Chicago, Kansas & Western Railroad v. Abbott , 44 Kan. 170 ( 1887 )

Opinion by

Simpson, C.:

The first error assigned by the railroad company for reversal is the ruling of the court excluding from the consideration of the jury the condemnation proceedings which were offered as a bar to the action. It is asserted in the brief of counsel for the defendant in error that these proceedings are void for the following reasons: First. No written notice, as provided by § 49, ch. 23, Comp. Laws of 1885, was given to Abbott, who at the time of the construction of the road and for some time prior thereto had occupied the land as a homestead for himself and family. That section provides: “All companies shall give written notice to all actual occupants of the land over which the right of road is so designated, and which has not been purchased by or donated to the corporation.”

proceedings*011 map, profile, Sling04106’ The exact question presented by this contention was decided by this court in the case of Gulf Rld. Co. v. Shepard, 9 Kas. 647. Shepard brought an action against the Gulf Railroad Company for certain alleged trespasses. The railroad company answered, and among other defenses justified under condemnation proceedings. At the trial the presiding judge excluded them, and held that they were void, the principal objections being that they did not show the service of a written notice on the actual occupant, and that a map and profile of the route had been filed in the office of the county clerk. The conclusion of this court was, . . “at the notice, map and profile need not be given or filed prior to the commencement of the proceedings for condemning the right-of-way. Hence these things do not vitiate the condemnation proceedings.

Second. Because the land of the plaintiff below was not properly described. In the copy of the report of the commissioners to make the award it is described as the southwest quarter; the map on file describes it as the southeast quarter of section 32, township 29, range 4. The commissioners were on the land, and saw Abbott, who pointed out the lines of his quarter-section; lie describes it in his petition as the southeast quarter, and the description in the report may be properly regarded as a clerical error.

Third. All these proceedings are fixed by the record in the county of Sedgwick, and it sufficiently appears that both the land and the condemnation proceedings were all located in that county.

Fourth. The description of the land taken is definite and certain enough, according to the case of Hunt v. Smith, 9 Kas. 137.

Fifth. Because the defendant never caused to be filed in the office of the register of deeds of Sedgwick county a certified copy of the commissioners’ report, as required by § 84, ch. 23, Comp. Laws of 1885.

2. Csrtified rs* to°fiieffri¿Mpation, notou" The fact is that a certified copy of the report was filed in the office of the register of deeds on the 13th day of December, 1886, but this was after the time fixed by statute. We cannot see how this would affect the defendant in error, but it is plain that it might affect the rights of third parties if they intervened intermediate the expiration of the ten days and the date of the actual filing. So far as the defendant in error is concerned, the important date to him was the time of filing the report of the commissioners in the county clerk’s office, as his appeal must be taken within ten days after that filing. The defendant in error contends that the filing of the certified report in the office of the register of deeds, is a condition precedent to the right to occupy and use the same for railroad purposes. There is no authority cited to sustain such a claim, and it seems to us to be a very strict and inequitable construction of the section. After the report of the commissioners is filed with the county clerk, it is made the duty of that officer to prepare and file with the county treasurer a copy thereof. If the railroad company, within ninety days from the filing of the copy with the county treasurer, shall pay the full amount of the appraisement, the county treasurer must certify the fact of payment upon the copy of the report under his hand and seal. It is the copy of the report thus certified that the railroad company is required to file for record in the office of the register of deeds. The failure of the railroad company to file a certified copy of the commissioners’ report with the register of deeds within the time prescribed by the statute did not in this case injuriously affect the landowner, or prejudice his rights in any way. Under the circumstances, we should hesitate to give the section the construction urged. We find no case in point. The nearest approach to an analogous proposition is the decisions of the supreme court of the United States in the cases of Londsdale v. Daniels, 100 U. S. 117, and Johnson v. Towsley, 13 Wall. 73. These two cases hold, that notwithstanding the preemption laws require a declaratory statement to be filed by the claimant within three months from the time of settlement, yet it is valid if made within any time before another party commences a settlement or files a declaration. Our statutes require chattel mortgages to be filed forthwith for record; but this is held to be for the protection of creditors and third parties, and the mortgage is valid as between the parties without record. Again, it has been repeatedly declared by this court, that after the award of commissioners has been filed with the county clerk, and the amounts named therein deposited with the county treasurer, the amount of compensation becomes conclusive, unless either party appeals from the award within ten days. The requirement of the constitution of the state is, that compensation be first made, or secured by a deposit of money, before occupation by the railroad companies, and we do not believe that the legislature intended by this provision to add to these a record of the proceedings in the register’s office, before railroad companies should commence the work of permanent construction; at least these considerations influence us not to adopt in this case the strict construction of § 84 applied by the trial court. In all other respects the condemnation proceedings seem to conform strictly the requirements of the statute, and we think the court committed material error in excluding the record. For this error we recommend that the judgment of the district court be reversed, and the cause remanded, with instructions to grant a new trial.

By the Court: It is so ordered.

All the Justices concurring.