52 Kan. 739 | Kan. | 1894
The opinion of the court was delivered by
It is insisted, however, that the railroad companies are not liable in damages for any obstruction of ingress to or egress from the lots caused by the embankment or changed condition of the surface of the street. As a general proposition, an abutting lot owner, in a city of the second class, cannot recover damages from the city or a railroad company acting under the direction of the city authorities, on account of a mere change in the grade or surface of the street. (Rapid Transit Rly. Co. v. Early, 46 Kas. 197.) But that is not this case. Here the embankment or roadbed on First street was not constructed for the convenience of public travel or for the use of wagons or other vehicles, or for the grading of the street, as that term is generally understood, but solely for the purpose of use by the railroads, and in constructing the embankment or roadbed for the tracks, switches, and switch stand, access to the lots and to the alley at the rear of the lots was substantially destroyed. Persons upon foot can use the street and alley, but it is impossible to have access to the lots or alley from First street with wagons or other vehicles. A city is not expected to grade a street for the purpose of preventing travel thereon and cutting off all access of the abutting lot owners. When city officers grade or change the grade of a street, they are expected to act for the public, with the public
This case differs from Railroad Co. v. Union Investment Co., 51 Kas. 600, and Railroad Co. v. Peterson, 51 id. 604. In the Union Investment Company case, the embankment for the road and tracks was placed about the center of the street, the distance between the embankment and the abutting lots being from 30 to 40 feet. In surfacing the tracks, there were holes dug which interfered with the passing and repassing of vehicles, but these holes or obstructions were temporary only, and there was no permanent appropriation of any part of the street immediately adjoining the abutting lots so as to completely or substantially obstruct the ingress to and egress therefrom. In the Peterson case, the lots were not within the corporate limits of any city, and the track and roadbed were not constructed in accordance with the provisions of any ordinance or under the direction of the city officials. There was no permanent taking or appropriation of any part of the street so closely adjoining the abutting lots to sufficiently obstruct all ingress to or egress from to authorize the damages allowed in that case. But in that case it was observed:
“ If the track and roadbed of a railroad are completed in accordance with the provisions of a city ordinance, or with the assent and under the direction of city officials, it may fairly be presumed that the railroad company ‘ considers such manner of occupation necessary for its purposes, and has so laid the track, with reference to its own necessities/ and that the city ‘regards the use by the company of the alley or street so occupied as of more value to the public than the general use by the public itself, and will never interfere with such use by the company.’ ”
In this case, the embankment or roadbed, the tracks and switches were made and completed in the summer or fall of 1887. This action was not commenced until the 29th of March, 1889. The trial was had in the latter part of January, 1890. It does not appear, at any time prior to the commencement of the action, or since its commencement, that the railroad companies or the city authorities have in any way
It is conceded that $400, included in the verdict of the jury, was in the nature of a double allowance for the obstructions complained of. This amount plaintiff below offers to remit. We need not comment upon .the allegations in the petition concerning any injuries resulting from surface water, or the overflow of the cellar, the washing of mud, etc., upon the lots, because, upon the findings of the jury, as the judgment will be modified, no damages are allowed on account of any of these matters. The case will be remanded, and, with consent of the plaintiff below, judgment will be entered in the district court for $600 only.