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for the permanent taking and appropriation of a right of way through his land, entitled to any interest upon the amounts allowed as damages; and if so, is he entitled to interest from the time of the taking of the right of way by the railroad company? The first question, we think, must be answered substantially in the affirmative. When the old grade in the present case was constructed by the first railroad company and abandoned, such grade became the absolute property of the land-owner, and he had the right to use it for any purpose which he might choose, or to sell it for any purpose which he might choose, or for which it might or could be used; and, under the laws of this state other persons or corporations, as well as the defendant, might have used it; for under the laws of this state there is no limit upon the building of railroads, or upon the incorporation and organization of railroad companies; and if any other person or corporation than the owner of the land had afterwards entered upon the land, and procured a right to such grade by virtue of condemnation proceedings, or quasi condemnation proceedings, as in the present case, the owner would have the right to recover from such person or corporation the full value of the land taken, including the value of the grade, for whatever purpose the land or the grade might or could be used. This proposition we think is founded in reason, and sustained by the authorities, among which are the following: King v. Minneapolis U. Ry. Co., 32 Minn. 224; S. C. 20 N. W. Rep. 135; St. Louis, J. & S. R. Co. v. Kirby, 104 ill. 345; Scheller De Boul v. F. & M. R. Ry. Co., decided by supreme court of Illinois, November 17, 1884; Goodin v. Cincinnati di W. Canal Co., 18 Ohio St. 169. Of course, the owner of the land has no right to recover the amount of the cost of making such a grade, or the amount which the grade actually did cost, or the benefit which the land or the grade would be to the railroad company; for such is not the proper measure of his damages. Black River & M. R. Co. v. Barnard, 9 Hun, 104; Selma R. dé D. R. Co. v. Keith, 53 Ga. 178; 3 Suth. Dam. 462 et seq. But, as before stated, he is entitled to recover the exact market value of the land upon which the grade is constructed, for whatever purpose such land might or could be used. If the grade could be used for railroad purposes, and if the land was more valuable for railroad purposes than for any other purpose, and if the grade enhanced the value of the land for railroad purposes, then the enhanced value of the land for railroad purposes should be taken into consideration. The next question raised by the plaintiff is whether the railroad company must be required to pay to the owner of the land the value of all the work and materials which it itself furnished in constructing its railroad track across the plaintiff's land. This work and these materials are of the value of $9,820.76. This question, we think, must be answered in the negative. Of course, it must be admitted that where a mere wrong-doer, a naked trespasser, enters upon the land of another, and makes improvements thereon, of a permanent character, such improvements become the property of the land-owner; and this will apply to railroad companies as well as to others. If a railroad company should enter upon the land of another, without any color or claim of right or privilege, as a mere wrong-doer, a naked trespasser, and construct a railroad track on such land, such railroad track would, of course, become the property of the land-owner. Graham v. Connersville & N. C. J. R. Co., 36 Ind. 463; S.C. 10 Amer. Rep. 56; In re Long Island R. Co., 6 N. Y. Sup. Ct. 298; Hunt v. Missouri Pac. Ry. Co., 76 Mo. 115; Price v. Weehawken Ferry Co., 31 N. J. Eq. 31; Meriam V. Brown, 128 Mass. 391; U. S. v. Land in Monterey Co., 47 Cal. 515; Kimball v. Adams, 9 N.W. Rep. 170. But neither the foregoing principles nor the above authorities apply to the present case. The railroad company in the present case was not a wrong-doer nor a trespasser in any sense. It was a duly-organized railroad company under the laws of Kansas, and had a right to build its railroad across the plaintiff's land, provided, of course, that it first procured the right