41 Kan. 370 | Kan. | 1889
The opinion of the court was delivered by
This is the fifth review of judgments rendered against the railroad company in this action, and the
Objection is made to the testimony of witnesses North and Coats. They were examined as to the injury occasioned to the Andrews lots by obstructing the alley back of them, and which were occupied at the time of the obstruction by residence buildings. Upon cross-examination the company inquired of them if the property was not more valuable for mills, elevators, and the like, than for residences, and obtained their opinions thereon. Upon a reexamination they stated, over the objection of the company, that to utilize the lots for such purpose it would be necessary to take the residence buildings away, and substitute suitable ones. The claim is that it is opinion evidence, and therefore incompetent. But the testimony was not very material, and the objection is unimportant. If the testimony is objectionable at all, it is no more so than that called out on the cross-examination by the company itself, and the answers given only stated, what all knew, that the residence and out-buildings connected with it were unsuitable for mills and elevators. The use for which the property was adapted was a proper consideration in determining its value; but Andrews was not required to change its use or to destroy the buildings already there to accommodate the company. The company had attempted to draw from the witnesses the opinion that the property was better adapted for mills, elevators and wholesale houses than for residences, and the defendant was only pursuing the same inquiry, and the testimony objected to is certainly not prejudicial.
The refusal of some requests for instructions is a ground of complaint, but in most of these cases the general charge embraces and states the rules contained in the rejected requests, and upon the whole we think the case was fairly submitted to the jury.
No error was committed in refusing the requests numbered 14 and 15, to the effect that the city ordinance authorizing the company to construct its road in the alley did not give it the exclusive right to occupy the alley, nor preclude Andrews from using the same. The issues of the case were joined and tried upon this exact theory, and the whole charge given proceeded upon the view that the company might use the alley in a proper way, but had no more right to permanently obstruct it than an individual, had; that Andrews was entitled to use
A criticism was made upon the eighth instruction given by the court, which states: “If from the evidence you find that the defendant’s said railroad track was, from the mauner in which it was laid down, built and constructed in said alley, a permanent obstruction in said alley, materially and injuriously affecting the approach to plaintiff’s said lots, then the plaintiff had the right to treat the act of the defendant in building, laying down and constructing its track in said alley as a permanent appropriation of the right of access by the plaintiff’s intestate to his said lots, which would enable him to recover as damages the consequent depreciation in the value, if any.” The objection is to the words “materially and injuriously affecting the approach to the plaintiff’s said lots.” It will be observed that the instruction relates to the character of the obstruction, as to whether it should be treated as a temporary or permanent appropriation of the right of access rather than to the extent of the appropriation. It requires that the material injury to the approach must amount to a permanent obstruction, and where the track is constructed in such a way as to amount to a permanent obstruction, it should be treated as a permanent appropriation. The objectionable words might be treated as surplusage, but the inclusion of them is not a substantial variance from the rule stated in the Twine Case, 23 Kas. 585, and the later cases following it. Aside from that, it is clear from the testimony in the record that under the rule given in the Twine Case the obstruction was of a permanent character, and the jury have so treated it. Besides, the plaintiff below based his right of recovery upon the ground that he was absolutely excluded from the use of the alley in going to and from his lots, and upon nothing else.
The refusal of request 16, that the company was not obliged to put the alley in a better condition than it was before the track was constructed, is made a ground of error; but upon examination of the charge given it is found that instruction 10 is almost in the identical language of the request refused; and the same may be said with respect to request No. 3, which is fully covered by the instructions 7 and 11 that were given by the court.
It is finally urged that a new trial should have been granted because some of the findings are inconsistent and untrue. It is said that there was no evidence to sustain the finding of dedication, or that Challiss was the owner of the land upon which the alley was located. But this objection has already been answered. Finding No. 30 is that—
“If the jury find a general verdict for the plaintiffs, what amount of said verdict is allowed as damages by reason of the inability of said R. S. Andrews' to drive through said alley from Ninth to Tenth streets?”
The contention is that this had reference to the inability of Andrews to use the alley in the same manner as the public in general would have the right to use it. But this is hardly a fair interpretation. The jury were specially instructed that no damages could be given upon that ground, and they undoubtedly had reference to the use of the alley from Ninth to Tenth streets as a means of ingress to and egress from the property abutting on the alley. This finding is explained to some extent by those which follow:
“Was the use of said alley over which said track was constructed of any value to said property ? Ans.: Yes, as a private roadway.
“If the owner of said property sustained any damage by*384 reason solely of the construction of said track in said alley, did such damage accrue by reason of his inability to use said alley as any person desiring to might use the same ? Ans. : No.”
The jury found that the damages suffered were $2,000, and the interest thereon from August 1, 1877, $1,479.50, amounting to $3,479.50. This result was reached by the difference between the market value of the property before the alley was obstructed, which was $8,000, and the market value of the same immediately afterward, which was placed at $6,000. The difference, $2,000, which is the sum mentioned in finding No. 20, was intended to include the entire injury suffered by Andrews.
Findings 32 and 33 are criticised for the same reason. They read as follows:
“If the jury find a general verdict for the plaintiffs, is such general verdict' based solely upon the theory that such property was damaged as residence property? Ans.: No.
“Then state what amount of said general verdict is allowed as damages to said property because of its depreciation for other purposes than residence property. Ans.: $2,000.”
The amount mentioned in this latter answer constitutes the entire allowance made, and is as much as to say that the verdict is not based solely upon the injury to the property as residence property, but for all other purposes as well. This is shown in the succeeding question and answer:
“What are the several elements or sources of damage which make up the aggregate of the general verdict, and how much of said aggregate is made up by each of said elements or sources of damage? Ans.: By use of the private roadway.”
It is obvious from this finding that the verdict was based solely on the special injuries suffered in permanently obstructing the ingress and egress to and from the Andrews premises; not the common injury which the owner would suffer in common with’ the public in general, but the damages arising from being prevented from using the alley as a private roadway to gain access to his property. Embraced in this is every element or source of damage for which an allowance was made.