St. Louis, Kansas & Southwestern Railway Co. v. Hammers

51 Kan. 127 | Kan. | 1893

The opinion of the court was delivered by

Johnston, J.:

This was a condemnation proceeding which was tried upon an appeal in the district court of Harper county. The railroad of plaintiff in error was constructed across the corner of a 40-acre tract of land owned by James A. Hammers, and the land appropriated by the company was a part of that used by him as a place to feed and shelter his stock. It appears to have been naturally adapted to that purpose, and the building and operation of the railroad necessarily detracts from its value. Special questions were submitted to the jury, and the answers to these show that there was of an acre of land taken for a right-of-way, for which the jury allowed $25. By the general verdict, the total damages were appraised at $625. There is considerable confusion in the answers made to the special questions, but from them it appears that their allowance was based upon the land actually taken and the injury to the feed lot. In the eighth finding, in which they particularize and point out wherein the injury to the feed lot consists, they answer that they allow $600 for the reason that passing trains may frighten his stock. The plaintiff in error challenges the rightfulness of this allowance, and insists that the verdict is excessive. Damages for the frightening of stock by the operation of the railroad are speculative and consequential in character, and not a proper element in determining the compensation to which the owner was entitled. This question was long since settled by the decision in Railway Co. v. Lyon, 24 Kas. 745. In that case it was held that

“In assessing damages done to land by reason of the appropriation of a right-of-way through it for a railroad, the liability of teams being frightened, or that additional care by the landowner may be necessary in the future as to such teams, by reason of the proximity of the railroad, does not of itself constitute any basis for special compensation. Such damages are speculative, and not the proper subject of inquiry and damages.”

The defendant in error argues that the testimony plainly shows that there was a depreciation in the value of the land not taken to the extent of the allowance by the jury. There was undoubtedly a substantial diminution of the value of the land not taken by the construction of the road, and if the findings showed that it was made up of proper elements, the verdict would doubtless have been allowed to stand. The difficulty, however, is that the jury have definitely stated the elements considered by it in reaching its conclusion, and in doing so have placed their award upon an element for which damages cannot be allowed. The error is plain, and requires a reversal and a new trial. That will be the judgment of this court.

All the Justices concurring.