30 Kan. 590 | Kan. | 1883
The opinion of the court was delivered by
This case has once before been to this court. (C. B. U. P. Rld. Co. v. Andrews, 26 Kas. 702.) After its return to the district court, another trial was had before the court and a jury, and a judgment was rendered in favor of the plaintiff below, defendant in error, and against the defendant below, plaintiff in error, for $2,000 damages, and costs. That errors were committed during the last trial, we think the record clearly shows; but whether any one of such errors was prejudicial to any of the defendant’s substantial rights, we think is at least doubtful. That the plaintiff below, defendant in error, was entitled to recover, we think there can be no doubt; but as to what the amount of the re
From sometime prior to August 1, 1877, up to the present time, the plaintiff Andrews has owned six lots in the northwest corner of block 23, in the city of Atchison. In front and at the north end of these lots is Main street, running east and west. On the west side of these lots is Tenth street, running north and south. And on the south end of these lots is an alley fifteen feet wide, running east and west. Each of these lots is 25 feet wide east and west, by 130 feet long north and south, and extends from Main street on the north to the alley on the south. These six lots compose a single tract of land 130 feet in extent north and south, and 150 feet in extent east and west. About August 1,1877, the defendant, the Central Branch Union Pacific railroad company, under the authority of the city of Atchison, which has at all times had full and complete authority from the legislature of the state of Kansas, constructed a railroad track through the alley south of the plaintiff’s lots. The construction of this railroad track, and the running of cars thereon, has entirely destroyed the use of the alley as an alley, and has rendered it useful only for railroad purposes. On September 13, 1878, the plaintiff Andrews commenced this action against the defendant railroad company, to recover damages for said destruction of the alley as an alley. The plaintiff claimed that the destruction of the alley was permanent, and that the use of the same by the railroad company was a permanent appropriation by the railroad company of the alley for railroad purposes. The action, then, is in the nature of a condemnation proceeding to recover damages from the railroad company for the permanent taking and appropriation by the railroad company of the plaintiff’s property in the alley. The question then arises: What property has the plain
This, then, leaves only the two rights above mentioned for
This brings us to the consideration of the plaintiff’s right
But the public cannot authorize a railroad company to wholly block up or obstruct an alley, so as to wholly deprive the plaintiff of his right to pass over the alley to and from his lots, without at the same time leaving the plaintiff at liberty to recover full and complete damages for any special loss which he may sustain by reason of such blocking-up or obstruction. (A. & N. Rld. Co. v. Garside, 10 Kas. 552; C. B. U. P. Rld. Co. v. Twine, 23 id. 585 U. P. Rld. Co. v. Andrews, 26 id. 702; Story v. N. Y. El. Rld. Co., 90 N. Y. 122; same case, 7 Am. & Eng. Rld. Cases, 596, and note, 623, et seq.) The plaintiff’s right to the alley is in the nature of an easement — a private right-of-way over land which does not belong to him but belongs to another; and when he recovers damages for the destruction of such right-of-way he will recover in the same manner, and to the same extent, as though he had sued the owner of the land for the destruction of his right-of-way; and the measure of his damages will not be the value of the land, nor the value of its entire use, but
Counsel for the defendant also claim that the damages sustained by the plaintiff should have been diminished to the extent of the benefits received by him. Now it was not shown that the plaintiff has received any special benefits, and, as we have already stated, no general benefits enjoyed by the plaintiff in common with all other persons in that community can be considered for the purpose of reducing the special damages which he has suffered. It may be conceded that thé improvements made by the railroad company have enhanced the value of the plaintiff’s property more than they have injured it; but, still, if the benefits were general and indirect, and the damages special, direct and personal, the plaintiff is entitled to recover the damages, without any diminution on account of the benefits received. And indeed, general benefits or damages received or suffered, in common with all the rest of the community, are generally too speculative and remote to be taken into consideration for the purpose of reducing or enhancing the plaintiff’s damages. (See authorities above cited.) But even if the plaintiff had received special benefits by reason of the construction of said railroad track in the alley, could even they be set- off against the plaintiff’s damages? (Const., art. 12, §4.)
We now come to the question: Was there any such error committed during the trial of this case as will require a reversal of the judgment of the court below? That the damages awarded by the jury are excessive, we think must be conceded; but are they so clearly excessive as to show passion, or prejudice, or a legal mistake in the mode of their computation? or is there anything else in the record that
We have carefully examined all the rulings of the court below assigned for error, and it is very difficult to say that any one or more of them was really the cause of this erroneous verdict or finding of the jury.
On the trial the plaintiff was examined as a witness in his own behalf, and upon his examination-in-chief he testified, among other things, that he was acquainted with the value of real property in the vicinity of his lots at the time when said railroad track was constructed in the alley, and that it was his opinion that immediately before said railroad track was constructed his property was worth $10,000, and that immediately afterward it was worth only $6,000, and that the depreciation of the value of his property by ’reason of the construction of said railroad track in the alley was $4,000. Afterward, upon the cross-examination of the plaintiff by counsel for the defendant, he was asked the following questions :
“What would be the value of a strip of ground fifteen feet wide taken from the south end of these lots, around on the east end out to Main street; beginning at Tenth street, take a strip fifteen feet wide off; then again from the south, north on the east side out to Main street?”
“What in your opinion would be the depreciation in the value of the remaining property, as an entirety, by reason of the taking from them fifteen feet off of the south end of the lots and fifteen feet off the side of the property to Main street?”
These questions were each objected to by the plaintiff, and the court below sustained the objections, and the evidence was excluded. Was this error? We would think that the defendant railroad company had a right to show, if it could, that when the alley was obstructed the plaintiff might have made a roadway fifteen feet wide all around his lots, except in front and on the west side where streets are located, and thereby made his lots: — except for the amount of land thus
The judgment of the court below will be reversed, and the cause remanded for a new trial.