Dillon v. The Kansas City

• Decision Date: 07 November 1903
• Docket Number: 12,871
• Court: Kansas Supreme Court
• Parties: CARRIE MCBRIDE DILLON et al. v. THE KANSAS CITY, FORT SCOTT & MEMPHIS RAILROAD COMPANY et al

74 P. 251

67 Kan. 687

CARRIE MCBRIDE DILLON et al. v. THE KANSAS CITY, FORT SCOTT & MEMPHIS RAILROAD COMPANY et al

No. 12,871

Supreme Court of Kansas

November 7, 1903

Decided July, 1903.

Error from Johnson district court; C. A. SMART, judge pro tem.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. RAILROADS--Eminent Domain--Water-station. A railroad corporation is authorized by section 1359, General Statutes of 1901, to condemn lands separate and apart from its right of way for a water-station.

2. RAILROADS--Owner Estopped by Accepting the Award. Where condemnation proceedings for condemning land for a water-station are regularly had and terminated and the owner of the fee has accepted the award, the question of the necessity for the water-station and the quantity of land required therefor are not open for future litigation.

3. RAILROADS--Owner has no Concurrent Right of Possession. The owner of the fee in lands condemned by a railroad company for a water-station has no concurrent right of possession with the railroad company of that portion of such lands as are in actual use by the company, or to any portion thereof which is necessary for its use in protecting its pond or reservoir.

4. RAILROADS--Lease to a Club Not an Abandonment. When a railroad company has regularly condemned a tract of land for a water-station and caused it to be flooded with water for its use, the leasing thereof to a club for fishing hunting, bathing, and skating, reserving to itself the actual possession for all purposes for which the land was condemned, with the right to cancel the lease at any time, upon thirty days' written notice, is not, as matter of law, an abandonment by said company of the land as a water-station.

I. O. Pickering, for plaintiffs in error.

S. T. Seaton, and Pratt, Dana & Black, for defendants in error.

GREENE J. All the Justices concurring.

OPINION

GREENE, J.:

The material facts necessary to an understanding of this case are these: In 1894, while one Eugene B. McBride was the owner of the southwest quarter of section 36, township 13, range 23, in Johnson county, Kansas, the defendant railroad company instituted proceedings which resulted in the condemnation of 20.44 acres of said tract of land to be used by it in catching and storing surface water for use in operating its engines. The award was paid into the county treasury, and accepted and drawn therefrom by the owner. The defendant company went into the immediate possession of the condemned land and erected a basin, or reservoir, thereon which covered the greater portion thereof. Some time thereafter Eugene B. McBride died and the plaintiff in this action, Carrie McBride Dillon, became the owner in fee simple by inheritance. The other plaintiff is her husband.

The defendant company condemned and flooded other land adjoining the McBride tract, which lies on a lower elevation and is now known as Lake Chanute. The water from the basin on the McBride land is conducted to Lake Chanute by a conduit and from there conveyed directly to the company's engines. It was alleged in plaintiffs' petition that about five acres of the McBride tract have never been flooded with water nor actually used by the defendant and are not necessary for the use of that part covered by water; that there are a number of apple trees upon the portion not flooded that have borne fruit annually; that fish are propagated in Lake Chanute and large quantities of ice form on it; all of which have been wrongfully appropriated by defendant, and for which plaintiff sought recovery.

It was alleged that the defendant company leased the McBride land and Lake Chanute to a fishing and boating club for a period of five years, and that this amounted to an abandonment by defendant; that the statute under which the condemnation proceedings were had did not authorize the condemnation by a railway company outside its right of way for water-stations, and the proceedings had thereunder were so irregular as to be void. Plaintiffs sought to recover: (1) possession; (2) damages for overflowing the 20.44 acres so condemned; (3) damages for appropriation by the defendant of fruit grown on the land, and damages resulting from the lease to the fishing and boating club, and for the value of ice sold from Lake Chanute; (4) damages for maintaining a nuisance; (5) damages to improvements on adjoining portions of plaintiffs' land, caused by forming the lake or basin.

The defendant pleaded condemnation proceedings by the board of county commissioners, by which it was claimed that the land had been regularly condemned to its use, the condemnation money received by the then owner of the fee, its possession thereunder, and the building and present use of the reservoir.

After the trial had progressed so far as to inform the court of the nature of the questions involved, it refused to hear any evidence upon any of the issues tendered by the petition, except such as related to the rental value of the land included in the 20.44-acre tract not in actual use by the defendant company, and not necessary for the maintenance of its basin, or reservoir, and the value of the fruit grown thereon and appropriated by the defendant company. Upon the issues thus defined by the court the cause was tried. The jury returned special findings and a general verdict for the plaintiffs for ninety-five dollars, for which amount judgment was rendered. Plaintiffs prosecute this proceeding and allege error in the rulings above indicated.

The first contention is that the statute under which the condemnation proceedings were had did not authorize the railroad company to condemn a large tract of land, separate and apart from its right of way, for a water-station. These proceedings were had under section 1359, General Statutes of 1901, which reads:

"Any duly chartered and organized railway corporation may apply to...