judicial wrongdoing © Part2

Strollin' Pettifoggers - Part2
by Robert Hedges ©

The Statute Lien Case :

Their lawyer Dale wanted to remove the statute lien which I had placed on the property so he asked his friend Judge Saunders to put the lien on an empty bank account. The lien was filed as due for $365,216.88 with interest accruing at a stated rate of $121.91 per day, and reached $503,455.44 in the 9th quarter - as of 10 June 1992. KRS 376 requires a bond, of double the size of the lien when a litigant is desirous of converting an in-rem claim (against property, as a lien always is) into an in personnam claim (against the person who furnishes the bond, a case without a venue and enforceable in any court). When the Circuit Judge ruled for this violation of the KRStatute, I was forced into the Kentucky Court of Appeals for the first time. Acts which cannot be done because the statute clearly states otherwise, are nullities, void ad initio, impossible, without authority (jurisdiction).

My appeal was a very poor effort, indicating my lack of technical correctness as specified in the Rules. I knew right from wrong, but was not able at the time to study the Rules. The court seems to know the rules but forgets right from wrong. My adrenaline was so high and my stress level were so great that my learning was very much impaired. The brain chemicals which the pituitary creates do not work simultaneously for stress and learning in some cases.I got from the Court of Appeals a delusion which lasted several months that I had finally found an honest court. This saved some of my health, and allowed me to work at jobs where I could get my mind off of this horrific wrong.

The Court of Appeals did not dismiss my appeal of the void lien removal until June 1990. It was a very poor appeal - technically, but the substance of the reasoning is still very much alive under the void section of Rule 60(b) (which is 60.02 in KY Rules). A set of Motions has been pending in each case for about a year. No judge sits. Thus meaningful access to the court is denied Hedges.

The lawyer later made a frivolous motion urging the court to compel me to remove my statute lien from the real estate under threat of contempt. There is no authority which allows a court to take a substantive property right from a litigant, but since Rule 11 has never been enforced against Dale, he has been very cavalier about what the law allows. I was frightened by the possibility that I could be jailed under contempt for exercising my property rights. This motion was not carried, but was merely ignored by the court.

The filed lien was itemized to $365,216.88 and improvements were mapped by acre, and represented 76 filed pages in both Probate, and the Circuit Court Lien Books. The second judge refused to state upon what ground he was dismissing such a series of real estate improvement claims, but he clearly stated before witnesses, (on the record?), that he didn't have to explain what grounds he dismissed (my life) on, because he was not going to make my appeal any easier. I had appealed the latter portion of his ruling. He claimed that his ruling was based upon some procedural technicality, which he didn't have to explain. ( king of the court) In essence he said that unknown or nonexistent procedural technicalities were more important than substantive law. This clashes with the substantive rights which a common law lien give the authorized improver of real estate. This judge recused at this time. He removed himself from the partitioning case (which had just begun), and I was left to pursued the appeal which was already filed in the lien removal case, without any clear way to state which issues were disputed, and that I needed to research for legal citation. Every possible reason cannot be argued in the limited number of pages which an appeal must be crammed into. There is a rule against the shotgun approach to appeal.In other words appeal is impossible when specific issues are not clarified by the trial court. The purpose of Rule 52 is to clarify issues and a clear violation of the purpose and spirit of that rule was intentionally carried out by Judge Saunders.

I went to the Court of Appeals, ex parte, for an injunction to prevent an auctioneer from selling this real and personal property before the lien issues were heard and settled. KRS 330 requires that an auctioneer have a written contract with an owner of real or personal property, or he violates the law. I was the owner of part of the property, and he had no contract in writing with me. I was denied injunctive relief by the Court of Appeals to prevent the land sale, on the grounds that I could not "PROVE" irreparable damage. Irreparable damage is defined as damage for which no money can compensate. There is no substituting money for historically significant heirloom property, because it cannot be recreated. Thus this type of damage is irreparable by definition. The order of the Court of Appeals can be "appealed" and cannot become final for 30 days. The order stated that land (only) could be sold on 15 April 1991. The bids taken on 15 March 1991 could not be applied until 30 days elapsed. The auctioneer cannot have acted in good faith with this order in his hand. I served him with a copy of the judgment first thing on that Saturday morning, and stood aside while my future was being stolen.

