Kansas City, Emporia & Southern Railroad v. Merrill

25 Kan. 421

• Court: Supreme Court of Kansas
• Decided: January 15, 1881
• Status: Published

Opinion

The opinion of the court was delivered by

HortoN, C. J.:

The plaintiff in error commenced proceedings to condemn the right of way through the land of the defendant in error, who was the owner of the northwest quarter of section seventeen, township twenty-three, range eleven, with the quarter-section lying immediately east thereof, and the whole section lying north, all in Greenwood county, and embracing 960 acres. All of this was used for the purposes of a stock ranch. The railroad ran nearly diagonally through the northwest quarter of section seventeen, but did not touch the adjoining lands. The water and timber of the ranch, as also the house and corrals, were cut off by the railroad from the main body of the land. A regularly laid out public highway separated the whole section from the land upon which the railroad was located. The amount assessed by the commissioners in favor of Merrill, on account of the taking and injury to the northwest quarter of section seventeen, was $209. Merrill took an appeal from the award, and subsequently filed his petition claiming damages to the whole land used by him for stock purposes. On the trial, the jury gave a verdict for $734, and judgment was entered accordingly.

Counsel for plaintiff in error claim that the legislature fixed limits to the powers delegated to the commissioners by confining their inquiries to the particular “quarter-section of •other lot of land ” through which the proposed road was to be built, and .by the use of the words, “other lot of land,” intended a less subdivision or piece of land than a quarter-section, and such counsel therefore conclude that the evidence in this ease was incompetent, the instructions erroneous, and the verdict unsupported, because the trial court held that Merrill was entitled to compensation for the injury to the whole ranch, and not merely for that to the separate quarter ■over which the railroad was built. The limitation of “lot of land” to a legal subdivision or fractional portion of a quarter-section, or a small subdivision of a platted town site, is not the true interpretation of the statute. Such limitation is too restricted. Such definition is too narrow. In the gen•eral acceptance of the words, a “lot of land,” is the separate portion belong to one person: according to Webster, “that portion of ground which is allotted or assigued to any one; and hence, any distinct portion of land.” The “ lot of land ” may be less or\greater than a quarter-section; therefore, within the meaning of the statute, a farm of 800 acres in one body, ■owned by one person, or a ranch of 960 acres in a body, owned by one person, and used for' stock purposes, is a “lot of land.”

The location of the public highway over the body of latid -would not affect the right to recover damages for all the property, unless such highway would prevent the land lying on both sides from being one ranch for stock purposes. The evidence shows that the land was all used together. (A. T. & S. F. Rld. Co. v. Blackshire, 10 Kas. 477; St. Paul & Sioux City Rld. Co. v. Murphy, 19 Minn. 500; Welch v. M. & St. Paul Rld. Co., 27 Wis. 108.) This conclusion disposes of the principal question.

One other matter remains. The court attempted to authorize the collection of the damages by execution against the ■railroad company. This cannot be done. The judgment, in •such a case, should be in the nature of an award of damages, -as is made by the condemnation commissioners. (St. L. L. & D. Rld. Co. v. Wilder, 17 Kas. 239; L. & T. Rly. Co. v. Moore, 24 Kas. 323, 328.)

The case will be remanded to the court below, with the order that the judgment be modified in accordance with the-views expressed herein. The costs in this court will be divided.

All the Justices coneurriug.