Wichita & W. R. Co. v. Fechheimer
Decision Date | 09 December 1886 |
Citation | 12 P. 362,36 Kan. 45 |
Court | Kansas Supreme Court |
Parties | THE WICHITA & WESTERN RAILROAD COMPANY v. GETTE FECHHEIMER |
Error from Sedgwick District Court.
The answer of the defendant was, first, a general denial; and second, that the defendant's property was situated within the city of Wichita, a city of the second class, and that before the grievances complained of by the plaintiff, the city council of the city of Wichita opened and extended Orme street beyond and in front of the plaintiff's property, and that prior to the alleged grievances the mayor and council of that city granted to the railroad company a right-of-way over Orme street and in front of the plaintiff's premises, with the right to construct its railroad and maintain and operate the same along the street and in front of the premises of the plaintiff. The railroad company denied that any part of the plaintiff's land was taken or used by the defendant, and denied that she was injured or damaged in any manner by reason of the construction of the road.
At the October Term, 1884, the case was tried with a jury, and a verdict returned against the company for $ 1,400. A motion for a new trial was overruled, and judgment given in favor of the plaintiff. The defendant brings the case here for review.
Judgment reversed and cause remanded.
Geo. R. Peck, A. A. Hurd, W. C. Campbell, and Houston & Bentley, for plaintiff in error.
John R. Parsons, for defendant in error.
OPINION
Gette Fechheimer is the owner of a tract of land within the limits of the city of Wichita. The mayor and council of that city granted the Wichita & Western railroad company a right-of-way over Orme street, and the ordinance by its terms also granted a right-of-way over a proposed extension of that street from its western terminus to the Arkansas river. The so-called extension would pass over and along the south side of the premises of the defendant in error; but the fact is that the extension was only in contemplation, as the street had not yet been opened or extended through or past her land. It was shown in the evidence that the railroad company entered upon her premises and built its road before any steps had been taken to extend the street. It also appears that the company went upon the land, erected embankments, cut down hedges and trees, destroyed vegetables and other property without her consent, without having taken any steps to legally appropriate it or condemn a right-of-way over it, and without making compensation. It cannot be claimed that the action of the city council gave the railroad company any right beyond the then terminus of Orme street, or justified in any degree its...
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