The Ottawa v. Peterson

• Citation: 51 Kan. 604,33 P. 606
• Court: Kansas Supreme Court
• Decision Date: 08 July 1893
• Parties: THE OTTAWA, OSAGE CITY & COUNCIL GROVE RAILROAD COMPANY v. ANDREW PETERSON

33 P. 606

51 Kan. 604

THE OTTAWA, OSAGE CITY & COUNCIL GROVE RAILROAD COMPANY v. ANDREW PETERSON

Supreme Court of Kansas

July 8, 1893

Decided January, 1893.

Error from Osage District Court.

THE opinion herein, filed July 8, 1893, contains a sufficient statement of the facts.

Judgment reversed and cause remanded.

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

OPINION

Per Curiam:

Andrew Peterson is the owner of lots 1, 2, 3, 4, and 5, in block 4 of the Osage Carbon Company's second addition to Osage City, containing 4 1/2 acres of land. The Ottawa, Osage City & Council Grove Railroad Company constructed and operates its road upon F street, a public street or highway in front of the lots. Of this Peterson complained, and brought his action to recover damages. In his petition, he alleged that this addition, although platted and recorded, was not within the corporate limits of Osage City. He obtained judgment for $ 200, for the permanent depreciation of the value of his property. The railroad company excepted. No brief has been filed or any argument presented upon the part of the defendant in error. This action was before this court at its July term for 1888. (40 Kan. 310.) After the mandate of this court was returned to the court below, a trial was had. It was shown that F street was 60 feet wide, and the frontage of the lots of Peterson on this street about 500 feet. Upon the one side of the lots was Sixteenth street, also 60 feet wide and upon the other side Seventeenth street, of the same width. The ends of the ties were some 15 or 16 feet from the lots. In the construction of the road, the grade was raised in some places a foot or more, and the ties and track were laid thereon. A ditch was dug between the track or roadbed and Peterson's fence. On account of the ditch and the grade of the roadbed, there was some obstruction of access to and from the lots on F street. As the addition was not within the city, the railroad company had the power, under the fourth subdivision of P 1207, General Statutes of 1889,

"To construct its road across, along or upon any . . . street, or highway, . . . which the route of its road shall intersect or touch; but the company shall restore the . . . street or highway, thus intersected or touched, to its former state, or to such state as to have not necessarily impaired its usefulness." (Comp. Laws of 1885, ch. 23, § 47.)

The contention is over the damages allowed for the alleged depreciation in the value of the lots and the instructions permitting such damages. At the time of the construction of the railroad, F street, in the addition referred to, had never been graded, nor had a grade ever been established thereon. It simply was in the original condition of prairie, somewhat uneven. Among other instructions given was the following:

"The owner of a lot abutting on a street has an interest in such street which is peculiar and personal to him, and distinct and different from that of the general public, and this interest is the right to have free access over such street to his lot and buildings thereon, substantially in the manner he would have enjoyed the right in case there had been no interference with the street. The right of access by way of the street is an incident to the ownership of the lot which cannot be wholly taken away or materially impaired without liability to the owner, to the extent of the damages peculiar and personal to the owner actually incurred thereby. In order to warrant a recovery for an invasion of such a right, it must appear that the obstruction complained of presents a physical disturbance of, the right so possessed, so as to prevent its use in the manner in which it was theretofore actually, or might have been, used and enjoyed, and the disturbance of the right must have resulted in peculiar damage to, and depreciation in the value of, the property to which the right is appendant. If, therefore, you do not find from the evidence in this case that there has been such a physical disturbance by the defendant, by the location and construction of the railroad along F street in front of plaintiff's lots, of the right of access by way of such street to said lots, as to wholly prevent the use of that right in the manner in which it was theretofore actually, or might have been, used and enjoyed, and that such disturbance resulted in peculiar damage to and depreciation of the value of said lots, then the owner cannot recover, and your verdict should be in favor of the defendant."

Even if the railroad had been skillfully and properly constructed under the provisions of a city ordinance, or if the company had restored the highway to make it passable, but had...