At a later date, a different Court of Appeals Judge (Stumbo) dismissed this appeal back to the beginning, (simultaneously with 2 other appeals) on some undefined technical grounds. Procedure is again allowed to rule over substance. See Part 3 for specifics.

After the recuse of first judge from the 53rd District and the second judge from the 53rd Circuit, a third judge was assigned from the 19th Judicial Circuit, a rural community 100 miles away. Judge Richard L. Hinton, from the 19th Judicial Circuit is assigned, and for a few minutes I can believe that justice and honesty will finally overcome. The Regional Court Administrator, Judge Lape, a judge from Kenton Co., made the assignment. The third judge was assigned to two cases, a partitioning case, and the case which I (RH9) filed as plaintiff in April 1991. The latter case I will describe in Part 4. It is a huge case, with multiple issues and causes of action.

This judge held a "pre-hearing" in the partitioning case in April 1991, but Judge Hinton was not assigned to the second case until June 1991. He told me to get a lawyer, because he said he "has trouble enough with lawyers, without having to [contend] with pro se litigants". The First Amendment guarantees "meaningful access" to the court, and also the right of self-representation is guaranteed by the US Supreme Court.

The "right to own property" is similar to the "right to travel". Everyone has the right insofar as their finances will allow it. If I spent my land-money on a lawyer to fight the pettifoggery, I would have no way to own the debt-free land after my rights were finally honored. I had no practical method to hire a good lawyer, and I had previously had a bad experience with a lawyer, who had left me standing before the "altar in the temple of justice", without a clue as to how to argue the case he had urged me to agree to file.

If my rights depend upon payment of a fee to a member of the bar, then who really has the rights ? The hoodlum who extorts protection money from a shopkeeper appears very similar to the lawyer who extorts a fee from the same shopowner. My rights exist separate from the any extortionary requirement of payment for the exercise thereof.

The Partitioning Case :

The partitioning case is where my siblings took me to court to make me sell my 16.66% of 100 acres, from the 355 acre estate. The plaintiff (five sibling/heirs) in this case had to be arguing that they could not sell their 83% of this 100 acres, which translates to a theoretical 83 acres, without my 16% which is a theoretical 16 acres. This belief is ludicrous. But if evidence could prove that the marketability of their "83 acres" depended on my "16 acres", the least expensive way to settle would be to offer to exchange acreage from the 255 adjoining acres rather than spend $3000. on a lawyer. (Dale said "there assets here . . we have to have this " at the 18 Dec 1990 Recuse hearing in the Saunder's Circuit) Can you imagine going to court and spending $3000 just so they could sell the 100 acres in the worst possible way, which is by a coercive auction sale for the equivalent of a foreclosure price which are low dollars.

Recently, the Court of Appeals (Dyche, Huddleston & Knopf JJ - Roberts v Roberts;) wrote that there is, through KRE 301 (Ky Rules of Evidence) a "presumption" of indivisibility if no evidence rebuts Plaintiff's evidence of 'diverse nature of land'. Hedges does not know what was presented in Roberts v. .

There cannot be a "presumption" in law placing a burden on the defendant, without clear disputable facts. Opinion is not acceptable as evidence. Once there was a vast unsettled stretch of land looking for settlers. Railroads went to Europe and offered land to foreigners to get them to emigrate, so buyers would be available. Settlers looked for the necessities in tracts, such as water, firewood, and a garden spot. If land were partitioned incorrectly, the resulting purparts would be abandoned. Settlers would move to new land and cause transience in the old community. The "court's master" could look at a tract and see if the heirs would be able to live on the purparts. That is not the world we live in today. All land is valuable. PVA Officer John Waterman told RH in 1976 that this 100 acre tract was taxed at $200. but he further said " ALL LAND IS WORTH $500. PER ACRE" in Spencer. Don't make the mistake of looking at the low tax rates.

