38 Kan. 104 | Kan. | 1887
Opinion by
“The clerks of the district courts shall do and perform all duties that may be required of them by law, or the rules and practice of the courts, and shall safely keep and preserve all papers, process, pleadings and awards that may be filed, or by law placed in their respective offices.”
This section defines the duties of the clerk of the district court in regard to the files and papers of his office; and unless there is some provision of the statute authorizing the clerk, in exceptional cases, to transmit the original files, then he must retain them in his office.
Again, plaintiff in error charges that the court erred in permitting witnesses to testify to the measure of damages to the
“Q,. How much less, in your opinion, is this farm worth after the railroad company had established its track through it, irrespective of any benefits from any improvements proposed by the railroad company to be derived from said track, taking into consideration all incidental loss, inconveniences and damages, present and prospective, which may reasonably be expected, or shown to exist from the maintaining of said railroad track, to be continued permanently? A. About $2,100.”
The next objection urged is, that the court refused to permit L. B. Bunnell to answer the following questions asked by the defendant below:
“Now in what respect is the farm of the plaintiff benefited or injured by the railroad, if any, outside of any proposed benefits to them in the commencement of the right-of-way proceedings ?
“In what manner, if any, will the plaintiff’s premises be injured or benefited by reason of the ditches on the north and on the south side of the grade on the right-of-way ? ”
The next complaint is to the refusal of the court to instruct the jury as follows:
“5. The jury have no right to take into consideration any item or element of damages which the plaintiff, may have, or may hereafter sustain, by reason of defendant's embankments obstructing or in any way stopping the flow of surface-water upon plaintiff's land or defendant’s right-of-way, and thus collecting in stagnant pools such surface-water either upon plaintiff's land or defendant's right-of-way.”
It is perhaps true that if at the time of the trial the road had not been constructed, then the damages must be confined to what might be reasonably anticipated, upon the theory that the road would be constructed in a proper manner; and in that case it could not be expected or anticipated that the road would be so constructed as to dam up the surface-water, or that ditches would be so made as to retain pools of stagnant
Counsel also insist that the court erred in giving the following instructions:
“ 14. The jury, in estimating the value of the land appropriated, will limit the inquiry to a strip 100 feet in width.”
“13. If the jury find an amount of damages greater than $510, you will allow 7 per cent, interest on the amount awarded from September 7,1885; if you find the sum not greater than $510, no interest will be allowed.”
Plaintiff was properly entitled to interest at 7 per cent.
The defendant insists that the court erred in rendering a personal judgment on the verdict of the jury. This claim is correct. The judgment should have been to correct the assessment of the commissioners, and to make their award corre
It is therefore recommended that the case be remanded to the court below, with the order that the judgment be modified in accordance with the views expressed herein.
By the Court: It is so ordered.