"Comes
now the plaintiff, and for his amended petition herein says
that the defendant, the St. Louis, Fort Scott & Wichita
Railroad Company, is, and at all times herein mentioned was
a railway corporation duly and regularly incorporated under
and by virtue of the laws of the state of Kansas, for the
purpose of operating a locomotive steam railroad within said
state; that the defendant, the Fort Scott, Wichita &
Western Railway Company, is, and at all times herein
mentioned was, a railway corporation duly and regularly
incorporated under and by virtue of the laws of the state of
Kansas, for the purpose of operating a standard-gauge, steam
locomotive railway within said state; that the plaintiff is
now, and forthe past five years has been continuously, the
owner of and in possession of the following-described
real-estate property, to wit: Lots 12, 14, 16, 18, 20, 22
and 24, in block 1, in Blake's addition to the city of
Newton, Harvey county, as shown by the recorded plat thereof
that immediately to the west of the plaintiff's said
property, and along the west end of said property, and
adjoining thereto, there was for many years prior to about
the 27th day of July, 1886, a street, avenue and public
thoroughfare of the said city of Newton, known and designated
as Kansas avenue, running north and south; that said Kansas
avenue had for many years prior to said 27th day of July
1886, been dedicated and set apart to the use of the public,
and to the especial use of the adjoining lot-owners, as a
public street and highway, and had been established as a
public highway prior to said date, and had been used as a
public highway continuously and constantly for more than
fifteen years prior to said 27th day of July, 1886; that the
said avenue was the only way by which the said plaintiff
could have ingress and egress to and from his said premises
from the west end thereof; that on or about the said 27th day
of July, 1886, the said defendant, the St. Louis, Fort Scott
& Wichita Railroad Company, obstructed the said avenue in
front of the plaintiff's said premises, by digging
ditches and trenches, and laying down and building its main
line and side-tracks therein, which consist of iron rails and
cross-ties placed and constructed along said avenue, forming
what is known as a standard-gauge locomotive steam railroad
track; that said defendant, the St. Louis, Fort Scott &
Wichita Railroad Company, at the time of obstructing said
street as aforesaid lowered the established grade of said
avenue by its trenches and ditches from three to five feet,
and on said July 27, 1886, so constructed its tracks in front
of the plaintiff's premises on said avenue, and so
obstructed said avenue in the manner aforesaid, as to wholly
impair and destroy said avenue and render it wholly useless
as a public highway; and by such obstruction the plaintiff
has been deprived of all means of ingress and egress to and
from his said premises from the west end thereof; that the
obstruction of said street and avenue as aforesaid was
necessary for the proper and skillful construction of said
railroad, and said railroad was at the time and in the manner
aforesaid skillfully and properly constructed; that the
defendant, the St. Louis, Fort Scott & Wichita Railroad
Company, at the time aforesaid appropriated said street and
avenue in front of the plaintiff's premises for the use
of its said railroad by virtue of its right of eminent
domain, but without any condemnation proceedings therefor;
that after appropriating said avenue as aforesaid, said
defendant, the St. Louis, Fort Scott & Wichita Railroad
Company, continued to occupy the same with its tracks, and
continued to operate its road upon and along said avenue in
front of the plaintiff's premises by running its cars,
engines and trains thereon, until about the 15th day of
November, 1886; that on or about the 15th day of November,
1886, a receiver was appointed over the railroad so owned and
operated by the said St. Louis, Fort Scott & Wichita
Railroad Company by the circuit court of the United States
for the district of Kansas, in an action then pending in the
said circuit court for the foreclosure of first-mortgage
bonds of said railroad, wherein the Union Trust Company of
the state of New York was plaintiff, and the St. Louis, Fort
Scott & Wichita Railroad Company was defendant; that
under and by virtue of an order of sale of said circuit court
in said action, said railroad with all its property was sold
on the 23d day of May, 1887; that on or about the 1st day of
July, 1887, the defendant, the Fort Scott, Wichita &
Western Railway Company, purchased and acquired the said
railroad formerly known as the St. Louis, Fort Scott &
Wichita Railroad Company, and on or about the 1st day of
July, 1887, took possession of said railroad, and of the
tracks in the said avenue in front of the plaintiff's
premises above described, and has ever since so taking
possession of said railroad continued to operate and still
continues to operate the same upon and along said Kansas
avenue in front of the plaintiff's said premises; that
said railroad tracks have, since they were first constructed
upon and along said Kansas avenue, remained in the same
condition and position in which they were first constructed,
and are now in the same condition; that the defendant, the
Fort Scott, Wichita & Western Railway Company, has
permanently appropriated said Kansas avenue along and in
front of plaintiff's said premises, to its own use, for
the purpose of operating said railroad; that by the permanent
appropriation of the said Kansas avenue as aforesaid, the
plaintiff has been permanently deprived of all means of
ingress and egress to and from his said premises from the
west end thereof; and by said appropriation said Kansas
avenue has been entirely destroyed as a public highway; that
the defendant, the Fort Scott, Wichita & Western Railway
Company, has never condemned the plaintiff's right in
said avenue,...
