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66-501. Powers of railway corporation. Every railway corporation shall, in addition to the powers hereinbefore conferred, have power —

First. To cause such examination and survey for its proposed railway to be made as may be necessary to the selection of the most advantageous route; and for such purpose, by its officers, agents or servants, to enter upon the lands or water of any person, but subject to liability for all damages which shall be done thereto.

Second. To take and hold such voluntary grants of real estate and other property as shall be made to it to aid in the construction, maintenance and accommodation of its railway; but the real estate received by voluntary grant shall be held and used for the purpose of such grant only, and to purchase and hold, with power to convey, real estate, for the purpose of aiding in the construction, maintenance and accommodation of its railway.

Third. To lay out its road, not exceeding one hundred feet in width, and to construct the same; and for the purpose of cuttings and embankments, to take as much more land as may be necessary for the proper construction and security of the road; and also such land as may be deemed necessary for side tracks, depots, workshops and water stations, materials for construction, except timber; a right-of-way over adjacent lands sufficient to enable such corporation to construct and repair its roads and stations; a right to conduct water by aqueducts; a right of making proper drains; and to cut down any standing trees that may be in danger of falling on the road, making compensation therefor; and may take property under the power of eminent domain in the manner set forth in K.S.A. 26-501 to 26-516, inclusive.

Fourth. To construct its road across, along or upon any stream of water, watercourse, street, highway, plank road, or turnpike, which the route of its road shall intersect or touch; but the company shall restore the stream, watercourse, street, highway, plank road or turnpike thus intersected or touched, to its former state, or to such state as to have not necessarily impaired its usefulness. Nothing herein contained shall be construed to authorize the construction of any railway not already located in, upon or across any street in any city incorporate, or town, without the assent of the corporate authorities of such city.

Fifth. To cross, intersect, join and unite its railway with any other railway at any point on its route, and upon the grounds of such other railway corporation, with the necessary turnouts, sidings, switches and other conveniences in furtherance of the objects of its connections; and every railway which is or may hereafter be intersected by any new railway may unite with the owners of such new railway in forming such intersections and connections, and grant the facilities aforesaid; and if the two corporations cannot agree upon the amount of compensation to be made therefor, or the points and manner of such crossings and connections, the same shall be ascertained and determined in the manner provided in section 81 [*] of this act.

Sixth. To take and convey persons and property on their railway by the power of steam or of animals, or by any mechanical power, and to receive compensation therefor.

Seventh. To erect and maintain all necessary and convenient buildings, stations, fixtures and machinery for the accommodation and use of their passengers, freights and business.

Eighth. To regulate the time and manner in which passengers and property shall be transported, and the compensation to be paid therefor; said compensation not to exceed the rates fixed by law.

Ninth. From time to time to borrow such sums of money as may be necessary for completing and finishing or operating their railway, and to issue and dispose of their bonds for any amount so borrowed, and to mortgage their corporate property and franchises to secure the payment of any debt contracted by the corporation for the purpose aforesaid.

History: G.S. 1868, ch. 23, § 47; R.S. 1923, 66-501; L. 1963, ch. 234, § 81; January 1, 1964.

* Section 81 in the fifth clause, evidently intended as "section 80," see 66-161.

Cross References to Related Sections:

Crossing or uniting tracks with other railroad, see 66-161.

CASE ANNOTATIONS

1. Railroad may construct telegraph line on right-of-way. W.U. Telegraph Co. v. Rich, 19 Kan. 517.

2. Circular or terminal railroad may be built. The State, ex rel., v. Martin, 51 Kan. 462, 33 P. 9.

3. One railroad may condemn land of another. Railway Co. v. Railway Co., 67 Kan. 569, 70 P. 939, 73 P. 899.

First subdivision:

4. Injunction will not lie unless land is being illegally taken. Hurd v. Railway Co., 73 Kan. 83, 84 P. 553.

Second subdivision:

5. Voluntary grants in aid of railroads valid. McClure v. Gulf Railroad Co., 9 Kan. 373.

6. Railway corporation may purchase and hold real and personal property. Ryan et al., v. L.A. & N.W. Rly. Co. et al., 21 Kan. 365, 400.

7. Right to enter on land for purpose of survey. C.B.U.P. Rld. Co. v. A.T. & S.F. Rld. Co., 28 Kan. 453, 465.

Third subdivision:

8. Consideration of how right-of-way is determined; reversion thereof. Danielson v. Woestemeyer, 131 Kan. 796, 804, 293 P. 507.

