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of the said court, setting forth the quantity, boundaries and value of the property

for which no recovery can be had, but simply for depreciation in the value of

taken, or amount of injurydone to the the property by reason of the danger from

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which they to the owner. ." In the exercise of the right of eminent The Supreme Court of Arkansas, in the domain, due regard should be observed ,

case of L. R., Viss. & Texas Railway Comfor the enjoyment of the property of the pany V. Allen, 11 Ark. 431, laid down the owner which is not taken, as well as full following rule: "The measure of damages compensation paid to him for the property for the right of way taken by a railroad of which he has been deprived; and when company across a city or town lot is the the Legislature directed the commissioners, difference between the value of the whole by the terms of the statute last referred | land, without the road, at the time it was to, to "inspect said real property and considl- built, and the value of the portion remainer the injury which such owner may sus- ing after it is built; and in estimating tain by reason of such railroad," and to this value the jury should consider all "iassess the damages which said owner will present and prospective actual damages resustain by such appropriation of his sulling to the owner from the prudent conland," it was intended that he should not struction and operation of the road, the only receive pay for the land actually effect the road will have in decreasing the taken, but that, if only a part of a tract

value of the land for gardening purposes, were appropriatel, the injury, if any, to his

* *

the dangers occasioned by the remaining land, should be considered; the risk from fire, the care of family and stock, real measure of damages being the differ- as well as inconveniences caused by emence, if any, in the value of the land as a bankments, excavations, (litches and obwhole, without the road over it, and the structions to the free ingress and egress Value of that which remains utaken, bur- of the premises, and from the sounding of dened with the dangers and inconveniences whistles, ringing of bells, and rattling of incident to the operating of the road. And trains." To the same effect are Texas & if the running of trains over the company's St. L. Ry. Co. v. Cella, 42 Ark. 528; Railroad increases the dangers of fire to grass

way V. Combs, 51 Ark. 324, 11 S. W. 418. and grain, etc., raised on the adjoining Illinois has also uphelil the rule stated in lands, which formed a part of the original this opinion in a number of cases, among tract from which the right of way was which is Chicago, Peoria & St. Louis Ry. taken, and adds to the inconvenience of Co. v.

v. Michael Greiney. 137 Ill. 628, 295 farming the remaining land, such matters N. E. 798. The trial judge, as in this case, ought to be considered by the jury as instructed the jury that dangers to fire, bearing upon the amount of damages sustain- stock, etc., caused by building and operated—not as independent items of damages, ing the road. might be considered in de but as affecting the market value of the termining the damage to the land not takland untaken. If the owner were to of- en. Ir. Justice Scholfield said: "Counsel fer the land for sale, a prospective pur- argue that this is, in effect, allowing for chaser would consider those dangers and in- supposed damages to stock and for supconveniences. They contribute to the in- posed damages from fire, which this court jury of the owner, and are the direct result has held (and properly) is not admissible. of the building and operating of the road. But this is not the language or the meaning The statute allows such owner for "the of the instruction. The effect of the ininjury he may sustain by reason of such struction is that the jury are to take into railroad, and for all damages sustained by consideration all facts which contribute to such appropriation of his land." Mr. Lewis, produce damage to the land not taken, as in his work on Eminent Domain (volume they appear from the evidence. That the 2, § 497), says: "When a part of a tract facts recited are circumstances which may is taken for railroad purposes, danger from tend to deteriorate the value of a farm, and fire to buildings, fences. timber, or crops therefore contribute to produce damages upon the remainder, in so far as it depre- to land not taken, we think can admit of ciates the value of the property, may be no controversy." Chicago, Peoria & St. properly considered. It is immaterial Louis Ry. Co. v. Henry L. Blume, 137 Ill. that the railroad company is made abso- 418. 27 Y. E. 601; Chicago, Peoria & St. lutely liable for all losses by fire which Louis Ry. Co. v. E. Nix, 137 Ill. 141, 27 N. originate from the operation of the road, E. 81; Chicago. Paducah & Memphis Railwhether they result from negligence or road Co. v. William T. Atterbury, 156 Ill. otherwise. Such liability would doubtless 281, 10 V. E. 826; Chicago, Peoria & St. render the depreciation in value less than Louis Ry. Co. v. James Aldrich, 131 Ill. in cases where the company was liable 9, 24 N. E. 763; Centralia & Chester Railonly for fires resulting from negligence. It road Co. v. Maria J. Brake et al., 125 Ill. is to be borne in mind that compensation 393, 17 N. E. 820; Chicago, Burlington line is not to be given for increased exposure to Northern Railroad Co. V. Alice Bowman et tire, nor for increased insurance rates, nor al., 122 Ill. 595, 13 N. E. 814; Chicago & for probable losses by fire in the future, Iowa Railroad Co. v. Robert Hopkins et

