Briggs v. The Chicago

• Decision Date: 07 March 1896
• Docket Number: 8127
• Citation: 43 P. 1131,56 Kan. 526
• Court: Kansas Supreme Court
• Parties: JAMES F. BRIGGS, as Administrator of the Estate of Mrs. R. B. Fitch, deceased, v. THE CHICAGO, KANSAS & WESTERN RAILROAD COMPANY

43 P. 1131

56 Kan. 526

JAMES F. BRIGGS, as Administrator of the Estate of Mrs. R. B. Fitch, deceased, v. THE CHICAGO, KANSAS & WESTERN RAILROAD COMPANY

No. 8127

Supreme Court of Kansas

March 7, 1896

Decided January, 1896.

Error from Woodson District Court.

ON March 29, 1886, Loretta A. Ault and John A. Ault, husband and wife, being the owners of lot 3, plat of out-lots to the city of Yates Center, executed their promissory note for $ 500 to Scott & Brier, and secured the same by mortgage on said premises, and the mortgage was duly recorded on the same day. On April 7, 1886, the note and mortgage were assigned to Mrs R. B. Fitch. On July 14, 1887, the Aults conveyed to The Chicago, Kansas & Western Railroad Company a right of way and strip of land 150 feet in width on each side of the center line of the track of the railroad of said company where the same was then located across, over and through said lot. At said time the railroad company was constructing its line of railroad across said lot under a claim of right by virtue of certain condemnation proceedings which were invalid, and ever since said time the company has operated its railroad over and across said premises. Mrs. R. B. Fitch having died, James F. Briggs was, on November 5, 1888, duly appointed, and he qualified as administrator of her estate. An action was commenced to recover upon said note and to foreclose the mortgage. The railroad company was made a party, and on December 12, 1889, filed an answer setting up a right to occupy the strip 300 feet in width by virtue of said deed from the Aults. On March 12, 1890, judgment was rendered against the Aults for $ 825, bearing interest at the rate of 12 per cent. per annum, and the whole tract was decreed to be sold after six months without appraisement, to pay the judgment, interest, and costs; but the cause was continued until June term as between the plaintiff and the railroad company, the latter expressly agreeing to waive the stay, so that the land might be sold at the expiration of the six months from date of the decree of foreclosure against the Aults. On June 4, 1890, the cause came on for further hearing between the plaintiff and the railroad company, both parties appearing by their counsel; and thereupon it was decreed that the railroad company be, by the sale to be made under the decree of March 12, 1890, "forever barred, foreclosed enjoined and cut off from claiming any interest or estate in or to the real estate, or any part thereof, described in plaintiff's said amended petition, to wit: lot 3, in Yates's plat of out-lots in the city of Yates Center." On September 16, 1890, an order of sale was issued, under which, in compliance with the decree of the court, the land outside of the strip was first sold for the sum of $ 50 to James F. Briggs, as administrator, and the strip was then bid off by him for $ 100. An attorney of the railroad company was present at the sheriff's sale, but neither he nor any other representative of the company made any statement, or in any manner participated in the sale. Afterward the sale was confirmed by the court, and on November 3, 1890, a sheriff's deed was executed to said James F. Briggs, as administrator.

On November 20, 1890, the railroad company made application to the district judge for the appointment of commissioners to condemn a right of way over and across said premises, and such commissioners were appointed, and they duly qualified and on November 28, 1890, gave notice that they would proceed on December 30, 1890, to condemn such right of way. These proceedings were in the usual form, and made no mention of the fact that the railroad company was already in possession of the strip and had made improvements thereon. On January 6 1891, the commissioners duly filed their report, allowing $ 124 for the land occupied and $ 30 for damages to the remainder of the tract. No mention was made of any improvements. On January 15, 1891, James F. Briggs, as administrator and as owner of the land, filed an appeal bond which was duly approved. On the trial of the appeal, June 1 and 2, 1891, it was agreed that, since July 14, 1887, and prior to September 8, 1888, the railroad company had constructed and erected upon said strip the improvements which at the time of the condemnation were respectively described and of value as follows: Dwelling-house, fences around same and outbuildings inclosed therewith, $ 700;...