Chicago, Kansas & Western Railroad Co. v. Emery
| Decision Date | 11 March 1893 |
| Citation | 32 P. 631,51 Kan. 16 |
| Court | Kansas Supreme Court |
| Parties | THE CHICAGO, KANSAS & WESTERN RAILROAD COMPANY v. C. P. EMERY |
Error from Jewell District Court.
PROCEEDING by the Railroad Company against Emery to condemn land for its right-of-way. Defendant appealed from the award of the commissioners, and in the district court a verdict was rendered in his favor. Plaintiff brings the case to this court. The opinion states the facts.
Judgment affirmed.
Geo. R Peck, A. A. Hurd, and Robert Dunlap, for plaintiff in error:
The court erred in permitting plaintiff to introduce, in rebuttal, evidence concerning collateral matters tending to impeach witnesses testifying thereon. See A. T. & S. F Rld. Co. v. Townsend, 39 Kan. 115, 116.
The court erred in instructing the jury, that "in determining the value of the remainder of the land, after the appropriation of the right-of-way, you will disregard any possible advancement in the value of the land in the locality and all other benefits that may result to said land from the building of the railroad." See C. H. V. &c. Rld. Co v. Gardiner, 32 Am. & Eng. Rld. Cases, 250, 251; Powers v. Railroad Co., 33 Ohio St. 435; Bohm v. Elevated Rld. Co., 29 N.E. 802.
The court also erred in instructing the jury that --
"In determining the amount of damages to the land in question by the appropriation of a right-of-way for defendant's railroad across the same, you should not consider the testimony of any witness as to the amount of such damages, so far as the testimony of such witness is based on possible or probable depredations of tramps or possible or probable scaring of teams, or on possible or probable annoyance caused by smoke of engines, or other mere annoyances." K. C. & E. Rld. Co. v. Kregelo, 32 Kan. 609; K. C. W. & N. W. Rld. Co. v. Fisher, 49 id. 17.
T. C. S. Cooper, and M. I Cooper, for defendant in error; T. S. Brown, of
The case of A. T. & S. F. Rld. Co. v. Townsend, 39 Kan. 115, has no application to the question now under consideration. In that case the evidence objected to was about a matter that was drawn out by plaintiff himself upon cross-examination, and on a fact which was collateral and irrelevant. In the case at bar the matter was not drawn out by plaintiff upon cross-examination, but by defendant upon direct and redirect examination, and on a fact material to his defense.
It is submitted that the court correctly instructed the jury concerning the measure of the damages sustained by plaintiff. L. & W. Rld. Co. v. Ross, 40 Kan. 598; A. T. & S. F. Rld. Co. v. Blackshire, 10 id. 477; Reisner v. Depot & Rld. Co., 27 id. 382.
The instruction refused by the court, concerning depredations of tramps, scaring of teams, and other annoyances, was properly refused. The court had already instructed the jury:
"You will disregard any inconveniencies or annoyances which may result from the operating of said railroad, which inconveniencies or annoyances are common to and suffered by the neighborhood in general, and to people generally who live close to a line of operated railroad."
It is submitted, too, that the instructions given by the court are fully within the rule as laid down in the case of K. C. W. & N. W. Rld. Co. v. Fisher, 49 Kan. 17, cited by counsel.
The Chicago, Kansas & Western Railroad Company procured the condemnation of a right-of-way for its railroad through a 280-acre tract of land...
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