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• Decision Date: 10 December 1887
• Docket Number: 4033. 4078. 4252
• Citation: 15 P. 889,38 Kan. 78
• Court: Kansas Supreme Court
• Parties: THE CHICAGO, IOWA & KANSAS RAILROAD COMPANY v. WILLIAM S. TOWNSDIN. THE CHICAGO, IOWA & KANSAS RAILROAD COMPANY v. WILLIAM S. TOWNSDIN. THE CHICAGO, IOWA & KANSAS RAILROAD COMPANY v. WILLIAM S. TOWNSDIN

15 P. 889

38 Kan. 78

THE CHICAGO, IOWA & KANSAS RAILROAD COMPANY v. WILLIAM S. TOWNSDIN.

THE CHICAGO, IOWA & KANSAS RAILROAD COMPANY v. WILLIAM S. TOWNSDIN.

THE CHICAGO, IOWA & KANSAS RAILROAD COMPANY v. WILLIAM S. TOWNSDIN

No. 4033. No. 4078. No. 4252

Supreme Court of Kansas

December 10, 1887

Error from Cloud District Court.

THREE actions by Townsdin against The Railroad Company. The material facts are stated in the opinion.

Case no. 4033, judgment affirmed. Case no. 4078, reversed. Case no. 4252, remanded.

J. W Deweese, Sturges & Kennett, and W. W. Guthrie, for plaintiff in error.

L. J Crans, for defendant in error.

SIMPSON C. All the Justices concurring.

OPINION

SIMPSON, C.:

This was an appeal to the district court of Cloud county from an award by commissioners appointed by the judge of the twelfth judicial district of the state, on application of the plaintiff in error, to lay off a route for such railroad in Cloud county, and to appraise the value of and assess the damage to land appropriated to its right-of-way, etc. The case was tried by a jury, at the August term of said court, 1885. Before the trial the railroad company offered in open court to confess to a judgment for $ 300, and accrued costs, which offer was in writing, but the appellant Townsdin refused to accept it.

The material facts are: The defendant in error was the owner of a quarter-section of land near the city of Concordia; a completed railroad line ran through the land, and cut off a portion on the north side, estimated to contain twelve acres; it was across this twelve acres that the plaintiff sought to appropriate its right-of-way. The amount of land occupied by the track of the defendant railroad company across the twelve acres amounted to three and three-fourths acres. The jury, in answer to special interrogatories, found that the value of the perpetual use of the land taken for the right-of-way was $ 187.50; that the market value of the land (twelve acres) lying north of the other railroad immediately before the location of the right-of-way of the plaintiffs in error was $ 40 per acre, and immediately after the location, irrespective of benefits, was $ 30 per acre; that the land lying south of the other railroad was not damaged by the location of the right-of-way of plaintiffs in error. The jury returned a general verdict for defendant in error for $ 292.67 1/2. On the rendition of this verdict the railroad company filed a motion for judgment on the verdict against itself for the amount found by the jury, and costs, to the time of its filing a written offer to confess judgment. Townsdin, by his attorney, filed a motion for a new trial, for error in the assessment of the amount of recovery, and for errors of law occurring at the trial and excepted to at the time. The court overruled the motion of the railroad company for judgment on the verdict, and sustained that of Townsdin, for a new trial. The railroad company brings the case here, and urges as reasons for reversal, that the court erred in sustaining the motion for a new trial filed by the defendant in error. It is shown affirmatively in the record at one place, that the motion for a new trial was sustained because the special findings were contrary to the general verdict; and in another place it is recited, "that the court having heard the motion of the appellant, on consideration does allow the same." It thus affirmatively appears that the court passed upon both of the grounds for a new trial, embodied in the motion of Townsdin. In this state of the record, we shall not undertake to say that the ruling of the court below was based solely on one of the reasons given. The natural inference from the record is, that both were sustained; but be that as it may, we do not feel authorized to reverse the ruling. The special findings were inconsistent with the general verdict, and we have not been able to reconcile them, either mathematically or otherwise. This inconsistency could be taken advantage of by either party. If the ruling of the court was induced by this reason, we cannot say it was wrong; but if it was based upon the other ground, we cannot reverse it, for the reason that the evidence and rulings complained of are not in the record; and we are bound to presume that the ruling of the court was right. If this ruling was to be complained of here, all the evidence and the other proceedings of the trial should have been preserved in the record. When the jury returned their special findings into court, either party could have called the attention of the court to their inconsistency, and objected to their reception; but this not having been done, and they having been received without objection, then the only question left was the one presented in the motion for a new trial.

The special findings in the case as compared to the general verdict, come within the decision of this court in Harvester Works Co. v. Cummings, 26 Kan. 367. There the court says: "We are unable to enter judgment upon the special findings, because they are conflicting inconsistent, uncertain, and not...