Corwin v. St. Louis & San Francisco Railway Co.

51 Kan. 451 | Kan. | 1893

Lead Opinion

The opinion of the court was delivered by

Horton, C. J.:

Lots 17 and 19, on Cannon street, and lot 20, on St. John street, in Hilton’s second addition to the city of Wichita, is the property in controversy in this case. These lots were formerly owned by Mrs. Cornelia R. Sanders. The plaintiffs claim them, or a part thereof, by virtue of a conveyance from her and her husband, W. I). Sanders. The railway company claims an easement over and upon the property by condemnation proceedings carried on by the St. Louis, Wichita & Western Railway Company, which were prior to the conveyance from Mrs. Cornelia R. Sanders and her husband. The principal questions in this case for determination are: First, was an easement over and upon the land in controversy ever obtained by the St. Louis, Wichita & Western Railway Company by virtue of the condemnation proceedings alleged in the defendant’s answer? Second, were the plaintiffs estopped from asserting any claim as against the easement of the railway company over and upon the property, by reason of the acceptance by Cornelia R. Sanders of the award made by the commissioners and the public records concerning the condemnation proceedings? The fee of the lots is not in dispute.

The contention is over the real estate condemned for side tracks, depots, workshops, water stations, and turntables, the claim of the plaintiffs being that the route laid off in the condemnation proceedings did not exceed 100 feet in width. We think that an easement over and upon all of the lots in dispute was appropriated for the route of the railroad, side tracks, depot grounds, etc. But little, if anything, need be added to the able opinion filed by the trial judge, embraced in the statement. The commissioners appointed by the district judge of Sedgwick county, in their written report, stated that they

“Proceeded to lay off such route, side tracks, etc,, for such distance through said county as was desired by the company, the width of the same being such as was desired by the company, and upon the location, all of which is more particularly described in the plat and profile of the route intended to be adopted by the company in said county, and on the 6th day of September, 1879, filed by the company in the office of the county clerk of Sedgwick county; that we had the same route carefully surveyed, and ascertained the quantity of land necessary for the purposes aforesaid out of each quarter section or other lot of land in said county, through which1 said route, and on which said side tracks, depots, workshops and water stations were located, and appraised the value of such portion,” etc.

The lots belonging to Mrs. Sanders were specifically described in the report, and are stated to be valued at $25 each? and the appraisement of value and assessment of damages on each lot is of its full value — that is, $25. Therefore, Mrs. Sanders, or anyone else, examining the report, would clearly understand that all the lots named, for which the full value was allowed, were actually appropriated. The commissioners would not, in the nature of things, allow for an easement over and upon a part of a lot as much value or damage as if the whole lot were taken; but, as they allowed the whole value, this of itself shows that an easement over the whole was taken. Then, again, an examination of the report shows that, where only a part of a lot was taken, the part so taken is fully described therein. We copy from the report of the condemnation proceedings, filed in the office of the register of deeds of Sedgwick county, of December 20, 1877, the following:

“For an accurate description of each tract or lot of land reference is hereby made to the following table.

[See next page.]

condemnation FnegnSSty— estoppel— notice. Subsequently, Mrs. Sanders accepted the condemnation money. Clearly, she was thereafter estopped from raising any objections to any mere irregularity in the condemnation proceedings. The railway com-r ° / pany, by virtue of such proceedings, obtained the right of easement or occupation of the lots described in the report. The report of the commissioners in the condemnation proceedings was filed in the office of the county clerk of Sedgwick county on the 6th of December, 1879. It referred to the map and profile filed by the railway company in the office of the county clerk. On December 18,1879, a copy of the report was filed with the county treasurer. As Mrs. Sanders accepted the condemnation money, if there was any delay with reference to certifying the amounts paid in by the railway company to the county treasurer’s office, such delay or irregularity would not in any way defeat or avoid such proceedings. Of course, her acceptance would not enlarge the easement or estate condemned, and no such claim is made by anyone. The plaintiffs purchased the lots of Vm. C. Woodman and wife on the 4th day of June, 1886, and Woodman purchased of Mrs. Sanders the lots subsequently to the condemnation proceedings.

