Calkins v. The Salina Northern Railroad Company

• Decision Date: 06 April 1918
• Docket Number: 21,448
• Parties: ROYAL D. CALKINS, Appellee, v. THE SALINA NORTHERN RAILROAD COMPANY, Appellant
• Court: Kansas Supreme Court

172 P. 20

102 Kan. 835

ROYAL D. CALKINS, Appellee, v. THE SALINA NORTHERN RAILROAD COMPANY, Appellant

No. 21,448

Supreme Court of Kansas

April 6, 1918

Decided January, 1918.

Appeal from Saline district court; DALLAS GROVER, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. CONDEMNATION PROCEEDINGS -- Damages -- Findings Not Conflicting. In a condemnation proceeding a special finding of a jury that there was no evidence of the depreciation of each part of a farm lying on either side of the right of way does not conflict with another finding of the damage to the land as a whole, nor indicate that the finding as to damages awarded for the land not taken for right of way was not supported by the evidence.

2. SAME--Interest on Damages. A proceeding to condemn private property for public use does not involve a tort, and an owner whose land is so appropriated is entitled to interest on the damages sustained by him between the time of the appropriation and the time of the rendition of judgment.

David Ritchie, of Salina, for the appellant.

C. W. Burch, B. I. Litowich, and La Rue Royce, all of Salina, for the appellee.

OPINION

JOHNSTON, C. J.:

The action in the district court was an appeal from an award in a condemnation proceeding. Defendant appeals from the judgment in favor of plaintiff.

The plaintiff's farm, through which defendant built its road, is comprised of the south half of a quarter section. The right of way runs lengthwise through the farm in a general southeasterly direction, dividing it about in halves, each triangular in shape. Plaintiff's house stands in the south portion, near the south line of his farm. Nearly the whole length of the right of way is in a cut, the greatest depth of which is not more than five feet, and on each side of the track is a ditch. About half way across the farm a crossing was built to enable plaintiff to go from one part of the farm to the other, cattle guards and gates to be built later at this point. The right of way took 6.39 acres. The report of the commissioners, filed April 21, 1915, allowed the sum of $ 579.25 as the value of the land taken and the damage to that not taken, and this amount was deposited by the defendant with the county treasurer on July 21, 1915, about which time the defendant took active possession of the land. At the trial the jury made the following among other special findings:

"2. Q. Without reference to the value of the land actually taken for right of way what was the amount of damages, if any, to the remainder of the farm by reason of the taking of said 6.39 acres for the right of way? A. $ 1361.00.

"3. Q. How much was the damage to that part of the farm lying north of the right of way, if any? A. No evidence.

"4. Q. How much was the damage to that part of the farm lying south of the right of way, if any? A. No evidence."

In this appeal no question is raised as to the award made for land taken for right of way, but it is contended that the special findings of the jury relating to the depreciation of that not taken are fatally inconsistent with each other. It is said that findings numbers 3 and 4 conflict with finding number 2 and in effect negative it. After finding that the damages to the land not taken were $ 1,361, the jury, in answer to questions 3 and 4, found that there was no evidence as to the depreciation of the respective parts into which the farm was divided by the railroad. The finding that there was no evidence of the damages sustained as to a particular fraction of...