84 Kan. 688 | Kan. | 1911
The opinion of the court was delivered by
The North Topeka Drainage District by condemnation proceedings appropriated land belonging to Raney for the purpose of constructing a dike to prevent the overflow of the Kansas river. Raney appealed
The principal error claimed relates to the instructions. The court refused to instruct the jury as follows: ■
“The condemnation and appropriation by defendant of the land in question did not devest plaintiff of his title but only permits defendant to use the same for the purpose of constructing and maintaining a dike thereon, and the plaintiff still has the right to the free and full use of all the land included in said right of way for any purpose that will not interfere with the maintenance of such dike.”
The court gave instead the following instruction:
“You are also instructed that the drainage district by the condemnation and appropriation of this particular piece of land for the purpose of building the dike did not acquire the free title to any part of the land, but that remains in the plaintiff, the owner, and the drainage district simply acquired the right to build and maintain that dike there for public purposes and the plaintiff still remains the owner of all the, land in the contract, and in case that dike should cease to exist for .the purposes for which it was constructed, then the ownership of the entire tract as well as the right to possession would revert back to the plaintiff in this case.”
The defendant insists that the jury should have been instructed that the plaintiff would have the right to such use of the land as would not interfere with the maintenance of the dike. We think an instruction to this effect should have been given, but its refusal can not be regarded as substantial error under all the circumstances of the case. The jury were instructed that the fee title of the land remained in the plaintiff, that he was the owner and that the drainage district only acquired the right to build and maintain the dike thereon. It is apparent that the jury were not misled
The judgment is affirmed.