. LEXIS 281 ( Ky. 1957 ).

13.Child Custody.

The question of whether the surviving father or the maternal grandparents should be entitled to the custody of minor child is a controversy which may be properly decided in a declaratory judgment action. Carter v. Nance, 304 Ky. 256 , 200 S.W.2d 457, 1947 Ky. LEXIS 616 ( Ky. 1947 ).

14.Elections.

Candidates on Progressive party ticket had no duties to perform with respect to the appointment of challengers or inspectors or their admission to, or exclusion from the booths nor any rights that would be affected by the presence or absence of inspectors or challengers at the polls and could not bring declaratory judgment action against chairmen of boards of election commissioners, Attorney General and other officials to obtain a declaration of rights to the effect that the Progressive party was entitled to appoint challengers and inspectors at the election; therefore, a demurrer to their petition was properly sustained. Axton v. Goodman, 205 Ky. 382 , 265 S.W. 806, 1924 Ky. LEXIS 106 ( Ky. 1924 ).

An action for a declaration that certain political candidates are disqualified is not cognizable by a court where no justiciable right of the plaintiffs is affected and no actual controversy exists between the plaintiffs and the defendants. Dietz v. Zimmer, 231 Ky. 546 , 21 S.W.2d 999, 1929 Ky. LEXIS 329 ( Ky. 1929 ).

15.Judgments.
16.—Construction.

In an action by a county board of education and others alleging that the members could not agree as to the proper interpretation of a judgment of the Court of Appeals or a new statute, the court should have declared the rights in the premises. Ex parte County Board of Education, 260 Ky. 246 , 260 Ky. 249 , 84 S.W.2d 59, 1935 Ky. LEXIS 445 ( Ky. 1935 ).

A declaratory action may be maintained for the purpose of construing a judgment where the parties do not know how to proceed thereunder or as to how the judgment affects them. Stavros v. Bradley, 313 Ky. 676 , 232 S.W.2d 1004, 1950 Ky. LEXIS 916 ( Ky. 1950 ).

17.—Collateral Attack on Former.

After a binding declaration of rights has been made by a declaratory judgment, a party cannot treat the judgment as a mere piece of advice and proceed to attempt to exercise rights denied him by the judgment with the view that whether he can exercise the rights so denied him can be litigated separately from the question of whether he had the rights in the first instance. McMillan v. Bailey-Darby Coal Corp., 251 S.W.2d 225, 1952 Ky. LEXIS 900 ( Ky. 1952 ).

A declaratory judgment action by a city to invalidate annexation proceedings in which Court of Appeals entered judgment reversing with directions Circuit Court judgment and authorized one city to annex part of the territory of another city was not proper as it was in effect a collateral attack upon the judgment which was final. Louisville v. St. Matthews, 316 S.W.2d 210, 1958 Ky. LEXIS 31 ( Ky. 1958 ).

18.Legislative Session.

Pleadings which alleged that the governor was “considering calling into extraordinary session the General Assembly for the sole and express purpose of redistricting the said commonwealth” presented a “justiciable controversy” which should be resolved in advance of any legislative action of the General Assembly called the trial court had dismissed the declaratory action and the commissioner of finance contended the General Assembly could not consider legislative reapportionment or redistricting before 1964; therefore, he could not approve the payroll and expenses of the members of the General Assembly for the 1963 extraordinary session called solely for the purpose of redistricting. Combs v. Matthews, 364 S.W.2d 647, 1963 Ky. LEXIS 206 ( Ky. 1963 ).

19.Pending Litigation.

Action enabling person affected by statute or government regulation to seek declaration of right was inapplicable to county while its action to recover under such provisions was pending. Jefferson County ex rel. Coleman v. Chilton, 236 Ky. 614 , 33 S.W.2d 601, 1930 Ky. LEXIS 789 ( Ky. 1930 ).

An action for a declaration of rights may not be instituted to secure a determination of questions presented for decision in a pending action by contending that the action filed against the executrix was not legally pending because it was instituted within six (6) months of the qualification of the personal representative. Gibbs v. Tyree, 287 Ky. 656 , 154 S.W.2d 732, 1941 Ky. LEXIS 604 ( Ky. 1941 ).

20.Water Rates.

It was not error to permit property owners to intervene in an action for a declaratory judgment to determine whether the defendants were entitled to collect a rental for the use of their water mains, since the rentals would come from the pockets of the water consumers in the city giving the property owners an interest in the subject of the action. Lee v. Park Hills, 295 Ky. 383 , 174 S.W.2d 539, 1943 Ky. LEXIS 250 ( Ky. 1943 ).

21.Workers’ Compensation.

Workers’ compensation board is vested with exclusive original jurisdiction to hear and determine matters within the purview of the workers’ compensation act and the Circuit Court does not have jurisdiction of declaratory judgment action to determine time for which an employee should be allowed compensation for a hernia. Moore v. Louisville Hydro-Electric Co., 226 Ky. 20 , 10 S.W.2d 466, 1928 Ky. LEXIS 19 ( Ky. 1928 ).

A declaratory judgment action is not proper to compel production of release where a case is pending before the workers’ compensation board. Travelers Ins. Co. v. Carter, 314 Ky. 392 , 235 S.W.2d 1003, 1951 Ky. LEXIS 663 ( Ky. 1951 ).

22.Actual Controversy.

For there to be a controversy of any character, there must be a contention on one side and a counter-contention on the other, and it is equally clear, that to give the court jurisdiction, such controversy must be a justiciable one. Revis v. Daugherty, 215 Ky. 823 , 287 S.W. 28, 1926 Ky. LEXIS 818 ( Ky. 1926 ).

There is no actual controversy which is necessary to give a court jurisdiction of a declaratory judgment action where there is no showing that there has been any action on the part of the department of highways such as would indicate even an intention to take action which would necessitate the removal or relocation of the pipelines involved, and a mere expression of fear or expectation on the part of the waterworks company that such action may be taken in the future is not sufficient to meet the actual controversy requirements of this section. Commonwealth ex rel. Watkins v. Winchester Water Works Co., 303 Ky. 420 , 197 S.W.2d 771, 1946 Ky. LEXIS 849 ( Ky. 1946 ).

Where intervenor may have an interest in question of validity of statute but pleadings do not raise issue between parties to actual controversy, court is without jurisdiction to declare rights of parties, but amendment of pleadings upon return of case to lower court will be permitted. Elrod v. Willis, 303 Ky. 724 , 198 S.W.2d 967, 1946 Ky. LEXIS 926 ( Ky. 1946 ).

A general demurrer to a petition for a declaration of rights seeking the construction of a will must be taken to admit an actual controversy existed. Jasper v. Jasper, 275 S.W.2d 412, 1954 Ky. LEXIS 1249 ( Ky. 1954 ).

An actual controversy is not one which involves a question which is academic or hypothetical or which calls for nothing more than an advisory opinion; rather, it is a controversy over present rights, duties, and liabilities. Bischoff v. Newport, 733 S.W.2d 762, 1987 Ky. App. LEXIS 525 (Ky. Ct. App. 1987).

An actual controversy with respect to an ad valorem tax rate would occur in two circumstances: when a taxpayer wishes to avoid paying a levied tax believed to be based upon an illegal rate, in which case a declaratory judgment action could be brought by the taxpayer before paying the tax; and when a taxpayer has already paid a tax which he or she later concludes was based upon an illegal rate, and the taxpayer wants to obtain a refund, in which case the taxpayer must exhaust the administrative remedy before seeking a refund judicially, unless there is an alleged constitutional violation. Bischoff v. Newport, 733 S.W.2d 762, 1987 Ky. App. LEXIS 525 (Ky. Ct. App. 1987).

A medical supply distributor was entitled to a writ of prohibition, seeking dismissal of a declaratory judgment action filed against it because, although the Circuit Court had jurisdiction over the action, which sought summary adjudication of liability and damages in a potential malpractice suit by the distributor, the Circuit Court acted erroneously in allowing the action to proceed when declaratory relief was not intended as a vehicle for adjudicating allegations of past negligence or damage. Mammoth Med., Inc. v. Bunnell, 265 S.W.3d 205, 2008 Ky. LEXIS 224 ( Ky. 2008 ).

23.Justiciable Controversy.

To render the controversy justiciable, plaintiff should aver his legal rights in the premises and that defendant claims other, or contrary rights, or occupies some official relation thereto with duties which, if exercised, would impair, obstruct, or defeat plaintiff in his rights. Revis v. Daugherty, 215 Ky. 823 , 287 S.W. 28, 1926 Ky. LEXIS 818 ( Ky. 1926 ).

