Board of Commissioners v. Hogan, 39 Kan. 606

Board of Commissioners v. Hogan

39 Kan. 606 | Kan. | 1888

Opinion by

Clogston, C.:

At the trial in the district court it was admitted by the parties that the only question at issue was the amount of damages the plaintiff was entitled to by reason of the location of the road through his farm, and this question alone was submitted to the jury. The board of county commissioners complains, first, that the court erred in admitting evidence tending to prove elements of damage that *608plaintiff was not entitled to recover for; second, in refusing to allow the defendant to show the value of the land appropriated, independent of the improvements, and its connection with the remainder of the laud; aud third, that the findings of fact are not supported by the evidence, and are inconsistent with the measure of damages that the plaintiff is entitled to. As to the first of these propositions, we think the court was correct. The measure of damages under the claim presented in the notice to the viewers embraced all the elements of damage that the plaintiff had a right to claim. His claim was for damage to his farm by reason of the appropriation of 2~yL acres of land, in the sum of three hundred dollars. This, while not specific in its items, yet was in gross what the farm was worth less by reason of the location of this road through it than it was before. This we think was the proper measure of the plaintiff’s recovery. (Reisner v. Depot & Rld. Co., 27 Kas. 382; Comm’rs of Smith Co. v. Labore, 37 id. 480.)

The court erred in refusing to allow the admission of the evidence offered by the board of commissioners. It had a right to show what the land was worth, independent of surrounding circumstances or improvements. This would be one manner of ascertaining the damages, and if the board cared to do so, it ought to have been allowed to show what the land was actually worth, independent of its connection with the farm or the improvements thereon; and doubtless had the court been informed that the evidence was offered for that purpose, it would have permitted it. But the record seems to show that it was offered not for that purpose, but for the purpose of showing and under the claim that it was the only damages the plaintiff was entitled to; that under his claim of damages, as presented to the viewers, he could only recover the actual value of the land taken, independent of improvements, or its connection with the farm. Under this view the court rejected the evidence, and under this claim we think the court was correct; and while the evidence ought to have been admitted, yet we think the error was not such as would warrant a reversal of the action.

*609As to the third error assigned, we do not think that the findings of fact found by the jury are inconsistent with their verdict, or include improper elements of damage, but on the contrary, are in harmony therewith. The damages to a landowner through whose farm a public road is laid are made up of innumerable elements, differing in each particular case. The object and purpose for which a farm is used; what it is adapted to; the manner in which it is used; its location and convenience, are all matters to be taken into consideration in assessing the ’damages. Where land is owned and used for stock purposes, water being upon one part and grazing-land upon another, the means of reaching different portions of the land for the purpose for which it is used and adapted, and the like, must always be considered. So in this case: the fact of the land being separated by a public road, the disadvantage of maintaining and keeping up fences, the opening of gates and crossing from one part of the land to another; the taking of cattle from one part of the premises to that of another, for the purpose for which the land was used and adapted, are all proper elements to be considered by the jury. Therefore, while the jury answered the questions by. giving a number of the elements that entered into and helped make up the damages, yet doubtless there were many others that were not included in their answers. There are so many causes it would be almost impossible to enumerate them, that go to make a farm less valuable by reason of the location of a road through it; and if the things enumerated go to make up the value of the land, or lessen its value, then they might be properly considered by the jury. (Comm’rs of Smith Co. v. Labore, 37 Kas. 480.) It is the convenience of a farm for the purpose used, its situation and surroundings, that make it valuable.

We are therefore of the opinion that the judgment of the court below must be affirmed.

By the Court: It is so ordered.

All the Justices concurring.