ROBERT HEDGES HEREBY STATES ON THE RECORD "I SHALL NOT SELL LAND FOR $200. PER ACRE (heritage or otherwise). Anyone who thinks I will has rocks in their head, or maybe takes too many perscription drugs at the same time. Someone should compel those persons to leave their property, accept a low price against their wishes, lose all their personal property for pennies, and be forced to accept this INJUSTICE in public. No hearing was ever held for a dispute in Spencer Circuit Court.

No witness has been sworn. If no actual dollar values are brought to the court as evidence, the defendant Hedges has seen no evidence to rebut by dollar numbers. Economist read graphs and columns of figures. Quantative evidence is the only disputable evidence.

The path of least resistance is to try to settle without costly and time-consuming litigation, meaning offering a reasonable settlement out of court. I will not give up my right to keep my historically significant real property. No reasonable offer would include my sleeping on the street or not owning my land, for whatever legal purpose I may have to own land. Life is too short for me to be deprived of my peaceful quiet deer- infested woods, my hills and veils, my beautiful bottomland and my ghostly advisors, as the spectre of ancestors gone but not forgotten linger about the home they started to create.

The KRStatute 389. is the law involved and it has been constructed by the KY Supreme Court in the "parable of the cow".

- Two men own a cow. They go to court to settle how to divide the cow equally and fairly. The court says that the question of how to dispose of the cow depends upon the value of the cow. A milk cow, old and dry, is worth more as hamburger, because she will never freshen- no more milk. Milk cow or hamburger. Neither owner can be expected to accept less than the maximum value for his half of the cow. This is fair. Land is a non-fundible. No parcel of land ever substitutes for any other parcel of land. No two pieces of land are identical. Only value can be considered. Why is a piece of land worth more as a single tract? Suppose Walmart or Toyota wanted to build a parking lot. In that case, the large tract would be worth a premium. Evidence of the value - dollar numbers - disputable in court - under oath - is the only way to determine this issue. If the cow is worth more as hamburger, then the cow dies. The price of hamburger and net dressed weight of the cow would be produced by expert witnesses as evidence. This allows the computation of the value of the cow as burger. If the cow is worth more money when sold on the hoof, it does not die. This requires a market price from a reputable witness. A court (the judge) would then rule after comparing the money amounts for each alternative. -

The judge had made his mind up in advance about the partitioning issue. His first act was to have a clerk read the lien removal into the record of this case. That lien removal was based upon the void order, from a frivolous motion by Dale, in another case.
The judge told the Dale to get expert testimony about the indivisibility of the 100 acres. This "expert" testimony was from the auctioneer, Barry Smith, who collected in excess of $23,000. for a Saturday on the Hedges Farm.

Defendant HEDGES asked Deponent "Expert" Barry Smith about property values and land prices during the deposition. He and Attorney Dale had preplanned to be non-responsive on the topic of actual value. Attorney Dale jumped in as if he were the officiating or presiding "officer" and no answer is included in the Deposition

The proper evidence would have been dollar figures for what a similar piece of land would sell for, and what price could be considered reasonable for parts of the 100 acres. This type of evidence was never brought before the court. The auctioneer made a conclusory statement, without a single fact of value, local prices, or other competent evidence for a comparison. There was no set of alternate numbers for the court or the owners to compare. Conclusory evidence from "experts" is not acceptable in a court unless the topic is so difficult to understand that the average person could not understand it. Any thrifty shopper can compare two prices set by competing merchandisers.

If no co-owner is willing to only own a part of the property (picture a house in a subdivision, which cannot be divided, rather than 100 acres which even the KY Supreme Court says most certainly can), KRS 389 allows that there is a presumption of indivisibility. The judge reached into the statute and pulled that passage out of it, as if I were not demanding partitioning and opposing the sale of my land. When the judge in this case changed the statute and ignored the KY Supreme Court construction, he forgot about the constitutional protection of just compensation when the state takes a man's land. The state actor (judge and others) violated my constitutional right to "just compensation". Only when alternate figures are compared, and the price of going concern value is calculated and added is the constitutional guarantee of just compensation upheld. (When property is condemned, the relocation payment is the going-concern value compensation).

