Chicago, Kansas & Western Railroad v. Sheldon , 53 Kan. 169 ( 1894 )

The opinion of the court was delivered by

JOHNSTON, J.:

By condemnation proceedings, the Chicago, Kansas & Western Railroad Company obtained a right-of-way over a tract of mortgaged land. Due notice of the proceedings was given by publication, but no personal notice was served upon the mortgagee, nor was he named in the award. The amount of the award was deposited, as the law requires, with the county treasurer, who afterward paid the same to the owner of the land. The mortgagee never attempted to subject the award as a fund in equity to his claim, and never received any portion of the same nor had any benefit therefrom. In this proceeding for a foreclosure, it was contended and held that the mortgage was a lien upon the right-of-way, and that the same might be sold to satisfy the mortgage. The condemnation proceedings appear to have been legal, and, in tbe absence of a showing to the contrary, it will be presumed that the commissioners acted right, and that their proceedings were regular. (L. N. & S. Rly. Co. v. Meyer, 50 Kas. 25.) The general notice by publication is sufficient, and, when legally made, all persons who have an interest in the land must take notice of the subsequent proceedings, whether they are named in the notice or not. If any owner fe dissatisfied with the award when it is made, he may protect his interest by taking an appeal. (C. K. & W. Rld. Co. v. Grovier, 41 Kas. 687.) When the award is paid into the county treasury, anyone having an interest in the land or a claim upon the fund may take proceedings to protect his interest or claim. The mortgagee, however, had only a lien upon the land out of which the right-of-way was taken. He was not an owner of the same, nor the owner of an estate therein. Not being an owner within the meaning of our statutes, it was not necessary to name the mortgagee in the proceedings, nor to make any award to him. (Goodrich v. Comm’rs of Atchison Co., 47 Kas. 355; Rand v. Ft. S. W. & W. Rly. Co., 50 id. 114.) When full compensation was awarded for the right-of-way, and the award was deposited with the county treasurer, a title to the right-of-way was obtained by the railroad company, as against the owner, as well as any others who may have had liens upon the land. The mortgagee is not without protection, as, having had notice by the publication, he may, where equity requires, resort to the fund awarded for the right-of-way. It follows that the judgment must be reversed, and the cause remanded, with instructions to enter judgment upon the agreed statement of facts in favor of the plaintiff in error.

All the Justices concurring.