Chicago, Kansas & Western Railroad v. Watkins

The-opinion of the court was delivered by

Horton, C. J.:

1. ,, in^&espassna nay. This was an action brought by J. B. Watkins against the Chicago, Kansas & Western Railroad Company, to recover damages for trespass on real estate, committed in July, 1887. The land was owned by Watkins, but at the time of the trespass Monroe Smith was in the actual possession of the land, and entitled to the crops as tenant. It is claimed by the railway company that it is not responsible for the trespass, it having shown that the grade, the cutting down of trees, etc., was done by contractors having charge of the construction of its road. It appears, however, from the evidence and the admissions of the railway company upon the trial, that the contractors were set to work bv the agents of the company to clear the right-of-way , ancj construct its road-bed; therefore it is liable,as it caused and directed the work. Whether the ax be used by himself, by his employé, his vendee, or one occupying no contract relation to him, is immaterial, for he cuts the trees who causes them to be cut. (Welsh v. Cooper, 8 Pa. St. 217; Fox v. Northern Liberties, 3 Watts & S. 103.) In the latter case it was said that a municipal corporation could become a trespasser by previously authorizing or subsequently ratifying the trespass of its officer.. It is an elementary rule that he who procures a trespass to be committed is liable with those who committed it, and it has been often recognized in our cases. There is no hardship involved in the application of the rule to this case, for in good conscience the corporation should bear the consequences of an act which it caused or procured to be done. The contractors and the laborers who cleared off the right-of-way, cut down the trees, and constructed the grade, had no interest in the matter beyond the pay for their work, and they did what the railway company directed.

This case is wholly different from Railway Co. v. Fitzsimmons, 18 Kas. 34. In that case the contractors had sole control of the turn-table, which they negligently left without guard or lock. The railway company was not responsible for the negligence of the contractors, because in no way a party to it.

It is next claimed that the jury was not properly instructed as to the measure of damages, and that it was error to instruct the jury to consider the difference in value of the land before and after the grade. As the ease is now presented, it is unnecessary to decide the particular question argued in the brief of the railroad company, as to what damage is allowable in an action of trespass, where it appears upon the trial there is a permanent injury or a permanent use. The railroad company in this case relied upon a license or contract given by Watkins, under which the acts complained of were done; but the fact whether there was such a contract was submitted to the jury upon conflicting testimony, and the jury found against the company. The verdict disposes of that question.

2' Son-money-no deposit— siSvey0 make There was no showing upon the trial that any right-of-way was obtained through the land by a deposit of condemnation-money. Until the money is paid or deposited, the company obtains no right to the land condemned, unless it is the right to make its survey. It was not shown ° ^ uPon trial that any ties or rails had been laid upon the right-of-way, or that any railroad was in operation; therefore the condemnation proceedings cut no figure in the case. (M. K. & T. Rly. Co. v. Ward, 10 Kas. 352.) In that case it was said:

“In this state a corporation does not obtain a right-of-way for a railroad by appropriation until full compensation therefor be first made in money, or secured by a deposit of money, to the owner ; and if it builds its road over the land of a person without first obtaining the owner’s consent or the right-of-way, it is a trespasser, and liable as such.”

Again, the railway company asked the court to instruct the jury:

“If you find from the evidence that the defendant did, about the time set forth in the petition, and before the commencement of this action, enter upon the premises of plaintiff and construct a grade thereon, then the plaintiff is entitled as his damages in this action against the defendant for the erection of such grades the amount that it will actually cost to remove the grade back to the ditches from which it was taken, together with any other damages that may accrue to the land comprising the ditches and included within them.”

3. Measure of instiSion given, not erroneous. The court charged substantially as requested; and while it also charged the jury to take into consideration the difference between the value of the land before and after the grade was constructed, the jury by their special findings limited the damages (with a single exception, to be noted hereafter) within the instruction prayed for. They found there were 4,500 yards of earth in the grade or embankment, and that it would be worth seven cents per yard to level it down, making $315.; they found the value of the trees destroyed to be $15; the damage to the cultivated land by the grade $15, and damage to grass 50 cents, making the verdict $345.50.

' ages, jury to assess. The trial court trebled the damages for the trees and grass, and rendered judgment for $376.50. The damage to the grass of 50 cents and the treble damages allowed cannot be sustained. Monroe Smith was the tenant in the actual possession of the laud, and he is the person entitled to recover damages, if any, for the crops, including growing grass. (3 Sutherland on Damages, p. 365; Arn v. Matthews, 39 Kas. 272.) It appears from the testimony that Smith was paid for the crops on the right-of-way. When treble damages are recoverable they ought to be assessed by the iury, under proper instructions. The jury are to give all damages authorized by the statute. (Civil Code, §§ 285-288; Comp. Laws of 1885, ch. 113, §§ 1, 2.)

The judgment of the trial court must be corrected by deducting the 50 cents allowed for grass, and the treble damages given by the court for the trees, etc.

The case will be remanded, with direction to modify the judgment accordingly.

All the Justices concurring.