8 Kan. 409 | Kan. | 1871
The opinion of the court was delivered by
The defendant in error appealed from the determination of the county commissioners of Bourbon county as to the value 'of the land appropriated by the plaintiff in error for a right of way through the land of the appellant. A trial was had in the district court at the June Term, 1870, which resulted in a verdict for defendant in error. The verdict was set aside and a new trial awarded. This trial took place in November, 1870, and the verdict was for the same party;
I. The appeal bond was approved by the county clerk. This was correct. The report of the commissioners was in his office. Until it was so filed the owner of the land could not know what the determination of the commissioners had been, so as to decide whether he would appeal or not. When the papers were filed in the clerk’s office, he, as custodian of them, was the proper person to approve the bond, not the commissioners who had separated and were in different parts of the county, and had no fixed office or place of official business.
II. The proceedings in the district court were entitled “Risdon Owen v. The Missouri River Ft. Scott and Gulf Railway Company.” Plaintiff in error moved to dismiss because the case was wrongly entitled. If true this was no cause for dismissal, only to correct the title of the action, (see code, § 110,) and is no cause for a reversal. But we think the case was rightly entitled.
III. After the jury were sworn the court allowed the plaintiff to sign his amended petition, to which objection was made, and defendant then asked ten days to answer further, which was refused. The petition had been filed for months. To make a clear record it should have been signed, but as the issues were made up on it, the error was not of any consequence. The ruling of the court was correct. The demand for time to answer was frivolous and ought to have been denied.
IK. On the trial the court permitted Owen to introduce in evidence the report of the commissioners in the condemnation proceedings, and the accompanying map; each was separately objected to. It is not apparent how else Owen could get before the jury just what part of his land had been appropriated for, the railroad. This was the legal evidence of that fact — a record made by request of plaintiffs in error of what land had been attempted to be condemned. If it was not the only evidence
Y. The witness Caldwell was asked if he knew the land of Owen. He answered, “that portion of it which was south of Marmaton river, amounting to about fifteen acres.” He was then asked the value of this fifteen acres just before and just after the location and construction of the railroad. This question was objected to and the objection overruled. Whether it was answered or not is not stated. We will not stop to examine the propriety of a question when it does not appear to have been answered, for if the question was improper, and the answer, if one was given, did not injure plaintiffs in error, it would be no cause of error. The witness may not have known anything about the value of the land and have so answered.
YI. The plaintiff himself testified that he had occupied both quarters of the land for about eleven years, and that before his occupation of the same, the quarter in section eight had been occupied by Andrew Eiggs, and that the quarter in section seventeen had been occupied by Harrison’ Martin; and that Eiggs and Martin had each occupied their respective quarters about eighteen months or two years before he took possession. Plaintiff’s counsel then asked him of whom he obtained the quarter in section seventeen, and Owen said in reply he “got it of Harrison Martin and entered it.” Defendants’ counsel asked that the statement be. excluded from the jury. This was refused. It was a direct answer to the question, and an appropriate one; and the question itself should have been objected to. The evidence certainly did not show title; and a glance at the instructions reveals the fact that it was not so considered by the court or parties.
YII. The witness Cole was asked the value of the land occupied by Owen in “ section eight ” as set forth in the petition, just before and just after the construction of the railroad through it, to which he answered, that “it was worth §25 per acre jxist before, and $10 less per-acre just after.” The question was correct, and not objected to. The answer was equiv
Till. Plaintiff offered in evidence a deed with covenants of general warranty from Andrew Riggs to himself for the quarter in section eight dated December 11th, 1861, and filed for record andrecorded June 4th, 1870. Defendants objected to the reading of this deed in evidence because it showed no legal title at the time of condemnation. The deed conveyed the property from the time of its delivery, and not from the date of its recording, and therefore was properly read in evidence.
IX. It should be understood that but little of the evidence is preserved in the recor.d, and only a part of the instructions are incorporated therein. The plaintiffs in error asked two instructions, but whether they were applicable to the evidence we cannot say, as there is no evidence preserved that would make them applicable.
X. The court among other charges gave the following: “To entitle the plaintiff to a verdict in this case it must appear to you from the evidence that at the time of the appropriation by the defendant of the light of way through the lands in the plaintiff’s petition set forth, the plaintiff had some ownership, some estate in said lands. If the evidence shows that at the time of such appropriation, and for eight or ten years previous thereto, the plaintiff was in the actual and exclusive possession and occupancy of said lands, under a claim of absolute title thereto, this is evidence tending to show a title in fee simple in the plaintiff; and if there is no evidence tending to show any adverse title, it is sufficient for the jury to infer therefrom that the plaintiff was the owner in fee of said lands.”
The court then instructed the jury “that if they found for the plaintiff they would assess his damages as of the time of the appropriation, with interest thereon at seven per cent per annum from the time of the appropriation.”
XI. It was right to give interest from the time the land was appropriated, and would have made no difference that the company had deposited the amount of the valuation and assessment with the treasurer of the county. The appellant ought not to have accepted the benefit of the adjudication of the commissioners and yet to have alleged it to be erroneous.
We have examined the various rulings of the court, so far as they are material; and finding no error therein the judgment is affirmed.