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pears that the Kansas Central Railroad Company, which is the plaintiff in error and was the plaintiff below, is a railroad corporation of this state; that a public county road was legally laid out and established across its right of way: that at the time this was done the railroad was operated by the Union Pacific Railway Company, another duly organized railroad corporation of this state, as lessee; that no notice was ever given to the plaintiff with respect to any of the proceedings for the establishment or creation of this highway prior to its creation, though a proper notice was given to the Union Pacific Railway Company with respect thereto. Within 12 months after the location of this highway the plaintiff filed with the board of county commissioners of Jackson county, which is the defendant in error, and was the defendant below, its application for damages claimed to have been sustained by reason of the location and opening of the aforesaid road, which application was in due form, and for an amount exceeding $150. The application was refused, and the plaintiff in due time appealed to the district court, where the case was tried before the court without a jury. Upon the trial it was agreed by the parties that it would cost the plaintiff the sum of $150 to put in, at said crossing, the cattleguards, fences, crossing planks, crossing signs, and whistle posts, as required by the laws of Kansas to be put in by the railroad company at every highway crossing of a railroad in the state of Kansas; and that, if the plaintiff was entitled to recover damages, judgment should be for $150. It was admitted by the parties on the trial that the plaintiff is a railway corporation, duly created and existing under the laws of the state of Kansas, and had lawfully condemned the right of way for and built and completed its railway at the place where this highway crosses its track prior to the location of such highway; that plaintiff's railway is operated by the Union Pacific Railway Company, a corporation duly organized, which is the lessee of the Kansas Central Railroad Company. It was also proved on the trial that no notice of the meeting of the viewers to lay out said road was ever served upon the plaintiff, or any of its agents, and that no copy of such notice was on file in the office of the clerk of Jackson county. All the facts herein before stated were agreed upon by the parties at the trial." Upon these facts the court below found generally in favor of the defendant, and against the plaintiff, and rendered judgment accordingly; and the plaintiff, as plaintiff in error, brought the case to this court for review.

We think the court below erred in its findings and judg ment. A railroad company's right of way is property; an

estate in land; the dominant estate securing to the railroad

tate of company in right of way.

company the exclusive right to the occupancy, use, Right and es- and control of the property as against all persons except the owner of the fee; and the paramount right to such occupancy, use, and control, even as against him. Kansas Cent. R. Co. v. Allen, 22 Kan. 285. In all cases where a railroad company procures its right of way under the authority of the state, in the exercise of its sovereign power of eminent domain, by what are usually termed "condemnation proceedings," the railroad company pays to the owner of the land the full value of all the land actually taken, and full and complete compensation for all the losses or damages which might result to the remainder of the owner's land, and both such value and compensation are paid by the railroad company irrespective of any benefit, or supposed benefit, which might result to the owner of the land from the construction or the operation of the railroad. Leroy & W. R. Co. v. Ross, 40 Kan. 598, 36 Am. & Eng. R. Cas. 653; Interstate Con. R. T. Ry. Co. v. Simpson, 26 Pac. Rep. 393, (just decided.) And the railroad company in paying this value and for these damages always pays largely more in the aggregate than the land actually taken is worth, sometimes 10 or 20 times more than it is worth. And while the railroad company procures its right of way through the intervention of the state in the exercise of its sovereign power of eminent domain, and procures the same ostensibly for public purposes-and land can never be taken under such power for any other than a public purpose,—yet the railroad company alone pays for such right of way, and sometimes, as before stated, pays an amount aggregating 10 or 20 times more than the land actually taken is worth. although the property is taken ostensibly for a public purpose, yet all the authorities agree that the railroad company, by procuring its right of way and paying for it, procures an actual, individual, private right,-an easement, and an estate paramount to the rights or interests of all others except the right of the state to again subject the land to be taken under the power of eminent domain. The railroad company in such a case is the dominant owner, and the owner of the fee is only a servient owner. It therefore necessarily follows that any person who should interfere with the railroad company's occupancy, use, or control of its right of way, except with the authority of the railroad company, or in subserviency to its rights, or under the sovereign power of eminent domain, would be a trespasser liable to the railroad company for all damages that might result from the trespass. And it would also seem to follow that where the interference is under the

And,

loss.

sovereign power of eminent domain, and the railroad company sustains substantial loss from such interference, the railroad company would be entitled to just Right to comcompensation for all such loss. Certainly, when- pensation for ever the railroad company's right to the exclusive occupancy, use, and control of its right of way is interfered with permanently under the power of eminent domain, something is taken from the railroad company. Of course, it is not the fee in the land that is taken, for the railroad company does not own the fee, nor is the fee under our present laws ever taken from any one under the power of eminent domain. What is taken in such a case is a portion of the railroad company's exclusive right of the occupancy, use, and control of its right of way, a part of its easement, and making it a tenant in common with some other person, corporation, or the public. This is certainly a taking of something from the railroad company which is valuable. It is a taking of a portion of the railroad company's estate for which it has paid full and ample compensation, and for the taking of which it is entitled to compensation. Where a railroad company is compelled by condemnation proceedings to surrender the use of a portion of its right of way in part to another railroad company, all the authorities agree that something is taken from the railroad company, and that just compensation should be awarded

