Wichita & Western Railroad v. Fechheimer

[48] The opinion of the court was delivered by Johnston, J.: 1. Railroad right of way no authority to giant. Gette Fechheimer is the owner of a tract of land within the limits of the city of Wichita. The mayor and council of that city granted the Wichita & Western railroad company a right-of-way over Orme street, and the ordinance by its terms also granted a right-of-way over a proposed extension of that street from its western terminus to the Arkansas river. The so-called extension would pass over and along the south side of the premises of the defendant in error; but the fact is that the extension was only in contemplation, as the street had not yet been opened or extended through or past her land. It was shown in the evidence that the railroad] company entered upon her premises and built its road before? any steps had been taken to extend the street. It also appears-that the company went upon the land, erected embankments, cut down hedges and trees,' destroyed vegetables and other property without her consent, without having taken any steps j to legally appropriate it or condemn a right-of-way over it, ' and without making compensation. It cannot be claimed that the action of the city council gave the railroad company any right beyond the then terminus of Orme street, or justified in any degree its trespass upon and taking of the property of the defendant in error without compensation. The first objection urged here is, that the court tried the case upon the theory of a permanent appropriation, while the issue raised by the pleadings was a temporary injury resulting from the trespass committed by the plaintiff in error. The allegations of the petition do not very clearly indicate the purpose of the pleader. Some of them are framed upon the apparent theory of a recovery for only such damages as had accrued up to the commencement of the action, while others are stated upon the theory of an appropriation of and permanent injury to the land of defendant in error. If it is a simple action of trespass to recover for past injury, then much of the evidence admitted and the instructions of the court were improper. The verdict and judg [49] ment in such a case would not include the value of the land, and would not bar an action for future injuries, or an action in ejectment to recover the possession of the premises taken. The action of the company in going upon her land and constructing its road without authority and without making compensation, was without justification; and the trespass furnished grounds for maintaining an action of ejectment or injunction, or to recover damages for the injuries consequent upon the trespass. 2 Land taken ^ntofown”!-; remedies. The defendant in error was at liberty to choose any one several appropriate remedies; but if the pleadings only warranted the recovery of cornpensation for the damages occasioned by the company down to the time of bringing the suit, the judgment would not operate to transfer any title or easement to the company. She now says that she elected to bring her action for a permanent appropriation and injury, and tried the ease upon that theory; and probably the allegations of the petition may be regarded as sufficient to accomplish that purpose. The railroad, in its nature, design and use, is of a permanent character. Besides, the construction of the railroad bridge over the Arkansas river near the injured premises shows that the company treated and intended the road as a permanent structure, and as most of the injuries complained of are permanent in their nature, we think she could elect to bring her action for all present and future damages. The manner in which she conducted the case, and the testimony offered by her, indicate that she was seeking a recovery of compensation for the entire injury, present and prospective. The rulings of the court in the admission of testimony, and the instructions given in regard to the measure of damages, indicate that the court proceeded upon the same theory. In order to bar any future actions for damages, and to make the present action conclusive between the parties, it should clearly appear either by the admissions in the pleadings or from the evidence and judgment, just what interest the land-owner has parted with, and what has been acquired by the company. If from the record we could ascertain the quantity and boundaries of the [50] land taken, and interest acquired by the company, and that the value thereof was included in the verdict and judgment, we might be justified in holding the case one for permanent appropriation and injury. An examination of the record, however, leaves us in considerable doubt on. this question. But if we take the view of the defendant in error, that she could and did elect to treat the trespass as a permanent appropriation and injury, we are still compelled to reverse the judgment. The defendant below asked twenty-seven questions of fact, all but six of which the court directed the jury not to answer. Quite a number of the questions asked might well have been allowed; but in view of the testimony, the disallowance of some of them was not material error. Among those that were disallowed, and are deemed material, we quote the following: “Q. 19. What portion of the defendant’s premises, if any, was actually occupied by the defendant at the commencement of this action and before, if any?” “Q. 22. What portion of damages do you allow the plaintiff in your general verdict by reason of the occupation of a portion of the premises of the defendant, if any?” “ Q. 25. What damage do you allow in your general verdict by reason of the alleged overflow of the plaintiff’s premises?” [51] 3. Special finding; material error [50] Question 19 related to one of the essential matters in dispute. There was testimony upon the question, and if the theory of the defendant in error is to be adopted, it is highly important to both of the parties that the quantity of land taken should be found and stated. The inquiry embraced in question 22 is of equal or greater importance. The defendant in error alleged in her petition that by reason of the taking and occupation of a portion of her premises, she was damaged in the sum of $1,000. This is one of the chief elements of damage upon which she offered proof, and the testimony of the respective parties on this question is contradictory. Another of the principal facts upon which testimony was given, was whether the construction of the road resulted in an overflow of the plaintiff’s premises, and much testimony was received in an attempt to establish the damage caused by the [51] overflow. According to the testimony of the defendant in error, this was one of the principal elements of damage in the case, while the plaintiff in error claimed and sought to show that no overflow had been occasioned by the embankments which it had erected, and no damage accrued to the defendant in this respect from the building of the, road. The question therefore embodied a material question in the case which was based on the evidence, and the defendant had a right to know what amount of injury, if any, was done in that way. It was the right of the plaintiff in error to have important questions of fact like these submitted and answered by the jury. They were based on competent testimony, and were within the issues of the case; and in view of the theory on which the case was tried, and the doubt respecting what damages are included in the verdict and judgment, we think the refusal to submit the questions is material error, (Bent v. Philbrick, 16 Kas. 190; City of Wyandotte v. Gibson, 25 id. 243; A. T. & S. F. Rld. Co. v. Plunkett, 25 id. 198; Morrow v. Comm’rs of Saline Co., 21 id. 484.) The judgment of the district court will therefore be reversed, and the cause remanded for another trial. All the Justices concurring.