A careful review of the case law of our sister states reveals the accuracy of the textwriters' general observations. (See Cuneo v. City of Chicago (1942) 379 Ill. 488 [ 41 N.E.2d 473] (damage resulting from non-negligent excavation of street compensable under constitutional compensation clause); City ofCovington v. Parsons (1935) 258 Ky. 22 [ 79 S.W.2d 353] (same); Bator v. Ford Motor Co. (1934) 269 Mich. 648 [ 257 N.W. 906] (same); Siemers v. St. Louis Elec. Terminal Ry. Co. (1938) 343 Mo. 1201 [ 125 S.W.2d 865] (same); In re Mill Creek Sewer (1953) 374 Pa. 120 [ 97 A.2d 11, 12] (same); Kunst v. City ofGrafton (1910) 67 W. Va. 20 [67 S.E. 74] (same); Farnandis v. Great Northern Ry. Co. (1906) 41 Wn. 486 [84 P. 18, 20] (same); cf. In re Board of Rapid Transit R.R. Comrs. of City ofNew York (1909) 197 N.Y. 81 [ 90 N.E. 456, 464] (same result reached under "just compensation" statute).
This constituted a "taking" of property under section 242 of the Kentucky Constitution, and the municipality must pay just compensation therefor by way of damages. Perry County v. Townes, 228 Ky. 608, 15 S.W.2d 521; Jefferson County v. Bischoff, 238 Ky. 176, 37 S.W.2d 24; City of Covington v. Parsons, 258 Ky. 22, 79 S.W.2d 353. In the first case cited, it is stated, 15 S.W.2d at page 522:
A number of cases under that section of the Constitution have held municipalities liable under the law of eminent domain or "reverse condemnation" for damage to private property caused by the construction of sewer lines or other public projects.See Blair v. City of Pikeville, Ky., 384 S.W.2d 65 (1964); City of Newport v. Rosing, Ky., 319 S.W.2d 852 (1958); City of Cumberland v. Central Baptist Church, 305 Ky. 283, 203 S.W.2d 57 (1947); City of Covington v. Parsons, 258 Ky. 22, 79 S.W.2d 353 (1935); O'Gara v. City of Dayton, 175 Ky. 395, 194 S.W. 380 (1917). Despite the apparent failure of the church to proceed on the theory of eminent domain below, we feel justified in raising that issue here since we are merely following the example set by the court in O'Gara v. City of Dayton, 175 Ky. 395, 194 S.W. 380 (1917).
Appellant urges that he is not required to show negligence. He asserts that the damages claimed arise from an unwarranted taking of his property by appellee city, without compensation, and predicates his right of recovery on § 242, Ky.Constitution. In support of this theory he relies upon City of Danville v. Smallwood, Ky., 347 S.W.2d 516; City of Newport v. Rosing, Ky., 319 S.W.2d 852; City of Cumberland v. Central Baptist Church of Cumberland, 305 Ky. 283, 203 S.W.2d 57; City of Covington v. Parsons, 258 Ky. 22, 79 S.W.2d 353; Jefferson County v. Bischoff, 238 Ky. 176, 37 S.W.2d 24; Perry County v. Townes, 228 Ky. 608,15 S.W.2d 521; Floyd County, Ky. v. W. Va. Ky. Hardware Supply Co., (6 Cir.) 59 F.2d 895; Commonwealth v. Kelley, 314 Ky. 581, 236 S.W.2d 695. Appellee city counters with the reasoning that the instant case is distinguishable from the cited authorities on the premise that those cases involved damage to an adjacent property owner, whereas in this case the city had a right on the property involved.
This constituted a 'taking' of property under section 242 of the Kentucky Constitution, and the municipality must pay just compensation therefor by way of damages. Perry County v. Townes, 228 Ky. 608, 15 S.W.2d 521; Jefferson County v. Bischoff, 238 Ky. 176, 37 S.W.2d 24; City of Covington v. Parsons, 258 Ky. 22, 79 S.W.2d 353."
It is a well-settled principle that the testimony of jurors is not competent to impeach the validity of the findings of the jury or their verdict. City of Covington v. Parsons, 258 Ky. 22, 79 S.W.2d 353. It is probably true that the jury did not view the property of appellants, but appellants made no request that the jury view their property and raised no objection until more than a year after the verdict had been handed in and the judgment rendered. The fraudulent acts as alleged in their pleadings are: (1) they appeared in court on the right day but their names were not called; (2) their case was not called for trial; (3) the attorney for the Housing Commission saw them sitting in the courtroom but did not advise them that their case was being tried; (4) it was the duty of such attorney to advise appellants of their case, or to advise the court of their presence, and (5) that because of the conduct of the attorney for the Commission they were prevented from introducing evidence showing the market value of their property.
Plaintiffs I evidence did not go any farther than the pleading, and the defendant's motion for a peremptory instruction was based upon a failure in both the pleading and the proof in this particular. The action is not predicated on negligence but on the taking of property for a public purpose, which under Section 242 of the Constitution cannot be done without compensation. It is the settled interpretation of this provision of the constitution that where negligence is not the cause, the owner of property may recover of a city damages to real property as well as the actual taking of it. A case like the present is City of Covington v. Parsons, 258 Ky. 22, 79 S.W.2d 353. This is not an action on a contract.
"A juror can not be examined to establish a ground for a new trial, except it be to establish that the verdict was made by lot." Borderland Coal Co. v. Kerns, 171 Ky. 626, 188 S.W. 783; Cadle v. McHargue, 249 Ky. 385, 60 S.W.2d 973; City of Covington v. Parsons, 258 Ky. 22, 79 S.W.2d 353. It was written in the Kerns case, supra, that the fact a juror knew the result of a former trial did not of itself disqualify him, and before a new trial would be granted it must appear from competent evidence that such fact so operated on the juror's mind as to influence his verdict.