This 100 acres is a rectangle with four sides. Three different owners lie on three sides, and Hedges acres lie on the fourth side. There is 1.6 acres left, which has not been accounted for in Probate. I have been ignored by the court over this fraud also. Logic tells you that each adjoining owner could add several acres from this 100 acres to their land, and it would cease to exist as a single 100 acre tract. I approached the other three adjoining owners for factual dollar figure bids. As soon as I did this the court ruled that the land was to be sold in one piece, without a single dollar figure in the record. This was all done from the 19th Judicial Circuit, 100 miles away. The court never convened. This judgment was sent to a mail-drop which was required by the forcible detainer. I didn't receive it until it was 45 days old, and I was ill and soon to be hospitalized for that new flu. I couldn't appeal. Next an appraisal was made by two local individuals. Their appraisal may have been based on income potential. There are two types of property valuations. The price a prudent businessman might pay, for investment value, and based upon an expected return to capital, and then there is the value which real estate brings for occupancy. There is no relationship between expected return and actual market price. I complained that the appraisal was too low, and should reflect the actual value of the land, and Dale replied that the purpose of an appraisal is to cut off the owner's right of redemption. The right of redemption is a right to refuse a bid which fails to bring 2/3 of the appraised value.Dale hurt his own client, filed that response with the KY Bar Association and does not even try to hide the injury.

The KY Supreme Court has on many occasions defined fair market value as the price that a willing buyer would give and a willing seller would accept, neither being under compulsion to buy or sell. When an auction without reserve is announced, there is a date upon which a sale will take place. This sale will take place regardless of prices offered, or how many potential buyers attend the sale. Therefore the sale becomes coercive, because the seller cannot decline if the offer is not high enough. KY has now by KRS defined "fair market value".

The 100 acres was auctioned. A coercive sale, similar to a foreclosure sale, took place for a much below market price. I refuse to sell my historical heritage land. It has good-will and going-concern value of very high value to myself and "my" family. But moreover I refuse to be compelled to accept a net of $200. per acre for a theoretical 16 acres. Land in the area which looks similar has been priced at over $1000. per acre

I complained to the judge in a letter. I notified him that I had not received the first judgment, and notified him of my address. He notified me of the first hearing in this case by sending an Order to the mail-drop necessitated by the forcible detainer. Five days, not counting mail days, does not allow the time required for preparation for a jury trial, which requires subpoena for witnesses, each of which require notice. Rule 5. requires certain notice to the litigant, before the court has jurisdiction. Without notice the court loses jurisdiction of the person.

I was also charged legal fees. Contested estate settlements and partitioning cases are cases under the American Common Law Rule, which says that each litigant pays his own fee, and does not collect from the opponent. A lawyer must collect from the individual whose interests he represents.

The following is filed as part of the Federal Case.
The case from which these events spring is an action to partition 100 acres, brought by plaintiff's against Robert Hedges defendant. No appeal has yet been heard by the Court of Appeals.

