Burlington

• Decision Date: 10 December 1887
• Court: Kansas Supreme Court
• Parties: THE BURLINGTON, KANSAS & SOUTHWESTERN RAILROAD COMPANY v. W. H. JOHNSON

16 P. 125

38 Kan. 142

THE BURLINGTON, KANSAS & SOUTHWESTERN RAILROAD COMPANY v. W. H. JOHNSON

Supreme Court of Kansas

December 10, 1887

[Copyrighted Material Omitted]

Error from Phillips District Court.

W. H JOHNSON brought an action in the district court of Phillips county, alleging in substance that he was the occupant and in actual possession of a quarter-section of land in that county under the homestead laws of the United States, and which he had continuously occupied as his homestead, and had cultivated it as a farm. He averred that the Burlington Kansas & Southwestern Railroad Company, without his consent, wrongfully entered upon and constructed a line of railroad over the land, and had wrongfully appropriated a portion thereof without in any way compensating him for the injury done. The answer of the railroad company was a general denial. A trial was had at the April Term, 1886, with a jury and testimony was offered to the effect that Johnson was twenty-six years of age, a citizen of the United States, and entitled to the benefit of the homestead laws of the United States; that on the 19th day of July, 1882, he made a homestead entry on the land in question, and with his family had resided upon and cultivated the land since that time; that he had built a house and stables, dug two wells, and broken and put in a tillable condition thirty-five acres or more of the land; that in June, 1885, the railroad company constructed its road across the land and appropriated thirteen and nine-tenths acres; and that, on account of the character of the land, deep excavations and high embankments were made in building the road. It was built in front of the house and stable, the center of the tract being only two hundred and twenty-three feet from the house, and about three hundred feet from the stable, and by reason of deep cuts and high fills and banks, the house and stables were cut off from the timber and water on the other side of the road. There was testimony that the market value of the right of Johnson to the possession and use of the land under his homestead entry was worth at the rate of from seven to twelve dollars per acre for the land taken, and that the portion not taken was depreciated in value from two hundred to more than six hundred dollars. The court gave the jury the following charge:

"1. This is an action for damages, brought by the plaintiff against the defendant, on account of the taking and appropriating of a right-of-way embracing thirteen and nine-tenths acres of land, over and across a quarter-section of land, situate in said county and state, and described as follows, to wit: the southeast quarter of the southwest quarter and the southwest quarter of the southeast quarter of section four, and the northwest quarter of the northeast quarter and the northeast quarter of the northwest quarter of section nine, township one south, range nineteen west, containing one hundred and sixty acres. The plaintiff claims to be entitled to damages for the taking of such right-of-way by virtue of a homestead entry on said land made July 19, 1882, by him, and his subsequent compliance with the United States laws in relation to acquiring title to the public lands. Under the homestead laws of the general government, a person who is twenty-one years of age and a citizen of the United States, and who has not had the benefit of the homestead laws, is qualified to make a homestead entry on not to exceed one quarter-section of the public domain, and if the entryman subsequent to such entry continues to reside upon and cultivate his entry and does not at any time abandon his homestead entry for a longer period than six months, he may, after five years of continuous residence and cultivation, prove up under his entry and obtain a patent for the land from the government. The entryman under the said homestead laws by such entry and subsequent residence and cultivation acquires the right of possession of the land embraced in his entry, the right to use of the same (including the right to grass and a sufficient amount of the timber growing thereon, if any, for firewood, and in the improvement of the land), the right and ownership of all improvements put upon the land, and the right to acquire a full legal and equitable title thereto. By the act of putting on his homestead entry, the entryman acquires the exclusive right, by continuous residence and cultivation of the land, to obtain the full legal title; and his equities increase from the time of his entry to the expiration of the five years provided for in the government land laws; and if at the end of five years he has complied with the said laws in all particulars, and there is no valid adverse prior claimant, the government issues to him a patent for the land.

"2. If you find from the evidence that the plaintiff had a valid homestead entry on the land above described, within the meaning and as explained in the first instruction, at the time of the taking of a right-of-way amounting to thirteen and nine-tenths acres across said land, (the taking of which is admitted by defendant,) and that the same have been damaged by reason thereof, and that such damages have not been paid or settled for, you may then take in consideration the following matters or elements as a basis for fixing the amount of such damages: First, the market value of the possession and use of the strip of ground containing the thirteen and nine-tenths acres taken by the defendant for the right-of-way at the time of the taking, in June, 1885. In this connection you will remember that the company only acquires the perpetual right to use the right-of-way in the operating and maintaining of its road-way, and that the ultimate fee remains in the landowner, and he can use the right-of-way for every purpose not incompatible with, and which does not interfere with, the use thereof, of the defendant, in the operating and maintaining of its road. Second, the difference between the actual market value of the right of possession, use and improvements in the remaining one hundred and forty-six and one-tenth acres immediately before the taking of the right-of-way, and immediately thereafter. Third, seven per cent. interest on the amount of damages to the land (if you find from the evidence that it was damaged) from June 29, 1885.

"3. In arriving at the amount of damages done to the plaintiff's interests in said tract of land, if any, you are not to make any allowance for any enhancement of the value thereof, if any, growing out of a knowledge on the part of the people or public in the vicinity of the land that defendant was about to construct a railroad through the neighborhood in which the land is situated. You have a right, and it is your duty, to take into consideration the physical characteristics of the land described in the petition, the uses to which it was put, and, from the nature of things, is suitable for; the course of the railroad across the land; the shape the remaining portion of the land is left in; the convenience or inconvenience of using the portion not taken for the purposes for which the land is used; and the increased liability, if any, of accidental fires from passing trains. On the whole, you may take into consideration all incidental loss, inconvenience and damage, present and prospective, which may be known, or may reasonably be expected to result from the construction and operation of the railroad, in a legal and proper manner.

"4. The difference between the fair market value of the property taken as it was before and after the taking, not the estimate derived from fancy local attachment, or otherwise, which the owner may put upon it, or, on the other hand, the price which it would bring at a forced sale, is the true measure of the owner's consideration. The use to which the right-of-way is to be put may be considered, but annoyances which do not differ in kind from those suffered by the community in general are not to be taken into consideration. The market value is meant that price at which a similar property is generally sold at the time and in the vicinity of the property in question. You are the exclusive judge's of the evidence, of what it proves or disproves, and of the credibility of witnesses. In arriving at the weight that ought to be given to the testimony of any witnesses who had testified in this cause, you can take into consideration the interest such witnesses may have, if any, in the result of this case, his disposition to tell the truth, opportunities for knowing about the matters and things about which he testifies, and his demeanor while on the witness stand. This case should be tried and determined by you the same as an ordinary case between private parties, and without any reference to the fact that a private person is plaintiff and a corporation is defendant."

The jury returned a verdict in favor of Johnson, fixing the amount of his damages at $ 454.25; and also answered special questions that were submitted, as follows:

"Ques. 1.: Do you find from the evidence that the plaintiff, W. H Johnson, had a valid homestead placed on the land in question, on July 19, 1882; and was plaintiff over the age of twenty-one years at the time he homesteaded said land; and has plaintiff complied with the homestead law? Ans.: We do.

"Q. 2. Has plaintiff at all times since used said land, and cultivated the same for agricultural purposes? A. Yes.

"Q. 3. What was the market value of the use and possession of the thirteen and nine-tenths acres of land appropriated by defendant for their right-of-way over said land? A. $ 139.

"Q. 4. What was the actual market value of the use and possession of said land as an entire tract just prior to the location of said railroad? A. $ 1,168.80.

"Q 5. What...