Herndon v. Kansas, Nebraska & Dakota Railway Co.

The opinion of the court was delivered by

Johnston, J.:

The plaintiff owns a home on Mulberry street, in Blue Mound, and the defendant, with the permission of the city, built its line of railroad along the street and in front of the plaintiff’s home. She brought this action against the railway company to recover $450 as damages for the alleged obstruction of the street, claiming that the company had built a main and side track in such a way as to take up the whole street, and leaving the plaintiff no means of egress from or ingress to her home, except through the alley in the rear thereof. It appears, however, that the railroad tracks were laid upon the street in pursuance of an ordinance enacted by the city, and in compliance with its terms. Instead of occupying the entire street, it appears that the street is 80 feet wide, and that, exclusive of that portion reserved for sidewalks, is 70 feet wide. It is also shown that the nearest railroad track is 34 feet from the street line of the plaintiff’s property, which affords abundant room for ingress to and egress from her premises. The road.is built in a workman-like manner, and although there is some contention that the laying of a side-track was without auy authority from the city, an examination of the ordinance granting the right-of-way over the street discloses that there is authority for both a main and side-track. The case, therefore, falls within the rule stated in K. N. & D. Rly. Co. v. Mahler, 45 Kas. 565, (26 Pac. Rep. 22,) and other authorities there cited, that, “to entitle an abutting lot-owner to recover damages for locating a line of railroad, under the authority of the city council, in one of the streets of a city, there must be a practical obstruction of the street in front of his premises, so as to virtually deprive him of ingress to and egress from his property.” Following these decisions, we must give a judgment of affirmance.

All the Justices concurring.