58 Kan. 305 | Kan. | 1897
The plaintiff in error instituted proceedings to secure a right of way through Leavenworth County. Messrs. Hacker, Havens and Jaggard were appointed commissioners to condemn the right of way and award damages therefor. The route of the railroad as laid out was across a section of land belonging to the defendant in error. The commissioners viewed the same, estimated the value of the land taken and the damages to the remainder not taken, and prepared and signed a report on either the fifteenth or sixteenth of December, 1886 ; — probably, on the date first mentioned. On the sixteenth of December, Mr. Hacker resigned his position as commissioner, and on the seventeenth of December, Mr. C. F. W. Dassler was appointed in his place to complete the work of the commission. At one place in the report of proceedings, it is recited that Mr. Dassler was appointed on the eighteenth, but the difference in dates is immaterial. He qualified for the duties of his position on the eighteenth, and on that day the report of condemnation, valuation of land and assessment of damages, which had been previously prepared and signed by Messrs. Hacker, Havens and Jaggard, was filed, as required by law, in the office of the county clerk. To this report the signature of Mr.
The defendant in error was dissatisfied with the valuation, and assessment of damages, but neglected to-appeal therefrom within the statutory time. He thereafter instituted an action in the District Court to recover damages as for a trespass upon his land. Upon the trial of the case the Railroad Company, the plaintiff in error, defended upon the ground of the previous condemnation and award of the commissioners, claiming it to be res judicata because not appealed from. The report of the proceedings of the commissioners was offered in proof of the claim of adjudication. Its reception as evidence was objected to by plaintiff, defendant in error here, because void upon its face — showing no valid condemnation and award. The court rejected the report, and, upon trial and verdict of the jury, rendered judgment in plaintiff’s favor for an amount considerably in excess of the award of the commissioners.. The principal question in the case arises upon the offer and rejection of the report.
The question for determination is, whether the report of the commissioners, agreed upon and signed by all three, but not filed until after the resignation of one of such commissioners and the substitution of another, who did not join in the making of such report or take any part in the condemnation proceedings, is valid, and estops the landowner from suing in trespass for the damages sustained by the taking of the right of way through his land.
The plaintiff in error, however, to uphold the report, relies upon the statutory rule of construction to be found in the fourth paragraph of section 1, chapter 104, General Statutes of 1889, which reads as follows : “Words giving a joint authority to three or more public officers or other persons, shall be construed as giving such authority to a majority of them, unless it be otherwise expressed in the act giving the authority.” This statute, however, gives no aid to the plaintiff in error. It does not provide that boards or tribunals, authorized to be made up of three or more persons, may nevertheless be made up of a majority of such number without the appointment of the full number, or that a majority of the full number may act without notice to, or in disregard of, the right of the remainder to participate in the action taken. It declares nothing more than that a majority of a body of three or more, actually in existence as members of a tribunal, may determine the action of such tribunal without the concurrence of the others. The case of P. & F. R. Rld. Co v. Comm’rs of Anderson Co. (16 Kan. 302), was decided in accordance with this view of the statute in question; and the authorities cited to us upon this point support the same construction. Wentworth v. Farmington, 49 N. H. 119; Schenck v. Peay, 1 Dill. C. C. 268; Schenck v. Peay & Bliss, 1 Woolw. C. C. 176. Other cases, less directly in point but supporting the same general view, are, Inhabitants of Williamsburg v. Lord, 51 Me. 599 ; Cassin v. Zavalla Co., 70 Tex. 419 ; State v. Pinkerman, 63 Conn. 176 ; Keeler v. Frost, 22 Barb. 400.
We do not regard Quayle v. M. K. & T. Rld. Co. (63 Mo. 465) as opposed to the views herein ex
The fact that proceedings to condemn the land of a citizen for right-of-way purposes are in invitum, that they are against his will and for the sequestration of his property, is a sufficient consideration as against any claims of technicality in the rule here announced. The authority for such proceedings must be strictly pursued. The remarks of Mr. Justice Miller, presiding at the circuit, in Schenck v. Peay & Bliss, supra, state a rule of unquestioned existence and authority : “ Nothing is better settled in the law of this country than that proceedings in pais for the purpose of divesting one person of title to real estate, and confering it on another, must be shown to have been in exact pursuance of the statute authorizing them, and that no presumption will be indulged in favor of their correctness.”
As to one of these last two claims of damage, it does not appear to be within the allegations of the petition ; as to the other, the proper method of proof was not employed. The largest sum estimated as to one of them by any witness is seventy-five dollars, and as to the other, is $108.80. The plaintiff in error is not entitled to a reversal of the case on account of the erroneous admission of evidence in support of these two claims of damage. How much, if anything, may have been allowed therefor by the jury, cannot be told; certainly, nothing beyond the largest estimates made by the witnesses. These amounts with the interest thereon can be eliminated from the judgment, and it is ordered abated to such extent. As to the other claim for damage, it is sufficient to say that the jury, in reply to an interrogatory upon the subject, stated that they found nothing for defects in the construction of the road; consequently, the plaintiff in error has not been prejudiced by the admission of testimony concerning the destruction of the ford through the faulty construction of the bridge.
As to all the other claims of error, it is sufficient to say that none of them are substantial; and the judgment of the court below, modified as above indicated, is affirmed.