Chicago, Kansas & Western Railroad Co. v. Parsons

• Decision Date: 06 May 1893
• Citation: 32 P. 1083,51 Kan. 408
• Court: Kansas Supreme Court
• Parties: THE CHICAGO, KANSAS & WESTERN RAILROAD COMPANY v. MARY S. PARSONS

32 P. 1083

51 Kan. 408

THE CHICAGO, KANSAS & WESTERN RAILROAD COMPANY v. MARY S. PARSONS

Supreme Court of Kansas

May 6, 1893

Error from Scott District Court.

CONDEMNATION PROCEEDINGS by the Railroad Company against Mary S. Parsons. Defendant appealed to the district court, where she had judgment for $ 3,585.71. The company brings the case here. The opinion states the facts.

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

1. The court erred in not confining the jury to a consideration of the real, actual cash market value of the property. Brown v C. R. Rly. Co., 18 N.E. 284-286; J. &. S. E. Rld. Co. v Walsh, 106 Ill. 253, 257; Kiernan v. C. S. F. & C. Rly Co., 123 id. 188, 189, 195; Kountz v. Kirkpatrick, 72 Pa. 376.

2. The court erred in refusing to instruct the jury that they might take into consideration their own view of the premises and the result of their own information and knowledge. Kiernan v. C. S. F. & C. Rly. Co., 123 Ill. 188, 189 195; C. K. & W. Rld. C. v. Drake, 46 Kan. 568, 569; Head v. Hargrave, 105 U.S. 45.

3. The court erred in not confining the jury to giving damages simply for the value of the lots taken or partly taken Wilcox v. St. P. & N. Rld. Co., 35 Minn. 439, 441.

Morse & Hubbell, for defendant in error:

Plaintiff in error lays down the following as the rule of estimating damages: "The real and actual value of the land did not change, and this real and actual value could only be ascertained by the jury considering the value of the land before the excitement and after the excitement." We do not think that plaintiff in error was entitled to such an instruction upon the evidence, even if it is a correct rule of law. Plaintiff in error was not prejudiced by the court refusing to give such an instruction. The rule, as laid down in Brown v. C. R. Rly. Co., 18 N.E. 285, is:

"Its fair cash market value, if sold in the market under ordinary circumstances for cash, and not on time, and assuming that the owners are willing to sell, and the purchaser willing to buy."

We do not think the rule laid down in Kountz v. Kirkpatrick, 72 Pa. 376, applies to the case at bar. No attempt was made in this case to show any "unlawful means" to have been used to raise false values before the condemnation. The case cited shows a combination to control the oil market and raise prices, but there was no such combination in the case at bar.

Counsel for plaintiff in error claim that "the court erred erred in refusing to instruct the jury that they might take into consideration their own information and knowledge." It seems to us that the court rightly refused the instruction. As the inspection of the premises by the jury was at most but one means of bringing evidence before them -- letting the thing itself testify -- we see no reason why it should be emphasized, or more particularly pointed out to the jury than the evidence of any other witness. City of Topeka v. Martineau, 42 Kan. 390, 391. See, also, Craver v. Hornburg, 26 id. 97.

In this last case, the court says: "A jury has a right to avail itself of such general knowledge as all men possess, but not to any knowledge derived from employment in any kind of business." We think values of real estate are not such matters as can be excepted from this rule, and that the court rightly refused the instruction asked for upon this point. See U. P. Rly. Co. v. Shannon, 33 Kan. 446; C. K. & W. Rld. Co. v. Drake, 46 id. 569.

Counsel claim that "the court erred in not confining the jury to giving damages simply for the value of the lots taken or partly taken."

Our first answer to this is that, if the court did err in this, it was in no way prejudicial to plaintiff in error. We find, from an examination of the answers made by the jury to the special findings asked by defendant in error, and to the special findings asked by plaintiff in error, that the items of damage allowed were only for the lots actually taken, and nothing was allowed in fact for damage either to half blocks or lots all of which were not taken. The amount so allowed in the special findings was 50 cents more than the amount of the general verdict, the amounts in these answers footing up $ 3,184.50, while the amount allowed for damage in the general verdict was $ 3,184.

