Leroy & W. R. Co. v. Ross

• Decision Date: 05 January 1889
• Citation: 20 P. 197,40 Kan. 598
• Court: Kansas Supreme Court
• Parties: THE LEROY & WESTERN RAILROAD COMPANY v. ROSS & PACKER

20 P. 197

40 Kan. 598

THE LEROY & WESTERN RAILROAD COMPANY v. ROSS & PACKER

Supreme Court of Kansas

January 5, 1889

Error from Sedgwick District Court.

ROSS & PACKER appealed from the award of commissioners appointed to condemn a right-of-way for the Leroy &amp Western Railroad Company through Sedgwick county. The commissioners had awarded them $ 178.50. Trial at the February term, 1887, and verdict for plaintiffs for $ 812. New trial denied, and judgment for the plaintiffs. The defendant company brings the case here. The facts are stated in the opinion.

Judgment reversed and cause remanded for new trial.

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

Sluss & Stanley, for defendants in error.

HORTON C. J. All the Justices concurring.

OPINION

HORTON, C. J.:

Ross & Packer are the owners of the S.W. 1/4 of sec. 25, T. 29, R. 2 W., in Sedgwick county. On the 15th day of March, 1886, the district judge of that county appointed commissioners to appraise the lands along the line of the Leroy & Western Railroad Company through the county, and to assess the damages for the right-of-way of the road. On the 26th day of April, 1886, the commissioners, after viewing the said S.W. 1/4, and the proposed route of the railroad over the land, assessed the damages as follows: Value of land taken for right-of-way, $ 120.50; damage to land not taken, $ 50; damage to crops, $ 8; aggregating, $ 178.50. The right-of-way cut off from the north side of the quarter about six acres of land. This six-acre strip is a long, wedge-shaped piece, at the lower end about two hundred yards wide, running to a point nearly eight rods in length. At the trial, the jury assessed the damages at $ 812, and judgment was rendered accordingly. The company excepted, and brings the case here. Upon the trial the railroad company requested the court to give the following instruction:

"You are instructed, in assessing the amount of plaintiff's recovery, that you may take into consideration any benefits by reason of construction of railroad through the premises of plaintiff, which may be special and peculiar to the tract of land in question; that is, benefits different from and in excess of benefits resulting to other adjoining land not intersected by the railroad."

The court refused the request, holding that benefits, although special, could not be set off against the value of the strip taken for the right-of-way, or against the damages to the remainder of the land. It is conceded by all the parties that neither general nor special benefits can be set off against the value of the strip or part taken for the right-of-way. The question is therefore presented, whether special benefits from the construction of the railroad, or any improvement thereby, may be set off against the damages to the remainder of the land. If it were not for the provisions of the constitution of the state, as a matter of justice, the benefits, direct and special, to the land-owner should be charged in making the estimate of the amount to which he is justly entitled for the appropriation of the right-of-way. ( Railroad Co. v. Kuhn, 38 Kan. 675, 675-8.) Under the constitution, are such benefits to be deducted or allowed from the compensation required to be paid? Section 4, art. 12 of the constitution ordains:

"No right-of-way shall be appropriated to any corporation until full compensation therefor be first made in money, irrespective of any benefit from any improvement proposed by such corporation."

This section of the constitution was referred to and construed seventeen years ago, in Railroad Co. v. Orr, 8 Kan. 419. It was said in that case:

"The plaintiff in error offered evidence to show that benefits accrued to the land of appellant by reason of building the road. The court refused to permit any evidence on that point to go to the jury, and correctly. Section 4 of art. 12 of the constitution is conclusive on this point."

The writer of that opinion was KINGMAN, late Chief Justice. As he was a member of the constitutional convention of 1859, and the chairman of the committee upon judiciary in the convention, this decision is entitled to great consideration.

In Hunt v. Smith, 9 Kan. 137, Mr. Justice VALENTINE, following the case of Railroad v. Orr, supra, said:

"The commissioners must appraise the value of the land appropriated, and assess the damages to that not appropriated [not actually taken], irrespective of any supposed benefits to that not appropriated [not actually taken.]"