In Challiss v. Railroad Co., 16 Kas. 117, 129, it is said:

“Now, as to such proceedings, a party may not trust entirely to the records of the office of register of deeds, but must take notice of whatever appears upon the records of every officer or tribunal having jurisdiction of such proceedings.”

In Hunt v. Smith, 9 Kas. 138, it is said that the land mentioned in the report cannot vary from that shown by the map and profile of the company filed in the county clerk’s office, and that such map and profile make it definite and certain what land is appropriated. (Railroad Co. v. Commissioners, 14 Gray, 554; Hazen v. Railroad Co., 2 id. 574; Inhabitants of Andover v. Commissioners, 5 id. 393; Railroad Co. v. Kellogg, 54 Mo. 334.) Under the condemnation proceedings, all of which were of record in the public offices of Sedgwick county, Woodman, the purchaser from Mrs. Sanders, and the plaintiffs, who hold under Woodman, had constructive notice that an easement over and upon all the lots which they purchased had been legally appropriated for railroad purposes. For some reason, they never examined the public records. Had they made an examination of the report on file in the office of the register of deeds, they would have had actual notice of the appropriation of all of the lots. The condemnation proceedings appearing upon the public records are as conclusive as to them as to Mrs. Sanders.

Various other questions are discussed in the briefs, but in view of the opinion of the trial judge, to which reference has been made, we think it unnecessary to further comment upon the case.

The case of The State v. Armell, 8 Kas. 288, to which we are referred by the attorneys of plaintiffs, has no application, in our opinion, in this case, because in that case the commissioners expressly condemned a right-of-way 100 feet in width through the land of Blackshire, and made no other condemnation whatever. No mention was made in their report of any other right than the 100 feet. In that case, it is not shown that the railroad company paid full value for all the land of Blackshire, but on the other hand it is positively shown that only 100 feet in width thereof was taken. In the language of the opinion, “That is just what was condemned, what was paid for, and beyond that limit the railroad company obtained no right whatever, not even an easement to run a wheelbarrow over the adjacent land to repair the road.”

The judgment of the district court will be affirmed.

Johnston, J., concurring.

---

Dissenting Opinion

Allen, J.,

dissenting: I am unable to concur in the decision in this case. A railroad company can only condemn lands for some specific purpose authorized by the statute, and to supply a present necessity. It cannot condemn a title in fee simple, nor a future use. (Insurance Co. v. DeCamp, 47 N. J. L. 518, 4 Atl. Rep. 318; Toledo &c. Rld. Co. v. D. L. & N. Rld. Co., 62 Mich. 564.) The findings show that the lots in controversy were outside the 100 feet required for right-of-way ; that there was nothing either in the report of the commissioners or on the plat to indicate the purpose for which these lots were sought to be taken, and the company failed to occupy them for any purpose for seven years after the report was filed. In my judgment, no use of these lots was condemned, and certainly the fee was not acquired. As said by Chief Justice Kingman, in The State v. Armell, 8 Kas. 288, “ When the rights or easements are taken by condemnation, the proceedings must. show definitely and precisely what is taken, and what the owner parts with. Nothing is taken by implication or intendment.”

The acceptance by Mrs. Sanders of the condemnation money cannot operate to enlarge the estate acquired by the condemnation. The principle here involved is the same as that in Alt v. Banholzer, 39 Minn. 511, which holds that “covenants in a deed can have no greater validity than the deed itself, and in order that such covenants may work an estoppel, the deed itself must be a valid instrument.” (See, also, 22 Am. Rep. 207.) “To create an equitable estoppel, the person sought to be estopped must do some act or make some admission to influence the conduct of another, which act or admission is inconsistent with the claim he proposes now to make, and the other party must have acted on the strength of such act or omission.” (Rubber Co. v. Rothery, 107 N. Y. 310; Gillett v. Wiley, 126 Ill. 310; Wheaton v. Insurance Co., 76 Cal. 415.)

The acceptance by Mrs. Sanders of the condemnation money could not operate by estoppel or in any other manner to eularge the estate acquired by the condemnation proceedings. It might be a waiver of mere irregularities in the proceedings, but nothing more.