Chicago, Kansas & Western Railroad v. Selders

The opinion of the court was delivered by Johnson, P. J. : The only question presented,by the record for the consideration of this court is whether, under the findings of fact, the plaintiff below was entitled to a judgment of eviction against the Chicago, Kansas & Western Railroad Company. It appears from the record that the railroad company in 1886 was authorized to construct its railroad through Ness county, and took the necessary steps to secure the right of way through the county by having three commissioners appointed by the judge of the district court; that the commissioners were duly appointed and qualified, and gave notice by publication of the time and place at which they would proceed to lay off along the line of the proposed railroad a route for the road through Ness county. The commissioners proceeded in accordance with the notice to lay off the route for said railroad, as required by the company, and appraised the value of each tract of land as right of way, and assessed the damages to the several tracts of land through which the route was so located, and after they had completed laying off the route and appraised the value of land taken, and assessed damages thereto, they embodied their doings in a written report, and filed the same in the office of the county clerk of said county, The commissioners, in laying off said route for the railroad company, laid off as a part of said route and right of way a strip of land upon and across the lands of plaintiff below, commencing at the eastern boundary line of — 504 — her land and extending across the same to the western boundary thereof, and appraised said strip of land and awarded damages thereto in the sum of $194.81. The award of damages to the same was made in the name of Lowrie, Baker & Co., the amount awarded being deposited with the county treasurer of Ness county within 30 days after filing of such report. Lowrie, Baker & Co. were not the owners of the land and had no interest in the same. The railroad company, soon after the condemnation proceedings, took possession of the right of way so condemned, and commenced the construction of its road, and soon thereafter had the same completed, and has been in the occupancy of the land ever since, operating its road thereon. The condemnation proceedings were had under article 9, chapter 23, Laws of 1885. It is not claimed that the proceedings were not in conformity to the provisions of this article, but it is claimed that the appropriation of the strip of land for right of way was in violation of the rights of the plaintiff below, under section 4 of article 12 of the constitution of Kansas ; that her land had been appropriated for right of way for the railroad company without full compensation therefor having been first made in money, or secured by a deposit of money to her as the owner thereof ; that the commissioners having appraised the value of the land and damages to the resi lue of her land to Lowrie, Baker & Co. rendered the condemnation void as to her, and gave her a right to fevict the railroad company from the right of way. Article 9 of chapter 23, Compiled Laws of 1885, authorizing real estate to be appropriated to the use of railroad companies for right of way, does not contravene the provisions of section 4, article 12, of the constitution. (Hunt v. Smith, 9 kan. 138. ) — 505 — Does the mere fact that in the- condemnation proceedings the commissioners in their report name another than the true owner as the party to whom the award is to be paid render the condemnation void? Or, in other words, does the mere fact that the commissioners found Lowrie, Baker & Co. to be the owners of the land, and awarded damages to them for the land appropriated, render the whole proceedings void so as to permit the true owner, after the railroad is constructed and in operation, to evict it from the right of way? Condemnation proceedings under the statute are essentially proceedings in rem. When commissioners have been duly appointed, have qualified, and given notice by publication that they will proceed at a given time and place to commence the condemnation of the right of way for a railroad company through the county, it is the duty of all persons owning property that is liable to be affected by such appropriation to take notice of all future proceedings, and thereby protect their rights. Article 9 of chapter 23 of the Compiled Laws of 1885 describes the proceedings regarding the right of way for railroad companies, and fully and particularly sets out and defines the duties of the commissioners, and, under the proceedings for acquiring ■ the right of way by exercise of the right of eminent domain, the ■ commissioners are required to give public notice, by advertisement in some newspaper published in the county and of general circulation therein, where the proceedings are to be had. The object of this publication is to notify all persons interested in any property to be affected by taking and appropriating of property along the line of the proposed railroad, so that they may appear and present their claims to ■the commissioners, and inform them of their claim, if — 506 — any, as they proceed with the laying out of the route and the appraisement of the value and assessment of the damages, and to present to the commissioners whatever interest such persons have in the lands to-be affepted by the location. If the award of the commissioners in the appropriation of the land is not satisfactory, they may appeal to the court having jurisdiction of such matters, and have their rights fully protected. In the case of the. C. K. & W. Rld. Co. v. Grovier, 41 Kan. 686, Johnston, J., delivering the opinion of the court, says: “ It is further claimed