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that the drawer was not only accustomed KANSAS SUPREME COURT.
to draw against deposits of this character,
but actually did draw. These circum-

J. C. BORTON, Appt.,
stances evince the parties' intention to
treat the draft as a deposit of money, and

GEORGE MANGUS. therefore the title to the draft and the bill of lading attached is in the bank.” p. 374. (93 Kan. 719, 145 Pac. 835.)

Of the situation arising even where a restricted indorsement indicates that a Injunction obstruction of highway draft is deposited for collection, it is said:

special injury. "If, notwithstanding such restrictive in

One who has occasion to pass over dorsements, advances are actually made to highway more frequently than others does

not sustain special damage peculiar to himthe depositor, the title passes.


self beyond that of the general public which mere crediting of paper thus indorsed to would entitle him to relief by injunction. the depositor as cash does not transfer the title. If the depositor has a right to draw!

(January 9, 1915.) at once for the amount credited as though it were a cash deposit, in some states the PPEAL by plaintiff from a judgment of title passes; in others it does not pass until

the District Court of Sherman County he has actually drawn.” 5 Cyc. 497. sustaining a demurrer to his petition filed

The bank in its interplea described itself to enjoin the obstruction of a public highas the owner of the proceeds of the draft. way. Affirmed. Whether its interest amounted to a full The facts are stated in the opinion. title or to a lien for what it had advanced Mr. John Hartzler, for appellant: is not material, since the controlling facts

Plaintiff suffered special damages pecuwere fully developed. Whether the title to liar to himself beyond that of the general a draft passes to a bank which gives the public, and was entitled to an injunction. depositor credit immediately upon its re

Elliott, Roads & Streets, p. 500; Lippinceipt depends upon the actual or presumed cott v. Lasher, 44 N. J. Eq. 120, 14 Atl. intention of the parties, and may, in a

103; Atchison & N. R. Co. v. Garside, 10 particular case, be a question of fact for Kan. 552; Venard v. Cross, 8 Kan. 255 ; a jury. Here the only direct testimony Mikesell v. Durkee, 34 Kan. 509, 9 Pac, concerning the actual purpose of the Mein- 278; Hayden v. Stewart, 71 Kan. 11, 80 tyre Company and the Auburn bank is to Pac. 43. the effect that a purchase was intended, and

Mr. E. F. Murphy, for appellee: not a deposit for collection. This testi- Before a private citizen can be allowed mony, however, probably amounted only to to maintain an action for the redress of a the statement of a legal conclusion. The public wrong, he must allege and show some character of the transaction is determined interest personal and peculiar to himself by the circumstances already stated. The that is not shared by or does not affect the draft bore a serial number placed upon it general public, and it is not enough that by the Auburn bank. A witness for the his damages are greater than those susplaintiff testified that it was the practice of banks to assign such a number (corre

Headnote by PORTER, J. sponding to that entered in a register) to

Vote. Does the fact that one is preitems which were received for collection,

vented by an unlauful obstruction but not to those accepted as cash. This

from using a highway cause him a is relied upon as evidence to support a special damage which will sustain an finding that the title to the draft remained action by him against the wrongdoer. in the company. We agree with the trial

The earlier cases court that, upon all the evidence, the ques

on this question are tion of ownership was one of law, and that discussed in the note to Sholin v. Skamania

Boom Co. 28 L.R.A. (N.S.) 1053. the fact that a serial number had been as.

In the case of the alteration of a road, signed to the draft by the Auburn bank

one who, like all other travelers, is injured cannot affect the matter, in view the only by being required to pass over the new other circumstances which serve fully to road instead of the old, does not suffer such characterize the transaction.

a special injury as entitles him to enjoin Complaint is made of the rejection of the obstruction of the old road, although evidence offered by the plaintiff, but we

the new road is much more hilly than the regard it as insufficient to influence the old, is not as good as the old, and can result.

never be made as good. Bryan v. Petty,

162 Iowa, 62, 143 N. W. 987. The judgment is affirmed.

This case is approved in Bradford v.

