The Missouri v. Roe.

• Decision Date: 08 February 1908
• Docket Number: 15,038. 15,037
• Court: Kansas Supreme Court
• Parties: THE MISSOURI, KANSAS & TEXAS RAILWAY COMPANY v. O. F. ROE., THE MISSOURI, KANSAS & TEXAS RAILWAY COMPANY v. JOHN BERRY

94 P. 259

77 Kan. 224

THE MISSOURI, KANSAS & TEXAS RAILWAY COMPANY v. O. F. ROE., THE MISSOURI, KANSAS & TEXAS RAILWAY COMPANY v. JOHN BERRY

No. 15,038. No. 15,037

Supreme Court of Kansas

February 8, 1908

Decided January, 1908.

Error from Neosho district court; LEANDER STILLWELL, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

EMINENT DOMAIN--Measure of Damages. A railroad company condemned for its corporate use portions of two blocks divided into lots, comprising part of an addition to a city. The two blocks were fenced with two others, making a tract of about eight acres nearly in the form of a square, which was cross-fenced. The alleys were not opened through the tract and streets and alleys were not followed in that part of the city. The owner sued for damages on account of the land taken and the injury to the remainder of the two blocks from which land was taken. Held: (1) The plaintiff was entitled to compensation according to the most advantageous and profitable use he could make of his land. (2) The defendant could not insist that the plaintiff treat his entire holding as a farm in order to minimize his damages.

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

Cline & Stratton, for defendants in error.

OPINION

BURCH, J.:

The plaintiff owned blocks I, J, O and P in Dodd's addition to the city of Erie. Blocks J and O adjoin I and P on the west and are divided into lots. The defendant condemned for railroad purposes a strip of land on the west end of blocks J and O, whereby the lots were very much shortened. The plaintiff appealed from the award of damages, and in compliance with an order of court filed a petition setting forth his claim. The relief asked was limited to damages for land taken in blocks J and O and damages for the injury to the remainder of blocks J and O.

On the trial the plaintiff was the first witness in his own behalf. On direct examination his evidence was confined to damages according to the theory of his petition. On cross-examination, however, and over the objection of his attorneys, he was led to say that his entire holding constituted about eight acres, nearly in the form of a square; that it was fenced in one body, with cross-fences; that the alleys were not opened; and that the streets and alleys in that part of the town were not yet recognized. On the basis of this evidence he was asked by the defendant to estimate his damages, taking the four blocks as a single and entire tract and as a farm. His attorneys objected, but the court held the testimony to be admissible, and it was given. After that, in the progress of the trial, the plaintiff, over the objection of the defendant, offered evidence under both theories of the case.

The defendant now complains because the court admitted evidence of damages according to the assumption that the four blocks formed a single tract, and asserts that such evidence was outside the issue tendered by the petition. If so the error was induced by the defendant and it cannot complain; and if so the error was cured by the instructions to the jury, which confined the award of damages to the value of the portions of blocks J and O taken and the injury to the remaining portions of those two blocks.

The defendant insists, however, that the petition and the instructions were both framed upon the wrong theory. It calls the plaintiff's property a...