Wichita & W. R. Co. v. Fechheimer

Decision Date09 December 1886
Citation12 P. 362,36 Kan. 45
CourtKansas Supreme Court
PartiesTHE WICHITA & WESTERN RAILROAD COMPANY v. GETTE FECHHEIMER

Error from Sedgwick District Court.

GETTE FECHHEIMER brought an action against the Wichita &amp Western Railroad Company, alleging that it was a corporation organized and existing under the laws of the state of Kansas and that on the first day of August, 1883, she was the owner of a tract of real estate situated in Sedgwick county, the boundaries of which were described. She then alleged that --

"On or about the 15th day of August, 1883, the said defendant without the license or consent of the plaintiff, and against the rights of plaintiff, by its agents, servants and contractors took possession of a strip of land forty rods in length and of twenty-five feet in width, off the south side of the said described piece of laud, for the purpose of building and constructing the line of defendant's railroad; that defendant cut down and destroyed a valuable hedge growing thereon, fifteen large shade trees, twenty cottonwood trees, twenty-five fruit trees, twelve hundred heads of cabbage, two acres of tomatoes, pulled up and injured a wire fence, all the property of the plaintiff, and erected wide and high embankments on said strip of land so wrongfully taken by it as aforesaid, put down its iron track and since said 15th day of August, 1883, and now is, running and operating its railroad upon, across and over said land of plaintiff; that plaintiff's residence is situated on said first-described land, and is about twenty feet from the north line of said twenty-five-foot strip of land, and by defendant's operating and running its engines and cars along and over said land, that its noise, dirt, smoke, obstruction, and shocking of the ground, whistling and ringing of bells, plaintiff's peace, quiet and comfort are disturbed, and residence and home greatly injured, and said property depreciated in value, and water by said embankments is raised and flowed back upon her land, whereby she is by said wrongful acts of the defendant damaged in her property, house and comfort in the sum of twenty five hundred dollars; by defendant's wrongfully appropriating said twenty-five-foot strip of land and using it as aforesaid, she is damaged in the sum of one thousand dollars; by the defendant's destroying the said trees, cabbage, tomatoes, fence and hedge, she is damaged in the sum of five hundred dollars. Wherefore she claims damages of the said defendant in the sum of four thousand dollars, with interest at seven per cent. from the 15th day of August, 1883, and costs of suit."

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.

JOHNSTON J. All the Justices concurring.

OPINION

JOHNSTON, J.:

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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24 cases
  • Boise Valley Const. Co. v. Kroeger
    • United States
    • Idaho Supreme Court
    • December 11, 1909
    ... ... 729; United States v. Great ... Falls Mfg. Co., 112 U.S. 645, 5 S.Ct. 306, 28 L. ed ... 846; 2 Elliott on Railroads, secs. 1048, 1055; Wichita ... etc. R. Co. v. Fechheimer, 36 Kan. 45, 12 P. 362; ... Knox v. R. Co., 58 Hun (N. Y. ), 517, 12 N.Y.S. 848; ... Southern Ry. Co. v. Hood, ... ...
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    • March 8, 1958
    ...T. & Santa Fe Rld. Co. v. Weaver, 10 Kan. 344; Cohen v. St. Louis, Ft. S. & W. Rld. Co., 34 Kan. 158, 8 P. 138; and Wichita & W. Rld. Co. v. Fechheimer, 36 Kan. 45, 12 P. 362. The plaintiff argues that the defendant's predecessor entered onto the premises in a lawful manner and for a lawful......
  • In re Worldcom, Inc.
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    ...damages inflicted thereby. McDaniel v. City of Cherryvale, 91 Kan. 40, 40, 136 P. 899, 900-01 (Kan. 1913); Wichita & W.R. Co. v. Fechheimer, 36 Kan. 45, 45, 12 P. 362, 364 (Kan.1886); see also Restatement (Second) of Torts § 930 (allowing single action for past and future damages by continu......
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    ...v. State, La.App., 127 So.2d 774, 780; Kentucky Game and Fish Comm. v. Burnette, 290 Ky. 786, 791, 163 S.W.2d 50; Wichita & W. R. Co. v. Fechheimer, 36 Kan. 45, 49, 12 P. 362; State Highway Comm. of Kansas v. Puskarich, 148 Kan. 388, 391, 83 P.2d 132; Bruton v. Light Co., 217 N.C. 1, 6, 6 S......
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