Lee v. Missouri Pac. R. Co.

• Decision Date: 12 December 1931
• Docket Number: 30099.
• Citation: 5 P.2d 1102,134 Kan. 225
• Parties: LEE v. MISSOURI PACIFIC R. CO.
• Court: Kansas Supreme Court

5 P.2d 1102

134 Kan. 225

LEE v. MISSOURI PACIFIC R. CO.

No. 30099.

Supreme Court of Kansas

December 12, 1931

Syllabus by the Court.

"Right of way" such as may be acquired by railroad corporation under power of eminent domain defined (Rev. St. 1923 66--901; Const. art. 12, § 4).

Constitutional requirement that full compensation be paid for right of way appropriated by railroad corporation pertains to right of way only (Const. art. 12, § 4).

Corn crop on land condemned by railroad corporation when no longer drawing sustenance from soil, is not part of realty condemned (Rev. St. 1923, 66--901; Const. art. 12, § 4).

Court judicially knows that corn crop in named county has so far matured during November as not to draw sustenance from soil.

Where no showing was made on motion for new trial to enable Supreme Court to determine significance of additional evidence assignment of error complaining of exclusion did not warrant reversal (Rev. St. 1923, 60--3004).

In condemnation proceedings by railroad corporation, error if any, in instructions defining measure of damages, held not prejudicial (Rev. St. 1923, 66--901; Const. art. 12, § 4).

Where railroad corporation promptly paid over condemnation award and landowner, on appeal, recovered amount less than that awarded, landowner was not entitled to interest (Rev. St 1923, 66--901; Const. art. 12, § 4).

A right of way such as may be acquired by a railroad company through eminent domain under authority of statute is the 100-foot strip of land for the building and maintaining of the grades on which its tracks are laid and on which its trains are operated, except where a greater width is requisite for the construction and security of the railroad.

The constitutional mandate that full compensation shall be paid for any right of way appropriated to the use of a railroad corporation irrespective of any benefit for any improvement proposed by such corporation pertains to the right of way only, and is not concerned with the matter of compensation for lands condemned for other railroad purposes, following Smith v. Railway Co., 90 Kan. 757, 136 P. 253.

Where a corn crop has so far matured as to have ceased to draw sustenance from the soil, it is no part of the real estate and judicial notice should be taken that stage has arrived in Morris county by the 4th day of November, at which time the land in question was condemned for railway purposes.

Error assigned on exclusion of evidence and instructions, noted in the opinion, considered, and not sustained.

Error assigned on instruction pertaining to the measure of value for land condemned for railway purposes considered, and held nonprejudicial.

In condemnation proceedings by a railroad company to acquire land for railroad purposes, where the railway company promptly paid over the amount of the condemnation award in accordance with the statute, and an appeal was taken by the plaintiff landowner, with the result that the jury allowed him a less amount, he was not entitled to interest.

On application of defendant railway company, condemnation commissioners were appointed to appraise the value of plaintiff's lands taken for railway purposes and to assess the damages to his lands not taken. The commissioners made a total award of $8,360. Defendant appealed to the district court, and on a jury trial he was awarded $7,604.39, of which sum an item of $477.49 was interest. Held that, the jury's award being for a less amount than had been paid to the county treasurer for his benefit on the award of the condemnation commissioners, the trial court properly struck from the verdict of the jury the item included therein for interest.

Appeal from District Court, Morris County; Cassius M. Clark, Judge.

Condemnation proceedings by the Missouri Pacific Railroad Company against D. A. Lee. From a judgment of the district court, on the landowner's appeal from the condemnation award, the landowner again appeals.

Edw. T. Riling and John J. Riling, both of Lawrence, and Harry M. Tompkins, of Council Grove, for appellant.

W. J. Pirtle, of Council Grove, and W. P. Waggener, O. P. May, and J. M. Challiss, all of Atchison, for appellee.

DAWSON J.

This is an appeal from a judgment in a condemnation case where plaintiff was dissatisfied with the award made for the appropriation of some of his farming lands for railway purposes.

It appears that in 1929 plaintiff owned two tracts of land of 400 acres each in Morris county. Two or three sets of improvements were on them, and the tilled lands were occupied by tenants. Plaintiff used the pasture lands himself. The two tracts cornered with each other, but they could conveniently be operated together, and through an amicable arrangement with the owner of adjacent land a gate was maintained where plaintiff's lands cornered so that stock could be driven through without the roundabout access supplied by public roads.

