Missouri Pacific Railway Co. v. Stone

The opinion of the court was delivered by PORTER, J.: The judgment must be affirmed. The law of the case was declared in the former opinion and controls, and the1* facts found by the trial court, compel a judgment in favor of the plaintiff. The first judgment was reversed for the reason that the uncontradicted evidence, excluding that given orally, established the fact that the right of way was [9] acquired subject to the plaintiff’s right .of passage by-means of the subway left at the time the road was constructed, and it was held that an injunction should, have been granted. The contention therefore that injunction is not the proper remedy is precluded by the former opinion. (Headley v. Challiss, 15 Kan. 602; Rettman v. Richardson, 17 Kan. 413; Crockett v. Gray, 31 Kan. 346; Kansas City v. Brady, 53 Kan. 312; The State v. Morrison, 67 Kan. 144.) On the second trial plaintiff offered additional testimony, both oral and record, which strengthens his case.. The findings of fact made by the court are very full and complete, and are amply sustained by the evidence. No new principle of law was brought into the case-by the amended answer. As to the first defense, the-court'found that Weston was the agent of the Interstate Railroad Company for the purpose of acquiring-a right of way and constructing the road, and that as. such agent he agreed orally with the plaintiff that a. wide underground passageway would be constructed on the plaintiff’s' farm and permanently maintained,, and, further, that a double underground passageway was left according to this agreement and continuously used by the plaintiff until obstructed by the defendants, in 1901. Another finding is that the double underground passageway was there when the jury viewed the premises. As to the second defense, the court found that at the time the defendants made the embankment and filled the passageway the plaintiff protested and objected, but his protest was of no avail to-prevent the action of the defendants, and that he has not at any time given his consent that the passage should be filled. We are aware of no principle of' estoppel that applies to these facts. The court properly-refused to find as a fact that the defendants filled up-the passageway for the purpose of strengthening their road and for the public good. It may be conceded that such was the purpose of the defendants, but this would' give them no license to appropriate the property rights. [10] of the plaintiff except by regular condemnation proceedings. The court found as facts the separate items of damage which the plaintiff sustained by reason of the obstruction. The evidence sustains these findings, and entitles the plaintiff to the damages which the court allowed. The judgment is affirmed.