Chicago, Kansas & Western Railroad Co. v. Cook

• Decision Date: 11 January 1890
• Citation: 43 Kan. 83,22 P. 988
• Court: Kansas Supreme Court
• Parties: THE CHICAGO, KANSAS & NEBRASKA RAILWAY COMPANY v. ELIZA A. COOK, as Administratrix of the estate of J. W. Cook, deceased

22 P. 988

43 Kan. 83

THE CHICAGO, KANSAS & NEBRASKA RAILWAY COMPANY v. ELIZA A. COOK, as Administratrix of the estate of J. W. Cook, deceased

Supreme Court of Kansas

January 11, 1890

Error from Doniphan District Court.

THE facts are stated in the opinion. Judgment for plaintiff Cook at the April term, 1887. The defendant Railway Company brings the case to this court.

Judgment reversed and remanded.

S. L Ryan, and Waggener, Martin & Orr, for plaintiff in error.

Frank Drenning, and W. D. Webb, for defendant in error.

SIMPSON C. All the Justices concurring.

OPINION

SIMPSON, C.:

On the 4th day of August, 1886, the plaintiff in error, by proceedings duly had, appropriated to its use as a right-of-way, "so much of out-lot No. twenty-four, in the city of Wathena, as lies within fifty feet on each side of the center line of said railway as now located." A stream called Peter's creek runs through this out-lot, and on the creek there is a small mill for making meal and feed, run by a Leffel turbine wheel. The mill is a frame building about fifty-six feet long and twenty feet wide, and the machinery consists of buhrs, bolt, sheller, and elevator. A dam thirty-six feet long, constructed of timber, is on the lot and near to the mill. The land appropriated consists of a tract two hundred and thirty-six feet long by one hundred feet wide, off of the south end of said lot. This tract embraced the dam, and by the construction of the road the dam was destroyed by removing the same and changing the watercourse, and permanently destroying the water power, etc. The commissioners awarded five hundred dollars for the value of the right-of-way, and one thousand dollars for damages. J. W. Cook, who claimed to be the owner of the out-lot and the mill thereon, appealed to the district court of Doniphan county. At the trial in the district court the jury awarded Cook the sum of $ 4,000 as damages, with $ 194.45 as interest. The railroad company brings the case here, and alleges many errors that are urged to be sufficient for reversal; but we shall notice only one or two of the most important.

Ordinarily in actions of this character the question of title is not in issue, the only controverted question being the amount of compensation to be allowed. (Comp. Laws of 1885, p. 225, § 86.) In the case of Gulf Rld. Co. v. Owen, 8 Kan. 409, it is said:

"In the proceedings to procure condemnation, the corporation is the actor. It applies to the county commissioners to lay off the route as desired by the corporation, and to fix the value of the land which the corporation desires to appropriate, and assess the damages arising from the appropriation. The corporation is the moving cause, and the proceedings by the commissioners are all at its instance, and in its interest, and for its benefit. The object is to compel an unwilling landowner to part with his property for a just compensation. The corporation is to give written notice to all actual occupants of the land over which the route of the road is designated, where the land has not been purchased by or donated to the company; (§ 49, p. 203, Gen. Stat.) Before the board acts, notice is to be published in a newspaper; (§ 86, p. 213;) and it is also made the duty of the board to appraise and value and assess the damages of each owner separately, when there appear to be different interests in the land; (§ 82, p. 212.) In all the proceedings up to the filing of the report, the steps are at the peril of the company. While, from the fact that the occupant is entitled to notice, and all others interested are notified by the publication required, it is apparent that those interested in the land may appear if they choose before the commissioners to protect their interests, they are under no obligations to do so, and nothing like a default can be taken against them. If in the discharge of their duties the commissioners err as to the ownership of' the land, can it be supposed that the company, by following the error, and paying the wrong person, relieves itself from the obligation to pay the real owner of the land? Land-owners are not compelled to stand by with their title-papers in their hands. The company does not act under any different rules than those that govern any land-buyer. If he buys from the wrong person, he does so at his peril. It is the duty of' the railroad company to ascertain who are the owners of' the land it desires to appropriate, and it is at the risk of the company that it pays for the land. Such being the state of the case, and the obligation of the company, where no appeal is taken, what change is wrought by the appeal? The law is, that 'an appeal shall be had from the determination of the commissioners as to the value of the land so appropriated;' (§ 86, p. 213, Gen. Stat.) This is the main issue to be tried. It is probably true that by appropriate pleadings the company would be authorized to show that the appellant did not own the entire land, but that a separate interest is in another, or that some one else owned all the land. But unless such an issue is made by the pleadings, the position of the appellant as to the question of title is not different from what it was before the appeal was taken. The appellant is placed by the law, and by his own action in taking the appeal, in the position of saying: 'The appraisement of my land and the assessment of damages made by the commissioners are too small; I desire a retrial of that issue in the district court.' Is he bound to show a perfect legal title, such as would entitle him to recover in ejectment? We think not. He was not attempting to recover money of the company. He proved that he was in the occupancy of the land, claiming absolute title. This is prima facie evidence of title to land everywhere, as well as to personal property; (2 Greenl. Ev., § 555; Ward's Heirs v. McIntosh, 12 Ohio St. 231.) It is enough to sustain trespass and to resist a recovery in ejectment until a perfect legal title is shown. That is, an actual possession under a claim of absolute title is prima facie evidence of seisin in fee simple, and sufficient till the contrary appears."

This embodies the law as stated in Mills on Eminent Domain. Now, turning to the record, we find that after Cook took the appeal he filed a petition in which he asserted ownership in the land. The railroad company filed an answer that contains a general denial. In addition to all this, it appears from the report of the commissioners that the ownership of the out-lot is not stated in the award. The record does not show in whose favor the deposit of the amount of the award was made in the county treasurer's office. Then again on the trial the defendant in error undertook to establish a complete legal title in himself. The whole case was conducted on the theory that the title was in issue, and the court instructed the jury that it was. There is nothing left for us to say on this state of facts, but that the title was in issue, and it devolved on Cook to establish it. Whether he proved title, is one of the most important questions to be determined. Counsel for defendant claim that Cook showed uninterrupted adverse possession for more than fifteen years -- and this is enough. We say it is enough if the record shows such a possession.

On the trial this state of facts was developed as to the title to the out-lot: A patent from the United States to Milton E Bryant as president of the incorporated town of Wathena, Doniphan county, Kansas, of the quarter-section of land in which the out-lot is situate, of date July 1, 1861; a deed from M. E. Bryant and wife to John...