Marshall v. Wichita & Midland Valley Railroad

Citations

• 96 Kan. 470
• 152 P. 634
• 1915 Kan. LEXIS 411

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>1. City Ordinance — Terms Can Not be Varied by Parol Testimony. Where a city ordinance granting a franchise to a railroad company for the use of a city street is formulated in plain and unambiguous language its terms can not be varied or enlarged by testimony showing an oral promise on the part of the grantee to pay damages to an adjacent property owner.</p> <p>2. Same — Railroad on Street — Rights of Property Owners. Where a city ordinance granting a franchise to a railroad company to use the streets makes no provision for damages to property- adjacent to the right of way, the substantial rights of the property owners are not affected thereby.</p> <p>3. Same — Railroad on Street — Elements of Damages to Adjacent Property — Recoverable. While damages may be recovered from a railroad company for constructing its railway so as to shut off or seriously affect access to private property, or for changing the established grade and the like, those damages can not be measured by a broad comparison of the market value of the property before and after the construction of the railroad, following A. & N. Rid. Co. v. Gar side, 10 Kan. 552.</p> <p>4. Same — When Action for Damages Become Res Judicata. When a property owner sues a railroad company for damages arising from the construction of a railroad adjacent to his property the damages, matured, continuing and prospective, are the subject of the lawsuit, and upon the conclusion of that action the matter is res judicata and can not he the basis of another lawsuit against the lessee of the railroad, following rule announced in Hubbard v. Power Co., 89 Kan. 446, 131 Pac. 1182.</p> <p>5. Same — Lessee of Railroad Not Liable for Damages. The lessee of a railroad can not be held liable for damages to property arising from the construction of a railroad when the railroad was properly constructed and the cause of action arose before the lessee came into possession of the railroad.</p>