Cohen v. St. Louis

• Citation: 34 Kan. 158,8 P. 138
• Court: United States State Supreme Court of Kansas
• Decision Date: 09 October 1885
• Parties: A. COHEN v. THE ST. LOUIS, FORT SCOTT & WICHITA RAILROAD COMPANY

8 P. 138

34 Kan. 158

A. COHEN v. THE ST. LOUIS, FORT SCOTT & WICHITA RAILROAD COMPANY

Supreme Court of Kansas

October 9, 1885

Error from Bourbon District Court.

ACTION brought by Cohen against The Railroad Company, to recover $ 28,700, with interest from October 1, 1880, as damages for the permanent taking and appropriation of a strip of land through the plaintiff's premises for a right-of-way for railroad purposes. Judgment for plaintiff for $ 2,195, at the May Term, 1884. Cohen brings the case here. The opinion contains a sufficient statement of the facts.

Judgment modified.

J. D McCleverty, for plaintiff in error.

Blair & Perry, J. H. Sallee, and J. H. Richards, for defendant in error.

VALENTINE J. All the Justices concurring.

OPINION

VALENTINE, J.:

This was an action brought by A. Cohen in the district court of Bourbon county, on November 17, 1881, against the St. Louis, Fort Scott & Wichita Railroad Company, to recover $ 28,700, with interest from October 1, 1880, as damages for the permanent taking and appropriation by the defendant, on or about October 1, 1880, of a strip of land through the plaintiff's premises for a right-of-way, and for railroad purposes. The case was tried before a referee. His report is dated March 28, 1884, and was filed in the district court on May 22, 1884. The report shows that the referee found in favor of the plaintiff and against the defendant, and assessed the plaintiff's damages as follows:

For the value of the strip of land taken by the defendant,

exclusive of the old railroad grade

$ 195 00

For the value of the old railroad grade taken and appropriated

by the defendant, exclusive of the land

3,539 32

For the value of the new railroad grade constructed by the

defendant itself

2,050 98

For the value of the hewed ties put upon the railroad bed by

the defendant

1,491 10

For the value of the sawed ties furnished and used by the

defendant for a similar purpose

$ 132 68

For the value of the railroad track put upon these ties by the

defendant

6,146 00

For the injury done to the land, outside of the land taken

2,030 00

Making a total of

$ 15,585 08

The plaintiff, however, asked in his petition for only $ 2,000, as injury to his land outside of the land taken, and therefore the referee recommended that $ 30 of the above amount be deducted, and that judgment should be rendered in favor of the plaintiff and against the defendant for $ 15,555.08. A motion was made by the defendant to set aside the report of the referee and for a new trial, and a motion was made by the plaintiff to confirm the report of the referee and for judgment thereon, and the motions were heard together, and the court partly overruled and partly sustained each motion, and rendered judgment in favor of the plaintiff and against the defendant for $ 2,195. This judgment was intended to cover the value of the strip of land taken by the defendant and the damages to the land outside of such strip and the court refused to render judgment for the value of the old grade, or the value of the new grade, or the value of the cross-ties or iron, or other material furnished and used by the defendant itself in constructing its railroad track. Both parties excepted to this judgment, and saved proper exceptions not only to the judgment itself, but to all the various rulings of the court below against each of them respectively. The defendant claims that this judgment furnished more than ample compensation to the plaintiff for all damages which he sustained; and the defendant refers to the fact that the entire land, six hundred acres, was sold in February, 1882, by the plaintiff to the present owner for $ 6,500, the plaintiff reserving the right to recover compensation from the railroad company for all damages to the land by reason of the railroad company's appropriation of the right-of-way over the same; and the fact that the present owner testified on the trial that the injury to the land by reason of the construction and operation of the railroad through it was only about $ 100. The plaintiff, however, is not satisfied with the judgment rendered in his favor by the court below, claiming that it is rendered for too small an amount, and he now brings the case to this court for review.

