Marshall v. The Wichita and Midland Valley Railroad Company

• Decision Date: 06 November 1915
• Docket Number: 19,413. 19,600
• Citation: 96 Kan. 470,152 P. 634
• Parties: T. J. MARSHALL, Appellant, v. THE WICHITA AND MIDLAND VALLEY RAILROAD COMPANY et al., Appellees. T. J. MARSHALL, Appellant, v. THE MIDLAND VALLEY RAILROAD COMPANY, Appellee
• Court: Kansas Supreme Court

152 P. 634

96 Kan. 470

T. J. MARSHALL, Appellant, v. THE WICHITA AND MIDLAND VALLEY RAILROAD COMPANY et al., Appellees.

T. J. MARSHALL, Appellant, v. THE MIDLAND VALLEY RAILROAD COMPANY, Appellee

No. 19,413. No. 19,600

Supreme Court of Kansas

November 6, 1915

Decided July, 1915.

Appeals from Sumner district court; CARROLL L. SWARTS, judge.

Judgments affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. CITY ORDINANCE--Terms Can Not be Varied by Parol Testimony. Where a city ordinance granting a franchise to a railroad company for the use of a city street is formulated in plain and unambiguous language its terms can not be varied or enlarged by testimony showing an oral promise on the part of the grantee to pay damages to an adjacent property owner.

2. SAME--Railroad on Street--Rights of Property Owners. Where a city ordinance granting a franchise to a railroad company to use the streets makes no provision for damages to property adjacent to the right of way, the substantial rights of the property owners are not affected thereby.

3. SAME--Railroad on Street--Elements of Damages to Adjacent Property--Recoverable. While damages may be recovered from a railroad company for constructing its railway so as to shut off or seriously affect access to private property, or for changing the established grade and the like, those damages can not be measured by a broad comparison of the market value of the property before and after the construction of the railroad, following A. & N. Rld. Co. v. Garside, 10 Kan. 552.

4. SAME--When Action for Damages Become Res Judicata. When a property owner sues a railroad company for damages arising from the construction of a railroad adjacent to his property the damages, matured, continuing and prospective, are the subject of the lawsuit, and upon the conclusion of that action the matter is res judicata and can not be the basis of another lawsuit against the lessee of the railroad, following rule announced in Hubbard v. Power Co., 89 Kan. 446, 131 P. 1182.

5. SAME--Lessee of Railroad Not Liable for Damages. The lessee of a railroad can not be held liable for damages to property arising from the construction of a railroad when the railroad was properly constructed and the cause of action arose before the lessee came into possession of the railroad.

James Lawrence, of Wellington, for the appellant.

J. D. Houston, and C. H. Brooks, both of Wichita, for the appellees.

OPINION

DAWSON, J.

Here are two appeals from the district court of Sumner county from judgments in favor of the defendants in two actions for damages to plaintiff arising from the construction of a railway adjacent to plaintiff's property in the city of Belle Plaine.

The first case was commenced in the district court on March 30, 1912, against The Wichita and Midland Valley Railroad Company, owner, and The Midland Valley Railroad Company, lessee. Issues were joined, the cause heard, and a demurrer to plaintiff's evidence sustained on October 8, 1913.

The second case was commenced before a justice of the peace on March 15, 1913, by the same plaintiff, but against only one defendant, The Midland Valley Railroad, the lessee which operated the railway. At the trial of this latter cause there was an agreed statement of facts in which it is conceded that The Wichita and Midland Valley Railroad built the railroad, and that prior to October 4, 1911, it constructed the ditches and culverts mentioned in this case; that on October 4, 1911, the owner leased the railroad to The Midland Valley Railroad Company, which has possessed and operated it since that date. The agreed statement also covered the history of the first case above mentioned. Thereupon the defendant, The Midland Valley Railroad Company, objected to the introduction of evidence on the ground that the agreed facts showed that there had been a prior adjudication against the plaintiff and that this defendant was not liable for the damages complained of, and this objection was sustained.

In substance the errors assigned in the first case are (1) the exclusion of testimony; and (2) sustaining the demurrer. In the second case error is based on the decision that the subject matter had been adjudicated in the first case.