Justiciability turns on “evaluating both the appropriateness of the issues for decision and the hardship of denying judicial relief.” Combs v. Matthews, 364 S.W.2d 647, 1963 Ky. LEXIS 206 ( Ky. 1963 ).

The court is not authorized to give advisory opinions on hypothetical factual situations, but it may declare the rights of litigants in advance of action when it concludes that a justiciable controversy is presented, the advance determination of which would eliminate or minimize the risk of wrong action by any of the parties. Combs v. Matthews, 364 S.W.2d 647, 1963 Ky. LEXIS 206 ( Ky. 1963 ).

24.Summary Judgment.

Even though the trial court may believe the party opposing summary judgment may not succeed at trial, it should not render summary judgment if there is any genuine issue of material fact. On a motion for summary judgment, the court must examine the evidence not to determine any question of fact but to discover if there is a real issue. Summary judgment must not be used to end the rights of litigants to a trial if they have a triable issue. Williams v. Hillview, 831 S.W.2d 181, 1992 Ky. LEXIS 86 ( Ky. 1992 ).

25.Guardian Ad Litem.

The duties of a guardian ad litem appointed in an incompetency proceeding in District Court do not include the bringing of a declaratory judgment lawsuit in Circuit Court on behalf of the ward. Any such action must be brought by a next friend. Sparks v. Boggs, 839 S.W.2d 581, 1992 Ky. App. LEXIS 229 (Ky. Ct. App. 1992).

26.Standing.

A litigant must demonstrate that he has a legal interest in the judgment he is seeking in order to invoke the Circuit Court’s jurisdiction under the Declaratory Judgment Act, KRS 418.045 ; thus, a taxpayer’s complaint for declaratory judgment and injunctive relief was properly dismissed for failure to state a claim upon which relief could be granted because the taxpayer lacked standing to challenge the constitutionality of KRS 220.035(4), which authorized the sanitation district to conduct condemnation proceedings, where she failed to demonstrate that she had been adversely affected by the statute. Garriga v. Sanitation Dist. No. 1, 2003 Ky. App. LEXIS 305 (Ky. Ct. App. Dec. 5, 2003).

Governor of the Commonwealth of Kentucky had standing to bring a declaratory judgment action against implementation of legislation which the Kentucky General Assembly enacted that amended the statutory power of the Governor to respond to emergencies because whether the Governor’s emergency power was statutorily or constitutionally derived was at the heart of the Governor’s complaint and thus presented a justiciable case or controversy. Cameron v. Beshear, 628 S.W.3d 61, 2021 Ky. LEXIS 240 ( Ky. 2021 ).

27.Negligence Cases.

Declaratory relief is not ordinarily available in respect of allegations of past negligence and damage, nor will an action for declaratory relief generally be available to a prospective defendant in a negligence action seeking to obtain a declaration of nonliability as to the prospective plaintiff. Mammoth Med., Inc. v. Bunnell, 265 S.W.3d 205, 2008 Ky. LEXIS 224 ( Ky. 2008 ).

28.Sovereign Immunity.

Circuit court acted within its jurisdiction when it entered declaratory judgment regarding the status of the University of Kentucky vis-`-vis the executive branch of state government because the State was not sovereignly immune from a declaratory judgment action. Univ. of Ky. v. Moore, 599 S.W.3d 798, 2019 Ky. LEXIS 437 ( Ky. 2019 ).

Cited in:

Merritt v. Campbellsville, 678 S.W.2d 788, 1984 Ky. App. LEXIS 625 (Ky. Ct. App. 1984); HealthAmerica Corp. of Kentucky v. Humana Health Plan, Inc., 697 S.W.2d 946, 1985 Ky. LEXIS 241 ( Ky. 1985 ); Vega v. Kosair Charities Committee, Inc., 832 S.W.2d 895, 1992 Ky. App. LEXIS 141 (Ky. Ct. App. 1992); Kraus v. Kentucky State Senate, 872 S.W.2d 433, 1993 Ky. LEXIS 169 ( Ky. 1993 ).

Research References and Practice Aids

Cross-References.

Declaration of rights if actual controversy exists, KRS 418-040.

Kentucky Law Journal.

Kentucky Law Survey, Bondurant and Arvin, Real Property, 69 Ky. L.J. 625 (1980-81).

Harned and Bachert, Workers’ Compensation, 74 Ky. L.J. 491 (1985-86).

Treatises

Petrilli, Kentucky Family Law, Antenuptial Agreements, § 13.11.

418.050. Action for declaration to be heard as motion.

Any action in which a declaration of rights or determination of questions of construction is the relief asked, may be docketed for early hearing as in the case of a motion.

History. C. C. 639a-3: amend. Acts 1922, ch. 83, § 3; trans. Acts 1952, ch. 84, § 1; amend. Acts 1966, ch. 255, § 272.

NOTES TO DECISIONS

1.Discretion of Court.

Where declaratory judgment action which had been pending a year and a half was tried without the issue being completed 30 days before the term began as formerly required but the record indicated that the parties were ready for trial and there was no prejudice to either, the trial court did not abuse its discretion under this section. Hall v. Eversole's Adm'r, 251 Ky. 296 , 64 S.W.2d 891, 1933 Ky. LEXIS 851 ( Ky. 1933 ).

Court is vested with wide discretion in determining time in which defendant may be required to respond and plead, regardless of time limits governing procedure in other actions. Chestnut v. Reynolds, 291 Ky. 231 , 163 S.W.2d 456, 1942 Ky. LEXIS 201 ( Ky. 1942 ).

Where it was desirable that action be disposed of prior to beginning of term of office in dispute, there was no abuse of discretion in entering judgment after court had heard extensive arguments and ruled that defenses interposed were insufficient. Chestnut v. Reynolds, 291 Ky. 231 , 163 S.W.2d 456, 1942 Ky. LEXIS 201 ( Ky. 1942 ).

Trial court did not abuse its discretion when it failed to permit additional discovery because once a motion was made under the declaratory provisions, it had to be justiciable—ready to be decided when made. When the movant made the motion, the movant was tacitly agreeing that the issue was ripe for a ruling without the need for further discovery. Merritt v. Catholic Health Initiatives, Inc., 2017 Ky. App. LEXIS 703 (Ky. Ct. App. Nov. 17, 2017).

2.Early Hearing.

Under this section declaratory judgment proceedings are afforded the right to early hearing in the trial court. Paducah v. Electric Plant Board of Paducah, 449 S.W.2d 907, 1970 Ky. LEXIS 483 ( Ky. 1970 ).

Cited in:

Savin v. Delaney, 229 Ky. 226 , 16 S.W.2d 1039, 1929 Ky. LEXIS 720 ( Ky. 1929 ); Walz v. Northcutt, 278 Ky. 616 , 129 S.W.2d 124, 1939 Ky. LEXIS 466 ( Ky. 1939 ).

418.055. Further relief based on declaratory judgment.

Further relief, based on a declaratory judgment, order or decree, may be granted whenever necessary or proper. The application therefor shall be by petition to a court having jurisdiction to grant the relief, either in the same proceeding wherein the declaratory judgment, order or decree, was entered, or, in an independent action. If the application be deemed sufficient, the court shall, on reasonable notice, require any adverse party whose rights have been adjudicated by the declaratory judgment, order or decree, to show cause why further relief should not be granted forthwith.

History. C. C. 639a-4: amend. Acts 1922, ch. 83, § 4; trans. Acts 1952, ch. 84, § 1.

NOTES TO DECISIONS

Analysis

1.Construction.

This section authorizes and provides the manner of obtaining additional relief that may be rendered necessary by a declaratory judgment. Jefferson County ex rel. Coleman v. Chilton, 236 Ky. 614 , 33 S.W.2d 601, 1930 Ky. LEXIS 789 ( Ky. 1930 ).

This section is confined to supplemental proceedings subsequent to a decree or other declaration under the act and for further relief thereunder. Bringardner Lumber Co. v. Knuckles, 253 Ky. 292 , 69 S.W.2d 345, 1934 Ky. LEXIS 640 ( Ky. 1934 ).

KRS 418.040 and this section are broad, flexible and almost unlimited in scope. Maas v. Maas, 305 Ky. 490 , 204 S.W.2d 798, 1947 Ky. LEXIS 844 ( Ky. 1947 ).

