Chicago, Kansas & Western Railroad Co. v. Morrow
Citation | 42 Kan. 339,22 P. 413 |
Court | United States State Supreme Court of Kansas |
Decision Date | 05 October 1889 |
Parties | THE CHICAGO, KANSAS & WESTERN RAILROAD COMPANY v. WILLIAM MORROW |
Error from Woodson District Court.
ACTION by Morrow against the Railroad Company, to recover damages for defendant's right-of-way across plaintiff's land. Trial on March 15, 1887, and verdict for plaintiff for $ 750. New trial denied, and judgment on the verdict for plaintiff. The company brings the case to this court.
Geo. R Peck, A. A. Hurd, and Robert Dunlap, for plaintiff in error.
G. R Stephenson, and W. H. Slavens, for defendant in error.
OPINION
It is first insisted that this case was prematurely tried. This claim, however, is decided adversely in Railroad Company v. Wilkinson, just disposed of. The facts in that case upon this point are the same as those in this.
Again, it is insisted that the court should have given the instruction prayed for by the railroad company, "that an independent action for damage to the land in question, or crops, would lie against the company by reason of its damming or obstructing a natural watercourse." In support of this, it is claimed that there was testimony tending to show that the embankment of the railroad prevented the water from flowing in a natural watercourse, as such a course is defined in Palmer v. Waddell, 22 Kan. 352. The testimony of the depression or slough on the premises of the land-owner was in substance as follows. Mr. Turner testified:
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Rait v. Furrow
... ... 374, 6 P. 581; C. K. & W ... Rld. Co. v. Morrow, 42 Kan. 339, 22 P. 413; C. K ... & N. Rly. Co. v. Steck, ... ...
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...a watercourse there must be a channel--a bed to the stream--not merely low land or a slough over which water flows. (Chicago, K. & W. R. Co. v. Morrow, 42 Kan. 339; Palmer v. Waddell, 22 id., 352; Gibbs v. 25 id., 1.) Tom Hooper and Gibson Clark, for defendant in error. The facts clearly sh......
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