90 P. 290 | Kan. | 1907
The opinion of the court was delivered by
This is an action by James Murphy against the Missouri, Kansas &' Texas Railway Company to enforce an award made in a condemnation proceeding. In August, 1901, the Missouri, Kansas & Northwestern Railroad Company proceeded to condemn a right of way over land which was owned by Murphy and seven other persons, but the award made by the commissioners was unsatisfactory. The owners of the land appealed from the decision, and Murphy, who had a mining lease on the tract, of ten years’ duration, and to whom no award was made for his leasehold interest, took a separate appeal. The appeal of the owners was compromised and settled, but it was agreed that it should not affect the rights of the lessee, Murphy. His appeal was perfected in November, 1901, and while the railroad company took immediate possession of the right of way it did not give a bond for the payment of damages and costs to be ultimately awarded, as the statute provides.
A bond of that general character was subsequently given, but not until after the trial was over and judgment had been rendered. While the appeal was pending, and in May, 1902, the Missouri, Kansas & Northwestern Railroad Company sold and transferred its road, right of way, property and franchises to a connecting Missouri corporation, of the same name, and that company at once sold and transferred the same property, rights and franchises to the Missouri, Kansas & Texas Railway Company. This company has occupied and used the right of way since that time, and was in possession of it when the trial on the appeal
The petition contained two counts. The "first was in the nature of ejectment, and the second set up the appropriation of the land by the railroad company, the condemnation proceedings, including the award of the commissioners, the appeal of Murphy and the final award by the court, the failure of the company to give a bond binding it to pay damages and costs, the transfer of the railroad and franchises by the condemning company to the defendant company, the occupation of the right of way by the defendant, its failure to pay the award, and, also, that the other companies were mere creatures and instrumentalities of the defendant; and it was then alleged that there were additional damages occasioned by the building of the road, such as the flooding and injuring of the mines, which prevented Murphy from operating them for more than a year. In the prayer for judgment the plaintiff asked for possession of the land; also for damages, and “for such other, further or different relief as-to this honorable court may be deemed equitable.”
The railroad company challenges the sufficiency of the petition, but as the ruling on the demurrer was made more than a year before the proceeding in error was instituted that ruling is not now open for review. (Blackwood v. Shaffer, 44 Kan. 273, 24 Pac. 423; Corum v. Hubbard, 69 Kan. 608, 77 Pac. 530; Milling Co. v. Buoy, 71 Kan. 293, 80 Pac. 591; White v. Railway Co., 74 Kan. 778, 88 Pac. 54.)
An attack was made upon the petition by an objection to the admission of any testimony, but this is not
There is a contention that the judgment was rendered on a theory not presented by the pleadings, and that Murphy, by his petition and prayer for relief, asked for the recovery for the real property and then recovered on an award for damages for the occupancy of the same property. The first count, as we have seen, did ask for an eviction from the land, and the court in the early stages of the litigation appears to have proceeded on the theory that the action was ejectment, and awarded the second or new trial upon application. Before the final trial was begun, however, the railroad company attacked the petition on the ground of inconsistency, and the court then required Murphy to elect upon which count of his petition he would rely. He elected to try the case upon the second count, which operated to eliminate the ejectment- count, and questions raised on that branch of the case are no longer of any importance.
Under the rule of interpretation previously referred to the second count justified a recovery of the damages awarded. It set forth the proceedings resulting in the award for damages, the purchase of the railroad, and the possession of the right of way by the defendant. These averments, in connection with the prayer for general relief, warranted the judgment that was given. It is true that the prayer of the petition which asked for a recovery of the property was not amended after Murphy elected to try the case upon the second count alone. This oversight is easily understood, and under the circumstances could not have misled the company. Besides, in the opening statement of the case, counsel for Murphy expressly stated that he was claiming the award made in the condemnation proceeding and would
“The demand of the plaintiff in his petition does not necessarily limit the court in the judgment which it may render. It is the case made by the pleadings and the facts proved, and not the prayer of the pleader, which measures the relief that the court may award.” (Syllabus.)
The fact that a mistake was made in the prayer for specific relief did not prevent the granting of such relief as the allegations of the petition and the circumstances of the case justified. There was a prayer for general relief, and under that the judgment actually rendered was authorized.
Since the action may be regarded as one upon the award made in the condemnation proceeding, can there be a recovery against the defendant? It purchased the right of way, the subject of litigation, during the pen-dency of the proceeding. It took possession of the right of way and.declared its intention permanently to occupy and use it, and, of necessity, is bound by the judgment subsequently rendered. The defendant elected to adopt the appropriation of a right of way made by its predecessor, and Murphy elected to submit to the appropriation and to claim the damages awarded. ■Having adopted the fruits of the litigation in this manner the railway company i§ bound by the judgment fixing the value of the land áppropriated and the amount of damages sustained.
In Indiana a new railroad corporation succeeded to the property, rights and franchises of its predecessor, and elected to adopt an appropriation of land made by the old company by entering upon and occupying th
This view of the law can hardly be said to have been a matter of contest in the trial court, as counsel for the railway company stated at the opening of the trial that the company took the railroad encumbered by the award to be made upon the appeal. He did not claim that the company was not liable for the award, but rather that Murphy could not recover the award in an action of ejectment. As the relief sought by Murphy
It is true, as the railway company contends, that an award of damages in a condemnation proceeding is ordinarily not conclusive upon the company. If the award is deemed excessive the company may decline to take the land and adopt another route.- For that reason a judgment in 'personam is not taken in the first instance.' Here, however, the railway company exercised its option to hold the land and continue the use of the right of way after the damages had been fixed. 'It has built its railroad upon, and declares that it has made a permanent appropriation of, the right of way. Having exercised its option and appropriated the land its liability for the award becomes absolute, at the option of the owner to claim the award. The adjudication upon the appeal was as-binding upon the defendant as it could have been upon its predecessor if no sale or transfer of the railroad had been made.
Now the company contends, first, that the statute gives no authority to the owner to sue upon the award made in a condemnation proceeding; and, second, that such owner is limited to a recovery on the bond given to secure the payment of the award. The fact that the statute does not specifically provide a form of action for the enforcement of an award does not mean that it is not enforceable,, where a railroad company appropriates and uses the right of way. It indicates rather
The contention that Murphy was confined to an action upon the bond given by the railroad company in pursuance of the statute to secure damages to be awarded is not sound. The bond was not in fact given at the time and in the manner prescribed by the statute, and if it had been Murphy would not have been compelled to rely solely on an action upon it. The statutory provision is that when an appeal from an award is taken and the condemning company desires to take possession of the land and proceed at once to construct its railroad it may do so by paying or depositing the amount awarded and giving a bond with sufficient securities that it will pay the damages and costs that may be adjudged on the appeal. (Gen. Stat. 1901, § 1364.) The bond provided for is no more than a security for the payment of the damages to be ultimately
The right to damages and the extent of the recovery to which Murphy was entitled were settled by the judgment upon the appeal. That judgment is final as to the company which purchased the railroad during the pendency of the proceeding. Some of the questions discussed are therefore not open to inquiry and others of them do not appear to require special consideration.
The judgment of the district court is therefore affirmed.