al., 90 Ill. 316. See footnote No. 17, on 1 their verdict must assess the amount of the page 1114 of volume 2 of Lewis on Eminent l'ecovery." Yet a substantial compliance with Domain; Cyc. vol. 15, p. 732. footnote this provision is all that is required, and No. 31; Vels Johnson 1. Chicago, Lurling- where the law fixes the rate of interest, and ton & Northern Railroad Co., 37 Jinn. 519, the court is able to determine that the jury 35 N. W. 438; Curtis V. St. Paul S. & T. has allowed no interest, and the time for F. R. Co., 20 Minn. 28 (Gil. 19): Orpheus which interest is to be allowed is apparent, Stillman v. Northern Pacific, Fergus & we can see no impropriety in the court Black Hills Railroad Co., 34 Jimn. 420, making the computation, and including the 26 N. W'. 399; Johnson v. City of Boston, amount in the judgment. 130 Mass. 4.72; Chicago, Burlington & It is true some of the Kansas cases seem Quincy Railroad Co. v. Ezra B. Shafer, 49 to be antagonistic to this doctrine. The first Neb. 25, 68 N. W. 312; Fremont, Elkhorn case to which our attention has been called & Missouri Valley Railroad Co. v. George is Educational Association, etc., y. Hitchcock, Bates, 10 Neb. 381, 58 N. W. 9.59; Omaha 4 Kan. 36, in which the jury returned a Southern Railway Co. v. Levi G. Todd, 39 verdict for “$180.27, and interest from the Neb. 818, 58 X W. 289;

58 X. W. 289; St. Louis, Ft. 4th day of June, 1861." The trial court inScott & Wichita Railroad

Railroad Commy

Coming 1. cluded the interest in the judgment. The Timothy McAuliff, 43 Kan. 183, 23 Pac. Supreme Court modified the judgment and 102: J. T. Hamilton et al. v. Pittsburg, struck out the interest. The court said: Bessemer & Lake Erie Railroad Co., 190 "It was the duty of the court to instruct the Pa. 51, 42 Atl. 369, 51 L. R. A. 319; Wil-jury as to the rate of interest, and then they mington & Reading Railroad Company v. might calculate it. Failing to do so, and Stauffer, 60 Pa. 374, 100 Am. Dec. 571. The the jury failing to compute it, the court could earlier Pennsylvania cases held the

not take such interest into consideration in trary rule. Pingery v. Cherokee & Dako- rendering judgment.” Yet in the case of ta Railway Company, 78 Iowa, 438. 43 X. City of Atchison v. Byrnes the verdict of the W. 285; Wooster v. Sugar River Valley jury was for “$331.00, with interest from Railroad Co., 57 Wis. 311, 15 X. W. 401. Dec. 24, 1872, at the rate of seven per cent. The instruction given is in consonance with per annum." The court computed the interreason, and is upheld by the weight of au- est, and included it in the judgment, and the thority.

