Interstate Consolidated Rapid Transit Ry. Co. v. Early

• Decision Date: 11 April 1891
• Parties: INTERSTATE CONSOLIDATED RAPID TRANSIT RY. Co. v. EARLY.
• Court: Kansas Supreme Court

26 P. 422

46 Kan. 197

INTERSTATE CONSOLIDATED RAPID TRANSIT RY. Co. v. EARLY.

Supreme Court of Kansas

April 11, 1891

Syllabus

1. A city has the right to establish the grade of its streets, and it is only when the grade is changed after being once established that damages can be allowed therefor to property owners. Paragraph 562, Gen. St. 1889.

2. Where a street railway company is permitted by a city to construct its road in a street of the city and upon the established grade there of, such road, with permission of the city, may cut down or grade the street so as to bring it to the established grade. In doing so the railway company acts for the city, and in bringing the street, or any part thereof, to an established grade, it is not liable to adjoining lot-owners on account of cutting down or grading the street, if the grading is done in a good and workman-like manner, and confirmed wholly within the street.

Error from district court, Wyandotte county; O.L MILLER, Judge.

On the 25th day of January, 1887, L.J. Early commenced his action against the Interstate Consolidated Rapid Transit Railway Company to recover $3,000 because of the construction of a double-track railway on Sixth street in Kansas City, Kan whereby it was alleged that the ingress to and egress from plaintiff’s premises on Sixth street were destroyed. Trial had before the court with a jury. The jury returned a verdict for the plaintiff, and assessed his damages at $500. They also made and filed the following special findings of fact: “(1) If you find for the plaintiff in any sum of account of construction and operation of a railroad by the defendant on Sixth street in front of plaintiff’s premises, how much of such sum do you find to arise exclusively from the grading done by the defendant on said street? Answer. $500. (2) State whether the ingress to or egress from the plaintiff’s premises on the Sixth-Street side thereof has been wholly destroyed by the construction and operation of defendant’s railroad. A. It has. (3) State whether the ingress to or egress from plaintiff’s premises have been simply made temporarily less convenient or permanently destroyed by the construction and operation of defendant’s railroad. A. Permanently destroyed. (4) State what you find was the value of plaintiff’s property immediately before the defendant began the construction and operation of its road. A. Three thousand six hundred dollars. (5) State what you find to be the value of plaintiff’s property immediately after defendant began the construction and operation of its road. A. Three thousand one hundred dollars. (6) State whether or not the rental value of plaintiff’s property has been increased by the construction and operation of the defendant’s road. A. Unable to answer, as there are no buildings.” The railroad company filed a motion for a new trial, which was overruled. Judgment was entered upon the verdict. The railroad company excepted, and brings the case here.

N.A Loomis and Warner, Dean & Hageman, for plaintiff in error.

Hale, Fife & Craig, for defendant in error.

OPINION

HORTON, C. J. (after stating the facts as above .)

This was an action brought in the court below by L. J. Early against the Interstate Rapid Transit Railway Company to recover damages to certain lots owned by him in Kansas City, in this state, on account of the construction of its railway on Sixth street in front of his property. Soon after, because of the consolidation of this and other companies under the name of the Interstate Consolidated Rapid Transit Railway Company, an amended petition was filed. Trial had before the court with a jury. Judgment was rendered for the plaintiff below for $500 and costs. The railway company excepted, and brings the case here.

Sixth street in the old city of Wyandotte, (now Kansas City, Kan.,) between Minnesota avenue and the south end of Sixth street, is a public street, varying in width at various places. It was the chief street in the old city connecting the north and south ends. In some places, between Minnesota avenue and Orville street, Sixth street was as wide as 90 feet, but in front of the property of Mr. Early it is somewhat difficult to determine the exact width of the street. Upon his part it is claimed to be 45 feet only, while Mr. McAlpine, one of his witnesses, testified that the street at that point was from 60 to 80 feet wide. It had been traveled a great number of years. The city had improved it somewhat by making a cut in front of this property, varying at the north-west corner thereof to the south-west corner from two to eight feet. It left the property well situated for residence or business purposes.

In 1884 and 1885 ordinances were adopted authorizing the railway company to...