Our second answer to this proposition is, that under the issues as joined on the pleadings as disclosed by the record, this objection cannot arise. The defendant in error pleaded in her amended petition damage to half blocks as one tract. The plaintiff in error filed its answer to this amended petition in the form of a general denial. Upon this issue, so formed, this case went to trial. The plaintiff in error, by thus failing to demur, or make such an objection as is equivalent to a demurrer, waived the question; and, under such an issue, this evidence as to half blocks, and the instructions thereon, were proper. The plaintiff in error was given more than it was entitled to in the court's instructions numbered 6, 10, 11, and 12. The court gave the plaintiff in error all it was entitled to, by submitting the question as to whether the half blocks did constitute one tract to the jury, in the instructions just referred to.

If the court should hold that our previous contentions on this point are not well taken, we submit still further, that under all the facts in this case, the lower court did not err in trying the case on the half-block theory. In this case it seems to us that the limit cannot be fixed within the bounds of the half blocks. K. C. & T. Rly. Co. v. Splitlog, 45 Kan. 72. As to the holdings of this court upon the unity of tracts, see Reisner v. Depot & Rld. Co., 27 Kan. 382; A. & N. Rld. Co. v. Gough, 29 id. 94; K. C. E. & S. Rld. Co. v. Merrill, 25 id. 421; St. L. Ft. S. & W. Rld. Co. v. McAuliff, 43 id. 185. See, also, Cox v. M. C. & Ft. D. Rld. Co., 41 N.W. 476; Todd v. K. & I. Rld. Co., 78 Ill. 532.

HORTON C. J. All the Justices concurring.

OPINION

HORTON, C. J.:

This was an appeal in the court below by Mary S. Parsons from condemnation proceedings instituted by the Chicago, Kansas & Western Railroad Company to lay off its route, side tracks, depot grounds, etc. In her petition filed in the court below, she claimed damages in the sum of $ 17,650, with interest from May 7, 1887. Mrs. Parsons owned 25 to 30 acres of land lying north of Eastman's addition to Scott City, in Scott county, which was separated from the original site of Scott City by one tier of blocks of that addition. In 1886, she had this tract surveyed and platted into blocks, half blocks, fractional blocks and lots, as an addition to the city. The lots were 25 by 100 feet, and fronted east and west. Her plat was filed for record in the office of register of deeds in Scott county on March 29, 1887. The railroad ran through this (Parsons's) addition to Scott City, and appropriated 120 entire lots and portions of 21 other lots. Notice of condemnation proceedings was given March 24, 1887, but the report of the commissioners was not filed until May 7, 1887. The commissioners appraised the value of the property taken and assessed the damages at $ 3,087. Upon the trial the jury returned a verdict for Mrs. Parsons, assessing her damages at $ 3,184, and $ 401.71 as interest, aggregating $ 3,585.71. The railroad company complains of the rulings of the trial court and the judgment rendered upon the verdict.

It is contended that the court below erred in not confining the jury to a consideration of the real, actual cash market value of the property. It is claimed that there was an unusual excitement or "boom" in the spring of 1887, at Scott City, as in other portions of Kansas, and that speculative and inflated prices were prevalent for a short time only; that under the instructions of the court, as the property was condemned during this period of unnatural inflation, the actual cash market value of the lots taken was not fully considered by the jury. This court has time and again ruled, in proceedings to recover damages for the right-of-way appropriated to the use of a railroad company, that "a fair way of determining the injury is to determine the fair market value of the premises before the right is set apart, and then again just after, and the difference will be the true measure of damages." ( Railway Co. v. Haines, 10 Kan. 439; Railroad Co. v. Blackshire, 10 id. 477; Railroad Co. v. Wilder, 17 id. 239; Railroad Co. v. Ross, 40 id. 598.) "Evidence of the value of lots or land condemned for railroad purposes before and after the location of the railroad is competent." ( Railway Co. v. Allen, 24 Kan. 33.) Of course, the damages assessed must be only such as are direct, special, and approximate. (Railroad Co. v. Kuhn, 38 Kan. 675, and authorities there cited.) But, within all these rules, we cannot say that the instructions given were misleading or erroneous, or that the instructions refused ought to have been given, considering those actually given.

Among other things, the court instructed the jury that.

"It is the fair market price of the land in question that is to be ascertained in estimating the damage. The market value of a thing is the value, the rate, at which the thing is sold when placed upon the market. To make a market, there must be buying and selling, a purchase and sale; and if you are satisfied from the evidence that there was, on the 7th day of May, 1887, a market value for the land in and near the land in question, you must be governed by it; and if the evidence is doubtful or conflicting as to the market price, and witnesses vary as to their statements, you should adopt that which best accords with the proof in the case. And in considering the market value of said real estate, the jury will take into consideration...