Suits for declaratory judgment do not fall, in view of this section, within rule that a judgment is conclusive not only of all matters adjudicated thereby, but in addition, as to all matters which could have been presented for adjudication. Cooke v. Gaidry, 309 Ky. 727 , 218 S.W.2d 960, 1949 Ky. LEXIS 797 ( Ky. 1949 ).

Where action for declaration of rights and injunction was determined adversely to plaintiffs on former appeal, plaintiffs could still raise, by amended pleading, question of the rights to recover certain money, upon return of case to Circuit Court, since this section specifically provides for such procedure. Society of Alumni of L. M. H. S., Inc. v. Board of Education, 247 S.W.2d 369, 1952 Ky. LEXIS 690 ( Ky. 1952 ).

2.Application.

Provisions of this section for additional relief based on a declaratory judgment do not apply to original actions for a declaration of right, but apply to supplemental proceedings subsequent to a declaratory judgment. Jefferson County ex rel. Coleman v. Chilton, 236 Ky. 614 , 33 S.W.2d 601, 1930 Ky. LEXIS 789 ( Ky. 1930 ).

Where it was sought to change a pending action into a declaratory judgment suit by an amended petition after many pleadings had been filed and orders entered, this section was not applicable and trial court erred in making such a declaration. Bringardner Lumber Co. v. Knuckles, 253 Ky. 292 , 69 S.W.2d 345, 1934 Ky. LEXIS 640 ( Ky. 1934 ).

3.Supplemental Relief.

It was error to adjudge that interest be paid on certain refunds as supplementary relief under this section where there was no prayer for interest and the only defense made by the defendant was the filing of general and special demurrers. Union Light, Heat & Power Co. v. Bellevue, 284 Ky. 405 , 144 S.W.2d 1046, 1940 Ky. LEXIS 508 ( Ky. 1940 ).

After a binding declaration of rights has been made by a declaratory judgment, a party cannot treat the judgment as a mere piece of advice and proceed to attempt to exercise rights denied him by the judgment with the view that whether he can exercise the rights so denied him can be litigated under this section separately from the question of whether he had the rights in the first instance. McMillan v. Bailey-Darby Coal Corp., 251 S.W.2d 225, 1952 Ky. LEXIS 900 ( Ky. 1952 ).

Where an action was brought seeking a declaration of rights regarding the use of an easement, that judgment was res adjudicata as to a second suit for a declaratory judgment to enlarge the use of the easement because the matter sought to be adjudicated in the second suit was in fact presented and adjudicated in the first suit and this section did not apply because the relief sought in the second suit was not based on the former judgment but on the original grant of easement. Oakley v. Bridges, 429 S.W.2d 31, 1968 Ky. LEXIS 732 ( Ky. 1968 ).

Since the relief beneficiary under the will sought, which was based on claim that signing of division agreement by other sisters forfeited their interests under no-contest clause in the will, would be inconsistent with the judgment fixing the proportionate interests of the parties, it could not be obtained through further proceedings and was not basis for reversal of judgment. Harris v. Wallace, 474 S.W.2d 878, 1971 Ky. LEXIS 125 ( Ky. 1971 ).

Where judgment gave appellant the relief demanded in the complaint, it was not premature, not erroneous, and was conclusive as to all issues that were or could have been raised by the parties in respect to the determination of the relief. Harris v. Wallace, 474 S.W.2d 878, 1971 Ky. LEXIS 125 ( Ky. 1971 ).

4.Enforcement of Declaratory Judgment.

Where court had determined in declaratory judgment action that the lessees’ local manager held lease as trustees for the lessees, the lessees, who had not asked that their local manager be adjudged their trustee, could make application by petition in declaratory judgment proceeding or in an independent action to avail themselves of the lease. Schwartz Amusement Co. v. Independent Order of Odd Fellows, Howard Lodge, 278 Ky. 563 , 128 S.W.2d 965, 1939 Ky. LEXIS 460 ( Ky. 1939 ).

5.Money Judgment.

The court has jurisdiction to enter a money judgment in a declaratory relief action. E. F. Prichard Co. v. Heidelberg Brewing Co., 314 Ky. 100 , 234 S.W.2d 486, 1950 Ky. LEXIS 1034 ( Ky. 1950 ).

6.Parties.

After a judgment is granted in a pending declaratory judgment action, any party to those proceedings may secure further relief based on the judgment. Paducah v. Electric Plant Board of Paducah, 449 S.W.2d 907, 1970 Ky. LEXIS 483 ( Ky. 1970 ).

7.Sovereign Immunity.

Circuit court acted within its jurisdiction when it entered declaratory judgment regarding the status of the University of Kentucky vis-`-vis the executive branch of state government because the State was not sovereignly immune from a declaratory judgment action. Univ. of Ky. v. Moore, 599 S.W.3d 798, 2019 Ky. LEXIS 437 ( Ky. 2019 ).

Cited in:

Summe & Ratermann Co. v. Covington, 314 S.W.2d 568, 1958 Ky. LEXIS 312 ( Ky. 1958 ); Mid-Southern Toyota, Ltd. v. Pennington, 458 S.W.2d 776, 1970 Ky. LEXIS 188 ( Ky. 1970 ).

Notes to Unpublished Decisions

1.Enforcement of Declaratory Judgment.

Unpublished decision: Insured’s claims against an insurer under tort law and KRS §§ 304.12-230 , 367.170 , were properly dismissed as barred under the res judicata doctrine because pursuant to CR 13.01, the insured should have raised the claims in the declaratory judgment suit that the insurer had previously filed, which sought a declaration as to the insured’s coverage under an insurance policy: (1) R. 13.01, Kentucky’s compulsory counterclaim rule, applied to declaratory judgment suits; (2) the insured’s claims had accrued by the time the declaratory judgment action was filed because they arose out of the insurer’s initial refuse to defend or indemnify her in a suit filed by a third party, which initial refusal occurred before the declaratory judgment suit was filed; and (3) in asserting her claims, the insured was doing more than merely attempting to enforce the declaratory judgment issued against the insured, as permitted under KRS § 418.055 . Holbrook v. Shelter Ins. Co., 186 Fed. Appx. 618, 2006 FED App. 0446N, 2006 U.S. App. LEXIS 16588 (6th Cir. Ky. 2006 ).

418.060. Appeals.

Any party aggrieved by a declaratory judgment, order or decree, rendered in the Circuit Court, may take and perfect an appeal to the Court of Appeals in the manner provided in the Rules of Civil Procedure for appeals.

History. C.C. 639a-5: amend. Acts 1922, ch. 83, § 5; trans. and amend. Acts 1952, ch. 84, §§ 1, 22; 1976, ch. 62, § 124.

NOTES TO DECISIONS

1.Construction.

Declaratory judgment act provided an entirely new remedy, and in doing so it was competent for the legislature to withhold the right of appeal, or to enact such restrictions and qualifications as it saw proper. Murray Motor Co. v. Overby, 217 Ky. 198 , 289 S.W. 307, 1926 Ky. LEXIS 88 ( Ky. 1926 ) (decision prior to 1952 amendment).

Provisions of section are mandatory and appeal must be dismissed where transcript is not filed in this court within 60 days after rendition of judgment unless the time be extended. Clay County v. Sizemore, 278 Ky. 120 , 128 S.W.2d 556, 1939 Ky. LEXIS 397 ( Ky. 1939 ) (decision prior to 1952 amendment).

It was never the intention of the legislature to permit original declaratory judgment actions to be filed in this court. Walz v. Northcutt, 278 Ky. 616 , 129 S.W.2d 124, 1939 Ky. LEXIS 466 ( Ky. 1939 ).

2.Application.

Where action was treated as one for declaration of rights as to validity of ordinance and Circuit Court’s order recited that ordinance was valid and entered order sustaining demurrer and dismissing suit, such orders were a declaration of rights, and provision of statute governing appeals was applicable. Lexington R. System v. Lexington Cab Co., 284 Ky. 786 , 146 S.W.2d 26, 1940 Ky. LEXIS 580 ( Ky. 1940 ).

Where suit was begun as one for declaratory judgment, but defendants by counterclaim and cross petition sought equitable relief, and plaintiffs concurred, plaintiffs could not later obtain dismissal of defendants’ appeal because it was perfected within 60-day declaratory judgment time limit. Bowles v. Stilley's Ex'r, 254 S.W.2d 504, 1953 Ky. LEXIS 599 ( Ky. 1953 ) (decision prior to 1952 amendment. Now see CR 73.02).

3.Party Aggrieved.