of way from the owner of the land; and it had the right to procure such right of way by condemnation proceedings, as the representative of the sovereign authority, the state of Kansas; for the operation of a railroad is everywhere considered and held to be a public purpose, and the statutes of Kansas authorize such condemnation proceedings. And the railroad company took possession of the land for its right of way, and appropriated the same to its own use with the consent of the only person who had the possession of the land, and the only person who seemed at the time to be the owner thereof. This person was B. Y. Files. He had the unquestioned possession of the land, and claimed title thereto, and claimed the land as his own. He had tax deeds on all the land through which the defendant's railroad was constructed, and such tax deeds were duly recorded. It is true, that these tax deeds were voidable for two or three reasons at the instance of the plaintiff, the original and paramount owner of the land, but they were probably only voidable. But even if void, still a person holding the possession of land under a void tax deed is not a trespasser, but may make improvements on the land, and may recover compensation from the paramount owner for such improvements under the occupying claimant law. Stebbins v. Guthrie, 4 Kan. 353, 366, 367; Smith v. Smith, 15 Kan. 290; Milbank v. Ostertag, 24 Kan. 462, 466. Files also owned a mortgage, past due, on one quarter section of the land. Files was also the agent of the plaintiff for the land, authorized to take care of it, and to rent it, and to collect the rents, and to treat the land substantially as his own; and he did treat the land as his own, and claimed title thereto; and the evidence shows that he entered into a duly-acknowledged written contract with the railroad company for the sale and conveyance of a right of way through at least one quarter section of the land, and the railroad company got permission of Files, either orally or in writing, to enter upon and procure the right of way through the other quarter section, and to con
struct its railroad track thereon. The findings of the referee would seem to indicate that the whole of the contract between Files and the railroad company was in parol, but the evidence shows as we have stated. Under such circumstances, the railroad company was neither a wrong-doer nor a trespasser, although it may be admitted that it did not procure any legal and indefeasible title to or easement in its right of way.
Nor has the plaintiff treated the railroad company as a trespasser. He has allowed the company to retain its right of way, as a permanent easement, and simply sues it for compensation and damages. If the plaintiff really supposed that the railroad company was a mere naked trespasser on his land, why did he not commence an action of ejectment to oust it from his premises ? He had his election, but he did not choose to treat the railroad company as a trespasser, but elected to ratify and confirm the railroad company's selection of his land for a permanent right of way, and simply brought this action to recover such compensation or damages as he would recover in an ordinary condemnation proceeding. Under such circumstances, the railroad company will not be required to pay for the improvements which it itself made upon the land, but will be required to pay only the value of the strip of land which it appropriated, and the damages to the other land, and this value and these damages will be computed as of the time when the railroad company first took possession of said strip and occupied the same as its right of way. This, we think, is founded in reason and sustained by the weight of authority. Central Branch U. P.R. Co. v. Andrews, 26 Kan. 702, 710, 711; Justice v. Nesquehoning Valley R. Co., 87 Pa. St. 28; S. C. 18 Alb. Law J. 171; Black Rirer & M. R. Co.v. Barnard, 9 Hun, 104; California P.R. Co. v. Armstrong, 46 Cal. 85; Daniels v. C., I. & N. R. Co., 41 Iowa, 52; Lyon v. Green Bay & M. Ry. Co., 42 Wis. 538; Greve v. First Division St. P. & P. R. Co., 26 Minn 66; S. C. 1. N. W. Rep. 816; Morgan v. Chicago & N. E. R. Co., 39 Mich. 675; Dietrich v. Murdock, 42 Mo. 279; Northern C. Ry. Co. v. Canton Co., 30 Md. 347; Pitkin v. Springfield, 112 Mass. 509.
