26 Kan. 702 | Kan. | 1882
The opinion of the court was delivered by
On the 13th day of September, 1878, the defendant in error, R. S. Andrews, filed his petition in the
The wrong committed by the defendant, and for which the plaintiff claims damages, was in constructing one of the sidetracks of its road through the alley south of the plaintiff’s lots, and thereby so obstructing the alley that it could not any longer be used as an alley. This side-track was constructed about August 1, 1877. This suit was commenced September 13,1878, and the trial of this case was commenced November 23, 1880. The jury allowed the plaintiff $2,000 damages; and this was upon the principle that the plaintiff’s lots were worth, at the time of the trial, $8,000, and that they would have been worth, at that time, $10,000, if the alley had not been obstructed by the railroad company. Some of the special findings of the jury do not seem to be entirely harmonious with their general verdict, or with their other special findings. Among their special findings are the following :
“4; Was said track through said alley constructed in a proper manner?
“A. In usual manner for railroad purposes.
“ 6. Since the laying down and construction of said track in said alley, has the defendant permitted cars to remain unreasonably and unnecessarily on said track ?
“A. We don’t know.
“8. If the plaintiff is entitled to recover herein, what damage is he entitled to as compensation for the use of the ground over which said track is located ?
“A. None.
“9. If the jury find a general verdict for the plaintiff, what portion of the amount allowed to the plaintiff is awarded as compensation for the use of the ground over which said track is located ?
“A. None.
“10. What amount of damage has the plaintiff sustained by reason of the defendant’s permitting cars to remain unreasonably and unnecessarily on said track, since the 13th day of September, 1878, the date of the commencement of this suit?
“A. No damage.
“A. No.
“13. What was the value of the use of said alley to the property in controversy, just prior to the laying down and construction of said track therein ?
“A. We don’t know.
“14. If the jury find a general verdict for the plaintiff, what portion of said verdict is allowed plaintiff as the value of the use of said alley to the property in controversy ?
“A. None.
“15. What amount of damage did plaintiff sustain prior and up to the 13th day of September, 1878, by reason of the construction of said track, so far as the same had been constructed in a legal and proper manner ?
“A. No definite amount.
“16. What amount of damage did plaintiff sustain prior and up to the 13th day of September, 1878, by reason of the reasonable and necessary use of said track by the defendant?
“A. None.
“17. What amount of damage has plaintiff sustained since the 13th day of September, 1878, by reason of any unreasonable and unnecessary use of said track by defendant?
“A. None.
“19. What was the market value of the property in question just before the track was laid down in said alley in 1877 ?
“A. We don’t know.
“23. Eegardless of the fact whether said alley is obstructed or not, is the property of plaintiff as suitable and valuable for residence property as for other purposes?
“A. We do not know.
“29. Has the market value of plaintiff’s property been affected by the running and operation of cars, engines and trains along and over said track?
“A. No.
“30. For several months previous to this date has defendant company in any manner used and operated said side-track?
“A. No.
“31. On or about January 1,1880, did the defendant company cease to use and operate said side-track for any purpose?
"A. Yes.
“A. Missouri Pacific railway.”
There were several errors committed in this case, which we think will require a reversal of the judgment of the court below; for instance, evidence was admitted that ought to have been excluded, and evidence was excluded that ought to have been admitted. Sufficient latitude was not allowed the defendant on the cross-examination of the plaintiff’s witnesses, and the court tried the case upon a wrong theory as to the measure of damages. The court refused to give the following instruction, which we think is good law, and applicable to the case:
“21. The jury are instructed that in estimating the value of plaintiff’s property, their estimate must not be made upon the basis that it is residence property alone, but they must take into consideration the true market value of said property with reference to its capabilities.”
See authorities cited in brief of counsel for plaintiff in error.
And the case was tried by the court below from beginning to end upon the erroneous theory, as we think, that the damages sustained by the plaintiff below are to be estimated upon the basis of the consequent diminution of
This last-mentioned error is probably the most material one committed in the case; and it is the only one to which we shall give any further consideration. The plaintiff has chosen to consider the obstruction of the alley as a permanent injury to his lots, as a quasi condemnation and permanent taking and appropriation of a certain interest in his property; and he can therefore recover merely for the consequent depreciation in value of his property by reason of such permanent injury, by reason of such permanent taking and appropriation, by reason of such quasi condemnation.
The defendant in error, plaintiff below, seems to admit that the damages should be estimated in cases like this, as of the time when the plaintiff consents that his property shall be permanently appropriated by the railroad company; but he claims that he does not consent to any such appropriation until the judgment for such damages is rendered in his favor. It seems to us that he gives his consent when he brings the action for such damages. It seems to us that he then consents that the railroad company shall permanently appropriate his property in the alley, for he then brings his action for damages, because of such appropriation; and it seems to us that when he gives such consent, the consent must be considered as relating back to. the time when the railroad company originally took the property. If it does not, then the plaintiff would have an action for every special damage that he may have suffered during the intermediate space of time between the taking of the property
But it is not necessary to multiply arguments, nor to make-suggestions, to show that the plaintiff should not recover damages as of the time of the trial; for, unless very strong reasons-can be shown that he should recover damages as of that time,, the rule governing as to the measure of damages in condemnation proceedings should prevail. It would not be justifiable to make distinctions or multiply rules for the measure of damages, where no sufficient reasons therefor exist. The defendant in error, plaintiff below, has not furnished us with any sufficient reason why the rule governing in condemnation proceedings should not govern in this case; and no sufficient reason has occurred to us. One of the principal differences between the ordinary condemnation proceedings and this is, that in the ordinary condemnation proceedings the permanent interest in the property is taken by the other party without the consent of the owner, while in this case the owner consents that the permanent interest in his property may be taken.
We think that the plaintiff can recover only such damages as he sustained at the time the alley was taken and appropriated by the railroad company.
The judgment of the court below will be reversed, and the cause remanded for further proceedings.