The Chicago v. The Board of Commissioners of Chautauqua County

• Decision Date: 01 July 1892
• Citation: 49 Kan. 763,31 P. 736
• Court: Kansas Supreme Court
• Parties: THE CHICAGO, KANSAS & WESTERN RAILROAD COMPANY v. THE BOARD OF COMMISSIONERS OF CHAUTAUQUA COUNTY

31 P. 736

49 Kan. 763

THE CHICAGO, KANSAS & WESTERN RAILROAD COMPANY v. THE BOARD OF COMMISSIONERS OF CHAUTAUQUA COUNTY

Supreme Court of Kansas

July 1, 1892

Error from Chautauqua District Court.

PROCEEDINGS to locate a highway over the right-of-way of the Chicago Kansas & Western Railroad Company. The company took an appeal from an award of the county commissioners. The appeal was dismissed, and it brings error.

Judgment affirmed.

Geo. R Peck, A. A. Hurd, and Robert Dunlap, for plaintiff in error:

The district court dismissed the appeal, upon the ground that under the laws of this state the railroad company was not entitled to compensation for the laying out of a public highway over its right-of-way. This ruling was clearly erroneous. Comm'rs of Greenwood Co. v. K. C. E. & S. K. Rly. Co., 46 Kan. 140. The railroad company was therefore entitled to have the question of the amount of its damages tried in the district court and submitted to a jury. It was deprived of this right by the dismissal of the appeal. The judgment of dismissal should therefore be set aside, and the railroad company should be given a trial of its action.

No appearance for defendant in error.

GREEN C. HORTON, C. J., and VALENTINE, J., concurring. JOHNSTON, J.

OPINION

GREEN, C.:

An application was made for the location of a highway over the right-of-way of the Chicago, Kansas & Western railroad, in Chautauqua county. The railroad company claimed $ 300 damages. The viewers awarded $ 100, and the board of county commissioners affirmed the award. The railroad company took an appeal to the district court. The county attorney filed a motion to dismiss the appeal, for the reason that the railroad company was not entitled to compensation for the laying out of a highway over its right-of-way. This motion was sustained, and the district court dismissed the appeal. The railroad company brings the case here for review.

It has been held by this court that a railroad company may recover damages in a case like the present for all expenditures it is required to make by reason of the location of a highway across its right-of-way. (K. C. Rld. Co. v. Comm'rs of Jackson Co., 45 Kan. 716; Comm'rs of Greenwood Co. v. K. C. E. & S. K. Rly. Co., 46 id. 104.) Upon the authority of these cases, the railroad company had the right to have the question of the amount of damages submitted to a jury. It is recommended that the judgment of the district court be reversed, and that the cause be remanded for trial.

By the Court: It is so ordered.

HORTON, C. J., and VALENTINE, J., concurring.

CONCUR BY: JOHNSTON

CONCUR

JOHNSTON J.:

I was unable to concur in the opinions and judgments of the court in Railroad Co. v. Comm'rs of Jackson Co., 45 Kan. 716, and Comm'rs of Greenwood Co. v. Railway Co., 46 id. 104, and am still of opinion that a railroad company is not entitled to compensation from the public where a highway is laid out across a railroad already built. In a very recent case, the supreme court of Illinois has held that a railroad company is bound to maintain a crossing, where a highway is laid out across its track, without compensation from the public. It was determined in substance that as the company obtains its franchise from the public, it takes it and its right-of-way subject to the...