It has even been held that where a railroad company enters upon land as a technical trespasser, and afterwards procures the land for its right of way by condemnation proceedings, it is not compelled to pay for the improvements which it itself made upon the land while it was technically a trespasser and before it legally procured its right
Justice v. Nesque honing Valley R. Co., 87 Pa. St. 28; S. C. 18 Alb, Law J. 171; Daniels v. C., I. & N. R. Co., 41 Iowa, 52; Lyon v. Green Bay & M. Ry. Co., 42 Wis. 538; Greve v. First Division St. P. P.R. Co., 26 Minn. 66; S. C. 1 N. W. Rep. 816. This seems like justice; but whether it is or not, surely where a railroad company enters upon a piece of land for the purpose of constructing a railroad track, and does so under the honest belief that it has a right to do so, and expends thousands of dollars thereon under such belief, and no person objects to its occupancy or questions its right
while it is expending its money making improvements on the land, and where the paramount owner of the land afterwards treats the railroad company, not as a trespasser upon his land, but as a party which has in fact procured a permanent right of way over the land, and upon such theory sues the railroad company merely for the damages resulting from the permanent taking of the right of way, including the value of the land taken and the permanent damages to his other property, he cannot say that the railroad company was at any time a mere trespasser, and he can recover only for the value of the land taken and the damages to that not taken at the time when the railroad company first entered upon his land and occupied the same for the purpose of procuring a right of way. See the authorities above cited, and especially the reasoning in the case of Central Branch U. P. R. Co. v. Andrews, 26 Kan. 711 et seq.; and also, with regard to permitting parties to make improvements without objection, see Reisner v. Strong, 24 Kan. 410; Goodin v. Cincinnati & W. C. Co., 18 Ohio St. 169. The third and last question raised by the plaintiff is as follows: Where a railroad company has taken actual possession of another's property for a right of way, and has continued in such possession, may interest, or damages in the nature of interest, be allowed upon the amount of the damages sustained, from the time the railroad company first took possession of the property up to the time of the trial? We think this question must be answered in the affirmative. Hartshorn v. Burlington, C. R. & N. R. Co., 3 N. W. Rep. 648; Sioux City & C. R. Co. v. Brown, 14 N. W. Rep. 407; Old Colony R. Co. v. Miller, 125 Mass. 1; Bangor, etc., R. Co. v. McComb, 60 Me. 291; 1 Suth. Dam. 604, and cases there cited; 3 Suth. Dam. 465 et seq., and cases there cited. There are exceptions to this rule, as will be seen by an examination of the authorities cited by Mr. Sutherland in his work on Damages, but we do not think that the present case falls within any of the exceptions. The defendant also raises several questions. In the first place, it claims that the evidence does not show or prove that the amount of the damages to the plaintiff's farm, outside of the strip of land taken, was $2,000. We would think, however, that, as the referee found that it was $2,030, and as the court below rendered judgment for $2,000 of that amount, and as the defendant has not filed any petition in error or cross-petition in error in this court, we cannot examine the evidence to determine whether it proves that the plaintiff's farm, outside of the strip of land taken, was damaged to the amount of $2,000 or not. Even if we should find that it was not damaged to that extent, or to any considerable extent, still we could not, as the case is now presented, reverse the judgment of the court below for that reason. The defendant also claims that the evidence does not prove that the old grade was worth $3,539.32, the amount which the referee v. SP, no.2—10
found that it was worth. Now, while the preponderance of the evidence may not sustain this finding, yet we think there was evidence sufficient to sustain it; and as the court below confirmed the report of the referee in all particulars except merely as to two conclusions of law, the sixth and the seventh, we cannot set aside this finding or hold it insufficient. There was evidence tending to show the amount and nature of the old grade, and, taking the figures and estimate of the witness McClung, who was a civil engineer, the old grade would have cost as much as the referee found its value to be; and the cost of a thing is some evidence of its value. Besides, the witness Bronson testified that he would imagine, as guess-work, that the cost of the old grade was somewhere from $3,000 to $4,000. The defendant also claims that the findings of the referee that Files did not execute a written instrument to the railroad company for any portion of the right of way, and that the plaintiff had no notice that the defendant took possession of his land and constructed its railroad over it until long after the same occurred, are erroneous. In our opinion, it is wholly immaterial whether these findings are correct or not; and hence we shall not make any further reference to them. The defendant also makes some other complaints, but we do not think that they are material. The judgment of the court below will be modified, by adding to it the value of the old grade, as found by the referee, and interest on all the sums allowed by the district court and this court at the rate of 7 per cent. per annum from October 1, 1880, the time when the defendant first took possession of the plaintiff's land as a right of Way. (All the justices concurring.)
- (34 Kan. 199)
Filed October 9, 1885.
RAILROAD COMPANY — LIABILITY FOR NEGLIGENCE OF MEN OPERATING LOCAL ROAD MANAGED BY THROUGH LINE. Where a great railroad company, operating a long line of road in the state, projects, constructs, controls, and manages another railroad for the purpose of a local line, it will be liable for the negligence of the men operating the same.
Error from Sedgwick county.
Action brought February 24, 1884, by J. C. Davis against the Atchison, Topeka & Santa Fe Railroad Company, to recover damages for personal injuries alleged to have been received in the city of Wichita, on December 26, 1883, by reason of a collision of a wagon in which plaintiff was and a train of cars alleged to have been operated by the employes and servants of the railroad company. The company answered, denying generally all the allegations in plaintiff's petition,