Kansas Cent. R. Co. v. Board of County Com'rs of Jackson County

• Decision Date: 11 April 1891
• Parties: THE KANSAS CENTRAL RAILROAD COMPANY v. THE BOARD OF COMMISSIONERS OF JACKSON COUNTY
• Court: Kansas Supreme Court

26 P. 394

45 Kan. 716

THE KANSAS CENTRAL RAILROAD COMPANY v. THE BOARD OF COMMISSIONERS OF JACKSON COUNTY

Supreme Court of Kansas

April 11, 1891

Error from Jackson District Court.

THE opinion contains a sufficient statement of the facts. Judgment for the defendant County Board, at the June term 1888. The plaintiff Railroad Company brings the case here.

Judgment reversed and cause remanded.

A. L Williams,Chas. Monroe, and R. W. Blair, for plaintiff in error.

Rafter & Robinson, for defendant in error.

VALENTINE J. HORTON, C. J., concurring, JOHNSTON, J., dissenting.

OPINION

VALENTINE, J.:

The present case, as made in the district court and brought to this court, is a model of brevity, containing only two pages as copied by a type-writer, and yet it contains all that is necessary to present the questions sought to be presented by the parties. It appears that the Kansas Central Railroad Company, which is the plaintiff in error and was the plaintiff below, is a railroad corporation of this state; that a public county road was legally laid out and established across its right-of-way; that at the time this was done, the railroad was operated by the Union Pacific Railway Company, another duly-organized railroad corporation of this state, as lessee; that no notice was ever given to the plaintiff with respect to any of the proceedings for the establishment or creation of this highway prior to its creation, though a proper notice was given to the Union Pacific Railway Company with respect thereto. Within twelve months after the location of this highway, the plaintiff filed with the board of county commissioners of Jackson county, which is the defendant in error and was the defendant below, its application for damages claimed to have been sustained by reason of the location and opening of the aforesaid road, which application was in due form and for an amount exceeding $ 150. The application was refused, and the plaintiff in due time appealed to the district court, where the case was tried before the court without a jury.

"Upon the trial it was agreed by the parties that it would cost the plaintiff the sum of $ 150 to put in, at said crossing, the cattle-guards, fences, crossing-planks, crossing-signs and whistle-posts, as required by the laws of Kansas to be put in by the railroad company at every highway crossing of a railroad in the state of Kansas; and that, if the plaintiff was entitled to recover damages, that judgment should be for $ 150. It was admitted by the parties on the trial that the plaintiff is a railway corporation duly created and existing under the laws of the state of Kansas, and had lawfully condemned the right-of-way for and built and completed its railway at the place where this highway crosses its track prior to the location of such highway; that plaintiff's railway is operated by the Union Pacific Railway Company, a corporation duly organized, which is the lessee of the Kansas Central Railroad Company. It was also proved on the trial that no notice of the meeting of the viewers to lay out said road was ever served upon the plaintiff or any of its agents, and that no copy of such notice was on file in the office of the clerk of Jackson county. All the facts hereinbefore stated were agreed upon by the parties at the trial."

Upon these facts, the court below found generally in favor of the defendant and against the plaintiff, and rendered judgment accordingly, and the plaintiff, as plaintiff in error, brought the case to this court for review.

We think the court below erred in its findings and judgment. A railroad company's right-of-way is property, an estate in land, the dominant estate, securing to the railroad company the exclusive right to the occupancy, use and control of the property as against all persons, except the owner of the fee; and the paramount right to such occupancy, use, and control, even as against him. (K. C Rly. Co. v. Allen, 22 Kan. 285.) In all cases where a railroad company procures its right-of-way under the authority of the state, in the exercise of its sovereign power of eminent domain, by what are usually termed condemnation proceedings, the railroad company pays to the owner of the land the full value of all the land actually taken, and full and complete compensation for all the losses or damages which might result to the remainder of the owner's land, and both such value and compensation are paid by the railroad company irrespective of any benefit or supposed benefit which might result to the owner of the land from the construction or the operation of the railroad. (L. & W. Rld. Co. v. Ross, 40 Kan. 598; Rapid Transit Rly. Co. v. Simpson, just decided.) And the railroad company, in paying this value and for these damages, always pays largely more in the aggregate than the land actually taken is worth--sometimes ten or twenty times more than it is worth. And while the railroad company procures its right-of-way through the intervention of the state in the exercise of its sovereign power of eminent domain, and procures the same ostensibly for public purposes--and land can never be taken under such power for any other than a public purpose--yet the railroad company alone pays for such right-of-way, and sometimes, as before stated, pays an amount aggregating ten or twenty times more than the land actually taken is worth. And although the property is taken ostensibly for a public purpose, yet all the authorities agree that the railroad company, by procuring its right-of-way and paying for it, procures an actual, individual, private right, an easement, and an estate paramount to the rights or interests of all others, except the right of the state to again subject the land to be taken under the power of eminent domain. The railroad company in such a case is the dominant owner, and the owner of the fee is only a servient owner. It, therefore, necessarily follows, that any person who should interfere with the railroad company's occupancy, use or control of its right-of-way, except with the authority of the railroad company, or in subserviency to its rights, or under the sovereign power of eminent domain, would be a trespasser, liable to the railroad company for all damages that might result from the trespass. And it would also seem to follow, that where the interference is under the sovereign power of eminent domain, and the railroad company sustains substantial loss from such interference, the railroad company would be entitled to just compensation for all such loss. Certainly, whenever the railroad company's right to the exclusive occupancy, use and control of its right-of-way is interfered with permanently under the power of eminent domain, something is taken from the railroad company. Of course, it is not the fee in the land that is taken, for the railroad company does not own the fee, nor is the fee, under our present laws, ever taken from any one under the power of eminent domain. What is taken in such a case is a portion of the railroad company's exclusive right to the occupancy, use and control of its right-of-way, a part of its easement, and making it a tenant in common with some other person, corporation, or the public. This is certainly a taking of something from the railroad company which is valuable. It is a taking of a portion of the railroad company's estate, for which it has paid full and ample compensation, and for the taking of which it is entitled to compensation. Where a railroad company is compelled by condemnation proceedings to surrender the use of a portion of its right-of-way in part to another railroad company, all the authorities agree that something is taken from the railroad company, and that just compensation should he awarded to it. And nearly all the authorities agree that where the railroad company is compelled to surrender the use of a portion of its right-of-way in part to the public for a public highway, something is again taken from it for which it is also entitled to fair and just compensation. It is true that where a highway is established by proper authority across a railroad company's right-of-way without at all interfering with the company's use of its right-of-way, and without requiring the company to be at the expense of constructing crossings, or cattle-guards, or erecting fences or signs or whistle-posts, or being at any other expense or suffering any substantial loss, no compensation can be allowed; but where any real or substantial loss is suffered,...