State v. Armell

8 Kan. 288

Opinion

The opinion of the court was delivered by

Kingman, O. J.:

This was a prosecution instituted under section one of chapter 113, Gen. Stat. The prosecution was originally instituted before a justice of the jieace, upon a complaint consisting of an affidavit. The appellant having been convicted appealed to the district court, where he was again tried upon the complaint, and again convicted. From this last judgment he appeals to this court. The questions for determination are, first, the sufficiency of the affidavit; second, the extent and effect of the condemnation of the right of way for the Atchison, Topeka & Santa Fe Eailroad Co. through the land of the prosecuting witness, Blackshire.

i. complaint; offense. s. seo. i oí ch. statíf cok struea. I. The case being in the district court on appeal, it was proper that it should be tried upon the original complaint, if that sufficiently stated the offense: § 22, ch. 83, Gen. Stat. The affidavit states the offense in the words of the statute. The offense is a misdemeanor created by statute. In regard to such offenses it is a well-settled rule that

it is sufficient to describe them in the words of the statute. • To this rule there are some exceptions; but as this case does not come within any of the exceptions it is not necessary to notice them here. That the general rule is as we have stated, see The United States v. Mills, 7 Peters, 142, and Whiting v. The State, 14 Conn., 488, and cases there cited. It is insisted that, as there was no allegation of value of the clay dug up by the defendant, the complaint is therein defective. The offense does not in any way consist in the value of the thing injured. “ It is uniformly and explicitly laid down that an averment of the value is unnecessary, excepting where it determines the jurisdiction or the punishment:” Whiting v. The State, supra. A statement of the value of the thing injured is not only not required by the statute, but its averment is not necessary in any way to apprise the accused of his offense, or to enlighten the court in fixing the punishment, orto establish jurisdiction. The statute referred to provides redress in two ways for certain "wrongs done to the property of individuals; one, by a public prosecution; the other, by a civil action brought by the party injured. In the latter case he recovers treble the value of the thing injured, broken, destroyed, or carried away; audit becomes necessary to allege a value, not because the statute requires it, but because the necessities of the case require it as a predicate for testimony, and a limit as to recovery, and also to determine jurisdiction. In the criminal prosecution it is not necessary for either pur pose, and its insertion is of no importance, and its omission of no consequence. The two proceedings are in no way dependent on each other, but either, or both methods may be resorted to, as may be deemed best.

3. Railroad; orademnI-7; tiou oí land. II. The other errors complained of arise from the instructions given and refused. To understand the questions involved a brief statement of the facts becomes necessary: The defendant, by direction of the Atchison, Topeka & Santa Ee Railroad Co., cut a ditch from their track eighty-five feet through the kind of Blackshire. The ditch was necessary for Ike road to protect its embankments, and was no ¡ai.ger than the necessities of the road required to conduct the natural flow of the water, and straightened the natural channel of a small stream crossed by the railroad. It appears further, that the county commissioners had condemned the right of way through the land of Blackshire, 100 feet in width, and had made no other condemnation of the land. No mention was made in their report of any other right than this. No condemnation of any right to cut drains or ditches in the lands of Blackshire adjoining said right of way. Under this state of facts, if the road had the right to cut the ditch on Blaekshire’s land, then the instructions given were wrong, and and those refused should have been given. If the road had no such right, then the court properly gave the law to the jury.

