40 Kan. 130 | Kan. | 1888
The opinion of the court was delivered by
The St. Louis, Fort Scott & Wichita Railroad Company constructed its railroad through the county of Bourbon, and over certain lands of Eveline Wier, in the early summer of 1881. The company took and occupied land of the plaintiff’s for a right-of-way, depot grounds and stock yards, with her consent, and upon agreements whereby certain conditions were subsequently to be performed by the railroad company. The terms of the agreement or agreements made
The referee to whom was referred the issues of law and fact in the case found in favor of the plaintiff, except as to the right-of-way through the town-site of Bronson; and with respect to that the finding is that the plaintiff, by acknowledging and filing a plat of the town-site of Bronson, in which she stated that the railroad company was entitled to a right-of-way 100 feet wide as shown upon the plat, thereby dedicated the right-of-way through the town-site, and that by such' dedication the defendant acquired a right to the same for a right-of-way. The report of the referee was set aside and a new trial granted upon a motion which contained numerous grounds, and we are unable to ascertain from the record the grounds upon which the ruling was placed.
We cannot in this proceeding go further and determine whether or not compensation has been given. That question depends upon facts which are in dispute, and, as there is to be another trial, we cannot with propriety discuss them. Whether the memorandum made at the time of the execution of the deed given for the right-of-way was a distinct agreement, intended to abrogate all former obligations, or was only supplemental to the agreements already made, is a subject of controversy. While the passes stipulated for were furnished and used, and while the depot, side-track and stock yards were constructed upon the plaintiff’s land, it is true that the depot was not completed until some time after the time it was stipulated to be done in the memorandum, and the stock yards were not located upon the exact portion of the premises agreed upon. The defendant claims that under the circumstances time was not of the essence of the contract; and that if it was, the plaintiff is not in a condition to insist upon a strict compliance with the conditions of the contract. It may be remarked that forfeitures are not favored by the courts. If the plaintiff allowed the defendant to proceed with the building of the depot at a later time, and the stock yards at another place, than was stipulated for, as a part of the consideration for the land, without objection, and subsequently accepted passes or other consideration for the conveyance of the land, she would hardly be in a position to insist on a forfeiture, or a strict compliance with the conditions of the contract. The testimony given upon another trial with respect to these matters may differ from that which is in the record of this case,
The judgment of the district court will be affirmed.