Fort Scott, Wichita & Western Railway Co. v. Fox , 42 Kan. 490 ( 1889 )

The opinion of the court was delivered by

Johnston, J.:

The only question presented is, whether the amended petition states a cause of action against the Fort Scott, Wichita & Western Eailway Company. The defendant in error, whose property abuts on Kansas avenue, a street in the city of Newton, seeks to recover damages for the total obstruction of the street by the railway company, whereby he is deprived of the means of ingress and egress to and from his property. According to the averments of the petition, the road was built by the St. Louis, Fort Scott & Wichita Eailroad Company, in July, 1886; and in laying down its main and side-tracks on the street, deep ditches and trenches were made in front of Fox’s property rendering the street wholly useless to him as a means of access to his lots, or for any purpose except the operation of the railroad. The road was operated and the obstruction continued until May, 1887, when the railroad property was sold under a decree of foreclosure rendered by the United States circuit court. It was purchased by the Fort Scott, Wichita & Western Railway Company, which took possession of the property in July, 1887, and has continued to own and operate the road since that time. Whether either of the railroad companies obtained the consent of the city to appropriate the street for railroad purposes is not stated in the petition, but we understood counsel in the argument to concede that such consent was given. But whether the consent was given or withheld, the decision of the case under the allegations of the petition must be the same. In either event, Fox was entitled to damages. It is alleged that the entire street opposite this property is obstructed and rendered wholly useless as a highway or as a means of access to and from the lots. Under the doctrine repeatedly stated by this court, the abutting lot-owner is entitled to damages irrespective of any municipal authority or consent, and his right and the liability of the railroad company where there has been a complete obstruction of the street have been so well defined in this state that we need only to refer to the decided cases: Railroad Co. v. Garside, 10 Kas. 552; Railroad Co. v. Twine, 23 id. 585; Railroad Co. v. Andrews, 26 id. 702; same case, 30 id. 590; Railroad Co. v. Larson, 40 id. 301; Railway Co. v. Cuykendall, ante, p. 234; Railway Co. v. McAfee, ante, p. 239.

Appropriation of street by railroad company; cause of action stated. The plaintiff in error claims that the rule established by these cases does not apply, for the reason that the railroad was skillfully and properly constructed. This fact is conceded in the petition, but it does not relieve the railroad company from liability, or affect the determination of the question involved. If the city had granted permission to lay the railroad in the street, and it had been constructed in a proper manner, so as not to impair the usefulness of the street for public travel, or to prevent access therefrom to the abutting lots, Fox would suffer no injury for which he could recover; but neither the authority nor the manner of construction can make any difference where the entire street is appropriated and the lot-owner is cut off from all access to the street from his property. He suffers an injury not shared by the public generally when he is denied the use _ . „ . . , . aric* eDj°ymeufc or the adjoining street, and it is immaterial whether the proper and skillful construction of the road required the appropriation of the entire street or not. The right of access from the street to his property is an individual one as inviolable as the property itself, of which he cannot be deprived in any way without creating a liability against the wrongdoer for the consequential damages occasioned.

The principal contention of the plaintiff in error is, that it cannot be held liable in any way for these damages, for the reason that the road was built and the nuisance created by the St. Louis, Fort Scott & Wichita Railroad Company. It is true that a sale made as alleged would convey a title to the purchasing company, free from all claims for the general debts of the old company, but the liability for either the creation or continuance of the nuisance does not fall within that class. The old company was a wrongdoer, and had acquired no right to deprive Fox of the use of the street as a means of access to his lots. The company had made no compensation for this appurtenant to his property, nor had he in any way released or waived his claim for damages. The old company, having no right in this appurtenant, could convey none, nor could the claim for the continuing wrong and injury be divested by a sale under the mortgage foreclosure. If the owner had consented to the appropriation in any way, or had stood silent for a long time with knowledge of the occupancy, a different question would arise; but in this case he promptly pressed his claim for damages against the old company, and when the transfer of the property and franchises was made, he as promptly adapted his pleadings to the change of ownership, and proceeded against the new company. There has been neither waiver nor payment of the claim for damages. The obstruction and nuisance has been continued by.the purchasing company, and while it cannot be held liable for the wrongdoing of the old company, it cannot escape liability for the injury inflicted after it purchased and took possession of the road. The blocking of the street and continuance of the nuisance by the new company is as great an injury to the lot-owner as though that company had originally built the road and created the nuisance. It might have limited its liability if after taking possession of the road it had restored the street to its former condition, or to such a condition as not materially to impair its usefulness as a means of access to and from the property. Assuming the facts to be as stated, the company has chosen to block and appropriate the entire street for its own purpose, and both the company and the owner have treated the appropriation as a permanent one. For this permanent appropriation the plaintiff in error must respond in damages if the proof sustains the averments of the petition.

Cases, distinguished. It is further said that as Fox’s premises extend to another street, over which the property may be reached, no action for damages can be maintained; and Railway Co. v. Cuykendall, supra, is cited as authority. The Commissioner, in writing the opinion in the case cited, used language of that import; but the court placed its judgment on the ground that the facts in the case showed the building of the railroad on the street as authorized by the city council did not destroy the street in front of the lots, nor prevent its use as a means of ingress and egress to and from the property. The additional reason for the judgment stated by the Commissioner is inconsistent with the former rulings of the court, and is not approved. In the Twine Case, 23 Kas. 585, damages were claimed and allowed because of an obstruction of an alley at the south end of the lot, notwithstanding it was accessible from a street a^. 0^er end 0f the ]0t. Tu the Andrews case damages were allowed for the obstruction of an alley at the south end of the property, although there was unobstructed access to the injured property by means of streets on the west side and the north end of the same property. (26 Kas. 702; 30 id. 590; 41 id. 370; 21 Pac. Rep. 276.)

The judgment of the district court will be affirmed.

All the Justices concurring.

In the cases of Fort Scott, Wichita & Western Rly. Co. v. T. V. Morse, No. 4983, and the same plaintiff v. D. Hamill, No. 4984, the facts are substantially the same as in the Fox case, were submitted on the same argument, and as the same legal questions are involved, it follows that the judgment of the district court in each case must be affirmed.

All the Justices concurring.