Chicago, Kansas & Western Railroad v. Board of Commissioners

49 Kan. 763

Opinions

Opinion by

Green, C.:

An application was made for the location of a highway over the right-of-way of the Chicago, Kansas & Western railroad, in Chautauqua county. The railroad company claimed $300 damages. The viewers awarded $100, and the board of county commissioners affirmed the award. The railroad company took an appeal to the district court. The county attorney filed a motion to dismiss the appeal, for the reason that the railroad company was not entitled to compensation for the laying out of a highway over its right-of-way. This motion was sustained, and the district court dismissed the appeal. The railroad company brings the case here for review.

It has been held by this court that a railroad company may recover damages in a case like the present for all expenditures it is required to make by reason of the location of a highway across its right-of-way. (K. C. Rld. Co. v. Comm’rs of Jackson Co., 45 Kas. 716; Comm’rs of Greenwood Co. v. K. C. E. & S. K. Rly. Co., 46 id. 104.) Upon the authority of these cases, the railroad company had the right to have the question of the amount of damages submitted to a jury. It is recommended that the judgment of the district court be reversed, and that the cause be remanded for trial.

By the Court: It is so ordered.

Horton, C. J., and Valentine, J., concurring.