Chicago, Kansas & Western Railroad v. Emery , 51 Kan. 16 ( 1893 )

The opinion of the court was delivered by

Johnston, J.:

The Chicago, Kansas & Western Railroad Company procured the condemnation of a right-of-way for its railroad through a 280-acre tract of land owned by C. P. Emery. The award made by the commissioners being unsatisfactory, Emery appealed to the district court, where the case was tried by a jury, which awarded a verdict in Emery’s favor in the sum of $1,001.07|-. This award was considerably in excess of the amount allowed by the commissioners. The railroad company complains of the rulings of the court in admitting evidence and in charging the jury.

Objection is made to the testimony of a witness who compared Emery’s land with another farm in the same neighborhood, and described the difference between the two farms. There is no good reason for this complaint. A witness called by the railroad company stated that he based his judgment of the market value of the land on sales made in the neighborhood, and gave testimony with reference to several farms which had been sold at stated prices. In his testimony he compared these tracts with the Emery land, stating that they were smoother, more fertile, nearer market, etc., than the Emery land, and were therefore of greater value. To meet this testimony, Emery offered testimony contradicting that of the railroad company in this respect. While he could not properly have offered proof of this character in the first instance, it was properly admitted to meet that which had been offered by the company.

Complaint is made of an instruction in which the court advised the jury to disregard any advancement in the value of or benefit resulting .to the land from the building of the road. The question suggested by this objection has been fully considered by the court in recent cases, and the correctness of the instruction has been sustained. (L. & W. Rld. Co. v. Ross, 40 Kas. 598; F. E. & W. V. Rld. Co. v. Shepherd, 50 id. 438, 31 Pac. Rep. 1002.)

There is some complaint because of the refusal of instructions with reference to the rule which should be followed in determining the market value of the land, and also in regard to the measure of damages, but the charge as given appears-to us to fully cover both of these subjects. We think the-case was fairly submitted to the jury, and no sufficient reason, has been given for reversal.

Judgment affirmed.

All the Justices concurring.