Chicago

• Decision Date: 09 January 1892
• Court: Kansas Supreme Court
• Parties: THE CHICAGO, KANSAS & NEBRASKA RAILWAY COMPANY v. ERNEST BROQUET

28 P. 717

47 Kan. 571

THE CHICAGO, KANSAS & NEBRASKA RAILWAY COMPANY v. ERNEST BROQUET

Supreme Court of Kansas

January 9, 1892

Error from Norton District Court.

CONDEMNATION PROCEEDING. Judgment for defendant, Broquet, September 12 1888. The plaintiff Railway Company brings the case here. The facts appear in the opinion.

Judgment reversed.

M. A Low, and W. F. Evans, for plaintiff in error.

John R Hamilton, for defendant in error.

JOHNSTON J. All the Justices concurring.

OPINION

JOHNSTON, J.:

This was an appeal from a condemnation proceeding instituted by the Chicago, Kansas & Nebraska Railway Company to obtain a right-of-way for its railroad through lands in Norton county. The commissioners condemned a right-of-way through a 10-acre tract of land, and the quantity deemed necessary for the route, and which was taken, was 1 79/100 acres. The land taken was valued by the commissioners at $ 1,200, and they assessed damages to the 8 21/100 acres not taken at $ 300. The commissioners were unable to ascertain who were the owners of the land, and made an award to "unknown owners" of $ 1,500. The report of the commissioners was filed on December 16, 1887, and on December 19, 1887, the railway company took an appeal from the award. On April 10, 1888, Ernest Broquet filed a petition in the appeal, setting up title to the land in himself, and asking for damages in the sum of $ 3,000. This petition was stricken from the files by the court, and the reason for this action does not clearly appear from the record. It appears that Ernest Broquet, at his own request, was made a party defendant, and W. H. Boys was also treated as a defendant, and was represented by an attorney appointed at the instance of the court, but the reason for this appointment is not shown by the record. The cause was tried with a jury, and a verdict was returned in favor of Ernest Broquet, awarding him the sum of $ 1,683.41.

Errors are assigned on the rulings of the court in charging the jury. There were two controverted questions submitted to the jury: one was as to the ownership of the land at the time of its appropriation, and the other was as to the amount of damages suffered by the owner or owners. In one of the instructions, the court stated to the jury the amount awarded by the commissioners for the land taken and for the resulting damages to the part not taken. The award made by the commissioners was not admissible in evidence, and the court was not warranted in presenting the amount of the allowance as a fact to the jury. When an appeal is taken, the case is tried de novo upon new evidence, and the award of the commissioners is no more competent than would be the former verdict of the jury upon an appeal from a justice of the peace to the district court. It is only the opinion of the commissioners as to the damages sustained, and the statement of the amount awarded by them is hearsay evidence, which is not admissible, whether stated by a witness or by the court in its charge. (Railroad Co v. Dwelle, 44 Kan. 394, 24 P. 500.) We are referred to Railroad Co. v. Kuhn, 38 Kan. 104, 16 P. 75, as justifying this instruction; but in that case the court did not inform the jury what the amount of the award was; it only gave a rule for the...