1) Plaintiff misconstrued the statute, and his initial pleading is an error - KRS 389A.030 (3) indivisibility shall be presumed unless an issue in respect thereto is raised by pleading of any party -
[i]f the cause of action is by statute with an exception in the same paragraph a fact needs to be pled by plaintiff stating that the exception does not apply to the defendant - Rudd v Dunn, 266 SW2d 318, (Ky 1954); Laurel Co v Lucas, 185 SW2d 259, (Ky 1945); Attwood v Casey Co, 137 SW2d 1079, (Ky 1940); Fed Chem v Paddock, 94 SW2d 645, (Ky 1936); Fed Life Ins v Rhymer, 95 F2d 999, (6th Cir Ky 1938) 13 F Supp 181; Pennick v Barnett, 61 SW2d 1098, (Ky 1933);
[f]ailure of plaintiff's claims (requiring every allegation of fact necessary to bring action within the statute on which he rests his claim) to fit terms of statute is not an affirmative defense that must be pled by the defendant. Compton v Alton Steamship, 608 F2d 96 at 103, (4th Cir 1979)
2) The judge stepped outside the circle of authority conferred by the sovereign and changed the meaning of the statute, to the detriment of the defendant. He "presumed indivisibility" as if no party wanted a purpart. Plaintiff did not state that no party wanted a purpart in the initial pleadings of Plaintiff. Defendant stated in his pleading that he wanted to partition.
[A] court does not have the power by judicial fiat to extend it jurisdiction over matters beyond the scope of the authority granted to it by its creators. An erroneous affirmative conclusion as to jurisdiction does not act in any proper sense to enlarge the jurisdiction of the court, until passed upon by the court of last resort. Stoll v Gottlieb, 305 US 165 at 171/172, (1938)
3) The judge further changed the statute by ignoring the construction of the statute by the state supreme court, and in declaring 100 acres indivisible without regard for the comparison of money figures, he ignored the constitutional guarantee which is written into the statutes construction of just compensation. This is a constitutional deprivation against defendant, for which no authority exists in the state court, and not a decision which follows the statute authority.
[T]he statutory authority must be in the court under the specific circumstances to sell real property or a nullity results = Thomas v Thomas' guardian, 51 SW2d 949, (1932); May v Pratt, 35 SW2d 542, (1931); Ford v May, 164 SW 88, (1914); Conrad v Conrad, 153 SW 740, (1913); Buckner v Kelley, 152 SW 963 at 965, (1913) ; Howard v Sebastian, 136 SW 226, (1911); Williamson v Mann, 119 SW 232, (1909); Graham v Kitchen, 80 SW 464, (1904); Liter v Fishback, 75 SW 232, (1903); Dineen v Hall, 65 SW 445, 66 SW 392, (1901); Isert v Davis, 32 SW 294, (1895); Malone v Conn, 23 SW 677, (1893); Bill v Burgess, 22 SW 84, (1893); Brownfield v Dyer, 7 Bush 505, (1870);
4) The court allowed, ordered or overlooked waste :
- a) The judge failed to be concerned with fiscal responsibility in the management of the 100 acres, which he placed in the hands of the Master Commissioner, Harold Summers. No income, rents, or profits have been filed or accounted for. This may sound conclusory, it is a statement of an absence of evidence, which should be available.
  [A] trustee, in possession of land, is required to account to the cestui que trust, not only for the rents and profits actually received, but also for the rents and profits which might have been received: (1 Paige, 188; 2 American Chancery Digest, 589) as cited in Weir v Weir's Admr, 3 B Mon 645, 42 Ky 645, (1843) at 669. [emphasis mine]
- b) A joint tenant has the right to demand an accounting and remuneration for improvements. This has not occurred, and a new suit to get to these requirements appears vexatious to Complainant Robert Hedges.
  Webster v Reid, 11 How [52 US] 437 [at 683], (1850) rights of possession may be passed by a tenant-in-common, giving a certain right of possession and a right to defend his possession
  It is therefore evident that not plaintiff alone but all the heirs of [the decedent] owned the land in controversy, that it belonged jointly to all the heirs. . [as] cotenant . . in a suit to settle an estate , . . . upon the record here the owners of an undivided one-ninth . .they still have title of this undivided interest until the equalization is made, and they ought not, by . . . judgment to be precluded from whatever rights they may have. . . Layne v Layne 197 SW 1062, (1917)
  Miller v Powers, 212 SW 453, (1919) Joint-owner suit for partitioning. Joint tenant has right of possession which is not adverse. Possession of tenant in common is not hostile to his cotenants. . . fair value of necessary and proper permanent and lasting improvements must be ascertained and allowed to those making outlay. One joint tenant is entitled to an accounting for rents and royalties.
  Burch v Burch, 82 KY 622, (1885) cotenant- liens for repairs and improvements of one joint-owner cites Alexander v Ellison, 79 Ky 148, (1880) cotenant makes repairs
  Burch v Burch, 82 KY 622, (1885) doctrine of contribution in equity. . benefits inure to joint-owners by an enhancement of real property value. .
  Hatcher v Howes, 128 SW 335, (1910) Expenses as were necessary to preserve and protect the property by the tenant-in-possession are chargeable - taxes, assessments, improvements to make property ready to rent.