Fultz, Iowa, 149 N. W. 925, where Petition for rehearing denied.

one who suffered no inconvenience other

tained by the general public, differing from ; from a judgment sustaining a demurrer to them only in degree.

his petition. Jones v. Chanute, 63 Kan. 243, 65 Pac. The plaintiff is a stock grower and farm243; Barber County v. Smith, 48 Kan. 331, er, and owns and resides on a farm located 29 Pac, 565; School Dist. v. Neil, 36 Kan. in the state of Colorado adjoining the line 617, 59 Am. Rep. 575, 14 Pac. 253; State between that state and Kansas. The deR. Comrs. v. Symns Grocer Co. 53 Kan. fendant is the owner of land lying in Kan213, 35 Pac. 217; Coffeyville Min. & Gas sas immediately east of the lands of the Co. v. Citizens' Natural Gas & Min. Co. 55 plaintiff. It appears from the petition Kan. 179, 40 Pac. 326; Mikesell v. Durkee, that there is a north and south road in 34 Kan. 509, 9 Pac. 278; School Dist. v. Colorado adjoining plaintiff's land on the Shadduck, 25 Kan. 467; Craft v. Jackson east, which road lies wholly within the

state of Colorado, and that there is also County, 5 Kan. 518; Amusement Syndicate Co. v. Topeka, 68 Kan. 802, 74 Pac. 606; through the lands of the plaintiff and which

a road in Colorado running east and west Ruthstrom v. Peterson, 72 Kan. 680, 83 is 200 yards south of his residence, and that Pac. 825.

this east and west road intersects the north Mr. G. L. Calvert also for appellee.

and south road and connects with a roail

in Kansas which the plaintiff claims the Porter, J., delivered the opinion of the defendant has obstructed. court:

The plaintiff alleges that the obstructed Plaintiff brought suit to enjoin the ob- road became a highway by special act of struction of a public highway, and appeals I the legislature of Kansas (chapter 215, than that suffered by the general public by On the contrary it has been held that an obstruction in a road, but was simply one who uses a highway in going to and compelled to travel over another route just from his home to a distant tract of land as convenient in point of distance as the owned by him at least twice each day susold one, was held not entitled to maintain tains a special injury by the closing of an action to enjoin the obstruction of the the highway where he is required to travel old road.

another road about twice the length of the In Painter v. Gunderson, 123 Minn. 323, old road. Ingalls v. Eastman, 61 Wash. 289, 143 N. W. 910, one who was accustomed to | 112 Pac. 372, following Sholin v. Skamania go to a lake, over a highway extending Boom Co. 56 Wash. 303, 28 L.R.A. (N.S.) from another highway to the lake, and by 1053, 105 Pac. 632. boat in summer and on the ice in winter The cases covered in the present note and to a village across the lake and to other the earlier note supplemented hereby are places, and who was accustomed to use the intended to be limited to those in which the highway in hauling water from the lake question of special damages is determined for use on his farm and ice in the winter independently of damages to property. The for storage, and in getting water from the line between these two classes of cases has lake for use in a threshing engine which not always been kept distinct, as will be he operated, was held not entitled to main noticed from some cases included in the tain an action to abate an obstruction of present note, viz., Painter v. Gunderson, the road as a nuisance. The plaintiff was and Ingalls v. Eastman, supra; but cases obliged to adopt a more circuitous route, which turn upon the ownership of neighand was unable to make use of water and boring property have been excluded. ice from the lake as formerly. The plain- (See in this connection note to Hyde v. tiff also alleged that his farm, which was Fall River, 2 L.R.A. ( N.S.) 269, and Newin the neighborhood, was depreciated in ark v. Hatt, 30 L.R.A.(N.S.) 637, as to value on account of the obstruction of the right of property owner whose means of road.