The plaintiff relies for a reversal of such judgment upon the findings of fact made by the referee, claiming that such findings authorize and require a judgment vastly greater in amount than the one rendered by the court below. He claims that the judgment should have been rendered for the full amount of the damages found by the referee, together with interest on the same from the time of the taking of the property by the railroad company, to wit, October 1, 1880, up to the time of the finding by the referee. This would make the judgment amount to over $ 19,000. The defendant, however, calls in question and controverts the correctness of several of the findings of the referee, claiming that they are not authorized by the evidence and should be virtually ignored. This claim of the defendant seems to be well founded as to some of the findings complained of; but as the defendant has not filed any petition in error nor cross-petition in error in this court, the question arises: To what extent can we examine the evidence to see whether the findings are warranted by the evidence or not?

It seems to be admitted by the parties that an action of this kind may be maintained; or, in other words, it seems to be admitted that where a railroad company has constructed and is operating its railroad through a piece of land belonging to another, without having first obtained a right-of-way by any formal condemnation proceedings, and without having procured any title to the land or any easement therein, the owner of the land may waive formal condemnation proceedings, and all formal modes of transfer, and elect to regard the action of the railroad company as taking the property under the right of eminent domain, and may commence an ordinary action to recover compensation for all the damages which he has sustained by reason of the permanent taking and appropriation of the right-of-way by the railroad company. We think such an action may be maintained. (C. B. U. P. Rld. Co. v. Andrews, 26 Kan. 702, 710, et seq.; Parsons Water Co. v. Knapp, 33 Kan. 752, 7 P. 568; The U.S. v. G. F. Man'g Co., 112 U.S. 645; same case, 5 S.Ct. Reporter, 306; same case, 17 Chicago Legal News, 169.)

The plaintiff presents the following questions to this court as being involved in this case, and with regard to which he claims the court below erred: (1.) Is the owner of land through which a railroad grade has been constructed and afterward abandoned, entitled to compensation for such grade from another railroad company, which afterward takes possession of the grade and permanently appropriates the same to its own use? (2.) Where a railroad company has taken possession of a strip of land, and constructed a railroad track thereon, without any formal condemnation proceedings therefor, and without procuring any title thereto or easement therein from the owner of the land, is such owner, in an action brought by him against such railroad company to recover damages for the permanent taking and appropriation of such strip, entitled to recover for all the materials and work furnished by the railroad company itself, and used in the construction of its railroad track? (3.) Is a land-owner, in an action brought by himself against the railroad company to recover damages for the permanent taking and appropriation of a right-of-way through his land, entitled to any interest upon the amounts allowed as damages; and if so, is he entitled to interest from the time of the taking of the right-of-way by the railroad company?

The first question, we think, must be answered substantially in the affirmative. When the old grade in the present case was constructed by the first railroad company and abandoned, such grade became the absolute property of the landowner; and he had the right to use it for any purpose which he might choose, or to sell it for any purpose which he might choose, or for which it might or could be used; and under the laws of this state other persons or corporations as well as the defendant might have used it; for under the laws of this state there is no limit upon the building of railroads, or upon the incorporation and organization of railroad companies; and if any other person or corporation than the owner of the land had afterward entered upon the land and procured a right to such grade by virtue of condemnation proceedings, or quasi condemnation proceedings, as in the present case, the owner would have the right to recover from such person or corporation the full value of the land taken, including the value of the grade, for whatever purpose the land or the grade might or could be used. This proposition, we think, is founded in reason, and sustained by the authorities--among which are the following: King v. M. U. Rly. Co., 32 Minn. 224; same case, 20 N.W. 135; St. L. J. & O. Rld. Co. v. Kirby, 104 Ill. 345; Scheller DeBoul v. F. & M. R. Rly. Co., decided by S.Ct. of Illinois, November 17, 1884; Goodin v. C. & W. Canal Co., 18 Ohio St. 169.

Of course the owner of the land has no right to recover the amount of the cost of making such a grade, or the amount which the grade actually did cost, or the benefit which the land or the grade would be to the railroad company; for such is not the proper measure of his damages. (B. R. & M. Rld. Co. v. Barnard, 16 N.Y.S. C. [9 Hun,] 104; S. R. & D. Rld. Co. v Keith, 53 Ga. 178; 3 Sutherland on Damages, 462, et seq.) But, as before stated, he is entitled to recover the exact market value of the land upon which the grade is...