Chicago, Kansas & Western Railroad v. Donelson
Chicago, Kansas & Western Railroad v. Donelson
Opinion of the Court
The opinion of the court was delivered by
This was an appeal by Samuel Donelson from an award made by commissioners appointed to condemn a right-of-way through an eighty-acre tract of land owned by .Donelson in Chautauqua county. The extent of land taken was five and forty-eight one-hundredths acres, and the amount awarded by the commissioners was $320. The trial of the appeal in the district court resulted in an award of $1,095.85, as the aggregate amount of damages sustained by Donelson. In answer to special questions, the jury found that the value of the land taken was $274; that the damages to the land north of the right-of-way were $100, and to the land south of the right-of-way $150. They further found that the land south of the right-of-way is damaged by the probable overflow of ditches, allowing the water to spread over about thirty acres of land, and damaging it to the amount of $425. They also allowed $26 as damages for the overflow of surface-water from other lands. An item of damages was allowed for failing to construct a farm-crossing. And these items, together with the interest, make up the aggregate of the award.
It was claimed that the construction of the road through Donelson’s land had interfered with the natural surface drainage of the land, and had diverted the course of the flowage of the water resulting from the rainfall on the hilly land near that of plaintiff in such a way as to cause damage to his land. A witness named Miller was interrogated by the plaintiff' in regard to the damages resulting from the overflow. Over the objection of the railroad company, he was asked, and allowed to answer, what proportion of the plaintiff’s land was subject to overflow from the ditches constructed by the railroad company. The objection urged was that the witness was incompetent to state the fact or give an
We find no testimony of an overflow from the ditches since the construction of the road, nor anything which satisfactorily shows the incapacity of the ditches to carry off the surface-water which would probably pass into the same. The jury made a liberal award for the anticipated damages from this cause, based largely upon incompetent testimony; and hence, the ground of error assigned must be sustained.
We find no objection to the instruction complained of; and there are no other matters upon which we deem it necessary to pass.
The judgment will be reversed, and the cause remanded for another trial.
Reference
- Full Case Name
- The Chicago, Kansas & Western Railroad Company v. Samuel Donelson
- Status
- Published