Where a plaintiff secured all of the relief requested in a declaratory judgment action, she was not a party aggrieved and was not entitled to prosecute an appeal. Maddox v. Giltner, 226 Ky. 578 , 11 S.W.2d 426, 1928 Ky. LEXIS 135 ( Ky. 1928 ).

Taxpayer had sufficient interest to prosecute appeal from declaratory judgment directing that detailed financial reports be published at the expense of the respective governmental units because the judgment, if erroneous, would require an illegal expenditure of the county revenue. Cooper v. Kentuckian Citizen, 258 S.W.2d 695, 1953 Ky. LEXIS 866 ( Ky. 1953 ).

4.Jurisdiction.

The appellate court as the reviewing court was not precluded from making a declaration of rights in accordance with the declaratory judgment act where an important public question was involved, even though the chancellor had declined to declare the rights of the parties in the action seeking a declaration of the rights of the parties and that a portion of the school law relating to the furnishing of transportation to pupils of private school be declared unconstitutional. Sherrard v. Jefferson County Board of Education, 294 Ky. 469 , 171 S.W.2d 963, 1942 Ky. LEXIS 2 ( Ky. 1942 ).

5.—Federal Courts.

The federal courts had no jurisdiction to review a judgment dismissing a petition filed to secure a declaratory judgment as to petitioner’s rights under the statute. Liberty Warehouse Co. v. Grannis, 273 U.S. 70, 47 S. Ct. 282, 71 L. Ed. 541, 1927 U.S. LEXIS 682 (U.S. 1927). See Liberty Warehouse Co. v. Burley Tobacco Growers' Co-operative Marketing Ass'n, 276 U.S. 71, 48 S. Ct. 291, 72 L. Ed. 473, 1928 U.S. LEXIS 62 (U.S. 1928).

6.Motion for Appeal.

In declaratory judgment action where amount in controversy was less than $500, and lower court granted appeal, the appeal must be dismissed since motion for appeal had not been made and declaratory judgment act was not intended to enlarge appellate court’s jurisdiction. Stewart v. Corbin, 294 Ky. 284 , 171 S.W.2d 445, 1943 Ky. LEXIS 433 ( Ky. 1943 ).

7.Record.

In appeal of action under this section proof heard in the trial must be made a part of the record by a bill of evidence or a bill of exceptions in the same manner as proof taken in the trial of an ordinary action. Stephan v. Kentucky Valley Distilling Co., 275 Ky. 705 , 122 S.W.2d 493, 1938 Ky. LEXIS 479 ( Ky. 1938 ).

Where oral testimony of the witnesses who appeared in open court at the trial was taken by a stenographer who later transcribed it and the volume containing it was brought to the court on appeal of declaratory judgment action as part of the record, but was never approved by the trial judge nor was there any order filing it as a part of the evidence heard at the trial, it was not presented in a manner to be considered by the Court of Appeals. Stephan v. Kentucky Valley Distilling Co., 275 Ky. 705 , 122 S.W.2d 493, 1938 Ky. LEXIS 479 ( Ky. 1938 ).

Court of Appeals is bound by the record in the case and cannot consider affidavits which are brought into the court after the appeal is taken. North East Coal Co. v. Blevins, 312 Ky. 628 , 229 S.W.2d 162, 1950 Ky. LEXIS 716 ( Ky. 1950 ) (decision prior to 1952 amendment).

8.Correction of Judgment.

Notice to appellees of motion to correct judgment was a prerequisite to valid order by Circuit Court disposing of the motion so even if appellant had perfected his appeal from order overruling the motion, Court of Appeals would have to affirm the lower court because of failure to give notice. Harris v. Dennis, 248 S.W.2d 420, 1952 Ky. LEXIS 741 ( Ky. 1952 ).

9.Time for Appeal.

Where judgment was rendered December 13 and appeal was filed on February 13, appeal must be dismissed since not filed within 60 days. Livingston County v. Adams, 199 Ky. 127 , 250 S.W. 811, 1923 Ky. LEXIS 776 ( Ky. 1923 ) (decision prior to 1952 amendment).

Sixty day limitation began to run from date of judgment and the deferring of the filing of the bill of exceptions did not toll that time. Murray Motor Co. v. Overby, 217 Ky. 198 , 289 S.W. 307, 1926 Ky. LEXIS 88 ( Ky. 1926 ) (decision prior to 1952 amendment).

Where judgment was entered on October 26, 1926, and transcript of record filed on January 24, 1927, appeal was not prosecuted within 60 days after judgment and since no order extending time was made, court has no jurisdiction of appeal. Corbin v. Underwood, 221 Ky. 413 , 298 S.W. 1090, 1927 Ky. LEXIS 743 ( Ky. 1927 ) (decision prior to 1952 amendment).

Where an appeal from a declaratory judgment was lodged with the Court of Appeals more than 60 days after it was rendered by a Circuit Court and no extension of time was granted, the Court of Appeals lacked jurisdiction to hear the appeal. Lady v. Lady, 225 Ky. 679 , 9 S.W.2d 1003, 1928 Ky. LEXIS 846 ( Ky. 1928 ) (decision prior to 1952 amendment).

Where an appeal from a declaratory judgment was brought more than 60 days after the judgment became final and there was no extension of time for appeal, it was dismissed for lack of jurisdiction. Ohio-Kentucky Coal Co. v. Auxier, 239 Ky. 442 , 39 S.W.2d 662, 1931 Ky. LEXIS 789 ( Ky. 1931 ) (decision prior to 1952 amendment).

Where failure to bring appeal of declaratory judgment within the time provided was first raised by a motion to dismiss the appeal and cross appeal on rehearing before the Court of Appeals, the motion must be sustained because compliance with the time limitation is jurisdictional and cannot be waived. Moore v. Lee Court Realty Co., 240 Ky. 835 , 43 S.W.2d 45, 1931 Ky. LEXIS 507 ( Ky. 1931 ) (decision prior to 1952 amendment).

A motion to dismiss on ground of failure to prosecute within statutory time would be overruled where evidence showed that the judgment was prepared and entered upon the clerk’s vacation order book in September 1939, while the motion to set judgment aside was not filed by the appellants until December 13, 1939, when it was shown that the Circuit Court’s records included an order stating that the October term of court was one day, October 23, during which proceedings of the last day of the last term, together with intervening orders, were read in open court and signed by the Circuit Judge. George v. George, 283 Ky. 381 , 141 S.W.2d 558, 1940 Ky. LEXIS 340 ( Ky. 1940 ) (decision prior to 1952 amendment).

An appeal from a declaratory judgment must be prosecuted within 60 days from the rendition of the judgment in the Circuit Court (unless the time is extended as therein provided) and unless the appeal is lodged within that time, it must be dismissed for lack of jurisdiction. Carter v. Nance, 304 Ky. 256 , 200 S.W.2d 457, 1947 Ky. LEXIS 616 ( Ky. 1947 ) (decision prior to 1952 amendment).

Against contention that action was the usual equitable proceeding, the action was one for declaratory judgment and the mere fact that the answer contained a general denial did not take it out of category of a declaratory one and motion to dismiss appeal because it was not filed within 60 days after the judgment became final, where no extension was granted, was proper. McAllister v. Rennison, 305 Ky. 497 , 204 S.W.2d 808, 1947 Ky. LEXIS 848 ( Ky. 1947 ) (decision prior to 1952 amendment).

Under this section an appeal from a declaratory judgment must be prosecuted within 60 days from the rendition of the judgment in the Circuit Court, unless the time is extended, and it has been repeatedly and consistently held that unless the appeal is lodged within that time, it must be dismissed for lack of jurisdiction. McAllister v. Rennison, 305 Ky. 497 , 204 S.W.2d 808, 1947 Ky. LEXIS 848 ( Ky. 1947 ) (decision prior to 1952 amendment. Now see CR 73.02).

By statute, KRS 446.030 , and a long line of decisions, where time is to be computed from an act or event, the day on which it was done or occurred must be included in the computation. Dehart v. Olive Hill, 305 Ky. 864 , 205 S.W.2d 351, 1947 Ky. LEXIS 902 ( Ky. 1947 ) (decision prior to 1952 amendment).

Where judgment was signed on May 16, 60 days within which appeal must have been perfected expired at midnight on July 14, and appeal filed July 15 was one day outside the period of limitations. Dehart v. Olive Hill, 305 Ky. 864 , 205 S.W.2d 351, 1947 Ky. LEXIS 902 ( Ky. 1947 ) (decision prior to 1952 amendment. Now see CR 73.02).

