Missouri, Kansas & Texas Railway Co. v. Ward

10 Kan. 352 | Kan. | 1872

The opinion of the court was delivered by

Kingman, C. J.:

This was an action brought by defendant in error to recover damages for trespass on real estate. The following facts are found in the record: The plaintiff in error built its road through the land of defendant in error, without having first obtained the right-of-way. The land was entered upon early in August 1870, and the work on the road-bed commenced. Application to the county commissioners for condemnation proceedings was made October 12th thereafter. The commissioners filed their report on the 28th of November, and the money allowed by the commissioners as compensation and damages was deposited in the county treasurer’s office on the 29th of March 1871. The action in this case was commenced on the 28th of September 1870, and was tried in September 1871, resulting in a verdict for defendant in error.

1. Eight of rail-ti°ns to enter others. 2. Effect of condemnation proceedings. s. License-of fact. No right of way was obtained through the land of Ward until the money was deposited. Sec. 4, art. 12, Const. Every act of the railroad company, in the way of build-mg and operating their road through and upon the land of defendant in error before that time, was a trespass, for which he could recover. Until the payment ■ of this money, or its deposit, as required by law, the corporation obtained no right, unless it was the right to make their survey. The proceedings to procure a condemnation of the right-of-way were not a bar to the action previously commenced, nor did it cure all past trespasses. The provision in our constitution is peculiar, and cannot be overborne by any possible necessity. It stands opposed to the construction given by courts in other states as to the effect and operation of laws providing for taking land for public purposes. Until the money is paid or deposited the corporation gets no rights. The decision of this point, which has hardly been questioned by the bar in this state, disposes of much of the argument of counsel for plaintiff in error. It was not an appeal case. The condemnation proceedings cut no figure except to fix a time when the right-of-way became the property 0 J x x •> 0f the plaintiff in error; and about that, there was no controversy. It is not necessary to determine whether the condemnation proceedings were regular or otherwise. We have assumed that they were correct. The plaintiffs in error, in the court below, relied upon a license given by Ward to them, and under which the acts complained of were done; but the fact as to whether such a license had been granted was submitted to the jury upon conflicting testimony. The jury decided that no such license had been given, and we think the preponderance of testimony sustains the verdict. From the testimony of A. P. Ladue alone, a license might be inferred, but the conversation as testified to by him is so vague as to terms, that one would infer a license from it with much hesitation, while the defendant in error positively denies the license. On this point the testimony is not negative, as it is when he says he does not recollect any such conversation as that detailed by Ladue. This conflicting testimony, with all the surrounding circumstances, went to the jury, and was by it decided. The court properly refused to give 3d and 4th instructions asked by defendant in error. They relate to the condemnation proceedings, which cut no figure in this case. For the same reason the 15th paragraph of the charge of the court could not have wrought any injury to plaintiff in error. Whether the condemnation proceedings were void or not, was of no consequence under the issues and proof in the case. That portion of the charge is obscure, and it is not necessary to say that it is a correct exposition of the law, as it could not affect the case. The judgment is affirmed.

All the Justices concurring.