43 Kan. 50 | Kan. | 1890
The-opinion of the court was delivered by
This case is wholly different from Railway Co. v. Fitzsimmons, 18 Kas. 34. In that case the contractors had sole control of the turn-table, which they negligently left without guard or lock. The railway company was not responsible for the negligence of the contractors, because in no way a party to it.
It is next claimed that the jury was not properly instructed as to the measure of damages, and that it was error to instruct the jury to consider the difference in value of the land before and after the grade. As the ease is now presented, it is unnecessary to decide the particular question argued in the brief of the railroad company, as to what damage is allowable in an action of trespass, where it appears upon the trial there is
“In this state a corporation does not obtain a right-of-way for a railroad by appropriation until full compensation therefor be first made in money, or secured by a deposit of money, to the owner ; and if it builds its road over the land of a person without first obtaining the owner’s consent or the right-of-way, it is a trespasser, and liable as such.”
Again, the railway company asked the court to instruct the jury:
“If you find from the evidence that the defendant did, about the time set forth in the petition, and before the commencement of this action, enter upon the premises of plaintiff and construct a grade thereon, then the plaintiff is entitled as his damages in this action against the defendant for the erection of such grades the amount that it will actually cost to remove the grade back to the ditches from which it was taken, together with any other damages that may accrue to the land comprising the ditches and included within them.”
The judgment of the trial court must be corrected by deducting the 50 cents allowed for grass, and the treble damages given by the court for the trees, etc.
The case will be remanded, with direction to modify the judgment accordingly.