Lower court could not set aside first judgment and enter second, thereby reviving right of appeal after 60-day period, where first judgment was valid despite a failure to sign order of revivor before entry of first judgment. Black v. Brown, 307 Ky. 806 , 211 S.W.2d 810, 1948 Ky. LEXIS 784 ( Ky. 1948 ) (decision prior to 1952 amendment).

Where plaintiff had his choice between suit to quiet title and declaratory judgment action and brought declaratory judgment action, he was required to perfect his appeal from the judgment within 60 days where there was nothing in the record to indicate suit was not conducted as a declaratory judgment action. North East Coal Co. v. Blevins, 312 Ky. 628 , 229 S.W.2d 162, 1950 Ky. LEXIS 716 ( Ky. 1950 ) (decision prior to 1952 amendment. Now see CR 73.02).

Where the original petition in an action was denominated as an action for declaration of rights, but the action assumed the character of an ordinary action in equity, and after judgment had been entered, it was stipulated that the case had been considered, prepared for trial, and treated as an equity action and that the record for appeal should be prepared and an appeal taken as an equity case, a motion to dismiss the appeal on the ground that the action was for a declaratory judgment and the appeal was not taken within the time allowed under this section was not sustained. Fyffe v. Mason, 268 S.W.2d 29, 1954 Ky. LEXIS 891 ( Ky. 1954 ) (decision prior to 1952 amendment).

The unqualified limitation of 60 days for taking an appeal prevails as an exception to the general statute tolling time for an appeal during legal disability. Schultz v. Schultz, 332 S.W.2d 253, 1959 Ky. LEXIS 15 ( Ky. 1959 ) (decision prior to 1952 amendment. Now see CR 73.02).

10.—No Waiver.

The requirement that an appeal from a declaratory judgment be filed within 60 days after its rendition, unless time is extended as provided by this section, is jurisdictional and a waiver by the opposing party does not cure the lack of jurisdiction, where there is a failure to comply with this requirement. La Crosse v. Ludlow, 231 Ky. 625 , 21 S.W.2d 1003, 1929 Ky. LEXIS 331 ( Ky. 1929 ) (decision prior to 1952 amendment. Now see CR 73.02).

11.—Extension.

Where an appeal from a declaratory judgment was lodged with the Court of Appeals 109 days after it was rendered by a Circuit Court and no extension of time was granted, the Court of Appeals lacked jurisdiction to hear the appeal. Johnson v. Johnson, 225 Ky. 681 , 9 S.W.2d 1004, 1928 Ky. LEXIS 847 ( Ky. 1928 ) (decision prior to 1952 amendment).

Where plaintiff filed motion 106 days after demurrer to petition was sustained and judgment dismissing entered, to extend time for taking and perfecting its appeal for a period not to exceed 120 days from final judgment, lower court was without jurisdiction to grant such extension. Lexington R. System v. Lexington Cab Co., 284 Ky. 786 , 146 S.W.2d 26, 1940 Ky. LEXIS 580 ( Ky. 1940 ) (decision prior to 1952 amendment).

Appeal must be dismissed where record admittedly was not filed within time prescribed by statute, despite lower court’s order granting appeal and giving appellant until the third day of the next regular term of court to perfect record. Harris v. Dennis, 248 S.W.2d 420, 1952 Ky. LEXIS 741 ( Ky. 1952 ) (decision prior to 1952 amendment).

Court of Appeals, having sustained motion to extend for 30 days the time within which to file transcript, will not revive an appeal which was already dead, such order having been entered after time for appeal under statute had expired. Harris v. Dennis, 248 S.W.2d 420, 1952 Ky. LEXIS 741 ( Ky. 1952 ) (decision prior to 1952 amendment).

12.—Entry of Judgment.

A judgment is not complete until it is signed by judge rendering it. Supreme Tent of Knights of MacCabees v. Dupriest, 238 Ky. 352 , 38 S.W.2d 241, 1930 Ky. LEXIS 287 ( Ky. 1930 ) (decision prior to 1952 amendment).

Parol testimony is admissible in a collateral attack to show judgment was not rendered on date it was purported to have been rendered. Supreme Tent of Knights of MacCabees v. Dupriest, 238 Ky. 352 , 38 S.W.2d 241, 1930 Ky. LEXIS 287 ( Ky. 1930 ) (decision prior to 1952 amendment).

Where there was no indication in the record that the judgment was not rendered on the date shown thereby, on appeal the appellant could not show for the first time that the judgment was signed on a later date in order to meet the time limit for appeal. Supreme Tent of Knights of MacCabees v. Dupriest, 238 Ky. 352 , 38 S.W.2d 241, 1930 Ky. LEXIS 287 ( Ky. 1930 ) (decision prior to 1952 amendment).

Where caption of entry in order book showed that judgment was rendered on certain day and the draft of judgment bore signature of judge as of that date, in the absence of an official record to the contrary, it must be presumed that the day recited is day judgment was signed on order book and became final. Dehart v. Olive Hill, 305 Ky. 864 , 205 S.W.2d 351, 1947 Ky. LEXIS 902 ( Ky. 1947 ) (decision prior to 1952 amendment).

13.—Final Judgment.

At the expiration of the 60-day period prescribed by statute, the courts are without jurisdiction to set aside, modify or alter in any respect the declaratory judgment which has become final. Lexington R. System v. Lexington Cab Co., 284 Ky. 786 , 146 S.W.2d 26, 1940 Ky. LEXIS 580 ( Ky. 1940 ) (decision prior to 1952 amendment).

Where judgment was not appealed from within statutory time, it became “final judgment” and binding upon the parties. Turner v. Ewald, 290 Ky. 833 , 162 S.W.2d 181, 1942 Ky. LEXIS 456 ( Ky. 1942 ), aff’d, 295 Ky. 764 , 174 S.W.2d 431, 1943 Ky. LEXIS 233 ( Ky. 1943 ) (decision prior to 1952 amendment).

Cited in:

Browning v. Corbin, 265 Ky. 43 , 95 S.W.2d 1078, 1936 Ky. LEXIS 425 ( Ky. 1936 ); Johnson v. Commonwealth, 300 Ky. 461 , 189 S.W.2d 684, 1945 Ky. LEXIS 581 ( Ky. 1945 ); Freeman v. Louisville & Jefferson County Planning & Zoning Com., 308 Ky. 360 , 214 S.W.2d 582, 1948 Ky. LEXIS 938 ( Ky. 1948 ).

418.065. When court may refuse to declare rights — Scope of review — Remand of case by appellate court.

The court may refuse to exercise the power to declare rights, duties or other legal relations in any case where a decision under it would not terminate the uncertainty or controversy which gave rise to the action, or in any case where the declaration or construction is not necessary or proper at the time under all the circumstances. The appellate court in its consideration of the case, shall not be confined to errors alleged or apparent in the record. When, in its opinion, further pleadings or proof is necessary to a final and correct decision of the matters involved, or that should be involved, it shall remand the case for that purpose; or if in its opinion the action is prematurely brought, or where a ruling in the appellate court is not considered necessary or proper at the time under all the circumstances, it may direct a dismissal without prejudice in the lower court.

History. C. C. 639a-6: amend. Acts 1922, ch. 83, § 6; trans. Acts 1952, ch. 84, § 1.

NOTES TO DECISIONS

1.Declaration of Rights.
2.—In General.

A declaratory judgment action may be maintained to determine the priority of mortgages covering the same property, to determine whether the incurring of an additional loan violates a mortgage agreement, or to determine whether a lender’s subordination of its loan to a subsequent lender is effective and/or violates the original mortgage agreement; a declaratory judgment action may be maintained if it determines the rights, duties, or liabilities of the parties as to matters in controversy, even though it does not terminate litigation. Bank One Ky. NA v. Woodfield Fin. Consortium LP, 957 S.W.2d 276, 1997 Ky. App. LEXIS 87 (Ky. Ct. App. 1997).

3.—Discretion of Courts.

It is a matter of discretion on the part of the district court in a declaratory judgment action as to whether jurisdiction should be exercised or declined. Walker v. Felmont Oil Corp., 262 F.2d 163, 1958 U.S. App. LEXIS 5888 (6th Cir. Ky. 1958 ), cert. denied, 361 U.S. 840, 80 S. Ct. 61, 4 L. Ed. 2d 78, 1959 U.S. LEXIS 528 (U.S. 1959).