1. Under this assignment appellant complains that he was not permitted in the first case to prove an oral agreement between one J. E. Hopkins, the agent of The Wichita, McPherson and Gulf Railroad Company and its successor, The Wichita and Midland Valley Railroad Company, and the city government of Belle Plaine, whereby the railroad agreed, in consideration of the city's franchise, to occupy and use a certain platted but fenced and untraveled street, Washington street, and other streets, to compensate the plaintiff for damages to his property resulting from the occupancy of Washington street by the railroad. The franchise ordinance is a plain grant of a right of way for a railroad with main line, sidetrack, switches, telegraph poles and lines, depot and terminal facilities on Washington street. The ordinance gives no intimation of the alleged oral agreement between Hopkins and the city authorities.

Was it error to exclude testimony tending to show this oral agreement? No case is cited in support of that contention. This case is not like that of K. C. & O. Rld. Co. v. Hicks, 30 Kan. 288, 1 P. 396, as in that instance the city required $ 3500 to be paid to the city clerk for the satisfaction of damages to property owners as a condition of the franchise grant, and these terms were incorporated in the ordinance itself. But here our question turns on the admissibility of parol testimony to enlarge the terms of the ordinance, and to show another consideration than those set forth in its written provisions. Can that be done? It is familiar law that such evidence would be inadmissible in ordinary contracts and miscellaneous writings. Does the law permit some departure from this rule when legislative bills and city ordinances are under scrutiny? Such a practice was denounced in W. W. M. Co. v. Shanahan et al., 128 N.Y. 345, 28 N.E. 358, 14 L. R. A. 481, where it was said:

"But the scrutiny which the courts have exercised in regard to legislation of this character has been confined to matters appearing on the face of the bill itself, and to things that are the subject of judicial notice. . . . The judicial department can not institute an inquiry concerning the motives and purposes of the legislature . . . . The question always is, with respect to such bills, How is the purpose of the legislature to be ascertained? Must that be determined from the bill itself, and from such considerations as the court can judicially notice, or is it competent to take proof and determine it as a matter of fact, as was done in this case? Reason and authority, as well as the fitness of things, demand that when an act of the legislature . . . is assailed, . . . the question shall be determined by the language and general scope of the act. . . . There is room for much bad legislation and misgovernment within the pale of the constitution; but, whenever this happens, the remedy which the constitution provides, by the opportunity for frequent renewals of the legislative bodies, is far more efficacious than any which can be afforded by the judiciary." (pp. 358, 359.)

(See, also, 17 Cyc. 582; 36 Cyc. 1137.)

Of course, extraneous evidence can be used to clear up an ambiguity or omission, or manifest error appearing on the face of a statute or ordinance (Reese v. Hammond, 94 Kan. 459, 146 P. 997; Coney v. City of Topeka, ante, p. 46, 96 Kan. 46, 149 P. 689), but it would never do to permit parol evidence or any other evidence to amplify or enlarge the plain terms of a legislative enactment (Eddy v. Morgan, 216 Ill. 437, 75 N.E. 174; City of Lebanon v. Creel, &c., 109 Ky. 363, 59 S.W. 16; Ellis v. Boer, 150 Mich. 452, 114 N.W. 239; Statutes, 44 Cent. Dig. c. 2848, § 292).

However, we do not see that the exclusion of this evidence in any wise prejudiced the plaintiff. Probably his right to damages could not have been enhanced by any agreement between the railroad company and the city. Certainly his right to recover damages can not be diminished by the city's omission to provide for damages in the franchise ordinance. Fortunately private rights are governed by positive law and do not depend upon the prudence or want of prudence in the enactment of city ordinances.

2. The next error assigned by plaintiff relates to the following question, objection and ruling:

"Q. You may state what the fair market value of your property was at the time of the passage of the ordinance?

"Defendant's counsel: Objected to as not contemplating the proper measure of damages; not being the proper time; not embracing the proper measure of damages in this case; it is immaterial what the value of the property was at that time.

"By the court: The objection is overruled.

"A. Four thousand dollars.

"Q. Now, Mr. Marshall, you may state what the fair market value of your property was immediately after the passage of the ordinance in question and the construction of the road bed and railway, as you have described it.

"Defendant's counsel: To which we make the objection that it does not embrace the proper elements of damage, and no proper elements of damage have been proven, or any elements to prove or tend to prove proper elements of damage.

"By the court: I think the objection ought to be sustained."

This question was far too broad. This court has often held that the mere diminution in value of property consequent upon the establishment of a railroad near by is not a cause of action for damages. Both phases of this proposition were set forth in the syllabus of A. & N. Rld. Co. v. Garside, 10 Kan. 552, in which it...