that, as lots 10 and 11 in block 1 were designated in the report of the commissioners as the property of Simar, Grovier is thereby precluded from taking an appeal from the award made for their appropriation. The mere act of the commissioners in designating who are the probable owners of the land which they condemn can have no such effect. Under our statute the owners are not made parties to the condemnation proceedings by name, nor ax*e they served with personal notice. The notice is givexx by publication, and in that notice the names of the owners are not required to be given. (Gulf Rld. Co. v. Shepard, supra.) When that publication is made, all owners whose lands may be condemned must take notice, and if dissatisfied with the award when it is made they can, and to protect their interests should, take an appeal, regardless of whether or not they are designated- as owners in the report. It is the duty of the commissioners, so far as possible, to ascertaixx the names of the owixers of each tract or lot of land condemned, and so describe them in the report which they make ; or, if the lot or tract belongs to different owmers, they should appraise the value and assess the damages of each of such owner’s interest. If they are unable to learn the names of the owners of each lot or tract, or the names of the owners of each interest in the same, they should so state in their report. The failure of — 507 — the commissioners, however, to ascertain and designate the owners, whether it occurs from ignorance, inadvertence, or inability, will not prevent the real owner of any parcel of real estate or interest in the same from availing himself of the remedy of appeal. In the present case, through a mistake, Simar was designated in the report as the ‘ probable name of owner of lots 10 and.11 in block 1, when as a matter of fact he had no interest whatever in them. Grovier was’ the exclusive owner of the lots, and took an appeal from the award made for their appropriation by specifically mentioning them in the appeal bond which he filed.” In the case of C. K. & W. Rld. Co. v. Sheldon, 53 Kan. 172, Johnston, J., delivering the opinion of the court, says : “The general notice by publication is sufficient, and, when legally made, all persons who have an interest in the land must take notice of the subsequent proceedings, whether they are named in the notice or not. If any owner is dissatisfied with the award when it is made he may protect his interest by taking an appeal. When the award is paid into the county treasury any one having an interest in the land or a claim upon the fund§ may take proceedings to protect his interest or.claim.” The condemnation of the right of way for a rail- ■ road and the appraisement of the lands appropriated for railroad purposes, and the assessment of damages to the residue of the tract of land from which it is taken and the money deposited in the county treasury in accordance with the report of the commissioners includes the whole right of way and interest of every person concerned in the land, and the money, when deposited with the county treasurer, becomes in law the property of the party entitled to it, and is subject to the disposal of a court having jurisdiction to determine the rightful owner thereof. — 508 — (United States v. Dunnington, 146 U. S. 338; Crane v. City of Elizabeth) 36 N. J. Eq. 339.) The only complaint made by the plaintiff below is that the money was deposited for the benefit of Lowrie, Baker & Co. and not her. After the completion of the railroad and it was in operation she was satisfied with the amount awarded as compensation, and demanded the same from the treasurer, and he refused to pay it to her. The railroad company acted in good faith in the matter. It had competent persons appointed as commissioners. They proceeded in accordance with the provision of the statute, qualified, and gave notice by publication to all persons interested in property to be affected by the condemnation of lands along the proposed line of railroad or right of way, and had the same carefully surveyed, and ascertained the amount of land necessary to be taken out of each tract of land through which it was located, and appraised the value of the land so taken and assessed the damages to the residue of each tract, made and filed their report in the office of the county clerk of the county where the lands were situated, and the company filed its plat and profiles of the route, so that all persons interested were duly-notified of just what the railroad company had done and the rights that it was thereby acquiring ; and if the' landowners whose property was affected thereby had ample time to take appeals, if dissatisfied with the proceedings, and did not appeal or take any action to protect their rights in the premises, it was their own fault, and they cannot be heard to complain after the railroad has been completed and in operation. The condemnation being in strict conformity with the requirements of the law, and compensation for the Idnd appropriated as right of way having been se — 509 — cured by the deposits of money with the county treasurer of the county where the land is situated, and the owner of the land, failing to appeal or take any legal action in the matter until the completion and operation of the railroad, is now estopped from maintaining an action in ejectment to evict the railroad company from the right of way thus acquired. Judgment should have been rendered for the railroad company on the special findings of fact. The judgment of the district court is reversed, and the case remanded to the district court, with direction to enter up a judgment for defendant below on the special findings of fact, in accordance with this opinion. All the Judges concurring.