39 Kan. 90 | Kan. | 1888
Opinion by
On an appeal from an award of damages for the laying out of a public road, the only question the court has to determine or submit to the determination of a jury, is as to the amount of damages the owner of the land is entitled to, if any; and no question of the previous laying out of a road over the same route, or whether there had been a prior dedication of the land to the public, and acceptance as a public road, enters into the inquiry. The proceedings before the board of commissioners were the regular proceedings to lay out and establish a public road. Plaintiffs, with other land-owners, were notified to present their claims for damages. The plaintiffs presented their claim and some amount was allowed, and they were also allowed damages. Not deeming the allowance sufficient to compensate them, they appealed. The question of the utility or practicability of the road was determined by the commissioners, and on that question their decision was final. The appeal was taken on the question of damages alone. See Comm’rs of Wabaunsee Co. v. Bisby, 37 Kas. 253: In that case the court sought to show that years before a public road had been laid out over the same route, and therefore that the plaintiff was not entitled to damages, and it was held that such testimony was not competent, and was properly excluded. . In this case dedication is sought to be shown. This ought also to have been excluded; but the court admitted the evidence, and having admitted it, the court ought to have instructed the jury to disregard it.
It appears from the record that a certain cattle shed and corral had been erected by the plaintiffs, and that a short time
“If he built the shed in question across the line of the road intentionally, and for the purpose of preventing the laying out of the road, such improvements as he made with that object in view and for that purpose he would not be entitled to the full damages which he might sustain on account of his own act; or in other words, that may be taken into consideration by you for the purpose of determining what damages he should have for such improvements, if any. While he had the right to put his shed upon his own premises at any place he saw fit, and if he in good faith placed that where he did, he ought to recover such damages as he sustained on account of the laying out of the road, yet if he built the shed with the full knowledge that steps were being taken for the purpose of laying out the road, and if for the purpose of preventing the laying out of this road he made any of these improvements, that matter may be taken into consideration by you for the purpose of determining what damage he has sustained in that connection; and such as he put there purposely and intentionally for that object (if you should find that to be the fact), he ought not to be permitted to take advantage of his own wrongful act in that particular and fully recover therefor. Whether he did so, I express no opinion whatever; and that is for you to determine from the evidence in this case.”
The evidence upon which this instruction was given was improperly admitted, and the instruction is erroneous. This
It is recommended that the judgment of the court below be reversed.
By the Court: It is so ordered.