Kansas City & E. R. Co. v. Kregelo

• Decision Date: 28 November 1884
• Citation: 32 Kan. 608,5 P. 15
• Court: Kansas Supreme Court
• Parties: THE KANSAS CITY & EMPORIA RAILROAD COMPANY v. J. L. KREGELO

5 P. 15

32 Kan. 608

THE KANSAS CITY & EMPORIA RAILROAD COMPANY v. J. L. KREGELO

Supreme Court of Kansas

November 28, 1884

Error from Lyon District Court.

APPEAL by Kregelo from the award of commissioners appointed to condemn a right-of-way through Lyon county for the Kansas City & Emporia railroad company. The report of the commissioners was made October 19, 1882, and the appeal taken October 28, 1882. Trial at the March Term, 1883, and verdict against The Railroad Company for $ 2,045.37. This sum the court adjudged to stand as an award of damages in favor of the plaintiff in the condemnation proceedings appealed from and it also rendered judgment for plaintiff for $ 206.80 costs. The Company brings the case here. The facts appear in the opinion.

Judgment reversed.

A. A Hurd, C. N. Sterry, and Robert Dunlap, for plaintiff in error.

Scott & Lynn, for defendant in error.

HORTON C. J. All the Justices concurring.

OPINION

HORTON, C. J.:

J. L. Kregelo is the owner of a farm containing a quarter-section of land in Lyon county--being the southwest quarter of section 17, township 19, range 12. A right-of-way was condemned and appropriated by the Kansas City & Emporia railroad company across the cultivated part of this land. The road enters the farm at its west line, and runs diagonally in a southeasterly direction through it. Before the road was constructed there were three tracks or private roads to go to different parts of the farm. One of these was a lane running on the east side of the farm from the barn-yard to the pasture land. The ingress to and egress from this pasture was by means of this lane. The evidence showed that at the time of the trial the company had made a crossing at the point where the railroad crossed the lane so that stock could pass backward and forward over the railroad in going up or down the lane. The second track was one through the orchard, giving access from the main premises to the farm along the fence west of the orchard and running out to the meadow land. The third was about the middle of the corn land, which the right-of-way, in passing through, cuts nearly in two. The amount of land actually taken for the right-of-way is six and sixteen one-hundredths acres. The commissioners appraised the value of the land taken, and assessed the damages at the sum of one thousand dollars. Kregelo appealed from the award.

Upon the trial, one C. S. Beadle was produced as a witness on the part of the company, and testified that he was the engineer of the company, and had been the engineer ever since the building of the road was commenced; that at the time of the condemnation a map and a profile of the road, the same as filed in the clerk's office, were presented to the commissioners; the map showed the location of a crossing to be built by the company between the east and west line of the farm, in the land designated as "corn" or plowed land. The commissioners, in assessing damages, took into consideration that this crossing was to be built by the company. On the trial the company sought to show that it had ordered the crossing to be built. The court rejected the evidence. Thereupon the company offered to prove that a farm-crossing had been ordered to be constructed at its expense over the road at a point marked upon the map and profile, so that the plowed land through which the railroad runs would be restored to the same condition and as good as it was before any road was ever located there, so far as the crossing through the field was concerned. This evidence was objected to as irrelevant, incompetent, and immaterial. The court sustained the objection. In directing the jury, the court said:

"The law requires every railroad company to construct and maintain good and sufficient crossings where the road crosses any public highway; but the law does not impose upon and require it to construct crossings anywhere else."

The court also refused to give the following instruction, which was prayed for by the company:

"Under the laws of this state, the defendant, by the condemnation proceedings instituted, did not, has not, and will not, acquire the absolute ownership of the land condemned through the plaintiff's farm for right-of-way, but only has and will by such proceedings acquire the right to use and occupy such land as and for the purposes, needs and necessities of a railroad so long as it continues to use the same for such purposes. The legal title in fee simple of such land remains in the plaintiff, subject only to the right of user on the part of the defendant, and the plaintiff has and will have at all times the right to use any part of such right-of-way in any way which will not interfere with the use thereof for its purposes by the defendant, and which will not be inconsistent with the defendant's right of use."

Among the special findings are the following:

"Q. 15. How much has the condemnation for the building of the road through plaintiff's land damaged the plaintiff, by reason of cutting his corn land in two?

"A. Four hundred and fifty dollars.

"Q. 16. How much damages, if any, has the plaintiff suffered by the condemnation of the right-of-way through his land, by reason of cutting him off from any crossing on his farm that he had before such right-of-way was condemned, and which, by such condemnation and the building of the road, has been rendered worthless?

"A. Six hundred and ten dollars.

"Q. 17. What distance will plaintiff have to go further than he had to go before the construction of this road, each time that he turns his cattle into his pasture or brings them from his pasture to his corral?

"A. Three hundred and fifty rods.

"Q. 18. What length of time will it take the plaintiff, or any person for him, in bringing the cattle into the corral, or driving them from the corral to the pasture, longer, by reason of the construction of defendant's road, than it took before, each time that such cattle are driven to the corral or to the pasture?

A. One hour.

Q. 19. How much more time in the year will it require a person in farming the plaintiff's farm to work, by reason of the building and operation of the road, than it did before the road was built and operated?

"A. Fifteen days."

In rejecting the evidence that the company had ordered the crossing to be built, and in refusing to give the instruction asked for, material error was committed. While the statute does not...