The Missouri v. Murphy

• Decision Date: 11 May 1907
• Docket Number: 14,986
• Citation: 75 Kan. 707,90 P. 290
• Court: Kansas Supreme Court
• Parties: THE MISSOURI, KANSAS & TEXAS RAILWAY COMPANY v. JAMES MURPHY

90 P. 290

75 Kan. 707

THE MISSOURI, KANSAS & TEXAS RAILWAY COMPANY v. JAMES MURPHY

No. 14,986

Supreme Court of Kansas

May 11, 1907

Decided January, 1907.

Error from Cherokee district court; WILLIAM B. GLASSE, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. CONDEMNATION PROCEEDINGS--Railroad Right of Way--Purchaser Pendente Lite. Where a railroad company institutes a proceeding to condemn land for a right of way and the commissioners appointed to assess the damages make an award for the land proposed to be so taken, from which the owner appeals, and the railroad company thereupon takes possession of the land and proceeds to construct its railroad, and while the appeal is pending sells its property rights and franchises to another railroad company, which at once enters upon and uses the land condemned with the intention of permanently using and occupying the same as a right of way, and afterward judgment is entered upon the appeal increasing the award, the judgment so rendered is binding upon the purchasing company, although it was not a party to the appeal; and the landowner may maintain a personal action against it to recover the award so made, and in the action such award is conclusive as to the amount of damages.

2. PRACTICE, SUPREME COURT--Review of Ruling on a Demurrer--Limitation. A ruling upon a demurrer made more than a year before the proceeding in error is instituted is not open to review in that proceeding.

3. PETITION--Construction--Objection to Evidence. An objection to the admission of any testimony is not the best method of testing the sufficiency of a petition, and upon such objection the court should interpret its allegations very liberally, and sustain the pleading if it can reasonably be done.

4. PETITION--Prayer for Relief--Judgment. In the prayer of a petition there were demands for both specific and general relief, and the fact that a mistake was made in the prayer for specific relief did not prevent the granting of such relief as the allegations of the petition and the circumstances of the case justified under the prayer for general relief.

John Madden, and W. W. Brown, for plaintiff in error.

Sapp & Wilson, for defendant in error.

OPINION

JOHNSTON, C. J.:

This is an action by James Murphy against the Missouri, Kansas & Texas Railway Company to enforce an award made in a condemnation proceeding. In August, 1901, the Missouri, Kansas & Northwestern Railroad Company proceeded to condemn a right of way over land which was owned by Murphy and seven other persons, but the award made by the commissioners was unsatisfactory. The owners of the land appealed from the decision, and Murphy, who had a mining lease on the tract, of ten years' duration, and to whom no award was made for his leasehold interest, took a separate appeal. The appeal of the owners was compromised and settled, but it was agreed that it should not affect the rights of the lessee, Murphy. His appeal was perfected in November, 1901, and while the railroad company took immediate possession of the right of way it did not give a bond for the payment of damages and costs to be ultimately awarded, as the statute provides.

A bond of that general character was subsequently given, but not until after the trial was over and judgment had been rendered. While the appeal was pending, and in May, 1902, the Missouri, Kansas & Northwestern Railroad Company sold and transferred its road, right of way, property and franchises to a connecting Missouri corporation, of the same name, and that company at once sold and transferred the same property, rights and franchises to the Missouri, Kansas & Texas Railway Company. This company has occupied and used the right of way since that time, and was in possession of it when the trial on the appeal was had, in June, 1903. The trial resulted in an award in favor of Murphy of $ 7000 as damages, and a judgment for costs in the sum of $ 546.70. The case was brought to the supreme court for review and the judgment of the district court was there affirmed. ( Railroad Co. v. Murphy, 71 Kan. 674, 81 P. 478.) The award and judgment were never paid, and the present action was brought against the Missouri, Kansas & Texas Railway to enforce payment.

The petition contained two counts. The first was in the nature of ejectment, and the second set up the appropriation of the land by the railroad company, the condemnation proceedings, including the award of the commissioners, the appeal of Murphy and the final award by the court, the failure of the company to give a bond binding it to pay damages and costs, the transfer of the railroad and franchises by the condemning company to the defendant company, the occupation of the right of way by the defendant, its failure to pay the award, and, also, that the other companies were mere creatures and instrumentalities of the defendant; and it was then alleged that there were additional damages occasioned by the building of the road, such as the flooding and injuring of the mines, which prevented Murphy from operating them for more than a year. In the prayer for judgment the plaintiff asked for possession of the land; also for damages, and "for such other, further or different relief as to this honorable court may be deemed equitable."

The railroad company challenges the sufficiency of the petition, but as the ruling on the demurrer was made more than a year before the proceeding in error was instituted that ruling is not now open for review. (Blackwood v. Shaffer, 44 Kan. 273, 24 P. 423; Corum v. Hubbard, 69 Kan. 608, 77 P. 530; Milling Co. v. Buoy, 71 Kan. 293, 80 P. 591; White v. Railway Co., 74 Kan. 778, 88 P. 54.)

An attack was made upon the petition by an objection to the admission of any testimony, but this is not the best method of testing the sufficiency of a pleading. Upon such an objection the court interprets its allegations very liberally, and sustains the pleading if it can reasonably be done. (The State v. School District, 34 Kan. 237, 8 P. 208; Robbins v. Barton, 50 Kan. 120, 31 P. 686.)

There is a contention that the judgment was rendered on a theory not presented by the pleadings, and that Murphy, by his petition and prayer for relief, asked for the recovery for the real property and then recovered on an award for damages for the occupancy of the same property. The first count, as we have seen, did ask for an eviction from the land, and the court in the early stages of the litigation appears to have proceeded on the theory that the action was ejectment, and awarded the second or new trial upon application. Before the final trial was begun, however, the railroad company attacked the petition on the ground of inconsistency, and the court then required Murphy to elect upon which count of his petition he would rely. He elected to try the case upon the second count, which operated to eliminate the ejectment count, and questions raised on that branch of the case are no longer of any importance.

Under the rule of interpretation previously referred to the second count justified a recovery of the damages awarded. It set forth the proceedings resulting in the award for damages, the purchase of the railroad, and the possession of the right of way by the defendant. These averments, in connection with the prayer for general relief, warranted the judgment that was given. It is true that the prayer of the petition which asked for a recovery of the property was not amended after Murphy elected to try the case upon the second count alone. This oversight is easily understood, and under the circumstances could not have misled the company. Besides, in the opening statement of the case, counsel for Murphy expressly stated that he was claiming the award made in the condemnation proceeding and would introduce no other evidence of damages than the proceedings and judgment in that case. Notwithstanding there was some surplusage in the second count, and the fact that there was a clause in the prayer asking possession of the condemned land, the right to recover the award was the question in fact tried and determined. As was held in Hardy v. LaDow, 72 Kan. 174, 83 P. 401:

"The demand of the plaintiff in his petition does not necessarily limit the court in the judgment which it may render. It is the case made by the pleadings and the facts...