41 Kan. 685 | Kan. | 1889
The opinion of the court was delivered by
This was an appeal to the district court of Dickinson county from an award of damages for the appropriation of a right-of-way for the Chicago, Kansas & Western Railroad through certain lots and land of Isaac Grovier. The commissioners appointed by the judge of the district court assessed damages to real estate described in the report as belonging to Grovier in the sum of $2,010, and for taking a right-of-way through two lots described in their report as probably being owned by S. H. Simar they awarded damages in the sum of $155. The defendant, not being satisfied with the award, appealed, and the two lots last named were mentioned by the defendant in his appeal bond and in the transcript, which were filed in the district court. At the trial, which was had in the district court with a jury, Grovier was awarded the sum of $5,490 as damages.
“The appeal was from the determination of the commissioners as to the value of the land taken, and for all other damages connected with the appropriation of the portion of the lot so condemned. Beyond the limit of what was condemned the company had no right whatever; and if it has used other portions of the lot of 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.”
See also The State v. Armell, 8 Kas. 288.
If the lots in question were actually condemned, but inadvertently omitted from the transcript of the report filed in the court, or inadvertently omitted from the appeal bond, the defect could have been cured by amendment or the filing of a pleading; but if there was such omission, no correction was made. In the state in which we find the record, the appropriation of these lots was not in issue, and the testimony concerning their appropriation was unwarranted.
The special findings of the jury show that damages were allowed for the taking of the lots which were not involved in this appeal, but it is impossible to ascertain therefrom the amount awarded for the appropriation of such lots, and hence there must be a reversal.
The other matters complained of require no attention.
The cause will be remanded for a new trial.