And nearly all the authorities agree that where the railroad company is compelled to surrender the use of a portion of its right of way in part to the public for a public highway, something is again taken from it for which it is also entitled to fair and just compensation. It is true that where a highway is established by proper authority across a railroad company's right of way without at all interfering with the company's use of its right of way, and without requiring the company to be at the expense of constructing crossings or cattleguards, or erecting fences or signs or whistle posts, or being at any other expense or suffering any substantial loss, no compensation can be allowed; but, where any real or substantial loss is suffered or damage sustained, the railroad company may have adequate compensation. In Mills, Em. Dom. § 33, the following language is used: "Sec. 33. The laying of a highway across a railroad track is considered an additional burden in those states where the law imposes upon the railroad company the additional expense of erecting and maintaining signs at the crossings, or erecting and maintaining cattleguards, and of flooring the crossings and keeping the planks in repair. These expenses, being directly imposed, must be paid for. In New York and Pennsylvania the laying of highways across the tracks of

Same-Au

thorities.

railroads may be done without compensation, and the railroad company may be compelled to make the necessary excavations, embankments, and bridges to safely accommodate the highway. This authority would not include the opening of roads through grounds used for necessary buildings, yards, etc., although it was suggested in Pennsylvania that a street might be opened through depot grounds, and that the wisdom of such action could not be questioned by courts." Lewis, Em. Dom. § 491, the following language is used: "In New York a statute has been held valid which authorizes the laying out of highways over the tracks of a railroad without compensation, and although it compelled the railroad company to make the necessary excavations or embankments to take the highway across. This is put upon the reserved power to repeal, alter, or amend the incorporation acts. The act in question only provided for crossing the track' of any railroad, and it was not held to apply to grounds taken for a station house, etc., or to tracks used simply for storing cars. Substantially the same ruling has been made in Maine, though the right to repeal, alter, or amend the charter was not reserved. In other states it is held that, in such cases, the railroad company is entitled to compensation for taking its land for a highway subject to its right to use the same for railroad purposes, and to such a sum as will enable it to make and maintain the crossing, with suitable signs, cattleguards, planking, etc. Nothing can be allowed on account of the possibility of the company being compelled to pay damages for accidents at the crossing, and evidence of what the company has paid for accidents at other crossings is incompetent. Nor can anything be allowed for the expense of ringing a bell at the crossing, nor in view of the contingency of its having to build a bridge." In Redf. R. R. (6th Ed.) *40, No. 13, the following language is used: "A railway corporation is entitled to damages for land taken by laying a public highway across its line, and for the expense of maintaining signs and cattleguards at the crossing, and of flooring the same, and keeping it in repair; but not for any increased liability to accidents, for increased expense of ringing the bell, or its liability to be ordered by the county commissioners to build a bridge for the highway over the track. And in assessing damages, in such a case, no supposed benefits from an increase of travel on the railway can be set off against the company." In Pierce, R. R. p. 193, the following language is used: "The laying out of a highway across land of a railroad company which is used for a station, or for other purposes than a right of way, is a taking of its property entitling it to compensation. So, also, it is entitled to compensation where

the highway appropriates lengthwise a part of its right of way. The laying out of a highway across the company's track, without further interference with it, is, however, not a taking of its property. The state, in authorizing the crossing, simply regulates and adjusts private rights with reference to public interests, and exercises its reserved police power. The crossing should be laid in a manner to cause as little injury as possible to the previous use, and the railroad company is entitled to compensation where the crossing is so constructed as to result in serious inconvenience." In 6 Am. & Eng. Ency. Law, pp. 554, 555, the following language is used: When a highway is laid out by the proper authority across a railroad company's right of way, this is not such a taking of property as entitles the company to damages; but where the company is required to erect sign posts and maintain the crossing, there is in such case a taking for which compensation must be made. Where a railroad company constructs its track across a turnpike, compensation must be made to the turnpike company. The owner of property which abuts. upon a highway cannot recover damages for the mere crossing of the highway by the tracks of the railroad; but, if his property is injured by change of grade made for the purpose of laying said track, he can recover. Where one railroad company is authorized to run its tracks over the land of another, this is a taking for which compensation must be made." Also, as in favor of the doctrine that railroad companies may recover compensation in such cases, see the following cases: Old Colony & F. R. Co. v. Plymouth Co., 14 Gray (Mass.), 155; Crossley v. O'Brien, 24 Ind. 325; Detroit, M. & T. R. Co. v. City of Detroit, 49 Mich. 47: Grand Rapids. v. Grand Rapids & I. R. Co., 58 Mich. 641; Chicago & G. T. R. Co. v. Hough, 61 Mich. 507; Portland & R. R. Co. v. Deering, 78 Me. 61, 23 Am. & Eng. R. Cas. 51; Kansas City v. Kansas City Belt R. Co., (decided by the supreme court of Missouri, December 1, 1890,) 14 S. W. Rep. 808._The following cases possibly hold a different view: Railway Co. v. Sharpe, 38 Ohio St. 150; Railroad Co. v. President, 5 Lans. (N. Y.), 461. In the case of Railway Co. v. Hough, supra, it was decided as follows: "Where a highway is laid out across a railroad, the railroad company is entitled to include in its damages to be paid by the township the expense of cattleguards, fencing, and other outlays to complete the approaches, besides the cost of maintaining them; and a statute which imposes this expense upon the railroad company is in conflict with the constitutional provision forbidding the taking of private property without just compensation.'

The principal objections urged against the right of the