42 Kan. 490 | Kan. | 1889
The opinion of the court was delivered by
The only question presented is, whether the amended petition states a cause of action against the Fort Scott, Wichita & Western Eailway Company. The defendant in error, whose property abuts on Kansas avenue, a street in the city of Newton, seeks to recover damages for the total obstruction of the street by the railway company, whereby he is deprived of the means of ingress and egress to and from his property. According to the averments of the petition, the road was built by the St. Louis, Fort Scott & Wichita Eailroad Company, in July, 1886; and in laying down its
The principal contention of the plaintiff in error is, that it cannot be held liable in any way for these damages, for the reason that the road was built and the nuisance created by the St. Louis, Fort Scott & Wichita Railroad Company. It is true that a sale made as alleged would convey a title to the purchasing company, free from all claims for the general debts of the old company, but the liability for either the creation or continuance of the nuisance does not fall within that class. The old company was a wrongdoer, and had acquired no right to deprive Fox of the use of the street as a means of access to his lots. The company had made no compensation for this appurtenant to his property, nor had he in any way released or waived his claim for damages. The old company, having no right in this appurtenant, could convey none, nor could the claim for the continuing wrong and injury be divested by a sale under the mortgage foreclosure. If the owner had consented to the appropriation in any way, or had stood silent for a long time with knowledge of the occupancy, a different question would arise; but in this case he promptly pressed his claim for damages against the old company, and when the transfer of the property and franchises was made, he as
The judgment of the district court will be affirmed.
In the cases of Fort Scott, Wichita & Western Rly. Co. v. T. V. Morse, No. 4983, and the same plaintiff v. D. Hamill, No. 4984, the facts are substantially the same as in the Fox case, were submitted on the same argument, and as the same legal questions are involved, it follows that the judgment of the district court in each case must be affirmed.