- c) the taking of a fee in a partitioning case is error
  Camberon v Pottinger, 219 SW2d 403, (Ky 1948); Collins v Hudson's Adm'r, 140 SW2d 365, (Ky ); Bettes v Rogers, 135 SW2d 74 at 76, (Ky 1940); Howard v Carmichael, 35 SW2d 852, (Ky ); Wainscott v McBloom, 262 SW 961, (Ky 1924); Whitehead v Fulton, 220 SW 531, (Ky 1920); Fristoe v Gill, 80 SW 823, (Ky 1904); Bailey's Adm'r v Barclay, 60 SW 377, (Ky 1901); Simms v Birdsong's Adm'r, 59 SW 749, (Ky 1900); Doughtery v Cummings Adm'r, 50 SW 551, (Ky 1899); Lang v Constance, 46 SW 693, (Ky 1898); Thirlwell's Adm'r v Campbell's Guardian, 74 Ky 163, (1874) - cotenant defendant does not pay plaintiff attorney fee in controverted partitioning or estate settlement case - services rendered in interest of plaintiff not chargeable to defendant -
  Wainscott v McBroom, 262 SW 961, (Ky 1924) [a]ttorney for plaintiff not entitled to fee from defendant in partition case
  [T]he obligation to pay one's own attorney falls upon the person employing the atty. rather than upon the opposing litigant Louisville Label v Hildesheim, 843 SW2d 321 at 326, (1992); Knott v Crown Colony Farm, 92-SC-892-DG, (24 Nov 1993)
- d) The state is responsible for waste by allowing the most unfair form of sale.
  The statute, KRS 389A.030 calls for a "(4) public sale " but does not specifically proscribe an auction, without reserve, which is by common knowledge is known to be a method by which the fair market value is rarely received. Had the statute called for an auction without reserve, defendant would have no recourse except legislative changes or an appeal to the state supreme court for a change in construction, however, because the judge did not follow the statute as it has been constructed, there is no authority in the circuit to take property without just and adequate compensation.
  While the purchase price in many circumstances may afford excellent evidence of the "before" market value of real estate, it rarely will have such probative value where, as here, the purchase was at a forced sale. By definition, "fair market value" represents the price that a willing seller will take and a willing buyer will pay for property, neither being under any compulsion to sell or buy. Central Ky Drying v Comm, Simms, 858 SW2d 165 at 167, (1993); Calor Oil v Franzell, 109 SW 328 at 333, (1908); David v Lou IR Co, 166 SW 230 at 231, (1914); Sandy Valley Ery v Bentley, 171 SW 178 at 179, (1914); Logan v Davenport, 284 SW 98, (1926); Comm v Combs, 50 SW2d 497, (1932); Comm v Begley, 114 SW2d 127 at 129, (1938); City of Newport v Turner Advertising, 334 SW2d 765 at 769, (1960); Comm, DOH v West, 383 SW2d 116, (1964); Comm, DOH v Mann, 387 SW2d 848, (1965); Ky Tax Comm'n v Jeff Motors Inc., 387 SW2d 293 at 296, (1965); US v Chandler Dunbar Water, 229 US 80/81, (1912); US v Miller, 317 US 369 at 373 at 374, (1942)
- e) There has been a constitutional deprivation by the misuse of this statute also regarding the "good will" and "going concern value" which this property has in reference to Complainant Robert Hedges. If a condemnation was taking a part or all of a tract, the fact-finder would hear testimony regarding value, and the GCV would be compensatible. Sometimes this is called a relocation expense, mandated by the needs of the state. This case has no such motive, nor does it have the protective devices which require a fair determination of value. The actual loss to Complainant Robert Hedges is history, multi- generation occupancy, and many years of planning and investment. This is a direct constitutional deprivation, a taking without just compensation, and without a hearing to determine "just compensation" which under the correct application of the statute would not be a problem.
  [t]he fact of damages must be established definitely, though the amount need not be proven mathematically - good will is an intangible business asset - Meeker v Stuart, 188 FS 272 289 F2d 902 (DC App 1960)
  Matter of Brown's Will, 150 NE 581 at 583, (NY App 1926) Cardoza J, ; Grace Bros v IRS, 173 F2d 170 at 176, (9th Cir 1949) - [t]he chief elements of value upon any sale of good will are : 1st) continuity in place - 2nd) continuity in name
  [g]ood will exists as property merely as an incident to other property rights and is not susceptible to being owned and disposed of separately and apart from the property right to which it is incident - 38 CJS Good Will 3 p. 951 Yost v Patrick, 17 SO2d 240, ( Alab Sup 1944)
  [a]s far as dependent upon location or name, good will may become extinct or rendered less valuable by termination of right to continue to occupy the premises or the loss of the right to do business under name used. The chief element of value in good will is the continuity of place and the continuity of name. 38 CJS Good Will, 4 p. 953 cites Yost supra - Jackson v Caldwell, 415 P2d 667 (Utah Sup 1966)
  [GCV] is a property right, and should be considered in determining the values of the property upon which the owner has a right to make a fair return when the same is privately owned . . . the taking of property without due process is a violation under the 14th Amendment - Des Moine Gas v Des Moine, 238 US 153 at 165, (1914) Denver v Denver Union Water, 246 US 178 at 191/92, (1917) McCardle v Indianapolis Water Co, 272 US 400 at 414, (1926) (9.5% GCV)