Under this section the making of a declaration is optional with the courts. Supreme Tent of Knights of Maccabees, etc. v. Dupriest, 235 Ky. 46 , 29 S.W.2d 599, 1930 Ky. LEXIS 299 ( Ky. 1930 ).

Where trial court exercised its discretion under this section not to make any kind of declaration of rights and treated the action as one at common law, the Court of Appeals declined to rule upon the points raised as to the propriety of the proceeding or of the particular practice. Am. Nat v. Brandeis Mach. & Supply Co., 286 Ky. 665 , 151 S.W.2d 445, 1941 Ky. LEXIS 314 (Ky. Ct. App. 1941).

Declining to declare rights of parties with respect to the payment of pensions out of the regular funds of the board of education was within the discretion of the Circuit Court. Board of Education v. Louisville, 288 Ky. 656 , 157 S.W.2d 337, 1941 Ky. LEXIS 198 ( Ky. 1941 ).

Courts have a discretion as to whether they will exercise their power to declare rights in cases where the decision would not terminate the controversy, or where the declaration is not necessary or proper at the time under all circumstances. High Splint Coal Co. v. United Mine Workers, 300 Ky. 521 , 189 S.W.2d 735, 1945 Ky. LEXIS 591 ( Ky. 1945 ).

This section allows court to decline to exercise its power, where the declaration sought is not necessary or proper at the time under all the circumstances. Black v. Utter, 300 Ky. 803 , 190 S.W.2d 541, 1945 Ky. LEXIS 656 ( Ky. 1945 ).

Courts have a discretion in exercising their power to act in declaratory judgment cases and generally will not take jurisdiction where another statutory remedy has been expressly provided for the character of cases presented. Cox v. Howard, 261 S.W.2d 673, 1953 Ky. LEXIS 1048 ( Ky. 1953 ).

The court as a matter of discretion might well have dismissed the complaint for a declaratory judgment to the effect that a proposed plan for relieving serious unemployment in the city would be for a public purpose and that bonds proposed to be issued by the corporation would be legal and valid without entering a declaratory judgment, for it did not appear that “an actual controversy” existed between the parties and because the decision would be almost, if not altogether, advisory, academic and abstract, since the case was upon an indefinite and hypothetical state of facts which might never become real. Corbin v. Johnson, 316 S.W.2d 217, 1958 Ky. LEXIS 35 ( Ky. 1958 ).

Where estate was still being administered, the question concerning the trustee’s right to vote stock was not in issue and the court could refuse to declare rights in declaratory judgment action by executor-trustee for interpretation of will and advice as to duties. Harlan Nat'l Bank v. Brown, 317 S.W.2d 903, 1958 Ky. LEXIS 121 ( Ky. 1958 ).

Where a declaration of rights was sought as to the validity of the Bingo Licensing Act which concerned an important public question and where all the parties joined in asking for the declaration, the court did not abuse its discretion in entering a declaratory judgment. Otto v. Kosofsky, 476 S.W.2d 626, 1971 Ky. LEXIS 64 ( Ky. 1971 ), cert. denied, 409 U.S. 912, 93 S. Ct. 227, 34 L. Ed. 2d 173, 1972 U.S. LEXIS 1057 (U.S. 1972).

Although the adult citizen sought a declaration pursuant to KRS 418.040 that the statutes and regulations allowing the adult citizen to be investigated based an unidentified hotline caller’s claim that the adult citizen had sexually abused a minor were unconstitutional, and assertions that the statutes and regulations were unconstitutional could avoid the normal KRS 13B.140(2) exhaustion-of-administrative remedies requirement, that did not mean the adult citizen’s contention was ripe for review. Indeed, the state supreme court found that in its discretion pursuant to KRS 418.065 it could find that review of the trial and appellate court’s judgment finding the statutes and regulations were constitutional were not ripe for review and order further proceedings, as the administrative proceedings had not even been concluded. W.B. v. Commonwealth, 388 S.W.3d 108, 2012 Ky. LEXIS 200 ( Ky. 2012 ).

4.—Trivial Expense.

In a declaratory judgment action to determine whether an act was unconstitutional because it failed to appropriate funds for the printing of forms required by the act, the court should have refused to declare rights due to the trivial amount of the expense and the various methods by which it could be met or avoided. State Budget Com. v. Adams, 249 Ky. 680 , 61 S.W.2d 314, 1933 Ky. LEXIS 584 ( Ky. 1933 ).

5.—Prior Suit Pending.

Where it was shown that prior injunction suit was pending between parties hereto and another, in which every issue raised herein was also raised in prior suit except one, lower court should have exercised plain discretion under this section and declined to declare any rights except the sole right of appellee to make conveyance and left all other issues for determination in the injunction suit. Proctor v. Avondale Heights Co., 200 Ky. 447 , 255 S.W. 81, 1923 Ky. LEXIS 115 ( Ky. 1923 ).

6.—Prior Adjudication.

Questions which have been adjudicated by a court having jurisdiction of the subject matter cannot thereafter be the subject of an actual controversy within the meaning of this section between those parties or their privies. Jefferson County ex rel. Coleman v. Chilton, 236 Ky. 614 , 33 S.W.2d 601, 1930 Ky. LEXIS 789 ( Ky. 1930 ).

Where the fiscal court allowed expenses to a county employee, the proper method of determining the power of the fiscal court to do so was appeal to the Circuit Court of the county and a declaratory judgment action for the purpose was improper. Oldham County ex rel. Wooldridge v. Arvin, 244 Ky. 551 , 51 S.W.2d 657, 1932 Ky. LEXIS 463 ( Ky. 1932 ).

Transaction at each, for each defendant, was the implementation of his death sentence and any and all claims available to him to challenge that implementation on whatever grounds had to be brought in the first action or forever be barred by res judicata; res judicata barred consideration of defendants’ second declaratory judgment action. Bowling v. Ky. Dep't of Corr., 301 S.W.3d 478, 2009 Ky. LEXIS 291 ( Ky. 2009 ), writ denied, 336 S.W.3d 98, 2011 Ky. LEXIS 31 ( Ky. 2011 ).

7.—Parties Not Before Court.

Court should have declined to declare rights of party or unknown heirs, if dead, where neither party nor heirs were before court and a decision would not terminate controversy. Ezzel v. Exall, 207 Ky. 615 , 269 S.W. 752, 1925 Ky. LEXIS 146 ( Ky. 1925 ).

Since decedent’s unknown heirs were not made parties and it is clear that any decision in case would not be binding on them, the lower court should have declined to declare rights of those who were parties and should have dismissed the action without prejudice. Lyons' Adm'r v. Greenblatt, 213 Ky. 567 , 281 S.W. 487, 1926 Ky. LEXIS 567 ( Ky. 1926 ).

Court declined to pass on constitutionality of act as to county judges not in office at time of its approval, since no such judge was party to action. Adams v. Slavin, 225 Ky. 135 , 7 S.W.2d 836, 1928 Ky. LEXIS 711 ( Ky. 1928 ), overruled, Roberts v. Noel, 296 S.W.2d 745, 1956 Ky. LEXIS 238 ( Ky. 1956 ).

Where contesting beneficiaries seek determination of right to benefits under insurance contract, insurer is “necessary party” to proceedings. Ex parte Hirsch's Committee, 245 Ky. 132 , 53 S.W.2d 211, 1932 Ky. LEXIS 546 ( Ky. 1932 ).

Where the insurer was not a party to a declaratory judgment action between the owner-beneficiary of a policy on the life of one of its employees and the employee’s committee to determine which one was entitled to the disability benefits under the policy, the court erred in granting judgment, since the insurer was interested in the result but would not be bound thereby. Ex parte Hirsch's Committee, 245 Ky. 132 , 53 S.W.2d 211, 1932 Ky. LEXIS 546 ( Ky. 1932 ).

8.—Another Statutory Remedy.

A court will not take jurisdiction to render declaratory judgment where another statutory remedy has been especially provided for the character of case presented, nor where the purpose is to affect proceedings which may be taken or pending before a public board which is vested with full power to act in the premises. Black v. Utter, 300 Ky. 803 , 190 S.W.2d 541, 1945 Ky. LEXIS 656 ( Ky. 1945 ).

9.—Remedies Provided by Regulation.

Members of a nonprofit association were not entitled to a declaration that the association breached its obligations toward them where members did not exhaust remedies provided by regulations of the association. Absher v. Illinois C. R. Co., 371 S.W.2d 950, 1963 Ky. LEXIS 130 ( Ky. 1963 ).

10.—Question Not in Submission.