On September 30, 1929, the defendant railway company made application for the appointment of appraisers to make a valuation of lands of plaintiff (and other lands thereabout) which defendant desired to condemn for the purpose of straightening its main line, improving its grades, and creating better railway facilities in that part of Morris county.

The lands of plaintiff which it proposed to appropriate were a 200-foot strip running from northeast to southwest across the north half of section 36, town. 16 south, range 9 east, comprising 12.8 acres; and a tract of 39.8 acres in the southeast quarter of the southwest quarter and in the south half of the southeast quarter of section 35, town. 66 south, range 9 east.

The right of way of 12.8 acres cut one of plaintiff's pastures in two, which necessitated the construction of a cattle pass under the new railroad grade, and damaged one of a number of springs in the pasture. For this land taken and as damages to the remaining tract, the railway was required to construct a cattle pass to reconnect the two parts of the pasture and pay $2,000.

The second tract condemned, amounting to 39.8 acres, was required for other railway facilities as well as for a right of way. A site for a depot, side tracks, and the like was acquired on land immediately adjacent to that of plaintiff on the west, but on this condemned 39.8-acre tract were located a toolhouse, section house, bunkhouse, side tracks, and extensive "borrow pits" to supply soil and gravel for the new railway grades. The commissioners' award for this second tract was $6,360, making a total award of $8,360, which sum was duly deposited with the county treasurer as the statute provides. Rev. St. 66--906.

Plaintiff was dissatisfied with the amount of the condemnation award, and appealed to the district court, where the cause was tried before a jury. Evidence at length was introduced touching the value of the lands taken and damages to plaintiff's remaining lands not taken, and concerning the effect on the value of the plaintiff's land not taken by reason of the location of increased railway facilities constructed thereabout, but excluding those actually placed on the new right of way.

The jury returned a verdict for plaintiff in the aggregate sum of $7,604.39, but that amount included an item of $477.49 as interest which the trial court struck from the total because the jury's award was less than the amount allowed by the condemnation commissioners.

Special questions were also answered by the jury. Some of these read:

"Question: What do you allow the plaintiff for the 12.8 acres taken from the east farm in Section 36? Answer: $512.00.

"Question 2: What do you allow the plaintiff for the 39.8 acres taken from the west farm in Sections 34 and 35? Answer: $4,079.50.

"3. What, if anything, do you allow the plaintiff as damages to that portion of the east farm not taken as right of way? Answer: (A) Pasture, $2,150.40; (B) Waste land, nothing; (C) Plow land, nothing.

"4. What, if anything, do you allow the plaintiff as damage to that portion of the west farm outside of the 39.8 acres actually taken? Answer: (A) Pasture, nothing; (B) Plow land $385.00; (C) Waste land, nothing.

"5. If you find that the remaining portion of the land in Sections *** 35 was damaged by reason of taking 39.8 acres along the public road, on the south side thereof, then state what was the character of such damage? Answer: On account of reducing acreage of tillable land and being more irregular in shape, less salable.

"6. If you find that the east farm in Section 36 has been damaged by reason of the taking of 12.8 acres there from for right of way, then state what was the character of such damage? Answer: Pasture divided, cattle not having as free a range, less accessible, less salable.

"7. Has the land of the plaintiff not taken been in any way damaged physically by reason of the location of the right of way? Answer: Yes. ***

"9. How many acres of plaintiff's land do you find were damaged, if at all outside of the land actually taken? Answer: (A) East farm, pasture land 307.2 acres; (B) Plow land none; (C) Waste land, none. West farm (A) Pasture land, none; (B) Plow land 165 acres; (C) Waste land, none." Judgment was entered accordingly, and plaintiff appeals.

Plaintiff's first complaint relates to the admission of testimony to show that the railway facilities placed on and near plaintiff's remaining land in section 35 were a benefit to it. The trial court's instruction was that, in estimating damages to the land not taken by condemnation, the jury should take into consideration "any benefits to the west tract that may accrue by reason of taking and using any part of said lands or land adjacent thereto for depot or stock shipping purposes."

The benefits, if it was proper to so regard them as...