Smith v. The Missouri Pacific Railway Company

• Decision Date: 08 November 1913
• Docket Number: 18,364
• Citation: Smith v. The Missouri Pacific Railway Company, 136 P. 253, 90 Kan. 757 (Kan. 1913)
• Parties: W. R. SMITH, Appellee, v. THE MISSOURI PACIFIC RAILWAY COMPANY, Appellant
• Court: Kansas Supreme Court

136 P. 253

90 Kan. 757

W. R. SMITH, Appellee, v. THE MISSOURI PACIFIC RAILWAY COMPANY, Appellant

No. 18,364

Supreme Court of Kansas

November 8, 1913

Decided July, 1913

Appeal from Barton district court; CHARLES E. LOBDELL, judge pro tem.

Judgment modified.

SYLLABUS

SYLLABUS BY THE COURT.

1. CONDEMNATION PROCEEDINGS--Shops and Terminal Facilities--Measure of Damages. When the right of way for a railroad has been previously appropriated and paid for by the corporation, and thereafter additional lands are appropriated by the corporation for shop grounds and terminal facilities the provision of section 4 of article 12 of the constitution of Kansas, that compensation shall be made "irrespective of any benefit from any improvement proposed by such corporation," does not apply to the compensation to be paid for such additional grounds.

2. Same. In such case no allowance should be made as damages to adjacent lands not taken unless such lands are reduced in value by the taking of the land appropriated or the use to be made thereof.

3. Interest Allowed from Time Land Was Appropriated. In such case where an appeal is taken from the award of damages to the district court and the case therein is tried to a jury, the jury should compute and allow interest at the rate of six per cent on the amount determined upon as damages from the time of the appropriation of the land, and include the same in their verdict.

4. Same. When in such case it clearly appears from the findings of the jury that no interest has been included in their verdict, and it also clearly appears from such findings, from the admission of the party to be charged or other incontrovertible evidence, from what date interest should be allowed, the court may compute the interest and include it in the judgment.

W. P. Waggener, J. M. Challiss, both of Atchison, and Clyde Allphin, of Great Bend, for the appellant.

William Osmond, and Elrick C. Cole, both of Great Bend, for the appellee.

OPINION

SMITH, J.:

The appellant railway company in May, 1910, secured the condemnation of a tract of land, containing four and one-half acres, belonging to the appellee and situate near the town of Hoisington, Barton county. The land was taken for shop grounds and terminal facilities. In July following the appellant also secured for the same purpose the condemnation of two additional tracts in one proceeding, the two aggregating one and sixty-one one-hundredths acres, belonging to the appellee.

The appellee, being dissatisfied with the award of damages in such condemnation proceedings, appealed from both awards to the district court. When the cases came on for trial therein they were consolidated and tried as one, the jury being required to return separate verdicts. On March 13, 1912, the jury returned the verdicts and answers to special questions submitted. The first verdict awarded the appellee, as damages, $ 2531.25 for the land first condemned. The second verdict awarded appellee damages in the sum of $ 700 by reason of the second condemnation. In answer to special questions, the jury found that each of the three tracts of land condemned was of the value of $ 225 per acre at the time of the condemnation, making $ 2531.25 for the large tract, and $ 362.25 for the two smaller ones. They also found that appellee's land that was not taken was more valuable after the taking of the condemned land than it was before such taking. The jury, however, allowed the appellee, as damages to his land not taken, the sum of $ 337.75. The appellant filed a motion for a new trial, and also a motion to conform the general verdict to accord with the special findings by reducing the general verdict in the sum of $ 337.75, being the amount allowed in the general verdict as damages to the land not taken. The motion to reduce the general verdict was overruled by the court, and thereupon the appellant, by leave of court, withdrew its motion for new trial.

Thereafter, during the same term of court, the matter came on for further consideration upon the demand of appellee that the damages awarded should bear interest from the time of the taking of the land in controversy. The appellant objected thereto and the court took the matter under advisement until April 26, 1912, during the same term, when the court awarded judgment in favor of the appellee in the sum of $ 2893.50 as damages to the land taken, and $ 337.75 as damages to the land not taken, together with interest on the aggregate judgment at the rate of six per cent from July 9, 1910, the date upon which the appellant made deposit with the county treasurer under the award of the commissioners, to the date of the rendition of the judgment, the interest amounting to $ 367.36, and for the costs of the action.

In its appeal here the appellant assigns two grounds of error, viz.: the allowing of damages to the land not taken, and the allowance of interest.

Section 4 of article 12 of the constitution of Kansas reads:

"No right-of-way shall be appropriated to the use of any corporation until full compensation therefor be first made in money, or secured by a deposit of money, to the owner,...