  Knoxville v Knoxville Water, 212 US 1 at 9, (1909) GCV allowed as10% of value
  Denver v Denver Union Water, 246 US 178 at 191/92, (1917)- [p]roperty values as property in use and not valued based on its junk value
  Des Moine Gas v Des Moine, 238 US 153 at 164, (1914) [G]CV is valuable because a business with uncertain revenues is more risk then a going concern
  [T]his "goodwill" was a capital asset, and if Joffre abandoned it without a sale or exchange, his basis in that asset was deductible as an ordinary loss. Parmelee Transportation Co v US, 351 F2d 619, 623, (1965); Terminal Co v US, 296 FS 1084, 1086-1087, [n.5] (D.Del.1969); Zeeman v US, 275 FS 235, 253 (SDNY1967), modified on other grounds and remanded for further proceedings, 395 F2d 861 (2d Cir 1968); Strauss v US, 199 FS 845 at 850/51, (WD LA 1961)
  [b]y reason of good will of the concern, or the skill, experience and energy with which its business is conducted, the market value of the capital stock is largely increased, whereby the value of the tangible property of the corporation considered as an entire plant, acquires a greater market value than it otherwise would have had . . it cannot probably be said not to be its true value in money within the meaning of the constitution, because good will and other elements indirectly enter into value; Adams Express v Ohio, 165 US 194, 166 US 185 at 224, (1897)
  [g]oing concern value is an intangible asset distinct from good will: it is the additional element of value which attaches to property by reason of its existence as an integral part of a going concern - North Clakamus v Harris, 664 F2d 701, (9th Cir 1980)
  [g]ood will is seen as a self-regenerating asset whose economic value fluctuates but does not necessarily diminish - since good will has no ascertainable useful life, the presumption that goodwill is a non depreciable capital asset is conclusive - elements of good will which can be depreciated due to limited life are patents and copyrights - GTV v US, 449 FS 609 at 611 [3,4] , (4th Div 1977) - 598 F2d 1148 - Going Concern Value - GCV - seller has the option to charge for GCV, in a fair negotiated deal
- f) Prof. Bonbright in his two volume set the "Concept of Property Value" has elaborated in depth on the various facets and components in the quest to determine a fair price for property.
  An appraiser will value property in reference to its investment value, with a justified price. This is not the estimated price at which it actually will be sold, if the owner wishes to sell. This is the hypothetical market value. It is the function of the real estate broker to determine the true value. Concept of Property Value, Bonbright, Vol I, (1937) p. 38
  Judge Hinton has forgotten that an appraisal by local citizens, which may be in some way linked to the expected net income per annum expected from the tract, is in no way reliable when the value of space to live upon the earth is considered. The acres in the area have exceeded $1600.00 and have been offered for $ 3000.00; which is near to the "true value" and a far cry from $200.00 as was bid in the coercive sale which may be based on the "justified price". The compensation which the constitutional mandate specifies is what is required to make the condemnee whole again, rather than compensation for only a portion of the actual value of the property.
  [t]he measure of the compensation is the loss suffered by the former owner, not the gain accruing to the taker. - compensation is a constitutionally required substantive right - Boston C of C v Boston, 217 US 188 at 195, (1909); McGovern v NY, 229 US 363, (1912); US v Miller, 317 US 369, (1942); US v GM, 323 US 373 at 377/378, (1944); US v Causby, 328 US 256 at 262 n7, (1945); US v Felin, 334 US 624 at 631, (1947); Kimball Laundry v US, 338 US 1 at 13, 23, (1948) GCV
  Net property value is the amount of value expressed in dollars which remain after the cost of the enforcement of the rights to possess and enjoy the property are deducted. If the enforcement of the right to possess and enjoy property requires a lawyer, and the fees reach the value of the cost of the replacement of the property, there is no net property value, and the property ceases to have any value to the owner. Robert Hedges - observation based upon logic.
  - - market value is value in exchange -
  - - utility is value in use
  - - value refers to the advantage that is expected to result from the ownership of a given object -
  - - cost refers to the sacrifice in acquiring the said object -
  - - scarcity is an element in value - that which can readily be replaced at a nominal cost does not have a high value, even if essential and having a very high utility value like a bucket of water -
    - - a) value to owner
    - - b) market value, exchange value, mere price, not value ***
    - - c) intrinsic value, justified selling price, hypothetical market value, warranted selling price
    - - d) normal market value - the value of property to its owner is identical in amount with the adverse value of the entire loss, direct and indirect, that the owner might expect to suffer if he were to be deprived of the property
    - Concept of Property Value, Bonbright, Vol I, (1937) at 17/ 19/38/49

