Huling v. Kaw Val Ry Imp Co

• Decision Date: 22 April 1889
• Parties: HULING et ux . v. KAW VAL. RY. & IMP. CO
• Court: U.S. Supreme Court

130 U.S. 559

9 S.Ct. 603

32 L.Ed. 1045

HULING et ux. v. KAW VAL. RY. & IMP. CO.

April 22, 1889.

Eppa Hunton, for plaintiffs in error.

Geo. W. McCrary and Wallace Pratt, for defendant in error.

MILLER, J.

This action was brought in the court below by the plaintiffs in error against the Kaw Valley Railway & Improvement Company, as defendant, in the nature of an action of trespass on land. It was in fact to recover for the value of land taken by the railroad for its right of way, and for damages to adjacent lands, houses, fences, and property, incident to the taking. The land was a part of a quarter section in Jackson township, Wyandotte county, Kansas. The rail way company answered by setting up proceedings which they had taken under the laws of Kansas for the condemnation of the land for the use of the railroad, and the payment of $725 into the treasury of that county in accordance with law, that being the amount which the commissioners who conducted the condemnation proceedings had allowed the plaintiffs. The defendant set out these proceedings in full, and relied upon them as a sufficient defense for taking possession of and using the land. The parties waived a jury, and the case was tried by the court, who found for the defendant, the railway company, and entered a judgment against the plaintiffs for the costs. We are called upon to review that judgment.

The record of the case is a very singular one, as there is no special finding of facts by the court, but a general finding in favor of the defendant. Instead, however, of a finding of facts, there is a bill of exceptions, which itself contains the entire history of the case, including the pleadings, the motions, the evidence, the judgment of the court, and all that is in the record besides. The only point raised by this bill of exceptions was as to the admission of the testimony of L. H. Wood, who acted as one of the commissioners, by appointment of the district judge of Wyandotte county, in which the land lay. The deposition of Wood was directed to the question whether he was a freeholder of Wyandotte county, and, although he declared that at the time he was appointed as commissioner he was the owner of considerable real estate, upon further examination he stated that the title to it was in some other person, who held it as trustee for him. This attempt to raise the question of whether he was a freeholder within the meaning of the statute of Kansas on that subject was ruled out entirely by the exclusion of all his testimony on the trial, and this constitutes the principal assignment of error in the case. Article 9, c. 23, Comp. Laws Kan. p. 224, entitled 'Appropriation of lands for the use of railway and other corporations,' provides two modes of doing this. The first of these modes is by an application to the board of county commissioners, which is the governing body of the county, to lay off along the line of the proposed road as located by the company a route for such railroad. Upon this application being made in writing, the board of county commissioners shall forthwith proceed to lay off such route, and have the same carefully surveyed, and appraise the value and assess the damages to the interest of each of the owners of the land so taken—all of which they shall embody in a written report, and file it in the office of the county clerk in such county. The county clerk shall immediately file a copy of this report in the office of the treasurer of the county: and, if the company shall pay the amount of this appraisement into the treasurer's office, this shall be certified upon the copy of the report under his hand and seal of office, and he shall pay over the amounts to the persons respectively entitled to them. Upon the filing of a copy of this report, and a certificate of the payment of the money, in the office of the register of deeds for the proper county, the company shall have the right to occupy the lands so embraced within such route for the purposes necessary for the construction and use of its road. These proceedings, it is declared, shall vest in the company, its successors and assigns, the perpetual use of the lands as soon as the railroad has been constructed. Section 86 of this article provides that before the county commissioners shall proceed to lay off any railroad route, notice of the time when the same shall be commenced shall be given by publication, 30 days before the time fixed, in some newspaper published in the county. It also provides that an appeal may be had from the determination of the board of county commissioners as to the value of the lands and other damages to the district court of the county, which appeal shall only affect the amount of compensation to be allowed, but shall not delay the prosecution of the work, if the company shall pay the amount as aforesaid and execute a bond with sufficient security to pay all damages which may be adjudged to be paid by the said court. Another mode of appropriating this land, by the exercise of the right of eminent domain, for the use of railroads, is provided by section 87 of the same article. In this case the railroad company, instead of applying to the board of county commissioners, may apply to the judge of the district court of the county through which the railroad is to be built, who shall appoint three commissioners, who shall be freeholders and residents of the county, to make the location, appraisement, and assessment of damages, instead of the county commissioners. This appointment shall be made in writing under the hand of the district judge, upon the...