Board of Comm'rs of Shawnee Co. v. Beckwith , 10 Kan. 603 ( 1873 )

The opinion of the court was delivered by

Valentine, J.:

1. iii|hways. vate property. 2.Highway; inhy the public, 3. Hedge fences; damages. This action was prosecuted by A. C. Beck-with, as plaintiff, against Shawnee county, for damages claimed to have resulted from the establishment of a certain public road or highway across the plaintiff’s land. The road was located on the west line of plaintiff’s land — (one-half being located on the plaintiff’s land, and the other half on an adjoining proprietor’s land) — the west line of the plaintiff’s land running through the middle of the road from the north side of the land to the south side. The plaintiff claimed a judgment for the full value of the land taken, the full value of some hedge that was growing on the west line of his land which came within the road, and for the entire cost of building a new fence across his land along the line of the road as laid out. The case was tried by the court, without a jury. On the trial the county offered to prove that the said hedge could be removed without any material injury to it, and that the cost of the removal would be greatly less than the value of the hedge. The plaintiff objected to the evidence; the court sustained the objection, and the defendant excepted. The court afterward found upon the evidence in favor of the plaintiff, and rendered judgment for him for the full value of the land taken, for the full value of the hedge, and for the entire cost of building said new fence, deducting' from the aggregate of said turns the amount of the benefits which accrued to the plaintiff by reason of the establishment of said road. The only question involved in this case is, what damages had the plaintiff a right to recover? We suppose it will be admitted that he had a right to recover full compensation for all direct losses or damages which he sustained by reason of the establishment of said road, minus all direct gains or benefits. Then what were his damages? We suppose it is fundamental that no man can be divested of his land, or any part or portion thereof, or any interest therein, through the exercise 0f the power of eminent domain, (or in fact through the exercise of any other power,) except under the provisions of express and positive constitutional or statutory law, and that he cannot be divested through the exercise of such power of any more or greater interest in his land than the constitution or statutes expressly provide for. In this state the statutes provide for the establishment of public roads and highways, (Gen. Stat., 897, ch. 40,) but both the constitution and the statutes are silent as to how much of the land, or what interest therein shall pass to the public, and how much of the land or what interest therein shall remain with the original proprietor. Therefore we would infer that nothing connected with the land passes to the public except what is actually necessary to make the road a good and sufficient thoroughfare for the public. The public obtains a mere easement to the land. It obtains only so much of the land, soil, trees, etc., as is necessary to make a good road. It obtains the right for persons to pass and re-pass, and to use the road as a public highway only, and nothing more. (Caulkins v. Mathews, 5 Kas., 199, 200, and cases there cited.) The fee in.the land never passes to the public, but always continues to belong to the original owner. He continues to own the trees, the grass, the hedges, the fences, the buildings, the mines, quarries, springs, watercourses, in fact everything connected with the land over which the road is laid out, which is not necessary for the public use as a highway. (Angell on Highways, ch. 7, §§ 301 to 312, and cases there cited.) He may remove all these things from the road, or use and enjoy them in any other manner he may choose, so long as he does not interfere with the use of the road as a public highway. No other person has any such rights. In iact, the original-owner has as complete and absolute dominion over his land, and over everything connected therewith after the road is laid out upon it, as he had before, except only the easement of the public therein. In the present case there is no claim or even pretense that the said hedge was needed for the road. The plaintiff therefore had absolute control over wag j£ wag anything standing in the road—if it was worth any thing for removal—if it would cost less to remove and transplant it than it would be worth after its removal, then the plaintiff should not have received full compensation for its value. He should merely have received compensation for the cost of its removal to the place where needed, and for any depreciation in value caused by such removal. With these views we are of the opinion that the court-below erred in excluding said evidence. We perceive no other errors.

4. Damages; new fences. If it was necessary for the plaintiff to build a new fence entirely across his land in order to use his land as he had previously done, then full compensation should have been allowed in estimating his damages; and with the record brought to this court we cannot say that such a fence was not necessary. If the hedge could have been removed to the place where he wanted the fence, so as to make a good fence, then he should have removed it; and then it would not have been necessary for him to build a new fence entirely across his land. The hedge would have been sufficient as a part of such fence. ^* Our statutes do not compel adjoining proprietors of land to build partition fences where the parties otherwise agree. (Gen. Stat., 488, ch. 40, § 8.) And if a public road should be laid out on the line between such adjoining proprietors, each would be entitled to have the cost of all additional fences which he would be required to build in order that he might use his land as he had previously done considered in estimating the amount of his damages. The judgment of the court below is reversed, and cause remanded for a new trial.

All the Justices concurring.