Ritchie v. Kansas

• Decision Date: 09 March 1895
• Court: Kansas Supreme Court
• Parties: HANNAH RITCHIE et al. v. THE KANSAS, NEBRASKA & DAKOTA RAILWAY COMPANY et al

39 P. 718

55 Kan. 36

HANNAH RITCHIE et al. v. THE KANSAS, NEBRASKA & DAKOTA RAILWAY COMPANY et al

Supreme Court of Kansas

March 9, 1895

[Copyrighted Material Omitted]

Error from Shawnee District Court.

THIS action was brought by Hannah Ritchie, Hale Ritchie, and John Ritchie, as heirs at law of John Ritchie, deceased, against The Kansas, Nebraska & Dakota Railway Company and the Missouri Pacific Railway Company to recover a part of section 6, township 12, range 16, in Shawnee county. The answer was a general denial. A jury was waived, and the case was tried by the court. At the request of the parties, the conclusions of fact and of law were separately stated, and are very voluminous. It appears that a deed, dated April 7 1886, and acknowledged on the 15th day of the same month, was executed by John Ritchie, and Hannah Ritchie, his wife conveying the lands in controversy to the first-named railway company. The instrument is in form an ordinary warranty deed and recites as the consideration thereof the payment of the sum of $ 1 and other good and valuable considerations. At the same time, as a part of the same transaction, a contract in writing was duly executed and acknowledged by the railway company. The deed and contract were filed for record simultaneously. The following is a copy of the railway company's agreement:

"This agreement, made this 7th day of April, 1886, between the Kansas, Nebraska & Dakota Railway Company, a corporation organized under the laws of the state of Kansas, of the first part, and John Ritchie, of the second part, witnesseth: That in consideration of the sale and conveyance by said John Ritchie and wife to the party of the first part of a certain tract of land in the northeast quarter section 6 in township 12 of range 16, in Shawnee county, Kansas, and the right-of-way through part of said quarter-section, the receipt of which conveyance is hereby acknowledged, the said party of the first part for itself, its successors and assigns, hereby agrees that it will construct its line of railroad through said tract of land so granted, and that it will erect and forever maintain upon said tract of land a passenger-depot and a freight-depot of a size and character suitable and sufficient for the transaction of its business and the accommodation of the public at said point, and shall cause all passenger-and freight-trains to stop at such depots respectively so as to transact business, and perform all business that may be there offered. And said party of the first part further agrees that it will not sell, let, lease or give away said tract of land or any part thereof to any person or persons or corporation for the purpose of transacting thereon any business whatsoever, but shall use the same for its railroad business exclusively; and if said company shall fail to construct its line of railroad through said tract of land and erect thereon said passenger- and freight-depots within one year from this date, or shall fail to keep and maintain said depots and use the same as herein provided, then the conveyance of said real estate to said company shall be void, and said real estate shall revert to said John Ritchie and his heirs; and as a further consideration for the conveyance of said real estate to said company, it is hereby promised and agreed that said John Ritchie and his wife shall have the right to ride free of charge upon all regular passenger-trains of said company during their respective lives. In witness whereof the party of the first part has caused these presents to be executed by its president, and attested by its secretary, with the seal of the corporation annexed, on the day and year first above written."