Supreme Court affirmed the judgment. And The second contention of the appellant is in the case of Wilson v. Means, 25 Kan. 83. that the court had no right in law to compute the Supreme Court of that state said: “Exinterest on the amount of the award, and ception is also taken to the judgment on the include such interest in the judgment. It ground that it is for a much larger amount is clear from the record that the jury did than authorized by the verdict. The point not allow any interest, for the court, over is well taken. The jury failed to compute the objections of the attorney for the rail- the interest, or to specify any rate of interest road company. instructed then not to in

in the verdict. Therefore the court could not clude interest in their verdict, as the court take the interest into consideration in renderwould determine the question of appellee's ing judgment. The case comes clearly within right to inter-st. The appellant nowhere in- the rule announced in Educational Associasists that interest should not be allowed, but tion v. Hitchcock, 4 Kan. 36. Where the inthat the jury should have computed the terest is not stated in the verdict, the court amount thereof and included it in the general | cannot tell with certainty the rate intended verdict. The contention is urged that, inas- by the jury, and in such cases it would be necmuch as we adopted the Kansas Code of essary, in order to determine the interest. Civil Procedure and the Kansas Supreme to look back to the petition or some other Court had announced a doctrine contrary to pleading. Such a procedure is not allowable. the ruling of the trial court in this cause, If the interest is computed and included by the rule comes within the frequently an- the jury in the verdict, or if the rate of nounced doctrine of this court that, where an interest is specified, and the date from which adopteil statute has received a settled con- and to which the damages are to draw instruction by the highest courts of the state terest, the amount assessed by the jury may from which we borrowed the statute prior be calculated with absolute certainty from to our adoption of it, we will follow such the face of the verdict, and the court may construction. While we adhere to the above include the interest in the judgment." In rule of construction of adopted statutes, we this case is found a clear recognition of the do not think that the question here under right of the court to include interest in the consideration comes within the rule. The judgment, where the same is but a matter of question is not one of the construction of a computation, although the amount is not statute, but one of practice, upon which the stated in the verdict. Again, in the case of Code prescribes no mandatory rule. It is Mills v. Mills, 39 Kan. 455, 18 Pac. 521, it true the Code provides (section 4475, Wil- was held: "In assessing the value or amount son's Rev. & Ann. St. 1903): "Where by the of recovery the jury should include in their verdict either party is entitled to recover verdict any interest found to be due; but, money of the adverse party, the jury in where the rate of interest and the dates between which it is to be recovered are sum. The landowner having, as appeared stated in the verdict, the court can deter- from the record, obtained a larger verdict mine the amount of the interest with abso- than the amount of the award, he was enlute certainty, and may properly include the titled to interest at the legal rate upon the same in the judgment entered in the verdict." amount of the verdict from the date of the here, also, is a recognition of the authority of award until the date of the judgment. The the court to render a judgment for a greater data from which to make the calculation or amount than that fixed in the verdict, where computation were all a matter of record and the computation can be made from data ap- undisputed. The court, out of commendable pearing upon the face of the verdict. We can precaution, refrained from informing the perceive no substantial difference between jury of the amount of the award, and inthe power exercised by the court in the Kan- structed them that they should not consas case and the one at bar. The only differ- sider the question of interest, and, if it ence is in the means employed to reach the should appear after verdict that the landresult. One is as certain and definite as the owner was entitled to interest, the court other. In Southern Kansas Railway Com- would compute it and include it in the judgpany et al. v. Showalter, 57 Kan. 681, 47 ment; and this action of the court is abunPac. 831, the court said: “It is error for

"It is error for dantly sustained by authority. the court to compute interest on the amount In Reed v. Chicago, M. & St. P. Ry. Co. of a verdict for a period prior to the date of (C. C.) 25 Fed. 886, the jury was instructed its rendition, and render judgment therefor, to return a verdict assessing the damages when the verdict neither includes such in- in a condemnation suit as of the date of the terest nor affords definite data for its com- condemnation proceedings, and the question putation."

