30 Kan. 288 | Kan. | 1883
The opinion of the court was delivered by
The defendant in error was the owner of certain lots on Willie street, in the city of Olathe. The plaintiff in error, defendant below, constructed its railroad track along said street and in front of said lots. Directly in front of her lots the track was raised some five or six feet above the grade of the street. She brought her action to recover damages to her lots by reason of this construction of the railroad track. The case was tried by the court without a jury, special findings of fact were made, and a judgment was rendered in her favor of $220. The case turns on the scope and effect to be given to a release or receipt executed by the plaintiff, for it cannot be doubted that independent of such receipt she could recover damages for the obstruction of access to her lots by reason of the embankment or fill in front of them. (Railway Co. v. Twine, 23 Kas. 585.) The receipt or release reads as follows:
Olathe, Kansas, Sept. 8, 1881.
Received of the Kansas City & Olathe Railroad Company, by the hands of J. W. Hare, city clerk, fifty-five dol*290 lars, which I hereby accept in full payment and satisfaction of any claim I may or might have for damages to lots Nos. 10, 13, 14, 17 and 18, in block No. 28, city of Olathe, Kansas, against said railroad, by reason of the construction of said railroad. $55. Her
Attest: J. W..Hare. DiceyX Hicks.”
As further facts, it is found that the city council, by ordinance, duly authorized the defendant to construct this railroad track along said street; which ordinance provided that before-constructing its road, the defendant should pay the city clerk $3,500 as and for the damages, which would accrue to owners-of improved property on said street, and that the said money should be apportioned among such owners by five disinterested householders, duly sworn to impartially appraise the damages, etc.; and further, that such money should be paid to the owners by the clerk, “ taking their receipts for the same, which receipts shall specify the amount received by them respectively is in lieu of all claims for damages to their property by reason of the construction of said railroad;” also that such sum was paid to the city clerk, and by him distributed;. that the basis of the distribution was the value of the respective properties, and that plaintiff knew this when she received ' the money and gave the above.receipt; also that the fill or embankment in front of plaintiff’s lots is necessary to bring the railroad track to a proper grade, and that such track is in-first-class condition, and the locomotives and trains thereon-are operated in the most skillful and approved maner; further,, that at the time of giving such receipt no work had been done on the track in front of her lots, although some had been done on either side, and that certain stakes had been placed on the-street in front of her lots, though she did not know what they meant. The court further found that the damages done to the property by the construction of said railroad amounted to $275, and crediting that with $55 for which the foregoing receipt was given, rendered judgment for the remainder.
The contention of the railroad company is, that such receipt is something more than a mere receipt, and is an accord and satisfaction — a contract by which all claims for damages
“Every railway corporation shall have power: . . . Fourth, To construct its road across, along or upon any stream of water, watercourse, street, highway, plank road or turnpike, which the route of its road shall intersect or touch; but the company shall restore the street, highway, plank road or turnpike thus intersected or touched to its former state, or to such state as to have not necessarily impaired its usefulness.”
In other words, she received pay for the damages which would have accrued if the company had restored the street' to its former condition, or one equally serviceable. She expected to retain the full use of the street for travel and access to her lots, and was only receiving compensation for the annoyance of a railroad track with its passing trains in front of her premises.
The argument is plausible, but not sound. When parties contract in reference to a proposed work, they are presumed to have in mind the work as it is proposed to be done and as its necessities require. It is found that this fill was necessary to bring the track to a proper grade. The work was being done oh either side of her lots, and stakes were set in front of them. The work was planned, its necessities known : there is no in-ti mation of fraud, deception, or concealment. She receives
Again, she releases all claims for damages. But damages in the ordinary legal sense mean the compensation which the law will award for an injury done. If the law will give no ■compensation, there is certainly no legal claim for damages. Now if the street is restored to its former condition, ,or one equally serviceable, the adjoining lot-owner has no claim for damages. Any inconvenience or annoyance is damnum absque injuria. (Railroad Co. v. Garside, 10 Kas. 552.)
Beyond the receipt is the ordinance. It required from the railroad company a payment of $3,500, not as a mere exaction for the privilege of going through the city, or for the benefit of the lot-owners in general, but for the use of the owners of improved property on Willie street, and for the damages which the construction and operation of the railroad would cause to such property. And it further provided specifically that such owners should give receipts, and that the receipts should state that the amounts received by them respectively should be in lieu1 of all claims for damages by reason of the construction of the railroad. Is it not reasonable to suppose that this municipal legislation was in view of just such a contingency as in fact arose, and to secure in advance what was deemed suitable compensation by the city council to the several lot-owners?
There is nothing in the record which shows the grade of Willie street. From the fill required in front of plaintiff’s lots, and from the testimony in respect to a draw at that place, it is clear that the street was not level; and from the exceptional condition attached to the ordinance in this case, we may fairly assume that it was evident that the construction of a railroad track along this street would require a cut or fill, and that the city chose to secure, in the hands of its officers, an amount which it thought sufficient to cover the damages
Again, while the quotation from ch. 23, supra, prescribes-the general rule and condition under which railroad companies may construct their track across or upon any street or-highway, yet in addition special power is given to cities in. this respect. Chapter 19, Comp. Laws 1879, the act in respect to cities of the second class, provides in § 64 that “the-council shall have power to regulate levees, depots, depot grounds, and places of storing freight and goods, and to provide for the passage of railways through the streets and public grounds of the city; also, to regulate the crossings of railway tracks, and to provide precautions, and prescribe rules regulating the same; and to regulate the running of railway engines, cars and tracks within the limits of said city, and to prescribe rules relating thereto, and to govern the speed thereof, and to make any other and further provisions, rules and restrictions to prevent accidents at crossings and on the tracks of railways, and to prevent fires from engines.”
Now this section vests control in the city council. It may.
We therefore think the district court erred in its conclusions from the facts as found, and the judgment will be reversed, and the case remanded with instructions to enter judgment upon the facts found in favor of the plaintiff in error, defendant below, for costs.
