The Wichita daily eagle. [volume] (Wichita, Kan.) 1890-1906, 1899-10-13
CAN COLLECT BOTH
For Railway Right-of-Way
and Damage TO Other Land.
DECISION HANDED DOWN
In a Damage Suit Against the
Rock-Island.

The appellate court took time at yester-
days session to hand down number of
opinions for each division. Among them
is an opinion by Judge Milton which may
be of considerable interest to farmers
who are suing for damages for right-of-
ways The opinion rendered is in the
case of John Fernie Of Reno county,
against the Chicago, Rock Island and Pa
cifc Railway company, holding that where
a mortgagor of land grants the right-of-
way to railroad company without the
consent of the mortgage, and without
any proceedings 10 condemn the land. the
mortgagee's interest is not affected and
the purchaser at a foreclosure sale under
the mortgage, or his grantee, may sue
the company for compensation. though
he cannot recover damages incident TO
the entry before he acquired title.
In 1888 the railroad company proceeded
under the statute TO condemn and appro-
pirate a right-of-way through premises
of Mr. Fernie. From the award Of dam
ages in the condemnation proceedings,
Fernie duly appealed to the district court
of Reno county, claiming in his petition
damages for 81, 800, $500 being for the land
actually taken by the company and $1,000
for injury to the land not taken. The
jury awarded Fernie S2O3.1o and he APP
pealed from the verdict. At the trial the
following state of facts were shown: The
Chicago, Kansas and Nebraska had pur-
chased the right-of-way from the mort
gagor then in possession, and the railroad
has been continuously operated by the
Chicago, Kansas and Nebraska and its
successor, the Chicago, Rock Island and
Pacific The mortgage was foreclosed In
1892. both Of the said companies being par
ties to the foreclosure action, and In
December of that year the mortgaged land
was sold, both right-of-way and other
land being purchased by Fernie. Shortly
thereafter the condemnation proceedings,
out of which this suit grew, were begun.
On the trial plaintiff sought to prove
damages to the tract outside the tract
taken in the condemnation proceedings,
but the court REFUSED to entertain 1t. He
further offered to prove as part of his
case, the value of the ties, rails and other
materials attached to the right-of-way,
but the court held the offered evidence to
be inadmissible Fernie renews In the
court of appeals his contention which was
expressly overruled by the court below,
namely, that he is entitled to recover DAM
ages for the value of. the strip of land
occupied by the right-of-way, with all
the improvements thereon, and damages
for injuries to the tract as a whole, and
Judge Milton decides that he is entitled
to recover for such damages. The judg-
ment of the district court under Judge
Martin is, therefore, reversed and the
case remanded for a new trial
OTHER DECISIONS.
The appellate court handed down the
following opinions yesterday:
CENTRAL DIVISION.
Douglas County Bank VS.. F. L. Ayres
receiver, error from Sedgwick county; re-
versed-
Henry C. staley VS.. Chicago, Kansas
and Western company, error from Butler
county; TO be certified to supreme court.
]. W. Wilson VS.. William Thompson,
error from Lyon county: affirmed.
Samuel Bishop vs. J. A. Smith ct al
error from Greenwood county; reversed.
]. W. Bringham & Co. VS.. Jansen &c
Reyschlag ct al, error from Lyon county;
reversed.
]. 8f. Harper VS.. the city of Conway