State ex rel. Ise v. Atchison, Topeka & Santa Fe Railway Co.

Citations

• 95 Kan. 22
• 147 P. 801
• 1915 Kan. LEXIS 166

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>1. Highway — Notice of Viewers’ Meeting — Affidavits Showing Service Lost — Presumptions. A finding that a road which was declared established by the board of county commissioners, and which has been used by the public for years, is a regularly laid out highway, will not necessarily be overthrown by the fact that the affidavits showing the service of notice of the viewers’ meeting, which the law requires to be filed with the county clerk, can not be found in his office.</p> <p>2. Same — Change of Highway across Existing Railroad — Duty of Railway Company to Make Safe Crossing. Whether or not the railway company is ordinarily required at its own expense to place a highway, at a point where it is laid out across an existing railroad, in such condition that there shall be no unnecessary interference with travel, this obligation results where a highway which antedates the railroad is vacated and a new road taking its place is established, crossing the track near the same point, and several years thereafter the embankment on which the railroad track is laid is raised some eight feet.</p> <p>3. Same — Manner of Making Railroad Crossing Safe — Within Discretion of Court — Based on Evidence. Where the situation is such that a railway company is under a legal .obligation to restore a highway across its track to a reasonably safe condition for travel, and this result can not be otherwise accomplished, a court may require the construction of a subway, but only where the necessity is clearly shown and supported by competent expert evidence.</p>