41 Kan. 574 | Kan. | 1889
Opinion by
The conceded facts, the charge of the court to the jury, and the findings of the jury, present but one question, and that is, did the court in its instructions to the jury give the proper rule or measure of damages which the appellant was entitled to recover ? This question has been recently settled in an exhaustive opinion in the case of Railroad Co. v. Johnson, 38 Kas. 142, in which it is held that a different rule must be given if the occupant of the land condemned for right-of-way by a railroad company has only a homestead right and not the fee to the land; or, in other words, the jury must take into consideration the title so possessed, and the right of possession, in determining the extent of the damages and value of the land. In that case, Mr. Justice Johnston, speaking for the court, saysú
“The interest which the settler has may be appropriated for a right-of-way by adversary proceedings, as we have already, seen that congress has provided for the condemnation of a right-of-way through a homestead, as well as for its purchase from the settler. Of course the settler does not part with the same interest or value that he would if he had the legal title, and he should only receive compensation for the interest taken from him. The court below, however, in its charge and rulings on the admission of testimony, seems to have carefully restricted the jury to an allowance for the injury done to the rights and interest which the settler had in the land. The*577 appropriation and use of a strip of land through the homestead affected the entire tract. The homesteader had taken and was using it as a single tract, and as his home and farm. The division of the farm into parts of irregular shape, the deep cuts and high fills that were made, and the inconvenience resulting from the construction of the road, constitute an injury to the interest of the settler which differs only in degree from that sustained by one who has the legal title.”
In this case the court instructed the jury and gave the rule for the measure of damages just as it would have given it had the plaintiff, instead of having a homestead right, owned the fee. This was error. The court ought to have defined the rights of the settler in such homestead, and left the question to the jury to determine his interest and from such interest the liability of the company. Just what that interest would be is a question of fact in each case, to be determined by the jury, and depends upon the improved condition and the length of time the homestead has existed, and all other facts that go to make up its value. Its value may be much less than if the settler owned the fee of the land, or it may be substantially the same, or a little less than its actual value including the fee.
We are therefore of the opinion that the instructions of the court are erroneous, and recommend that the cause be reversed, and a new trial ordered.
By the Court: It is so ordered.