The Atchison v. Spaulding

• Decision Date: 07 May 1904
• Docket Number: 13,533
• Citation: 69 Kan. 431,77 P. 106
• Court: Kansas Supreme Court
• Parties: THE ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY v. JAMES A. SPAULDING

77 P. 106

69 Kan. 431

THE ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY v. JAMES A. SPAULDING

No. 13,533

Supreme Court of Kansas

May 7, 1904

Decided January, 1904.

Error from Atchison district court; B. F. HUDSON, judge. Opinion filed June 11, 1904. Reversed.

Judgment reversed and cause remanded.

SYLLABUS

SYLLABUS BY THE COURT.

RAILROADS -- Right to Enjoin a Trespasser. One who constantly rides upon the rails of a railroad company's track by means of a bicycle is a trespasser; his conduct is a continuing menace to the safety of public travel, and may be perpetually enjoined.

A. A Hurd, and O. J. Wood, for plaintiff in error.

C. D. Walker, and J. L. Berry, for defendant in error.

GREENE J. All the Justices concurring.

OPINION

GREENE, J.:

The plaintiff is a corporation owning and operating a line of railroad from the city of Atchison to the city of Cummings, in Atchison county, over which it transports passengers and freight. It brought this suit perpetually to enjoin the defendant from riding over its track from Atchison to Cummings on a bicycle so constructed as to enable him to run it on the rails. A temporary injunction was granted. To the petition the defendant filed a demurrer which was overruled. In his answer he pleaded a general denial and that the petition did not state facts sufficient to entitle the plaintiff to the relief sought. The trial resulted in a judgment for defendant, and the plaintiff prosecutes this proceeding in error.

The defendant in error moves to dismiss the action for want of jurisdiction of this court. It is true that neither the petition in the court below nor the evidence upon the trial stated or proved what amount was in controversy, but after the case was tried the plaintiff in error procured and filed with the case-made affidavits which showed that the amount exceeded $ 100. It has been the common practice of this court since the decision of the case of Jones v. Kellogg, 51 Kan. 263, 33 P. 997, 37 Am. St. Rep. 278, to show any jurisdictional fact by evidence outside the record. The motion is overruled.

It appears that upon the final hearing the court concluded that the plaintiff's petition was not sufficient to entitle it to any relief. The material part of the petition reads as follows:

"That it is now and for a number of years last past has been the owner of a line of railroad running through the county of Atchison and into and through the city of Atchison, in said county, over which line of road it operates continuously freight- and passenger-trains, both day and night, and that it is necessary for the protection of its trains, passengers and employees, that it have the exclusive use of its tracks, road-bed, and right of way; that the said defendant has for a considerable length of time, without any authority of law and without the assent or permission of this plaintiff, used its track and road-bed between the station of Cummings and the city of Atchison, in said Atchison county, Kansas, for the purpose of transporting himself thereover on a vehicle called a bicycle, so constructed as to run along and upon the tracks of said plaintiff, and propelled by himself; that this plaintiff has repeatedly warned and notified said defendant that he must not use its said railroad-track and road-bed in the manner and for the purposes stated, but that he refuses to desist from the use of its said track in the manner aforesaid, and informs the plaintiff that he will not obey the notice and warning given him as aforesaid; the plaintiff avers that the use of its said railroad-track and road-bed by the defendant in the manner aforesaid does, and will, greatly endanger the operation of its trains thereover, and is liable to cause collision between the defendant and his bicycle and the plaintiff's trains, and by reason of collisions which are likely and probable to occur its property and the lives of the plaintiff's passengers and employees are constantly menaced and endangered, and that if said defendant be permitted to continue the use of the said track and railroad of the plaintiff in the manner hereinbefore stated, said plaintiff will suffer irreparable damage and injury by reason of collision between the defendant...