Kansas Pacific Railway Co. v. Streeter

8 Kan. 133 | Kan. | 1871

The opinion of the court was delivered by

Kingman, O. J.:

The defendants in error being the owners of several parcels of land in Davis county, presented a petition to the district court of that county for the appointment of commissioners to assess the damages sustained by them, because, as they alleged, of the injury done to their lands by the construction of the railway of plaintiffs in error over the same. The commissioners were appointed and made their report, assessing the damages at $800. Upon this report a judgment was rendered against the plaintiff in error for the amount thereof. No notice whatever was given the Eailway Company of this proceeding. It would be a novel judicial proceeding whereby a man could obtain a judgment against another without any notice to him, and a proceeding not authorized by law. Eor this reason the judgment must be reversed.

There is a more fatal objection. The proceedings seem to have been taken under the acts of Congress ; 12 Stat. at Large, 489; 13 id., 356. Ve do not think these acts authorize this Eailway Company to obtain the right of way though the lands of other persons. The proceedings to do so must be taken under our State laws, and they do not authorize the owner of the land to take any steps to have the land valued. Ills remedy is plain. He can proceed in ejectment, or trespass, or get damages for use and occupation; and if he proceeds in time, by injunction. The right of eminent domain, transferred by the State to a corporation for a public purpose, could hardly be used by the owner to sell his own lands at a valuation. He does not know how wide the public necessities may require the right of way through his laud; and he cannot sell them one hundred feet when the necessity may be only for twenty-five because through other land the road needs one hundred feet.

The judgment is reversed.

Valentine, J., concurring. Brewer, J., not sitting.