4. coiuiemnation of lands for drainage, s\nd other purposes. It is not doubted that the Railroad Company may obtain by purchase or condemnation as much land beyond the 100 feet as may be necessary for cuttings and embankments, and to make them secure, and grounds for side tracks, workshops, depots, and water stations, and so much as may be necessary to make proper water-drains for the security of the road. All these are necessary appendages of the road, without which it could not be properly constructed, or safely and successfully operated. But it does not follow, because these are necessary appendages of the road, that the company obtained them as rights incidental to its condemnation of the right of way 100 feet in - ° i . , breadth. (Jn the contrary, when the rights or , ° easements are taken by condemnation, the proceed ings must show definitely and precisely what is taken, and what the owner parts with. Nothing is taken by implication or intendment. The condemnation is, in itself, an arbitrary appropriation of the property of an individual, without his consent, for a public use, to be controlled by a corporation. When this is done it must as accurately state the exact extent of the appropriation as a deed, and beyond the limits thus ascertained and defined, nothing' is taken. Hazen v. The Boston & Maine R. R. Co., 2 Gray, 574. The land appropriated by the Eailroad Company was just 100 feet in width, and no more. That is just what was condemned; what was paid for; and beyond that limit they obtained no right whatever, not even an easement which would authorize them to run a wheelbarrow over the adjacent lands to repair their road. If they needed more for drainage, or any other purpose necessary for the road, they must obtain it by purchase or condemnation, and make compensation therefor. It is insisted that as the application for the county commissioners to act under section 81, ch. 23, Gen. Stat., was not only for them to condemn lands for the right of way, but among other things to condemn the land necessary for making proper drains, that therefore the commissioners have considered such matters as those of drainage, and so have taken them into account in their estimate of damages for the right of way through the land of Blackshire, and as an incidental injury thereto by reason of the construction of the railroad. This is doubtless true so far as the drains are confined to the land taken; but if it is to be extended to a vague, uncertain, wandering right to make drains on another man’s land, as their necessities may from time to time indicate, then indeed is the extent of a man’s light over his own possessions in a most precarious, condition. He would not find it in the report of the commissioners. It would at all times be subject to the necessities of the railroad. A few rods of his land are taken for a roadway, about which he cares .nothing, and for which be receives a mere nominal consideration; but if, as claimed it drags after it this incidental right of cutting drains through any part of his land, he may find his cellar invaded by the exercise of this right, his door-yard dug up, or his orchard destroyed, as the necessities of the road may from time to time require; for if this right of drainage is obtained by the condemnation, it continues as long as the company uses its easement as a right of way, and has no limit but the necessities of the road. Thus the incidental right becomes immeasurably greater than the principal. If it be said that the circumstances suggested are not likely to occur, the answer is, that we are discussing a right, and we must see how far it extends before we recognize it as having an existence. A man ought to hold his land and exercise his right on some safer and better defined basis than the forbearance of a corporation.

Put says the counsel, the owner of the land might have apjiealed from the report of the commissioners. How could he know what did not ajipear in the report, but rested only in the breasts of the commissioners? How could he know what the extent of this necessity for drainage might be? and what showing could he make on appeal? His witnesses might not know the necessities created by the building of the railroad. The counsel, in their brief, say, “ That the commissioners could not know, nor any one else, where drains might be found necessary until the road come to be constructed.” If the company with its scientific engineers could not know, how should the unskilled farmer know, and determine whether or not he would appeal? And how could tlie commissioners know in making up their estimate of damages? Again, the right of drainage rests on the same basis as the right to use the land for side tracks, depots, etc., and if one passes as an incident of the right of way for a track, then it becomes the interest of the company to actually condemn as little as possible, leaving as much as possible to flow after the fragment condemned. And where are the rights of an adjacent land-owner? Stones, sand, earth, and jierpetual easement over every portion of his land, are 'henceforth at the absolute disposal of the company. The conclusion seems monstrous. The authorities cited by the plaintiff in error, as we read them, entirely fail to reach the case under consideration. They only go to the extent of saying that such damage as must necessarily result from tbe construction of tbe road, and its protection, by acts done inside the limits condemned, are included in the assessment of damages. That is, where a right of way 100 feet in width has been condemned, whatever damages flow from the proper construction of the road within that limit will be held to have been included in the report, and no others. The court below having entertained the same opinion, and expressed and embodied them in the instructions to the jury, it follows that there was no error therein. The judgment is affirmed.

All the Justices concurring.