5) The court called for an expert to testify as to the indivisibility of this tract. The criterion for expert testimony is that the topic is beyond the understanding of the fact-finder, otherwise, all opinion testimony is mere conclusion of witness and to be stricken. The expert testimony is additional error of two types.
a) The Court had misconstrued the statute and thus didn't notice that the evidence required is dollar figures, money amounts which the comparison of is easily within the understanding of a competent fact- finder. The "parable of the cow" is the statute's construction. To require expert testimony to determine which dollar figure is larger, implies that the fact-finder is not capable of money comparisons.
[a] witness's determination becomes an inadmissible conclusion, when all the facts upon which a determination is based can be placed before the trier of facts and the proper deduction of the determination therefrom does not require special training to adequately understand - Spokane & Inland Empire RR v US, 241 US 344 at 351, (1916); Milwaukee & STPRR v Kellogg, 94 US 469 at 472, (1876) as cited in Coca Cola v Wirthman Drugs, 48 F2d 743, (8th Cir 1931)
[t]he [failed] effort was to put the opinion of commercial experts in the place of that of the [fact-finder] upon a question which was well understood by the community at large . . . . . - Schmeider v Barney, 113 US 645, (1884); reaffirms and follows - Greenleaf v Goodrich, 101 US 228, (1879) as cited in Coca Cola v Wirthman Drugs, 48 F2d 743, (8th Cir 1931)
b) The expert chosen, has since impeached his own expert status, regarding this property by a response given in a Auctioneer Board Complaint Answer, in which he states that he did not have any responsibility in the partitioning of the Hedges Farm, and is not responsible if there was waste as a result of the partitioning plan adopted, which he filed with Planning and Zoning. He stated that a surveyor made the partitions, and as he is making an effort to disavow his own involvement, he is inferring that he was not the authority and the final word in how best to partition. This situation is ongoing, with further facts to be admitted, and evidence will be available as the events unfold.

I appealed this matter twice, and made a denied motion for discretionary review to the KY Supreme Court. I have again made a motion under Rule 60 and appeal this. The auctioneer/expert witness in this case is now a defendant in my cases, and he has officially "on the record" stated that he is not responsible for the partition survey lines which were made on the 255 acres which he auctioned. He claims to have merely filed the plat with the Planning and Zoning Board before a public hearing. (a hearing which I, as an heir and owner never received notice of, in violation of the law). He is impeached by his own words, and his deposition in the partitioning case thus represents a fraud.

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