117 Kan. 403 | Kan. | 1925
The opinion of the court was delivered by
The plaintiff commenced this action to recover damages caused by the defendant appropriating a part of real property owned and occupied by the defendant in Kansas City, Kan. Judgment was rendered in favor of the plaintiff for $300, and the defendant appeals.
The plaintiff with his family occupied the property as their home, and in May, 1916, under an option agreement contracted to purchase the property of Hattie M. Andrews, who was then the owner thereof. The consideration to be paid was $750, and payments
Those findings showed that the contract for the purchase of the property was made by the plaintiff and his wife; that after the action was commenced, but before judgment was rendered, a deed conveying the property to the plaintiff was made; that the property was taken and damaged as stated; and that the defendant has not paid for the property taken nor paid for the damage caused to the remainder.
The defendant contends that it is not liable because the original petition did not state a cause of action; because the amended petition did not state a cause of action; because there was a departure between the original petition and the amended petition; because the cause of action as attempted to be stated in the amended petition was barred by the statute of limitations; because the evidence did not prove a cause of action in favor of the plaintiff; because the plaintiff was not the owner thereof at the time the property was taken; because the acts of the defendant in taking the property were ultra vires; because the defendant is not liable for the torts of its officers; because of a defect of parties plaintiff; because the suit was prematurely brought; because the plaintiff did not consent to the taking of the property; because the defendant did not permanently take the property; and because the right of action was in another.
It was shown on the hearing of the motion for a new trial that, after judgment had been rendered, the defendant removed the levee from on and around the property of the plaintiff and placed it where it had been located by the engineer; the levee had not been constructed on the line located by the engineer.
An exhaustive discussion of all the reasons given to show that the plaintiff cannot recover is found in the briefs of the defendant; all have been examined and every proposition has been considered.
It is not necessary to cite any authority other than the law under which the defendant operates. That law directs the defendant
The removal of the levee after judgment did not defeat the plaintiff’s right to recover.
The judgment is affirmed.
