
    The Missouri, Kansas & Northwestern Railroad Company v. Gabriel Schmuck et al.
    
    No. 15,609.
    (100 Pac. 282.)
    Condemnation Proceedings—Railroad Right of Way—Appeal from Award—Measure of Damages. Where a landowner appealed from ithe award in proceedings to condemn land for a railroad right of way a judgment in his favor was affirmed.
    Error from Crawford district court; Arthur Fuller, judge.
    Opinion filed February 6, 1909.
    Affirmed.
    
      John Madden, and W. W. Brown, for plaintiff in error.
    ' Edward E. Sapp, for defendants in error.
   Per Curiam:

The appeal from the condemnation proceedings vacated the assessment and brought the whole controversy before the district court for a trial de novo, so that all the damages occasioned by the appropriation were within the issues, irrespective of any averment in the bill of particulars. (Reisner v. Union Depot & Rld. Co., 27 Kan. 382.)

No statute of limitations could bar the right of the landowner to recover any actual damages to his land, provided his appeal was taken within the statutory time.

The mining shafts were permanent improvements on the land and were immovable. They were located within the right of way appropriated by the railroad company, and it was proper to take their value into consideration in assessing the damages sustained by reason of the appropriation.

The landowner can not recover his damages by piecemeal. In many cases appeals are taken and tried before the railroad is actually built, and it would be impossible for him to prove whether the railroad company intended to use every foot of its right of way or only the part occupied by its main track. The instructions asked in respect of the right of the landowner to concurrent occupancy of the right of way were properly refused. (Mo. Pac. Rly. Co. v. Manson, 31 Kan. 337, 2 Pac. 800; Dillon v. Railroad Co., 67 Kan. 687, 74 Pac. 251; Railway Co. v. Spaulding, 69 Kan. 431, 77 Pac. 106, 66 L. R. A. 587, 105 Am. St. Rep. 175.)

The jury found, and it is conceded, that the land was valuable for mining purposes only, and had no value for any other purpose. Therefore, the fact that a portion of the tract was separated from the rest by the right of way of another railroad did not affect the right of the owner to recover damages for the whole tract, because he had the right to mine and run drifts under the other right of way, and for mining purposes the two pieces of land could be used as one tract. (K. C. E. & S. Rld. Co. v. Merrill, 25 Kan. 421, and cases cited.) The court properly instructed the jury as to the measure of damages. (C. K. & N. Rly. Co. v. Broquet, 47 Kan. 571, 28 Pac. 717; Railroad Co. v. Peet Mfg. Co., 58 Kan 197, 48 Pac. 860; Railroad Co. v. Schmuck, 69 Kan. 272, 76 Pac. 836.)

While the witnesses varied greatly in their estimates of the amount of damages, the jury awarded a sum considerably less than the lowest estimate made by the plaintiffs’ witnesses, and there was ample evidence to sustain the verdict.

We find no error in the record, and the judgment is affirmed.  