In a declaratory judgment action where a question was not embraced in the stipulation containing propositions submitted, the court will not pass on the question. Holland v. Fayette County, 240 Ky. 37 , 41 S.W.2d 651, 1931 Ky. LEXIS 344 ( Ky. 1931 ).

11.—Actual Controversy.

Where there was an actual controversy between the beneficiary, on one side, and the trustee and another beneficiary on the other side, the beneficiary of a spendthrift trust under a will which provided for a forfeiture of rights of any person who received under the will who sought to contest or annul any provision of the will was entitled to bring a declaratory judgment action on the question of whether he could sue for a construction of the will and enforcement of rights under the will without a forfeiture of his rights. Dravo v. Liberty Nat'l Bank & Trust Co., 267 S.W.2d 95, 1954 Ky. LEXIS 833 ( Ky. 1954 ).

In a suit for a declaration of rights seeking construction of a will involving controversial questions, and valuable property rights are dependent upon a proper construction of the will, the proceeding is an appropriate one under the declaratory judgment act and should not have been dismissed. Jasper v. Jasper, 275 S.W.2d 412, 1954 Ky. LEXIS 1249 ( Ky. 1954 ).

Where son was claiming all of decedent’s property under will leaving it all to him, the trial court should have declared the rights of the widow under KRS 392.020 and 392.080 in her action for such a declaratory judgment. Hedden v. Hedden, 312 S.W.2d 891, 1958 Ky. LEXIS 241 ( Ky. 1958 ).

12.—No Justiciable Controversy.

No justiciable controversy was presented concerning liability of property transferred from the city school district to the county school district after the date on which the county school building fund was voted and the court should not have made a declaration on the question. Board of Education v. Board of Education, 250 S.W.2d 1017, 1952 Ky. LEXIS 897 ( Ky. 1952 ).

There was no reason why Court of Appeals or circuit court should have accepted the burden of determining invalidity of ordinance where petition did not in any way suggest in what respects the ordinance might be invalid nor did the pleadings as a whole disclose any real controversy concerning its validity and neither party made any claim that the ordinance was invalid which placed the court in a position where it either must blindly approve the ordinance or must search the record and the authorities for any possible defects in the ordinance. Fraley v. Beaver-Elkhorn Water Dist., 257 S.W.2d 536, 1953 Ky. LEXIS 781 ( Ky. 1953 ), overruled, McClellan v. Louisville Water Co., 351 S.W.2d 197, 1961 Ky. LEXIS 160 ( Ky. 1961 ).

13.—Termination of Litigation.

A declaration is not to be denied simply because it will not terminate litigation. In fact, KRS 418.055 specifically contemplates that future litigation may follow the declaration. Mid-Southern Toyota, Ltd. v. Bug's Imports, Inc., 453 S.W.2d 544, 1970 Ky. LEXIS 310 ( Ky. 1970 ).

14.Court of Appeals.
15.—Scope of Review.

Although lower court erred in making any declaration in suit with reference to salaries of state and county officers, yet such error did not require a reversal of the judgment by Court of Appeals, but nothing further than a modification of it by eliminating therefrom so much as declared the rights of state and county officers, leaving that question, so far as case was concerned, still open. Reynolds Metal Co. v. Martin, 269 Ky. 378 , 107 S.W.2d 251, 1937 Ky. LEXIS 604 ( Ky. 1937 ).

This section empowers Court of Appeals to make such final declaration of rights as the record may justify. Reynolds Metal Co. v. Martin, 269 Ky. 378 , 107 S.W.2d 251, 1937 Ky. LEXIS 604 ( Ky. 1937 ).

By this section, the Court of Appeals is authorized to consider errors not alleged or apparent in the record. Board of Council v. Danville & Boyle County Hospital Ass'n, 276 Ky. 304 , 124 S.W.2d 91, 1939 Ky. LEXIS 521 ( Ky. 1939 ).

Although neither party to the action raised the question of errors in the practice by filing a special demurrer to the petition for a defect of parties defendant in the trial court, the appellate court still had the right to consider the question in a declaratory judgment action. Worden v. Louisville, 279 Ky. 712 , 131 S.W.2d 923, 1939 Ky. LEXIS 330 ( Ky. 1939 ).

Under this section the appellate court is not confined to errors alleged or apparent in record; court took cognizance of plea in abatement despite the fact that it did not show suit pending in another state and despite failure of administrator to file a brief. Dotson's Adm'r v. Ferrell, 293 Ky. 470 , 169 S.W.2d 320, 1942 Ky. LEXIS 10 ( Ky. 1942 ).

Court of Appeals will not disturb a chancellor’s ruling in a declaratory judgment case wherein there is no more than a doubt as to the correctness of such ruling when it involves conflicting evidence. Anderson v. Lexington, 301 Ky. 855 , 192 S.W.2d 361, 1946 Ky. LEXIS 500 ( Ky. 1946 ).

In a declaratory judgment action, the Court of Appeals is not confined to errors alleged or apparent in the record. Rea v. Gallatin County Fiscal Court, 422 S.W.2d 134, 1967 Ky. LEXIS 38 ( Ky. 1967 ).

16.—Declaration.

Where chancellor might have disposed of case on merits by making a declaration of rights but refused to do so, appellate court had the right to determine the case on the merits and to declare the rights of the parties. Sherrard v. Jefferson County Board of Education, 294 Ky. 469 , 171 S.W.2d 963, 1942 Ky. LEXIS 2 ( Ky. 1942 ).

Where the trial court improperly refuses to declare the rights of the parties and dismisses a declaratory judgment action, the Court of Appeals may properly interpret the statutes in question rather than remand the case for a formal judgment. Hedden v. Hedden, 312 S.W.2d 891, 1958 Ky. LEXIS 241 ( Ky. 1958 ).

17.— —Important Public Question.

In accordance with the spirit and purpose of the declaratory judgment act, the Court of Appeals declared the rights of certain parties, and even though it would have ordinarily followed the same course as the Circuit Court where the Circuit Court had declined to declare the rights, it rightfully exercised its discretion where an important public question was involved which had to be decided as early as practicable. Board of Education v. Louisville, 288 Ky. 656 , 157 S.W.2d 337, 1941 Ky. LEXIS 198 ( Ky. 1941 ).

The appellate court was not precluded from making a declaration of rights in accordance with the declaratory judgment act where an important public question was involved, even though the chancellor had declined to declare the rights of the parties in the action seeking a declaration of the rights of the parties and that a portion of the school law relating to the furnishing of transportation to pupils of private school be declared unconstitutional. Sherrard v. Jefferson County Board of Education, 294 Ky. 469 , 171 S.W.2d 963, 1942 Ky. LEXIS 2 ( Ky. 1942 ).

Where an important public question is involved which should be decided as early as practicable and an adjudication will not adversely affect the rights of the beneficiaries, the court will dispose of it. Sherrard v. Jefferson County Board of Education, 294 Ky. 469 , 171 S.W.2d 963, 1942 Ky. LEXIS 2 ( Ky. 1942 ).

18.Remand.
19.—Further Pleading.

A court can require such further pleading or proof as is necessary to a final and correct decision of the matters involved and the court should have required parties in a declaratory judgment action to determine rights under benefit certificate, which did not disclose whether bylaws were attached, by pleading to say whether bylaws were attached to benefit certificate. Supreme Tent of Knights of Maccabees, etc. v. Dupriest, 235 Ky. 46 , 29 S.W.2d 599, 1930 Ky. LEXIS 299 ( Ky. 1930 ).

In a declaratory judgment action where the litigants do not file such pleadings and make such proof as is necessary for decision of the case, the court may refuse to make a declaration and either request additional pleadings and proof or dismiss the case. Supreme Tent of Knights of Maccabees, etc. v. Dupriest, 235 Ky. 46 , 29 S.W.2d 599, 1930 Ky. LEXIS 299 ( Ky. 1930 ).

The court should require the parties to manifest the necessary facts before attempting to render a judgment in a declaratory judgment action. Mason's Adm'r v. Mason's Guardian, 239 Ky. 208 , 39 S.W.2d 211, 1931 Ky. LEXIS 744 ( Ky. 1931 ).

In a declaratory judgment action to determine whether the members of a board of directors of a public library would be personally bound by notes issued by the board for an existing debt, whether the board would be bound by such notes, and whether the city would be required to continue appropriations to the board, no declaration should have been made without pleadings alleging that the debt was legally incurred and stating when and in what amounts the debt was incurred. Rothier v. Stewart-Kidd Co., 260 Ky. 659 , 86 S.W.2d 667, 1935 Ky. LEXIS 539 ( Ky. 1935 ).

