Error
from Lincoln District Court.
ON the
11th day of August, 1887, J. B. Watkins commenced his action
against the Chicago, Kansas & Western Railroad Company
and alleged in his petition:
"That
the said defendant is now and at the times hereinafter
mentioned was a corporation duly organized and existing under
and by virtue of the laws of the state of Kansas; that said
plaintiff is now and for more than one year last past has
been the owner in fee and in the possession of the premises
described as follows, to wit: The west half of section No
three, town No. 10, range No. 8, in Lincoln county, Kansas
containing 320 acres more or less; that said land is improved
and tillable, and is used and occupied as a single tract for
agricultural and stock purposes; that on or about the first
of June, 1887, and at various times subsequent thereto, and
prior to the commencement of this action, the said defendant
with divers irresponsible persons in its employ, unlawfully
and with force broke into and entered upon the premises of
plaintiff as above described, and then and there broke down
the fences then being on said premises, and with horses
wagons and scrapers entered upon said premises, and trod down
the grass, and cut and destroyed and converted to its own use
the corn then and there growing on said premises, all to
plaintiff's damages in the sum of $ 50, and for which
plaintiff asks treble damages; and then and there cut down
and destroyed on said premises a grove of one hundred ash
trees, of the value of $ 500, and carried away and converted
the same to its own use, for which plaintiff asks treble
damages; and then and there made an excavation across said
premises two hundred feet in width, removing the soil, clay
and stones from about ten acres of land, and converted the
same to their own use, to plaintiff's damages in the sum
of $ 500, for which plaintiff asks treble damages; and then
and there constructed across the south half of said premises
a fill or grade of dirt and stone about eight feet in height
above the level of the surrounding land, with deep cuts and
ditches on either side thereof; that plaintiff's
residence and farm buildings have been and are cut off by
cuts and ditches and embankments from the greater portion of
said premises, and that he has been damaged by the
construction thereof in the sum of $ 1,000; that said
defendant wrongfully entered upon said premises as aforesaid,
without the knowledge or consent of this plaintiff, and
without having taken any steps by condemnation or other legal
proceedings to appropriate or acquire any rights to any part
of said premises.
"Wherefore,
plaintiff asks judgment against said defendant in the sum of
$ 4,600, and for costs of this action."
Subsequently
the defendant filed an amended answer, alleging that --
"For
a first defense to the alleged cause of action contained in
said petition, that said defendant denies each and every
allegation and averment contained in said petition, and each
and every part thereof.
"For
a second defense to said alleged cause of action, said
defendant says: That said defendant now is, and has been
during the time for more than one year last past, a railway
corporation duly chartered and organized under and by virtue
of the laws of the state of Kansas, and defendant was so
chartered and organized for the purpose of constructing and
operating railroads in said state; that during the months of
January and February of this year, said defendant surveyed
and located a route for one of its proposed railroads through
the counties of Chase, Morris, Dickinson, Ottawa, and
Lincoln, in said state, and that said route passed over and
across a part of the lands described in said petition; that
on or about the 12th day of February, 1887, the Honorable S.
O. Hinds, judge of the above-named court, upon an application
duly made to him by the defendant, appointed three
commissioners, each a resident and freeholder of said county
of Lincoln, to lay off said route, side-tracks, etc., through
such county, and of such width and upon such location as
might be desired by said defendant, having the same carefully
surveyed and ascertaining carefully the quantity of land
necessary for such proposed route, side-tracks, etc., out of
each quarter-section, or rather, tract of land through which
said route, side-tracks, etc., were located, and appraise the
value of the portion taken out of each quarter-section or
other lot of land, and assess the damages to the remainder
thereof; that on the 17th day of February, 1887, said
commissioners were duly sworn to honestly and faithfully
discharge their duties as such commissioners; that said
application for the appointment of said commissioners, their
appointment and oath of office, were duly made and taken
under article 9 of chapter 23 of the Compiled Laws of Kansas;
that before having said commissioners proceed with their work
in condemning said route through said county of Lincoln, said
defendant desired to purchase as much as possible of the
right-of-way along said route, and for that purpose employed
men to negotiate with and purchase said right-of-way from the
owners and those interested in the real estate along said
route; that said defendant and the men employed by it as
aforesaid, during the month of July, 1887, negotiated with
said plaintiff for the purchase of the right-of-way for its
said proposed railroad through the lands described in said
petition, and as a result of such negotiations, said
plaintiff and defendant agreed upon the amount of
compensation that plaintiff should receive of defendant for
said right-of-way through said lands, on account of said
plaintiff's interest therein, and said plaintiff then
contracted with said defendant to permit defendant to retain
its road-bed and right-of-way over said lands and along said
route, and to receive said compensation in full payment for
plaintiff's interest in the value of said lands so taken
and the damages to the remainder thereof; and that said
negotiations, agreement and contract were had and made after
work was done on the grading of said road-bed on said route
through said lands; that said agreement was verbal; that
whatever part of said lands has been injured or appropriated
by defendant, such appropriation and injury have been
occasioned by the construction and grading of said road-bed
on said route, and such construction and grading were
ratified by plaintiff under said agreement and contract; that
on or about the 4th day of August, 1887, said commissioners
performed their duties and filed their report in the office
of the county clerk of said county, and defendant did not
have said commissioners condemn said right-of-way through
said lands, for the reason that it relied upon said contract
and agreement and the performance thereof by the parties
thereto, but defendant has fully completed the condemnation
proceedings embraced in said report, and has paid the amounts
of damages therein awarded; that during said year, and before
the defendant had constructed any part of its road-bed for
said railroad in said county of Lincoln, it made a map and
profile of said route through said county, and filed the same
in the office of the county clerk of said county. Wherefore,
said defendant prays judgment for costs herein."
To this
answer the plaintiff filed a general denial. Trial had at the
November term of the court for 1887, before the court with a
jury. The jury returned a verdict for the plaintiff, and
assessed his damages at $ 345.50. They also returned the
following special findings of fact:
"Q.
Did the defendant cut any timber on the premises of
plaintiff, without his consent? A. Yes.
"Q.
If you answer the previous question in the affirmative, what
was the value of that timber to those premises?" A. $
15.
"Q.
Did the defendant, through its contractors, enter upon the
premises of plaintiff without his consent and dig up any day
or loam? A. Yes.
"Q.
If you answer the last question in the affirmative, state how
much such clay or loam was worth. A. $ 30 per acre.
"Q.
Does it appear from the evidence that the damage in
controversy herein to the lands described in plaintiff's
petition, to wit, the west half of section three, in township
ten, range eight west, in Lincoln county, Kansas, was
occasioned in the construction by defendant of its railroad
described in its amended petition? A. Yes.
"Q.
Did the said defendant, in the construction of its said
railroad through said lands, damage any of the improvements
thereon? If so, describe such improvements, and state the
amount of damage to each of such improvements. A. .
"Q.
Did the defendant, in the construction of its said railroad
through said lands, injure any of the fences thereon? If so
what was the actual damage to the fences so injured, at the
time they were so injured? A. Yes; no evidence as to the
amount of damages.
"Q.
Did the defendant in the construction of its railroad...