was presented as to whether the court could The last expression of the Kansas Supreme compute the interest and include such sum Court to which our attention has been di- in the judgment. Mr. Justice Shiras, the rected upon a similar question was in Marsh presiding judge, said: "Until the verdict v. Kendall et al., 65 Kan. 48, 68 Pac. 1070. is rendered it cannot be known whether plainIn this case the jury rendered a verdict for tiff may be entitled to interest. When this the balance due upon a promissory note, and is determined by the amount of the verdict. omitted to include or make any mention of the court can then make the proper order, interest. The court computed and added to and the same will form part of the adjudithe amount found in the verdict over $100 cation settling damages." And the court deof interest, and rendered judgment for same. termined the amount of interest the plaintiff in this case the plaintiff objected, and ap- was entitled to, added this sum to the amount pealed from the judgment. The Supreme of the verdict as returned by the jury, and Court said: "In this case the jury had found rendered judgment for the aggregate amount. against the defendant as to the facts and The case of Alloway v. Nashville, 88 Tenn. times and amounts of payments made. The 510, 13 S. W. 123, 8 L. R. A. 123, was a meritorious issues of the case had been there- condemnation proceeding. The jury allowed by settled as fairly as though interest had no interest. No instruction on that subject not been mistakenly omitted from the cal- was given or requested; but after the verculation. There could not be any dispute as dict was returned, and before judgment was to the rate of interest, or the time it ran entered, Alloway moved the court to add since the last payment was made. Hence, interest. This the court refused to do, and had the motion for new trial been sustained, Alloway appealed, assigning as error the reit would have been to correct a mere math- fusal of the court to include interest in the ematical error, which the court and parties judgment. The Supreme Court said: “Rethemselves were entirely able to rectify. It fusal to add interest was error. In the lanwould have been to retry a disputed question guage of one of the counsel for appellants, of fact, not for any error in determining such 'if the party in whose favor there is a verfact, but for an error as to another matter dict is, as a matter of law, entitled to someabout which there was no dispute. In such thing additional, the court may allow it.' cases as this the courts are authorized to Inasmuch as the error can be readily correctmake an addition to the verdict, or, rather, ed here, that will be done, instead of reversto render judgment for the additional ing and remanding. This court will render amount.” No language could be more apt the judgment that should have been rendered or applicable to the case under consideration. below.” In Elliott on Railroads, vol. 3, p.

, 3. If a new trial is granted, it will be to correct 1457, that eminent author says: "Where the a mere mathematical calculation, about which, jury were instructed that interest from the as appears from the record in this case, there time the property was taken constituted a was and can be no dispute. The issuable part of the plaintiff's damages, it will be fact was what sum the landowner was en- presumed that interest to the date of the titled to receive for the land taken for right verdict is included therein, and judgment of way and injuries to the remainder of the should be rendered simply for the amount land upon the date of the award by the com- of the verdict; but it is proper to have missioners, and the court so informed the assessment on appeal made as of the date of jury, and they determined and fixed that the original award, and the court should

in such case add interest to the amount of upon whether the verdict of the jury is larthe verdict in rendering judgment.” The ger or smaller in amount than the award of Supreme Court of Minnesota in Warren v. the commissioners, and the jury should not St. Paul & Pacific Railroad Co., 21 Minn. be permitted to know what the award was. 424, and in Whitacre v. St. Paul & Sioux We find no error in the record, and the City R. R. Co., 24 Minn. 311, expressly ap- judgment is affirmed, at the costs of the proves the practice, and declares it to be plaintiff in error. All the Justices concur, the duty of the court, in cases where the except IRWIN, J., who tried the case below, verdict of the jury assesses the damages as not sitting, and BURWELL, J., who dissents of a date of the condemnation proceedings as to the allowance of interest by the court. and prior to the trial, to calculate the interest from the date at which the damages are assessed to the time of trial, and render

(17 Okl. 122) judgment for the amount of the verdict,

WOMBLE v. PIKE et al. with the interest added.

(Supreme Court of Oklahoma. Sept 5, 1906.) The foregoing authorities seem to support

QUIETING TITLE - COMPLAINT - HOMESTEAD a rule founded in reason and justice, and

- ABANDONMENT. one which can result in no injury to any one. One who temporarily vacates a homestead Where it is clearly apparent from the ver owned in fee simple for the purpose of giving dict, or the verdict and instructions of the

educational advantages to minor children does

not so abandon the possession of the same court, that the jury did not, in the assess

as to forfeit his right to maintain an action ment of the amount of the recovery, in- to remove a cloud from the title under the clude interest, and it is further clearly ap

provisions and authority of section 589 of the parent that the party recovering is entitled

Code of Civil Procedure (Wilson's Rev. & Ann.