Where a determination of questions involved cannot safely be reached without seeing the contract between parties and the powers given to appellee association either by its articles of incorporation, or the wills, or other documents under which it holds funds that it proposes to give away, case will be remanded for further proceedings. Board of Council v. Danville & Boyle County Hospital Ass'n, 276 Ky. 304 , 124 S.W.2d 91, 1939 Ky. LEXIS 521 ( Ky. 1939 ).

Since petition as presented failed to bring before the court a really justiciable controversy which would have justified the court in making an effort to truly and completely determine the rights of the parties, the best the appellate court could do was to remand for further proceedings, and, perhaps, proof in order that rights could be determined. Sullenger v. Sullenger's Adm'x, 287 Ky. 232 , 152 S.W.2d 571, 1941 Ky. LEXIS 511 ( Ky. 1941 ).

Where further pleadings and disclosure of facts were necessary to a final and correct decision of the question involved, the court remanded the case for further proceedings under this section. Defoe v. Perry County, 293 Ky. 487 , 169 S.W.2d 309, 1943 Ky. LEXIS 647 ( Ky. 1943 ).

Where rights of parties depend on legal relationship not shown by record and it is impossible to determine question with record in present condition, judgment will be reversed and cause remanded. Thomas' Ex'r v. Goss, 300 Ky. 539 , 189 S.W.2d 857, 1945 Ky. LEXIS 601 ( Ky. 1945 ).

In action for a declaratory judgment that widow was not entitled to the statutory exemption or distributable share as surviving widow due to a separation agreement, a judgment declaring the widow not to be entitled to the exemption was reversed and remanded because the executor or administrator was not made a party, it was not shown whether the deceased left a will, it was not shown whether the widow renounced the will, if there was one, and the question of the widow’s right to the statutory share was not determined. Hoeger v. Horrell, 242 S.W.2d 1017, 1951 Ky. LEXIS 1105 ( Ky. 1951 ).

In a declaratory judgment action to determine the sheriff’s fee for collecting school taxes wherein the proof was not adequate to enable the court to make a final and correct decision, the case was remanded for the purpose of taking further proof designed to show what portion of the time of the sheriff and his deputies was devoted to tax collection work. Board of Education v. Workman, 256 S.W.2d 528, 1953 Ky. LEXIS 756 ( Ky. 1953 ).

Where the Court of Appeals was not able to determine from the meager record what the rights of the parties were, the granting of a summary judgment to the defendants on the ground that no controversy existed avoided the vital question of the rights of the parties and the judgment was set aside and case remanded for proof. Moore v. Snyder, 277 S.W.2d 11, 1955 Ky. LEXIS 449 ( Ky. 1955 ).

20.—Parties of Interest.

Where the question to be determined was whether the signing of waivers by property owners estopped them from questioning the validity of assessments and none of such owners were made parties, their rights could not be affected and the judgment was, therefore, reversed with directions to permit the plaintiff to join any affected property owners or to dismiss the petition without prejudice. Herbert C. Heller & Co. v. Hunt Forbes Const. Co., 222 Ky. 564 , 1 S.W.2d 970, 1928 Ky. LEXIS 194 ( Ky. 1928 ).

Where grave public questions were involved vitally affecting numerous persons not before the court under the power given the Court of Appeals by this section to remand for further pleading and proof, the Court of Appeals would have been compelled to remand the case as presented even if it had been legally before it. Campbell v. Daugherty, 259 Ky. 372 , 82 S.W.2d 460, 1935 Ky. LEXIS 322 ( Ky. 1935 ).

In an action for declaratory judgment to determine whether a contract by a county fiscal court for the purchase of ballot boxes was valid, the failure to make the state election commission and the two companies involved parties necessitated reversal of the judgment and remand of the case to make them parties. Jefferson County v. Jefferson County Fiscal Court, 259 Ky. 661 , 83 S.W.2d 16, 1935 Ky. LEXIS 364 ( Ky. 1935 ).

In an action to test the validity of an ordinance providing for the establishment of parking meters and to test the validity of a contract to purchase the meters, the court should not have determined the rights of the parties in respect of the contract until all parties in interest were before the court, so Court of Appeals reversed and remanded for further proceedings. Louisville v. Louisville Auto. Club, Inc., 290 Ky. 241 , 160 S.W.2d 663, 1942 Ky. LEXIS 392 ( Ky. 1942 ).

21.—Premature Action.

In action for construction of will, it appearing that another action was pending in another state, and will must be construed under law of that state, court remanded case and set aside judgment and order of submission until construction of will by foreign court, on ground that court may refuse to declare rights where it deems a decision not proper at that time. Dotson's Adm'r v. Ferrell, 293 Ky. 470 , 169 S.W.2d 320, 1942 Ky. LEXIS 10 ( Ky. 1942 ).

22.Dismissal Without Prejudice.
23.—Lack of Jurisdiction.

Where the plaintiff failed to establish the jurisdiction of the court over the defendant in a declaratory judgment action, the action should have been dismissed without prejudice. Snowden v. Masonic Life Ass'n, 244 Ky. 286 , 50 S.W.2d 569, 1932 Ky. LEXIS 413 ( Ky. 1932 ).

Trial court had no jurisdiction to declare rights of parties in action by waterworks against Department of Highways where waterworks had indemnified city for relocation of lines for seven (7) years when it sold its assets to the city but there was no order or formal declaration of the Department of Highways requiring anyone to pay for removal or relocation of pipelines and Court of Appeals under this section reversed judgment of trial court declaring rights of the parties with directions that the action be dismissed without prejudice. Commonwealth ex rel. Watkins v. Winchester Water Works Co., 303 Ky. 420 , 197 S.W.2d 771, 1946 Ky. LEXIS 849 ( Ky. 1946 ).

24.—Defect in Parties.

Taxpayers’ action for declaration of rights as to alleged illegal expenditures by state highway department should have been dismissed without prejudice under this section and KRS 418.075 where no one who held a claim which the action sought to have declared invalid had been made a party and it was obvious that any adverse declaration would not be binding on any claimant. Coke v. Shanks, 209 Ky. 723 , 273 S.W. 552, 1925 Ky. LEXIS 588 ( Ky. 1925 ).

The appellate court could under this section dismiss a declaratory judgment action for defect of parties defendant, although neither party to the action raised the question of the errors in the practice by filing of a special demurrer to the petition for a defect of parties or otherwise. Worden v. Louisville, 279 Ky. 712 , 131 S.W.2d 923, 1939 Ky. LEXIS 330 ( Ky. 1939 ).

25.—Action Not Necessary or Proper.

The declaratory judgment statute is very liberal with respect to both procedural and judicial discretion but the courts should not decide speculative rights or duties although future contingencies may develop an actual, justiciable controversy, and the Court of Appeals may, in its discretion, direct the dismissal of the case in the trial court where it is considered not to be necessary or proper under the circumstances, the same being without prejudice. Board of Education v. Muncy, 239 S.W.2d 471, 1951 Ky. LEXIS 893 ( Ky. 1951 ).

26.—No Termination of Real Controversy.

If court should have undertaken to declare rights of parties, some of which were purely academic, the real controversy, which was in background, would not have been terminated and chancellor properly dismissed proceedings below without prejudice. Sullenger's Adm'r v. Sullenger's Adm'x, 287 Ky. 238 , 152 S.W.2d 570, 1941 Ky. LEXIS 510 ( Ky. 1941 ).

27.—Future Events.

In action regarding annexation of area by sixth-class city where to decide issue that the incorporation of the sixth-class city was not a defense to annexation by a first-class city would be to decide a question that future events might establish was not necessary to be decided, court could direct a dismissal without prejudice as to such issue. Hardin v. St. Matthews, 240 S.W.2d 554, 1951 Ky. LEXIS 971 ( Ky. 1951 ).

28.—No Justiciable Controversy.

The petition in a suit against the administratrix of an estate and others for a declaration of rights as to the intestate’s property was properly dismissed when it failed to bring before the court a really justiciable controversy which would have justified the court in making an effort to truly and completely determine the rights of the parties, where it failed to show any issue as to two of the defendants, together with presenting question as to who was entitled to the property about which there was no controversy, but the dismissal should have been without prejudice. Sullenger's Adm'r v. Sullenger's Adm'x, 287 Ky. 238 , 152 S.W.2d 570, 1941 Ky. LEXIS 510 ( Ky. 1941 ).