4 Kan. App. 252 | Kan. Ct. App. | 1896
The opinion of the court was delivered by
The defendants in error brought- this action, alleging in their petition that they were the owners, as tenants in common, of a certain piece of real estate situated in Bourbon county, Kansas, and that the defendant railroad companies were in the use and possession of a strip of land as their right of way upon and across said real estate ; that in 1885 or 1886 the Kansas, Nebraska & Dakota Railway Company built its road across said land without any right or
The Kansas & Colorado Pacific Railway Company, for its answer, admitted the occupancy of the premises as alleged in the petition, and set up as a defense that the said right of way had been regularly and legally appropriated and condemned in accordance with law, and that the value of said land had been paid to the person adjudged by the condemnation commissioners to be the owner thereof, in the manner provided by law. It also pleaded, as a- separate defense, the statute of limitations. The Missouri Pacific Railway Company, for its answer admitted that it was operating the railway of its codefendant, which said railway was established and constructed over and across the lands described in the plaintiffs’ petition, and further alleged that the right of way had been legally established. It also pleaded the statute of limita
The facts in this case.are that the Kansas, Nebraska. & Dakota Railway Company instituted condemnation proceedings in the district court of Bourbon county, and commissioners were duly appointed to appraise the right of way for said road through said county. The commissioners proceeded to appraise said right of way, and in so doing awarded to W. H. Van Buskirk, as owner of the tract in question, the damages assessed for the right of way across the piece of land in question. At the time Van Buskirk was in actual possession and occupancy of the tract in question, and was, so far as the record is concerned, the absolute owner thereof. The amount of the award was deposited with the county treasurer, and no appeal was taken therefrom by any person within the time prescribed by statute. The agreed statement of facts admits that the condemnation proceedings were in all respects regular. At a later date an action was commenced by defendants in error in the nature of a suit in partition, and it was finally held that W. H. Van Buskirk held his title in trust for the benefit of the defendants in error in this case. (Phipps v. Phipps, 39 Kan. 495 ; 47 id. 328.)
The main question for our decision in .this case is : Where condemnation proceedings have been conducted in strict conformity with the requirements of the law, and compensation for the land appraised as right of way has been secured by the deposit of money with the county treasurer of the county where the
'The right of condemnation of private land for public uses exists aside from the statute. It is an inherent right — a part of the sovereign power. But it must be exercised in the manner and under the forms prescribed by statute. Where, however, this right has been exercised in strict conformity to the statute, the result is final, and the right to the use and occupation of the property condemned is conclusive. This question in all of its phases has been so lately passed upon by this court in the case of Armstrong v. Moore, 1 Kan. App. 450 ; C. K. & W. Rid. Co. v. Selders [post], 44 Pac. Rep. 1012, that we consider it unnecessary to enter into the further discussion of it at this time. The opinions in both cases cited were carefully and ably prepared by Johnson, P. J., and the questions involved were carefully discussed and considered by all' the members of this court, and we can see no reason for changing our views upon the propositions therein decided. In conformity with those cases, we hold in this case: (1) That the statute of this state authorizing real estate to be appraised for the use of railroad companies for right of way does not contravene the pro
Some argument is made by counsel for defendant in error upon the proposition that, in this case, the award was not made for each separate tract of land, but in view of the fact that the agreed statement of facts upon which this cause was tried specially admits that the condemnation proceedings were in all respects regular, we cannot' consider this argument.
It is also urged im this case that the statute of limitation had run against the cause of action. It is somewhat difficult to determine from the manner in which the petition is drawn just what the nature of action is, but we are inclined to the opinion that it is .in the nature of an injunction, and was therefore not barred.
For the reasons above stated, however, .the judgment must be reversed, and this cause remanded, with' instructions to the district court of Bourbon county