St. 1903, § 4787). to interest in addition to the amount stated

[Ed. Note.-For cases in point, see vol. 41, in the verdict, and the rate is fixed by law Cent. Dig. Quieting title, $$ 55, 56; vol. 25, or made certain by the terms of the contract, Cent. Dig. Homestead, 88 315-326.] and the date from which and to which in- (Syllabus by the Court.) terest should be computed is clearly and unquestionably ascertainable from the face

Error from District Court, Dewey County; of the verdict or from uncontroverted facts

before Justice J. L. Pancoast. of record, the court may lawfully compute

Action by Telitha C. Womble against T. S. or calculate the interest, and add such sum

Pike and J. W. Murphy. Judgment for deto the amount allowed by the jury, and ren

fendants, and plaintiff brings error. Re

versed and remanded. der judgment for the aggregate sum. In the case at bar the trial court instructed the This was an action commenced in the disjury that their inquiry should be confined to trict court of Dewey county by the plaintiff, the damages sustained by the landowners on Telitha Womble, as plaintiff, and T. S. Pike the 21st day of August, 1903, and the jury and J. W. Murphy, defendants in error, as assessed the damages as of that date. The defendants, by filing therein a petition as court also instructed the jury that they follows: "Territory of Oklahoma, County of should not include any interest in their ver- Dewey. District Court. Telitha C. Womble, dict, but that the question of allowance or Plaintiff, V. T. S. Pike, Defendant. Petidisallowance and amount of interest would tion. The plaintiff above named, for a cause be reserved for determination and action of action against the defendant above named, by the court. The verdict was returned on alleges: That she is a married woman and December 10, 1904, and fixed the amount of the wife of J. W. Womble, and that she has damages at $4,160 on the 21st day of August, family of minor children whose names and 1903, the date of the condemnation proceed- ages are as follows: Lorena Womble, age 16; ings. It was admitted that the railway com- Goldia Womble, age 14; Omega Womble, age pany had been in possession since that date, 12—all of whom are living with and are and had constructed its railroad. The law being supported by and cared for by plaintiff. fixes the rate of interest in such cases. The (2) That plaintiff is a resident of Dewey sum allowed by the jury was in excess of the county, Oklahoma Territory, and owns, in her amount awarded by the condemnation com- own name, the cast one-half of the southeast missioners. This entitled the Olivers, as a quarter, and the northwest quarter of the matter of law, to interest at the rate of 7 southeast quarter, and the southwest quarter per cent. per annum, the amount found in of the northeast quarter of section five (5) in the verdict, from the 21st day of August, township sixteen (16) north, of range seventeen 1901, to the date of the rendition of judgment. (17) W. I. M. Dewey county, Oklahoma TerriThis was all clearly apparent and ascertain- tory, which property became the homestead able from the uncontroverted facts in the and was lived upon, used, and occupied by record. It was but a matter of mathematical this plaintiff with her said family from Decomputation to determine the amount of cember 21, 1904, or thereabouts, until on interest, and this the court could as well do or about the 10th day of September, 1905, as the jury; and we deem this the better when plaintiff removed therefrom temporarily practice in this class of cases. The allow- to Oklahoma City, 0. T., for the purpose of ance of interest is a contingency dependent | educating her said minor children and giving them a common school education, there being that she was the head of a family, and no school facilities in the neighborhood of that his pretended purchase of said land said land, and plaintiff is now temporarily and the sale thereof, or any part or inresiding in said city, but intends to and will terest therein, was illegal and contrary to return to the above tract of land and home. law, and that said sale is in all respects irstead, and again reoccupy it as her home regular and void. (4) That plaintiff has not with said minor children as soon as they have a speedy and adequate remedy at law. (5) secured the rudiments of a common school That defendant threatens to, and will, unless education; that plaintiff has no other tract restrained, wrongfully and unlawfully, and of land which she has ever used or occupied against the consent of this plaintiff, take posas a homestead, or which she can use or oc- session of said tract of land, and threatens cupy as a homestead; that some time in Jan- to, and will, unless restrained, deprive plainuary, 1805, plaintiff's husband, J. W. Womble, tiff of her rights thereto as a homestead, and being in financial troubles, the nature of threatens to, and will, unless restrained, which were unknown to plaintiff, and in place his pretended deed from said trustee great mental distress, absconded to some upon record in said county, thereby incumberforeign country unknown to plaintiff, and has ing, clouding, and otherwise slandering the never since returned, and is now living sepa

