Stone v. Missouri Pacific Railway Co.

Citations

• 75 Kan. 600
• 90 P. 251

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>1. Judgments — Res Judicata — Evidence of the Scope of the Judgment. A question as to what rights have been acquired by condemnation proceedings which include the trial of an appeal from the award made by commissioners depends upon what was in fact adjudicated in such trial, and this may be determined by the rules governing such an inquiry with respect to an ordinary judgment. The record may not be contradicted, but so far as is consistent with it— with respect to matters concerning which it is silent — other evidence, including parol testimony, may be received to show what was involved, considered and established.</p> <p>2. Injunction — Closing Undergrade Farm Crossing — Elements of Damage Considered in Condemnation Award. Although • the report of the condemnation commissioners, the pleadings on appeal, the verdict and judgment may all be silent upon the subject, the owner of land across which a railroad right of way has been condemned may show by' other evidence that with the approval of both parties the question submitted to and determined by the jury was the amount of his ’ damages upon the supposition that an undergrade farm crossing then constructed was to be kept permanently open for his benefit, and upon such showing he is entitled to an injunction restraining the railroad company from obstructing such crossing.</p> <p>3. - Prima Facie Proof that Crossing Was to be Maintained Permanently. Evidence that during the pendency of such an appeal the railroad company asked a continuance, and in support of such application presented an affidavit alleging among other things the existence of an agreement for the maintenance of such undergrade crossing, and that at the trial all of the testimony offered in behalf of the company as to the amount of damages was expressly based upon the supposition that such crossing was to be maintained permanently, coupled with the fact that the jury in answer to a special question stated that they allow