Rock Creek Tp. In Nehama County v. St. Joseph & G.I.R. Co.

• Decision Date: 04 April 1890
• Citation: 43 Kan. 543,23 P. 585
• Court: Kansas Supreme Court
• Parties: ROCK CREEK TOWNSHIP, IN NEMAHA COUNTY, on the relation of John Tyler, Trustee, v. THE ST. JOSEPH & GRAND ISLAND RAILROAD COMPANY

23 P. 585

43 Kan. 543

ROCK CREEK TOWNSHIP, IN NEMAHA COUNTY, on the relation of John Tyler, Trustee, v. THE ST. JOSEPH & GRAND ISLAND RAILROAD COMPANY

Supreme Court of Kansas

April 4, 1890

Error from Nemaha District Court.

THE case is stated in the opinion.

Judgment affirmed.

J. W Cunnick, for plaintiff in error.

A. L Williams, Chas. Monroe, and R. W. Blair, for defendant in error.

GREEN C. All the Justices concurring.

OPINION

GREEN, C.:

The plaintiff commenced this action under § 43, chapter 84, of the Compiled Laws of 1885, to recover damages from the defendant for obstructing a highway, by reason of the construction of its railroad.

At the September term, 1887, the case was tried by the court upon the following agreed statement of facts:

"1. The St. Joseph & Grand Island Railroad was built in 1869 and 1870 over the land where this road is located, and the right-of-way, obtained August 4th, 1866, recorded in Book 'H,' page 133.

"2. The county road was established in January, 1884, by order of the county court, on a petition presented October 13, 1883, and recorded, (Book 3, Road Record, pp. 131, 132,) which are a part of this agreed case, and road one-half in Brown and Nemaha counties, each."

Judgment was entered for the defendant below. It is claimed by the plaintiff in error that the defendant was liable, under the law, no matter whether the railroad was built before or after the location of the highway. We hardly think this is the correct rule. While it is clearly the duty of a railroad company to restore the highway crossings whenever its road crosses over highways, to a safe condition, and to keep them so, and to make the approaches thereto, yet such is not its duty in reference to the crossings of public highways over railroads where the public highways were laid out and opened subsequent to the construction of the railroad. (1 Rorer on Railroads, 554.)

In this case, the evidence shows that the railroad was built some fifteen years before the highway was established, and about six years before the passage of the law under which this suit was brought. We do not see how it can be successfully maintained that this law could have any operation upon a railroad located long before the passage of the act, and years before the establishment of the road; and we are of the opinion that there is no liability under this law, when a highway is located over an existing railroad, for...