access from one direction is shut off or in. The mere fact that one used a road was terfered with by closing of adjoining street held not to show sullicient special interest in or portion of street upon which he is sitsuch person to entitle her to a mandatory | uated; and notes to Sloss v. Sheffield Steel injunction commanding the removing of the & I. Co. v. Johnson, 8 L.R.A. (N.S.) 227, obstruction and restraining the further ob- and Stoutemyer v. Sharp, 21 L.R.A. (N.S.) struction of the road. Owens v. Varnell, 75, as to obstruction in highway preventing - Tex. Civ. App. 145 S. W. 256. In access to property except by a circuitous the course of the opinion it is stated that route, as a special injury entitling owner the bare statement that the road was used to maintain action for damages or to abate by appellee and her tenants to go to see the nuisance.) their neighbors and children, to go to the As to a private right of action for oh. county seat to pay taxes, and that it added struction of a navigable stream, see Viebahn to the value of appellee's place, will not v. Crow Wing County, 3 L.R.A. (N.S.) 1126, suffice to show such special injury." and note, and the subsequent case of David

See also Wellborn v. Davies, 40 Ark. Swain & Son v. Chicago, B. & Q. R. Co. 83, set out in the opinion in Dorron v. and note appended thereto, 38 L.R.A.(N.S.), MANGUS.

W. A. E.


Laws of 1887) declaring all section lines feet wide on the west side of the road adin Sherman and certain other counties in joining the land belonging to the plaintiff, Kansas to be public highways, and to be and, because the court could not judicially of the width of 60 feet. The section line declare that a 20-foot strip of land was too between sections 19 and 30 in township 8 narrow for plaintiff's use as a road to and of range 42 in Sherman county runs alongside of his land, it was held that he through the tract of land owned by the de failed to show ial damages different in fendant, and the plaintiff alleges that by character from that sustained by the public virtue of this act of the legislature and the at large. In the opinion it was said: “The use by the public for a number of years it only special right which an abutting owner became a public highway. The town of has in a public highway is that of access to Kanorado is in Kansas and is the postoflice his premises. When he has passed from and market town of the plaintiff. When his land into the road, his right to travel the road in question was opened and used there is not different from the right enjoyed by the public, the plaintiff could travel from by other members of the community.” Page his farm in Colorado to the town of Kano- / 680 of 72 Kan. rado, and it furnished the nearest highway In Sargent v. George, 56 Vt. 627, the to the town from his land and residence. court refused relief by injunction where the He alleges that the defendant has erected damage complained of was the obstruction and maintains buildings and fences there of a passageway leading from a house to on, and that the obstruction compels him, the street for the reason that but a few in order to reach the town of Kanorado, rods distant there existed another way to drive about } mile south on the north equally available and in daily use. One and south road in Colorado, then by an who has occasion to pass over a highway angling road northeast to town; and that more frequently than others does not suson every trip he makes to the town, either tain special damages peculiar to himself for business or pleasure, he must travel beyond that of the general public, which about 2 miles more by reason of such ob- would entitle him to relief by injunction. struction.

In Wellborn v. Davies, Ark. 83, it was It will be observed that there is no alle held that the inconvenience resulting to a gation in the petition that the plaintiff is physician in visiting his patients caused denied ingress to or egress from his farm by the obstruction of a public road by fencby reason of the obstruction, and, indeed, es is not a special injury different from the facts show that his lands do not abut that which every citizen suffers whose busiupon the road which defendant has ob- ness or pleasure may cause him to travel structed. The obstructed road lies wholly the road. It is of the same character, only within the state of Kansas; his farm lies perhaps different in degree, from that which in Colorado. The allegation is that the ob- others suffer who have other business and structed road intersects the north and south live far away. highway along the state line, and is a con- In Crook v. Pitcher, 61 Md. 510, it was tinuation of an east and west road which held that the fact that one who had very runs 200 yards south of plaintiff's residence. | frequent occasion to use a highway is obliged It therefore affirmatively appears that he to travel a longer road because of an obhas ample means to get to and from his struction does not show a special damage farm by the highways in Colorado.