In Reisner v. Union Depot & Rld. Co., 27 Kan. 382, it was said:

"Under the provisions of § 4, art. 12 of the constitution of the state, a railway company must pay for the right-of-way, irrespective of any benefit from the proposed improvement of the company, and the compensation for such right-of-way appropriated to the use of the company includes not only the value of the property taken, but also the loss the land-owner sustains in the value of his property by being deprived of a portion of it."

This construction of the constitution is fully sustained by the decisions of other states having similar constitutional provisions. In Pierce on Railroads, 222, it is said:

"The deduction of benefits in the assessment of damages is prohibited by the constitutions of some states -- as Ohio, Kansas, and Alabama; and by statutes in other states."

Section 18, art. 1 of the Iowa constitution, in force in 1871, is in the following words:

"Private property shall not be taken for public use without just compensation first being made or secured to be made to the owner thereof, as soon as the damages shall be assessed by a jury, who shall not take into consideration any advantage that may result to said owner on account of the improvement for which it is taken."

In Frederick v. Shane, 32 Iowa 254, it was held that -

"In the assessment of damages an individual sustains in the location of a road over his lands, the jury cannot, under article 1, § 18 of the state constitution, take into consideration any advantage or benefit that may result to the owner by reason of the establishment of the road, as that it would tend to drain and improve the land." (See also to the like effect, Brooks v. Railroad Co., 37 Iowa 99.)

In Arkansas, § 9, art. 12 of the constitution of 1874 provides that compensation must be made in money, and be ascertained irrespective of any benefits from the proposed improvement. Under that provision, in Railroad Co. v. Anderson, 39 Ark. 167, it was said:

"The owner's damages for the right-of-way to a railroad over his land cannot be diminished by the estimated benefit likely to accrue to his remaining property by the building of the road."

In Indiana, in 1858 and also in 1873, the statute declared that, "in estimating any damages [for the appropriation of land for the right-of-way of a railroad] no deduction shall be made for any benefit that may be supposed to result to the owner from the contemplated work."

In Railroad Co. v. Fitzpatrick, 10 Ind. 120, the court decided that --

"Under the statute, the jury in determining the amount of damages resulting from the construction of a railroad are to exclude from their consideration all future benefits that may accrue to the owner of the land." (See also Railroad Co. v. Horn, 41 Ind. 479.)

It is claimed that as the provisions of our constitution concerning right-of-way were taken from the constitution of Ohio, the decisions of that state, prior to the adoption of our constitution, must control. To this we agree, and the result is the same as given above.

In Giesy v. Railroad Co., 4 Ohio St. 308, it was said:

"That the jury in assessing the market value of the property appropriated to a public use, have no right to consider or make any use of the fact that it has been increased in value by the proposal or construction of the improvement."

The opinion in that case was delivered by Ranney, J., one of the ablest of the Ohio judges. He said, among other things:

"The word 'irrespective' in the constitution relates to this full compensation, and binds the jury to assess the amount, without looking at or regarding any benefits contemplated by the construction of the improvement. When this is done, and this consideration wholly excluded, the jury have nothing to do but ascertain the fair market value of the property taken, which is but saying that nothing shall be deducted from that value on account of such benefits."

In Railroad Co. v. Ball, 5 Ohio St. 568, it was said:

"After the testimony was closed, the court was requested by the counsel for the plaintiff in error to charge the jury, among other things, as follows: '3. That it is proper for the jury to consider the benefits, by reason of the appropriation, to the residue of the tract through which the appropriation is made, for the purpose of determining whether such residue is injured by the appropriation. 4. That if the jury are of opinion that the whole of the residue of the tract through which the appropriation is made is not diminished in value by the appropriation, that no damages are to be assessed for any injury which it may be claimed is done by the appropriation to such residue.'

"These instructions the court refused to give to the jury; and as to the third point requested, the court charged the jury -- 'That by the constitution of the state, and their oaths they were required to assess the defendant's damages or the amount of his compensation, irrespective of any benefit proposed by the plaintiff as a railroad company, and that they were to exclude all real or imaginary benefits from their consideration.'

"As to the fourth point requested, the court charged the jury -- 'That the constitution of the state provides that the ...