Cunkle v. The Interstate Railroad Company
| Decision Date | 11 November 1893 |
| Citation | 40 P. 184,54 Kan. 194 |
| Parties | L. J. CUNKLE v. THE INTERSTATE RAILROAD COMPANY |
| Court | Kansas Supreme Court |
Decided July, 1894.
Error from Greenwood District Court.
THE nature of the action and the material facts appear in the opinion herein, filed November 11, 1893.
Dismissed.
C. N Sterry, for plaintiff in error.
B. P Waggener, and David Kelso, for defendant in error.
OPINION
This was an action to recover an award made in a condemnation proceeding for a right-of-way through the land of L. J. Cunkle for the Interstate Railroad Company. The commissioners who were duly appointed made an award of $ 406.25 for the land taken and the damages done, and this amount the railroad company deposited with the county treasurer, after which time the company took possession of the land so set apart, and built a railroad over it for a distance of 325 feet. Cunkle appealed from the award, and in the district court it was increased to $ 1,727.50. The company was unwilling to pay this sum for the right-of-way, and it was announced that the award would not be paid nor the right-of-way used, and later the track was taken up and built elsewhere. Afterward, upon an order of the district court, the money which was deposited with the county treasurer to pay the first award was withdrawn by the company, and no part of the award made in the district court has ever been paid. The present proceeding was then begun, and the court to which it was submitted found that the company had abandoned the land set apart for its right-of-way, and that Cunkle was not entitled to recover the award. The plaintiff excepted to the rulings and judgment of the district court, and the case was brought here for review on June 10, 1890. On July 3 of the same year, the defendant company was consolidated with the St. Louis & Emporia Railroad Company, under the name of the Interstate Railway Company, and on January 10, 1891, in pursuance of statute, the Interstate Railway Company was consolidated with 11 other railroad companies, and the name of the new company was the Kansas & Colorado Pacific Railway Company. Under the agreement of consolidation, it was provided that the consolidated company should own and control the properties and privileges of the constituent companies, and should be subject to all the obligations and liabilities to the state which belonged to or rested upon either of the companies making the consolation.
The defendant moves to dismiss the proceeding in this court contending that, under the authority of Railway Co. v. Smith, 40 Kan. 192, the defendant company had, by its consolidation with the other companies, ceased to exist as a corporation, and that no legal proceeding could be taken against it. At the same time the plaintiff moves to substitute the. Kansas & Colorado Pacific Railway Company as the successor of the defendant in error. The new or consolidated...
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