St. Louis, Fort Scott & Wichita Railroad v. McAuliff

43 Kan. 185

• Court: Supreme Court of Kansas
• Decided: January 15, 1890
• Status: Published

Opinion

The opinion of the court was delivered by

Horton, C. J.:

This was an appeal in the court below from the award of the commissioners, who condemned a right-of-way for the St. Louis, Fort Scott & Wichita Eailroad Company through the land of Timothy MeAuliff. The evidence is not preserved in the record, and no motion for a new trial was filed. The only question for our determination is whether the special findings of fact of the jury are inconsistent with the general verdict, and if so, the amount of the judgment to be rendered. The amount of land actually taken for the right-of-way was two acres. The jury found the land to be worth $40 per acre, making $80. They also found that the depreciation of the whole tract of land in the market by reason of the construction of the railroad through the same, was $150. The general verdict was for $295.05. Although there were findings of an amount for inconvenience in farming the land and for liability of fire, it must be assumed that these elements of damages were included in the allowance for the depreciation of the land.

Inconvenience, danger of fire, etc., are the items to be taken into account in assessing the depreciation to a tract of land on account of the construction and operation of a railroad through it. If the amount stated in the special findings for inconvenience and liability of fire is added to the amount the jury found for the depreciation to the whole tract of land, then double damages will be allowed for the same elements or items. Adding the market value of the land actually taken, which was $80, to the amount allowed for the depreciation of the whole tract of land, which was $150, makes $230. This, with interest, will make $252.75; When the special findings of fact are inconsistent with the general verdict, the former controls the latter, and the court must give judgment accordingly. (Civil Code, § 287.)

In this case, the value of the land actually taken and the depreciation of the whole tract as returned by the special findings, are less than the amount of the verdict, and the special findings must control.

The cause will be remanded, with direction to the court below to enter judgment upon the special findings of fact in favor of McAuliff, and against the railroad company for $252.75.

The costs in this court will be divided.

All the Justices concurring.