The railroad company took possession of the land under this deed and constructed its railway across it. It also constructed buildings for freight- and passenger-depots, side-tracks and roundhouse, stock-yards and other structures for the accommodation of its business. The railroad and depot buildings were so constructed within one year from the date of the deed and contract. The building designed for a passenger-depot is situated west from the main track, and is surrounded by a platform, the east edge of which is 42 feet from the west rail of the main-track. A platform 95 feet in length and eight feet wide extends along the west side of the track, and is connected with the depot platform by a walk 16 feet wide. The building designed for a freight-depot is located 32 feet west from the passenger-depot. On the 10th of May, 1887, John Ritchie and wife caused a plat of a part of the quarter-section of land in which the tract in controversy was located, belonging to them, to be filed in the office of the register of deeds of Shawnee county, as Ritchie's addition to the city of Topeka. John Ritchie died August 31, 1887. On December 22, 1887, Hale Ritchie and John Ritchie and their wives executed and acknowledged another plat of the same lands for the purpose of making some changes in the former plat. This plat was approved by the mayor and council of the city of Topeka, within which said territory had become included, and was filed for record on January 5, 1888. Both of these plats showed the location of the defendant's railway and side-tracks, and on part of the tract of land conveyed was marked "K. N. & D. depot grounds." The plat also showed the location of the passenger-and freight-depots, the spur-track, roundhouse, and turntable. The Kansas, Nebraska & Dakota Railway Company occupied said lands for railroad purposes, and continued to operate its line of railroad from Fort Scott to Topeka until February 23, 1887, when the Missouri Pacific Railway Company took possession and control of its entire line, together with the property in controversy, and all other real and personal property before that time owned and used by the Kansas, Nebraska & Dakota Railway Company. Annual passes, issued in the usual form, were given to John Ritchie during his lifetime, and have been also given to Hannah Ritchie. John Ritchie used his pass once on a trip to Fort Scott. Hannah Ritchie never used her pass at all, and returned the passes for 1887, 1888, and 1889. The depot buildings are of a size and character suitable and sufficient for the business of the railroad at that point.

At the time of the construction of the railroad the company purchased a brick building at the corner of Fifth avenue and Adams street in Topeka, about one mile from the land in controversy to which its line of road was constructed, and this building has been used as a passenger-depot ever since. As to the maintenance and use of the depots, the court made the following findings:

"From the time of the completion of said line of railroad up to the commencement of this action, and to the time of the trial the defendants have caused all passenger- and freight-trains to stop at said depots respectively, so as to transact business and perform all business there offered, the station being designated as 'South Topeka.' But neither of said defendant railway companies, prior to December 1, 1889, sold any passenger tickets with the words 'South Topeka' printed thereon to passengers to ride on or over said road, at any station or other place south of said South Topeka, but has since said railway went into operation sold such passenger tickets with the name of the station, where from and where to printed thereon to and from every other station on said road, except flag- or signal-stations. Nor did either of said railway companies, prior to December 1, 1889, ever sell any passenger tickets marked or stamped as from said South Topeka station to any place on said railway. Said companies have also kept on sale at the several regular ticket-offices tickets with the name of the stations where sold printed thereon, but with the station of the destination left blank, the said blank being filled by the ticket-agent with pen and ink at the time of the sale. Passengers going from South Topeka to any other station on said line of railroad where tickets were sold might have obtained these tickets if they desired to do so. During all the time prior to the commencement of this action a telegraph office was kept in said freight-depot, and another one at the Fifth street passenger-depot, and whenever a passenger applied to the agent, operator or clerk at South Topeka for a ticket, the telegraph operator would wire the agent or person in charge of the Fifth street depot to bring or send by the conductor on the train a ticket for such passenger, and the business would be so done, except in case the order was sent too late, as the agent or person in charge of the Fifth street passenger-depot generally went to South Topeka on the train. In all instances, when such a thing occurred, such ticket on its face showed or read from Topeka and not from South Topeka, and the rate of fare was paid therefor from Topeka and not from South Topeka. The passenger business at South Topeka was very light, and nearly all the passengers got on without tickets and were charged ticket fare only. Some passengers, not knowing this fact however, would go to the Fifth street depot or by some other railroad. All baggage offered at South Topeka was received there, but no checks were given except on the train. All baggage destined for South Topeka was put off there, and delivered to the owner on surrender of the check. From the time of the completion of said passenger-depot up to the commencement of this action it was not kept open for the accommodation of passengers, and although there was a stove in the middle or office-room, no fire was kept in it except occasionally, and during part of the time the stovepipe was down. Temporary plank seats were left in the waiting-room on completion of the building,...