42 Kan. 561 | Kan. | 1889
Opinion by
This was an appeal to the district court of Chase county from an award made by commissioners to George W. Cosper, in the condemnation of a right-of-way of the railroad company through his land. Cosper owned a farm of three hundred and sixty acres, adapted to and used exclusively for the raising of cattle. The line of road as constructed and operated, extended for more than three-fourths of a mile through his land. It separated his pasture laud from the creek and timber, and from his stock-water, and, by reason of cuts and embankments, made access from one to the other difficult, and crossings expensive to construct. The commissioners awarded him $672.50. In the district court the jury returned a verdict in his favor of $2,474.41. A new trial was refused, and many exceptions saved, which are assigned for error here, and among the most important are:
Third: There was evidence offered by the plaintiff below, under objection by the railroad company, of the fact that a ditch had been.made by the company in the construction of the road, in such a way that it caused injury to the land of Cosper, by bringing surface-water in such quantities that the ditch was continually deepening and widening, and the land of Cosper was crumbling into it, and the soil was washing into the ditch. This ditch was partly on the right-of-way, and partly on Cosper’s land. It was about one hundred and sixty rods long, and when constructed was three and one-half feet deep and from five to six feet wide. It was built to catch the surface-water, drain the embankments, and carry the water to the creek. It seems to have been a necessity, as without it the surface-water would overflow the land of Cos-per, undermine and wash away the embankment, and destroy the road-bed. There is no allegation that it was negligently or defectively constructed. It is now claimed that evidence as to the location, use and effects of the ditch, was improperly
“Beyond the limit of what was condemned, the company had no right whatever, and if it has used other portions of the lot of the plaintiff, it is not a matter of inquiry upon an appeal from the condemnation. If the company has taken possession of any part of' the lot beyond that which has been condemned, it is a trespasser thereon, and an action of ejectment may be prosecuted for its recovery, or an action for damages may be maintained for all wrongful acts done outside of the right-of-way acquired by the condemnation.”
“No claim for damages can be founded upon the negligent and improper construction or apprehended negligent and improper operation of the railroad, or for digging ditches upon plaintiff’s land outside the right-of-way. For all such, actions other than this one, for the recovery of damages thereon will lie. It is only such damages as necessarily result from or which may fairly and reasonably be presumed to result from the construction and operation of the road in a legal and proper manner that can be taken into account by you.”
With this instruction, it was not error to refuse to give the tenth and eleventh instructions asked for by the railroad company. We have carefully examined the evidence, and cannot find that any one witness estimated the damages in dollars and cents, that resulted from the location and construction of the
Fourth: The next complaint is based upon the refusal of the court to give the following instruction:
“You are instructed that the plaintiff, or any person claiming under him, has, and shall at all times hereafter have, the right to make any and all crossings over the right-of-way through plaintiff’s land which plaintiff or such person may desire to make, providing that in the use of the same they shall not so use them as to interfere with the operation of the railroad of defendant over such right-of-way.”
The evidence in the record, as a matter of fact, conclusively demonstrates that the line of road as constructed through this land — for the road was built at the time of the trial on appeal— was so located as to cause great inconvenience of access from one part of the farm to the other. The dwelling-house, stables, barn and pasture were upon one side, and the timber, water, and feed lots on the other. There was but one place on the line where a crossing could be had at grade. All the witnesses examined at the trial for the plaintiff below, made these facts very important and controlling in estimating the damages. It would seem, therefore, that this was a case in which the law as to farm-crossings should have been plainly stated to the jury; but the instruction offered is very objectionable, and it is not error to refuse to give it. The land-owner certainly has not the right to make any and all crossings that he may desire. It is said in the case of K. C. & E. Rld. Co. v. Kregelo, 32 Kas. 608:
“That as a general rule the land-owner has a reasonable*566 right to farm-crossings over a right-of-way condemned by a railroad company running through his premises, at such places as the necessities of his farm demand.”
Mills on Eminent Domain, §213, says:
“The erection of farm-crossings is under the control of the railroad, and the owner has no right to make them when and where he pleases. His convenience must yield to the public safety.”
Fifth: At a point on the line of road where a ravine makes a bend across the right-of-way, the railroad company built a bridge, which was fifty feet long on the top and about thirty-five feet long at the bottom, of the width of the road-bed,
“7. You are instructed that the. plaintiff, or any person claiming under him, will have the right to keep and maintain any and all under-grade crossings which could be kept and maintained across said right-of-way on plaintiff’s land, where the same will not in any way interfere with the operation of defendant’s railroad across the right-of-way.
“8. You are instructed that the plaintiff, and all persons claiming under him, would have a right at all times to use the under-grade crossings made by the bridge on plaintiff’s land, concerning -which there has been testimony offered, for the purpose of allowing any stock to pass to and fro under such bridge, and that such persons would have the right to so improve the crossing under such bridge as to make it a good crossing and a safe crossing for cattle and stock, when such improvements would in no wise interfere with the operation of defendant’s railroad over said right-of-way.”
It is claimed by the defendant in error that this bridge is built on low ground; that great quantities of mud and sand gather under the bridge; that it cannot be confined to a ditch; and that it is impracticable to make a passage-way for cattle under the bridge without great expense. It is in evidence that a short time before the trial, a witness attempted to pass under the bridge on horseback, and it was with great difficulty that he kept from “ miring down.” In answer to questions by the attorney of the railroad company, this witness stated that it would require much labor to make a crossing under the bridge, and that it would have to be riprapped to be safe for cattle. The contention of the railroad company is, that the building of the bridge has furnished Cosper an under-grade crossing that materially facilitates the access from one part of the farm to the other, and that this reduces his damage. The reply of Cosper is, that the opening under the
“If, at the time the commissioners condemned the right-of-way, representatives of the railroad stated to them that a bridge would be placed about where the bridge is built, so as to have an under-grade crossing for stock there, and this matter was considered by the commissioners, then in such case the railroad company would be bound to keep and maintain such bridge so as to always allow an under-grade crossing.”
This the court refused to give, but did instruct the jury as follows:
“If at the time the commissioners condemned the right-of-way through the plaintiff’s land an authorized íepresentative of the railroad company stated to them that a bridge would be placed about where the bridge is built, so as to allow an under-grade crossing for stock, and this statement was reported by the commissioners as a promise of the railroad company, and that the award was made with reference to the same, then the defendant will be bound to make and maintain such bridge, and allow the same to be used as an under-grade crossing, provided it will be of substantial utility to the farm, and will not interfere with the operation of the defendant’s road.”
The other assignments of error are not important. We recommend an affirmance of the judgment.
By the Court: It is so ordered.