The Missouri v. Schmuck
| Citation | 79 Kan. 545,100 P. 282 |
| Decision Date | 06 February 1909 |
| Docket Number | 15,609 |
| Court | United States State Supreme Court of Kansas |
| Parties | THE MISSOURI, KANSAS & NORTHWESTERN RAILROAD COMPANY v. GABRIEL SCHMUCK et al |
Decided January, 1909.
Error fro Crawford district court; ARTHUR FULLER, judge.
Judgment affirmed.
John Madden, and W. W. Brown, for plaintiff in error.
Edward E. Sapp, for defendants in error.
The appeal from the condemnation proceedings vacated the assessment and brought the whole controversy before the district court for a trial de novo, so that all the damages occasioned by the appropriation were within the issues, irrespective of any averment in the bill of particulars. (Reisner v. Union Depot & Rld Co., 27 Kan. 382.)
No statute of limitations could bar the right of the landowner to recover any actual damages to his land, provided his appeal was taken within the statutory time.
The mining shafts were permanent improvements on the land and were immovable. They were located within the right of way appropriated by the railroad company, and it was proper to take their value into consideration in assessing the damages sustained by reason of the appropriation.
The landowner can not recover his damages by piecemeal. In many cases appeals are taken and tried before the railroad is actually built, and it would be impossible for him to prove whether the railroad company intended to use every foot of its right of way or only the part occupied by its main track. The instructions asked in respect of the right of the landowner to concurrent occupancy of the right of way were properly refused. (Mo. P. Rly. Co v. Manson, 31 Kan. 337, 2 P. 800; Dillon v. Railroad Co., 67 Kan. 687, 74 P. 251; Railway Co. v. Spaulding, 69 Kan. 431, 77 P. 106, 66 L. R. A. 587, 105 Am. St. Rep. 175.)
The jury found, and it is conceded, that the land was valuable for mining purposes only, and had no value for any other purpose. Therefore, the fact that a portion of the tract was separated from the rest by the right of way of another railroad did not affect the right of the owner to recover damages for the whole tract, because he had the right to mine and run drifts under the other right of way, and for mining purposes the two pieces of land could be used as one tract. ( K. C. E. & S. Rld. Co. v. Merrill, 25 Kan. 421 and cases cited.) The court properly instructed the jury as to the measure of damages. (C. K. & N. Rly. Co. v. Broquet, 47...
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United States v. Kansas City, Kan.
...of appeal from the action of the appraisers the case is docketed and tried as any other action that is anew. Missouri, K. & N. W. R. Co. v. Schmuck, et al., 79 Kan. 545, 100 P. 282; Chicago K. & N. R. Co. v. Broquet, 47 Kan. 571, 28 P. 717; Searcy v. State Highway Comm., 145 Kan. 709, 67 P.......