The Kansas City v. J

• Decision Date: 07 January 1905
• Docket Number: 13,856
• Citation: 79 P. 114,70 Kan. 556
• Court: Kansas Supreme Court
• Parties: THE KANSAS CITY, MEXICO & ORIENT RAILWAY COMPANY v. E. J

79 P. 114

70 Kan. 556

THE KANSAS CITY, MEXICO & ORIENT RAILWAY COMPANY v. E. J

No. 13,856

Supreme Court of Kansas

January 7, 1905

Decided January, 1905.

Error from Chase district court; DENNIS MADDEN, judge.

Judgment reversed and the cause remanded

SYLLABUS

SYLLABUS BY THE COURT.

RAILROADS--Right of Way--Proof of Consequential Damage. Upon an appeal from an award of commissioners giving L. damages for the taking of a right of way for a railroad, he sought to prove consequential damage to his land as an entire tract. It had, however, before this been divided by the right of way of another railroad. To establish his ownership, he introduced a deed under which he claimed title, which excepted from its operation the right of way of the other railroad. Held, that under this state of the proof he was not entitled to introduce evidence of the consequential damage occasioned to the entire tract.

John A. Eaton, and F. A. Meckel, for plaintiff in error.

Redden, McKeever & Gilluly, for defendant in error.

CUNNINGHAM J. All the Justices concurring.

OPINION

CUNNINGHAM, J.

This action was an appeal by Littler to the district court of Chase county from the award of commissioners assessing damages because of the condemnation of a right of way across his lands for the use of the railroad of the plaintiff in error.

The right of way sought to be taken was a strip 100 feet wide across the northeast quarter of section 19, in general direction from east to west, dividing the quarter-section into two equal parts, approximately. Through the north half, and nearly parallel with the proposed right of way, is the right of way of the Atchison, Topeka & Santa Fe Railroad Company.

In making his case and to show title in him to the land which he claimed was damaged, Littler introduced a deed under which he claimed. The description in it was as follows:

"The northeast quarter of section nineteen (19), township nineteen (19), range nine (9), excepting the right of way of the A. T. & S. F. Railway Co., being acres more or less, also excepting public highways."

After the introduction of this deed the plaintiff, further to prove his case, produced evidence to show the damage to all the land not taken by the Orient company in this quarter-section--that on the north of the right of way of the Santa Fe company as well as that on the south. The defendant company objected to this evidence because it was incompetent, irrelevant, and immaterial, upon the theory that the plaintiff's land in the quarter-section consisted of two separate tracts divided by the Santa Fe right of way, and, therefore, being thus segregated, that he could recover only for such consequential damage as was suffered by that portion south of the Santa Fe right of way.

In such an action as this damages, as a general rule, must be confined to the tract of land over which the right of way is condemned, and cannot include separate and segregated tracts unless they are used together as one farm, and the owner has, as a matter of right, means of communication between them. In some cases parcels of land separated by a public highway, but used together, have been treated as one tract, because the public highway affords a rightful passageway between them, but the intervention of lands across which the owner has not such right would be a barrier to a recovery for such consequential damage.

In this case the Santa Fe company had built, and was operating, its line across the land in question, and, if...