Fourth subdivision:

9. Company has right to work over street; liability to public. City of Fort Scott v. Peck, Adm'r, 5 Kan. App. 593, 49 P. 111.

10. License to use highway does not give right to destroy. C.B.U.P. Rld. Co. v. Twine, 23 Kan. 585.

11. Liable for damage caused by obstructing stream. Union Trust Company v. Cuppy, 26 Kan. 754, 764, 765.

12. Liable for damage caused by diverting natural watercourse. U.P. Rly. Co. v. Dyche, 31 Kan. 120, 1 P. 243.

13. Company must construct safe crossings. A.T. & S.F. Rld. Co. v. Miller, 39 Kan. 419, 18 P. 486.

14. How to construct and operate railroad in public street. O.O.C. & C.G. Rld. Co. v. Larson, 40 Kan. 301, 19 P. 661.

15. Mandatory injunction lies for obstructing watercourse. A.T. & S.F. Rld. Co. v. Long, 46 Kan. 701, 703, 27 P. 182.

16. Road built in street; not liable to abutting lot owners. C.K. & W. Rld. Co. v. Investment Co., 51 Kan. 600, 602, 33 P. 378; O.O.C. & C.G. Rld. Co. v. Peterson, 51 Kan. 604, 33 P. 606.

17. Company must keep crossing in good condition. Railroad Co. v. Henry, 57 Kan. 154, 160, 45 P. 576.

18. Railroad tracks in public street; injury to pedestrians. Railway Co. v. Schwindt, 67 Kan. 8, 11, 72 P. 573.

19. Company not liable for permeating residence with smoke. Railway Co. v. Armstrong, 71 Kan. 366, 80 P. 978.

20. Must restore highway crossing to its former state. Railway Co. v. Townsend, 71 Kan. 524, 527, 81 P. 205.

21. Duty of company upon change of highway across existing railroad. The State, ex rel., v. Railway Co., 95 Kan. 22, 25, 147 P. 801.

22. Railroad crossing highways; restoration of highway; section construed. City of Iola v. Railway Co., 97 Kan. 242, 244, 155 P. 45.

23. Right of eminent domain; section cited and construed. Drainage District v. Railway Co., 99 Kan. 188, 203, 161 P. 937.

24. Defective sidewalk; liability of abutting lot owner. Dixon v. Railway Co., 104 Kan. 404, 405, 179 P. 548.

25. Cited; 82a-305 authorizes preventive not mandatory injunction. State, ex rel., v. Ross, 159 Kan. 199, 204, 152 P.2d 675.

Sixth subdivision:

26. Can make regulations for carrying passengers on freight trains. S. Kan. Rly. Co. v. Hinsdale, 38 Kan. 507, 16 P. 937.

27. Passenger must inform himself regarding regulations. A.T. & S.F. Rld. Co. v. Gants, 38 Kan. 608, 17 P. 54.

28. Company has the right to make reasonable rules and regulations. Brown v. Kan. C. Ft. S. & G. Rld. Co., 38 Kan. 634, 16 P. 942.

Eighth subdivision:

29. Power to regulate transportation of passengers; section construed. The State v. Railway Co., 76 Kan. 467, 494, 92 P. 606. Affirmed: Mo. Pac. Ry. Co. v. Kansas, 216 U.S. 262, 30 S. Ct. 330, 54 L.Ed. 472.

30. Schedules of interstate rates as filed valid. Railway Co. v. Theis, 96 Kan. 494, 152 P. 619.

31. Taking of easement by railroad for dust levee construction in compliance herewith; necessary for proper construction and security of road. Steele v. Missouri Pacific R.R. Co., 232 Kan. 855, 860, 862, 659 P.2d 217 (1983).

32. Railroad plaintiff's right-of-way dominant to fee simple owner only to extent of use; no adverse use by defendant to balance thereof. Atchison, Topeka & Santa Fe Ry. Co. v. Humberg, 9 Kan. App. 2d 205, 207, 675 P.2d 375 (1984).

33. Fee simple title is conveyed absent use limitations or reversion clauses in deed. Schoenberger v. Missouri Pacific RR Co., 29 Kan. App. 2d 245, 26 P.3d 700 (2000).

34. Deed to railroad with no use restriction or reversion clause gave railroad title in fee simple absolute. Stone v. U.S.D. No. 222, 278 Kan. 166, 91 P.3d 1194 (2004).


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