Missouri, Kansas & Northwestern Railroad v. Schmuck

Citations

• 69 Kan. 272
• 76 P. 836
• 1904 Kan. LEXIS 243

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>1. Railroads— Condemnation Proceedings—Pleading upon Appeal from, the Award. Where a bill of particulars has been filed in an action upon appeal from rhe award of commissioners assessing damages for the condemnation of a right of way for a railroad, it is not error to deny a motion to make such bill of particulars more definite and certain, even if it, in this respect, be not as perfect as an ordinary petition should be, provided it is not misleading.</p> <p>2. -Bight to Take Subjacent Minerals is in Owner of Fee, Except when Necessary for Support. By statutory proceedings to condemn a right of way for the construction of a railroad ' only an easement for that purpose is taken. There remains in the owner the fee to the premises, with a right to take all subjacent minerals therefrom, except such as may be necessary for surface support.</p> <p>3. - Value in Subjacent Minerals—Erroneous Instruction. In case of condemnation of a right of way for a railroad, where the value of the land condemned consists chiefly in the minerals found beneath its surface, it is error for the court to instruct the jury that the measure of damages to the owner for its taking is its fair market value.</p>