Atchison

• Decision Date: 11 June 1887
• Court: Kansas Supreme Court
• Parties: THE ATCHISON, TOPEKA & SANTA FE RAILROAD COMPANY v. BURLINGAME TOWNSHIP, IN OSAGE COUNTY

14 P. 271

36 Kan. 628

THE ATCHISON, TOPEKA & SANTA FE RAILROAD COMPANY v. BURLINGAME TOWNSHIP, IN OSAGE COUNTY

Supreme Court of Kansas

June 11, 1887

Error from Osage District Court.

THE opinion states the nature of the action, and the facts. Judgment for the plaintiff township, at the August Term 1885. The defendant railroad company brings the case to this court.

Judgment reversed and cause remanded.

Geo. R Peck, A. A. Hurd, and J. G. Egan, for plaintiff in error.

William Thomson, for defendant in error.

JOHNSTON J. All Justices concurring.

OPINION

JOHNSTON, J.:

This action was brought by Burlingame township, of Osage county, to recover $ 7,290 damages alleged to have resulted from the building of the Atchison, Topeka & Santa Fe railroad across a public highway in Burlingame township in Osage county. The petition alleges that the highway was legally laid out and established long prior to the construction of the railroad, and that by the construction of the railroad, which was prior to January 1, 1884, the highway was materially injured by excavations and embankments, which rendered it dangerous for use by the traveling public; that on the 3d day of June, 1884, the defendant had failed and continued to fail for more than ninety days preceding that time, to make good the crossing, and at the time of the commencement of the action had failed to do so; that on the 3d day of June, 1884, the township trustee of Burlingame township notified the board of county commissioners of Osage county of the facts, and made a statement to them showing the location of the crossing and the manner in which it had been injured by the construction of the road, which was verified by three resident tax-payers of the township; that thereupon the county commissioners appointed three disinterested householders to view the crossing and assess the damages resulting from the construction of the railroad, designating June 17, 1884, as the time of meeting, and notified the railroad company of the time and place of meeting; that at the time and place designated the viewers met and from actual view assessed the damages resulting to the highway, by reason of the construction of the railroad, at $ 7,290, and on the 18th day of June, 1884, they returned to the township trustee a certificate under oath of their action; that thereupon the township trustee immediately notified the railroad company of the amount of damages assessed by the viewers, and demanded payment of the same. The petition further alleges that on or before the 14th day of July, 1884, the railroad company had constructed its railroad across the highway, and had materially injured it by excavations and embankments; that the railroad company had for more than ninety days preceding the 14th day of October, 1884, failed to make good the said crossing, and then avers the giving of a new notice by the township trustee; and that new proceedings to assess the damages against the railroad company the same as those above described were had, and the viewers then appointed reported on the 20th day of November, 1884, that the damages resulting to the highway by the construction of the railroad were the same as the first assessment, $ 7,290; that notice of the assessment made was given to the railroad company, and payment demanded, but that more than thirty days elapsed, and the company had failed to pay that sum or any portion thereof. The action was thereupon brought by the trustee in the name of the township, and judgment demanded for the sum of $ 7,290. The railroad company answered in three paragraphs: first, a general denial; second, that the railroad was built across the highway in 1869, and that the company then restored the highway to its former state, or to such a state as not to have necessarily impaired its usefulness, and did all the grading made necessary by the embankments and excavation at that crossing; third, that the railroad was constructed in 1869, and long prior to the 9th day of March, 1876, and--

"That said plaintiff's cause of action, if any, against said defendant, is a cause of action created by statute, and created by chapter 105 of the Laws of 1876, and accrued to said plaintiff at the expiration of ninety days from and after March 9, 1876, and said cause of action was at the time of the commencement of this suit, and the times mentioned in said plaintiff's petition, and each and all of them, barred by the statute of limitations."

The township filed a reply denying the allegations of the second count of the railroad company's answer, and demurred to the third count on the ground that it did not state facts sufficient to constitute a defense. This demurrer the court sustained, and to that ruling the railroad company excepted. The case came on for trial on August 25, 1885, and the jury found a verdict in favor of the township, assessing its damages at $ 1,081.28, and also made special findings of fact on questions presented by each party. The railroad company moved for judgment in its favor on the special findings, which motion was overruled. It moved for a new trial, which was refused. Judgment was rendered for plaintiff. The defendant company has brought the case here.

We will dispose of the case upon the pleadings, the only question which we need to consider being whether there was error in sustaining the demurrer to the third ground of defense stated in the answer. This is a statutory action, brought upon a liability arising under the provisions of chapter 105 of the Laws of 1876, which went into operation March 9, 1876. In § 3 of that act it is provided that--

"Whenever, by the construction of any railway within this state, the crossing of any public highway has been or shall be materially injured, either by excavations or embankments made by said railway company in the construction of said road, and the said railway company have failed to make good the said crossing, and continue to fail to do so, for the space of ninety days after the taking effect of this act, it shall be the duty of the township trustee of the proper township to notify the board of county commissioners of the fact, stating the location of the crossing, the manner in which the crossing has been injured, obstructed, or destroyed, verified by the affidavit of at least three resident tax-payers of the said township."

It then provides that it shall be the duty of the county commissioners to appoint viewers, and designate a time and place when they...