record title of this plaintiff in and to said rate and apart from this plaintiff and his tract of land, thereby causing her to suffer family, and is not providing them with any

great loss and damage and injury, for which home; that some time after he had absconded

she has not a speedy and adequate remedy as aforesaid, and while plaintiff was living

at law. Wherefore plaintiff prays that the upon and occupying said tract of land as a

deed of conveyance now held by the said T. homestead, with her said children, and claim

S. P’ike as aforesaid be canceled, annulled, ing the same as such homestead, the estate of

and held for naught; that he be temporarily J. W. Womble was seized by process of law

and permanently enjoined and restrained at the instance of his creditors and thrown from taking possession of said tract of land, into involuntary bankruptcy, and the same

or any part thereof, or exercising any rights ever since has been and is now in charge of

of ownership thereof, and that he be adE. W. Snoddy, referee in bankruptcy, of said

judged and decreed to have no right, title, or district, of which said estate one J. W. Jur

claim in and to said tract of land, or any part phy is the duly elected and qualified trustee;

thereof, and for such other and further rethat on or about October 1, 190.), as your

lief as may be equitable and just, and for petitioner is informed and so charges the costs. Telitha C. Womble, Plaintiff, by J. C. fact to be, the said referee issued an order

Caldwell & Geo. T. Webster, ller Attorneys, to said trustee of some nature, the exact

Weatherford, O. T." terms of which are unknown to your peti

To which the defendant, T. S. Pike, filed tioner, directing him to sell and convey all

the following demurrer: "Territory of Oklathe right, title, and interest of said J. W. homa, County of Dewey-ss.: In the District Womble in and to said tract of land, and as

Court of Sixth Judicial District, Dewey Counplaintiff is informed said trustee did make a ty, Oklahoma Territory. Telitha C. Womble, pretended sale of the pretended interest of

Plaintiff, v. T. S. Pike, Defendant. DemurJ. W. Wonible in said tract of land to the de

Comes now the defendant herein, T. S. fendant above named for a small considera

Pike, and demurs to the petition of the plaintion, the exact amount of which is to plaintiff

tiff in the above styled and numbered case unknown, and has delivered to said defendant

for the following reasons, to wit: First. a deed of some kind, the exact nature of which

For the reason that this court has no jurisis unknown, and in plaintiff's absence has

diction to try said cause of action. Second. placed or has atteinpted to place said defend

For the reason that said petition does not ant in possession of said property. The defend

state facts sufficient to constitute a cause of ant is about to, and threatens to, and will, if

action against this defendant. T. S. Pike, not restrained, take open and plıysical posses

by Black & Adams and Harry Smith, His sion of said homestead without authority of Attys.” Which denurrer at the March term, law, and to her great and irretrievable dam

1906, of said court, was by the court susage and injury, and thus deprive her and her

tained, and which ruling and order of the said children of a home, and of the use and

court was duly excepted to, and the plaintiff, benefit of their homestead given and guaran

electing to stand upon her petition, brings tied to them under the laws of said territory.

the cause to this court for review; and the (3) That the said defendant knew, at the

question presented for the consideration of time he purchased or attempted to pur

the court is the sufficiency of said petition. chase the said pretended interest of J. W. Geo. T. Webster, Ione Webster, J. C. CaldWomble froin said trustee, that he, the said well, and W. P. Ilickok, for plaintiff in error. J. W. Womble, had no interest, right, title, George Black, Rob't E. Adams, and Ilarry H. or claim in and to said tract of land, and Smith, for defendants in error. that said land was the homestead of plaintiff, and exempt by law to her, and that she GILLETTE, J. (after stating the facts). IL was the owner in fee simple thereto, and the petitiou set forth does not state facts

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