47 Kan. 571 | Kan. | 1892
The opinion of the court was delivered by
This was an appeal from a condemnation proceeding instituted by the Chicago, Kansas & Nebraska Railway Company to obtain a right-of-way for its railroad through lands in Norton county. The commissioners con
Errors are assigned on the rulings of the court in charging the jury. There were two controverted questions submitted to the jury: one was as to the ownership of the land at the time of its appropriation, and the other was as to the amount of damages suffered by the owner or owners. In one of the instructions, the court stated to the jury the amount awarded by the commissioners for the land taken and for the resulting damages to the part not taken. The award made by the commissioners was not admissible in evidence, and the court was not warranted in presenting the amount of the allowance as a fact to the jury. When an appeal is taken, the case is tried de novo upon new evidence, and the award of the commissioners is no more competent than would be the former verdict of the jury upon an appeal from a justice of the peace to the district court. It is only the opinion of the commissioners as to the damages sustained, and the statement of the
There is also a complaint as to the rule given for the measurement of damages. In fixing the time for the valuation of the land, the court mentioned January 20, 1888, whereas in another place it is said, and the record shows, that the land was condemned and appropriated December 16, 1887. The compensation should be ascertained and the damages assessed as of the time when the property was actually appropriated, and the correct measure of damages was the difference between the market value of the tract through which the right-of-way was laid immediately before and immediately after the time when the property was actually taken. There is some confusion in the evidence, as well as in the charge of the court, with respect to when the right-of-way was condemned and appropriated. While this error of itself might not have been sufficient to reverse the judgment, it should be corrected if another trial is had, as the value of property might greatly change in the period between December 16,1887, and January 20,1888.
Error is also assigned on remarks made by the court in the hearing and presence of the jury, with respect to an offer of compromise. The railway company made an offer to allow judgment to be taken against it in favor of Broquet for $1,000, and costs. This offer was not accepted by Broquet,
For the errors mentioned the judgment will be reversed, and cause remanded for a new trial.