Chicago

• Decision Date: 10 January 1891
• Citation: 25 P. 584,45 Kan. 189
• Court: Kansas Supreme Court
• Parties: THE CHICAGO, KANSAS & WESTERN RAILROAD COMPANY v. SAMUEL DONELSON

25 P. 584

45 Kan. 189

THE CHICAGO, KANSAS & WESTERN RAILROAD COMPANY v. SAMUEL DONELSON

Supreme Court of Kansas

January 10, 1891

Error from Chautauqua District Court.

THE opinion states the case. Judgment for plaintiff Donelson, on December 10, 1887. The Railroad Company brings the case here.

Judgment reversed and cause remanded.

Geo. R Peck, A. A. Hurd, and Robert Dunlap, for plaintiff in error.

J. D McBrian & Son, for defendant in error.

JOHNSTON J. All the Justices concurring.

OPINION

JOHNSTON, J.:

This was an appeal by Samuel Donelson from an award made by commissioners appointed to condemn a right-of-way through an eighty-acre tract of land owned by Donelson in Chautauqua county. The extent of land taken was five and forty-eight one-hundredths acres, and the amount awarded by the commissioners was $ 320. The trial of the appeal in the district court resulted in an award of $ 1,095.85, as the aggregate amount of damages sustained by Donelson. In answer to special questions, the jury found that the value of the land taken was $ 274; that the damages to the land north of the right-of-way were $ 100, and to the land south of the right-of-way $ 150. They further found that the land south of the right-of-way is damaged by the probable overflow of ditches, allowing the water to spread over about thirty acres of land, and damaging it to the amount of $ 425. They also allowed $ 26 as damages for the overflow of surface-water from other lands. An item of damages was allowed for failing to construct a farm-crossing. And these items, together with the interest, make up the aggregate of the award.

It was claimed that the construction of the road through Donelson's land had interfered with the natural surface drainage of the land, and had diverted the course of the flowage of the water resulting from the rainfall on the hilly land near that of plaintiff in such a way as to cause damage to his land. A witness named Miller was interrogated by the plaintiff in regard to the damages resulting from the overflow. Over the objection of the railroad company, he was asked, and allowed to answer, what proportion of the plaintiff's land was subject to overflow from the ditches constructed by the railroad company. The objection urged was that the witness was incompetent to state the fact or give an opinion upon the subject. The witness was not shown to be competent, and his testimony should not have been received. He was a farmer who had lived in the vicinity of the land for seventeen years, and had examined the plaintiff's land since the construction of the road. He had seen the ditches and embankments which he claimed would cause the overflow, but had not measured their depth,...