Leavenworth

• Decision Date: 06 May 1893
• Citation: 33 P. 297,51 Kan. 432
• Court: Kansas Supreme Court
• Parties: THE LEAVENWORTH, NORTHERN & SOUTHERN RAILWAY COMPANY v. CORNELIUS W. CURTAN et al

33 P. 297

51 Kan. 432

THE LEAVENWORTH, NORTHERN & SOUTHERN RAILWAY COMPANY v. CORNELIUS W. CURTAN et al

Supreme Court of Kansas

May 6, 1893

Error from Leavenworth District Court.

ACTION by Curtan and wife against the Railway Company, to recover damages for the permanent obstruction of certain alleys. Judgment for plaintiffs for $ 1,000. The defendant brings the case here. The opinion states the material facts.

Judgment affirmed.

Geo. R Peck, A. A. Hurd, and Robert Dunlap, for plaintiff in error:

1. The plaintiffs cannot recover in this action because, first, if the railroad company occupied the land and the alley with its buildings under lawful authority, there was not a taking of plaintiff's property; secondly, if the railroad company did not occupy the alley and premises under lawful authority it was simply guilty of a public nuisance, and the plaintiff has neither alleged nor shown in evidence any special or peculiar damages entitling him to recover. See Glass v Memphis Rld. Co., 10 S. Rep. 215, 217; McGee's Appeal, 8 A. 237; City of East St. Louis v. O'Flynn, 10 N.E. 395; Whitsett, Exec'x, etc., v. Union Depot & Rld. Co., 15 P. 339; Barr v. City of Oskaloosa, 45 Iowa 275; Fearing v. Irwin, 55 N.Y. 486, 490; Coster v. The Mayor, 43 N.Y. 399, 414, 415; City of Moundsville v. Railroad Co., 16 S.E. 514; School District v. Neil, 36 Kan. 617; Billard v. Erhart, 35 id. 611; Shaubut v. Railroad Co., 21 Minn. 502; Rochette v. C. M. & St. P. Rly. Co., 32 id. 201; Barnum v. M. T. Rly. Co., 33 id. 365: Lakkie v. C. St. P. M. & O. Rly. Co., 46 N.W. 912; Aram v. Schellenberger, 41 Cal. 449; Bigley v. Numan, 53 id. 403, 404; Payne v. McKinley, 54 id. 532; McCowan v. Whitesides, 31 Ind. 235; Swanson v. Boom Co., 42 Minn. 532; Zettel v. City of West Bend, 48 N.W. 379; Atwood v. City of Bangor, 22 A. 466.

2. The court erred in giving certain instructions to the jury. K. P. Rly. Co. v. Mihlman, 17 Kan. 234.

3. There was error in the admission of evidence. The following questions were asked of the plaintiffs on direct examination:

"Ques. State how much the value of the use of this part of the alley would be to this lot, if you are acquainted with such things?

"[Defendant objected to this question because incompetent and irrelevant. This objection was overruled, defendant excepting.]

"Q. As near as you can. A. As near as I can, it is about what I have said.

"Q. That is, about $ 1,300? A. Yes, sir; one-third the value of the lot.

"Q. You think as much as $ 1,300 or more? A. Yes, sir."

It will be seen that the defendant objected to this character of testimony, and the court in its ruling held it to be admissible, over the objection of the defendant. This required the witness to give his opinion or conclusion upon a matter which was not and is not the subject of expert testimony. It is asking a witness for a conclusion, which, if proper at all, would be for the jury alone to determine. W. & W. Rld. Co. v. Kuhn, 38 Kan. 675.

In the cross-examination of this witness, the following question was asked by the defense:

"Ques. You could very readily make a crossing in that sidwalk so you could pass over it, could you not?"

[Plaintiff objected to the question. The city ordinances are to be considered by the court as law, and they prohibit it. The objection was by the court sustained, to which ruling of the court the defendant duly excepted.]

This question was proper on cross-examination, because it tended to show that the plaintiff could use his premises in other ways besides the alley, and was proper, if for no other reason, to show that his damages were not as great as claimed. The court seems to have taken into consideration the city ordinances of Leavenworth, which, however, were not introduced in evidence, and we do not know what they purport to show. We do not think that the district court, any more than this court, could take judicial notice of the city ordinances of any city in the state. It does not therefore appear that there existed any legal objection to making a crossing to one's premises over the sidewalk in front of the same. The question should therefore have been permitted.

But in any event, the case was submitted to the jury upon an erroneous theory. Plaintiffs were not entitled to recover the damages alleged by them, nor indeed under the pleadings were they entitled to recover at all.

