93 P. 590 | Kan. | 1908
The opinion of the court was delivered by
This action was brought by Lewis Billings against the Atchison, Topeka & Santa Fe Railway Company to recover damages resulting from the failure of the company to maintain proper cattle-guards where the railway enters and leaves the fenced fields of his farm, and also to enjoin the company from hereafter operating its road through the farm without completing the enclosures on his farm with cattle-guards as the law prescribes. As the railway is constructed it intersects the fenced boundaries of Billings’s farm of 533 acres at eight places; His land had been fenced and arranged for farming and stock-raising, provision having been made for the rotation of crops and the handling of stock so that water, shade and shelter were available. It was shown beyond cavil that the railway company neglected to maintain cattle-guards at the intersection of the boundaries of Billings’s farm for a period of two years prior to the commencement of this action. At some places there were no cattle-guards of any kind for a time, and at other places unsuitable guards were maintained, which did not prevent stock from entering his fields and passing from one field to another along the right of way. The verdict of the jury awarded Billings damages in the sum of $410.50, made up' of the following items: For labor expended in guarding cattle in 1903, $34; for the guarding of cattle sixty days in 1904, $60; for loss of pasturage, $50; for diminished rental or usable value of the entire farm, two years, twenty-five cents per annum per acre, amounting to $266.50.
That Billings was entitled to some damages is not contested, but.it is argued in behalf of the railway company that there is a duplication of damages in the ver
It is next contended that the court was not justified in issuing a mandatory injunction. Upon the testimony it was found that the operation of the railroad through the Billings farm without cattle-guards, and the company’s persistent and long-continued neglect and refusal to close up the openings with cattle-guards, after due notice, was a continuing nuisance. The decree of the court enjoins the company from continuing the nuisance, and commands it to keep and maintain proper guards at all points where the railroad enters and leaves the fenced lands of Billings. It is true, as contended, that the particular function of the remedy of injunction is to restrain and prevent, rather than to command and compel; but there is unquestioned power in a court of equity to issue mandatory injunctions on proper occasions. It is a remedy to be sparingly exercised — one that is rarely granted until after a final hearing and except in cases where the injury is irreparable, the remedy at law inadequate, or to prevent a multiplicity of suits. It has been granted where a railway company in constructing its road built an embankment which wrongfully diverted the running water from the land of a person through whose land the water naturally flowed before the road was built. It was contended there,' as here, that the damages inflicted were measurable and that the exigencies of the case were not such as to warrant the exercise of the mandatory power of a court of equity. This court, recognizing the rule that the remedy can only be employed in extreme cases, held that it was a proper occasion for issuing a mandatory injunction and affirmed the decree compelling the opening of the waterway. (A. T. & S. F. Rld. Co. v. Long, 46 Kan. 701, 27 Pac. 182, 26 Am. St. Rep. 165.) A railway company has been compelled to perform the
In this case it was developed that, several years before the bringing of this action, Billings had been compelled to bring another action and had recovered damages resulting from the neglect of the railway company
The judgment of the district court is affirmed.