L. B. & S. E. Wheat, for defendants in error:

The petition states a good cause of action for such appropriation, if that part of the alley is to be considered as vacated, according to the rule of law on such subjects, shown by the cases of 34 Kan. 158, 163; 36 id. 46. But irrespective of that, and merely because of the obstruction of the alleys and permanent appropriation of parts thereof by the railway company to its own use, so as to prevent access to said lot 3, by way of the alleys from Shawnee and Eighth streets, and also so as to prevent passage through the alleys at the rear of said lot 3, and the consequent damages to defendants in error, they were, we submit, entitled to recover, and the case is within the rules of law shown by the cases of Ft. S.W. & W. Rly. Co. v. Fox, 42 Kan. 490-494, and cases there cited; O. O. C. & C. G. Rld. Co. v. Larson, 40 id. 307, 308; A. & N. Rld. Co. v. Garside, 10 id. 552; Twine case, 23 id. 585; Andrews case, 26 id. 702; Andrews case, 30 id. 590.

In relation to the matter of the questions referred to in the brief of the plaintiff in error, we submit that the cases of K. C. & S.W. Rld. Co. v. Ehret, 41 Kan. 22; K. C. Rly. Co. v. Allen, 24 id. 33; O. O. C. & C. G. Rld. Co. v. Fisher, 42 id. 677, 678; L. & W. Rly. Co. v. Hawk, 39 id. 638, 641; L. T. & S.W. Rly. Co. v. Paul, 28 id. 816; 45 id. 537, show that the judgment should not be reversed because of anything there referred to, but, on the contrary, we submit that the same was proper and competent testimony; but, if we are wrong in that respect, then and in this connection we also refer to 42 Kan. 563. See, also, Reed v. New, 35 Kan. 727, 729.

JOHNSTON, J. All the Justices concurring.

OPINION

JOHNSTON, J.:

This action was brought by Cornelius W. and Bridget E. Curtan against the railway company, to recover damages suffered by reason of the permanent obstruction of two alleys in the rear of a lot owned by them, by which the ingress to and egress from the same were prevented and destroyed: The Curtan property which was damaged, being lot 3, is in block 116 of Leavenworth city, through which block the railway of the plaintiff in error was built in January, 1888. The lot is 44 feet wide and 140 feet deep, and is in the east part of the block, which abuts on Broadway on the east. Shawnee street lies on the south side of the block, and Seneca street bounds it on the north, and an alley, shown to be 16 feet wide, runs through the middle of the block from Seneca street to Shawnee street, passing on the rear of lot 3. From this alley, and at the rear of lots 3 and 4, another alley extends westwardly through the block to Eighth street. The course of the railway built through the block was from the southeast to the northwest, across both of the alleys mentioned; and, besides making a deep excavation, the company, in fencing its right-of-way, built a high stone wall across the alley running from Seneca street to Shawnee street, and also across the alley extending westwardly. Upon the top of this wall a high fence was built, and a depot of a permanent character, which extended across both alleys, was constructed by the company, making it absolutely impossible to pass south or west through the alleys from the rear of lot 3. No part of lot 3 was appropriated by the company, but the stone wall and fence were built from the southwest corner of the lot in a northwesterly direction across the alley, leaving only an angle of the alley at the rear of the lot. The location and obstructions mentioned may be seen from the following sketch or plat, which was used as evidence in the trial of the cause:

[SEE ILLUSTRATIONS IN ORIGINAL]

It is alleged that the obstruction destroyed the approaches and means of access to and egress from the rear of the lot, and deprived the owners of the benefits of the alleys in taking provisions, fuel and other things onto the lot, whereby they were damaged in the sum of $ 2,000.

The railway company answered by a general denial, and further that it occupied the alleys with municipal consent. The trial resulted in a verdict in favor of Curtan for $ 1,000, and the railway company now insists that, as no part of the lot was actually taken, no damages can be recovered by reason of the obstruction, and further, that if the alleys were occupied by it without authority and their obstruction was a public nuisance, the owners have not by their pleadings or proof alleged or shown that which would entitle them to recover. The case appears to have been brought and tried throughout upon the theory of a permanent occupancy and obstruction of the alleys by the railway company. The answer specifically alleges, as we have seen, the passage of an ordinance by the city authorizing the building of its road over both of the alleys, but no proof of the ordinance or the giving of municipal consent was offered. No question appears to have been raised as to the existence of such an ordinance, nor was any claim made during the trial that there was a lack of...