different from that which the public susThe rule is firmly established in this tains. To the same effect is Jacksonville, state and is of general application every- T. & K. W. R. Co. v. Thompson, 34 Fla. where that, to entitle a private individual 346, 26 L.R.A. 410, 16 So. 282; Sohn v. to invoke the interposition of a court of Cambern, 106 Ind. 302, 6 N. E. 813. There equity to restrain a public nuisance arising is some conflict of authority upon this quesfrom an obstruction of a public highway, he tion in the different states. See notes in must show special damages apprehended or 7 L.R.A. (N.S.) 73; and 28 L.R.A.(N.S.) sustained peculiar to himself and different 1053. in character from those suffered by the pub. The allegations in the petition are to lic at large. Venard v. Cross, 8 Kan. 248; the effect that the plaintiff can and does Trosper v. Saline County, 27 Kan. 391; go from his land to a public road and reachRuthstrom v. Peterson, 72 Kan. 679, 83 es the market town in Kansas by traveling Pac. 825. In the latter case the court in one-half mile south, and then by a road terpreted the petition to mean that a public northeast to Kanorado. As said in Ruthroad 40 feet wide was established on the strom v. Peterson, supra: "When he has west side of a tract of land and along the passed from his land into the road his right east side of the land belonging to the plain to travel there is not different from the tiff. The obstruction interfered with the right enjoyed by other members of the comeast 20 feet of the road, but left a strip 20'munity.” (P. 680.)

It may


The same principle would seem to apply the original offer, his power to accept it here. There is a road which reaches his without renewal was gone. land and by which he can pass to and from Custom effect on contract. town. The inconvenience resulting to him 2. A usage or custom, to be a guide in from the obstruction of the road is of the construction of contracts, must be unithe same

character that every citizen form, reasonable, and generally known. suffers who, from business or pleasure,

(February 19, 1913.) bas occasion to travel the road. differ in degree, but not in kind, from that PPEAL by defendant from a judgment which others suffer who have occasion to use the road. He is not denied access to his Division, of the Circuit Court for Jefferland by the alleged obstruction, but is mere. son County, dismissing his counterclaim in ly required, like others, to travel a longer , an action brought to recover the price of distance between his land and the town.

three cars of lumber sold and delivered by If the state line between Kansas and plaintiff to defendant. Allirmed. Colorado were located a mile farther west The facts are stated in the opinion. than it is, and the plaintiff's land lay in Mr. Harry A. Shaw, for appellant: this state, and the road when open, as the The correspondence, regardless of any plaintiff contends it should be, extended question of custom, shows a complete confrom the town to the road running north tract for five cars of flooring. and south along the plaintiff's land, he Louisville & N. R. Co. v. Coyle, 123 Ky. could not enjoin the obstruction complained 854, 8 L.R.A.(N.S.) 433, 124 Am. St. Rep. of because he would still have free access to 384, 97 S. W. 772; Eckert v. Schoch, 155 Pa. his land, and would be unable to show that 530, 26 Atl. 654; Bauman v. McManus, 75 he sustained a damage different in kind and Kan. 106, 10 L.R.A.(N.S.) 1138, 89 Pac. character from that suffered by the public 15; Pitcher v. Lowe, 95 Ga. 423, 22 S. E. at large. It will therefore be unnecessary 078; John Single Paper Co. v. Hammermill to discuss the interesting question whether Paper Co. 96 App. Div. 535, 89 N. Y. Supp. the action is transitory or local, or whether 116; Anglo-American Provision Co. v. Prenthe courts of this state would entertain tiss, 157 Ill. 513, 42 N. E. 157. jurisdiction in a suit by a nonresident to Where it is alleged that there is a custom enjoin the obstruction of a highway in Kan- by which certain terms were understood to sas upon the theory that the obstruction be implied in an offer, which would make closed a road and resulted in denying him the acceptance complete and unqualified, access to or egress from lands in Colorado. then whether or not such custom exists is

It is said in the abstract that the court a question of fact, and upon evidence of sustained the demurrer on the ground that such custom being produced, it shonld be the plaintiff lacked legal capacity to sue, submitted to the jury to determine whether which was one of the grounds of the demur- or not it does exist. rer, as was also the ground that the peti- Postal Teleg. Cable Co. v. Louisville Cottion failed to state a cause of action. The ton Oil Co. 136 Ky. 843, 122 S. W. 852, 125 plaintiff has legal capacity to sue, but, be- S. W. 266. ing in court, is unable to state facts which Though there has been no absolute acconstitute a cause of action entitling him ceptance of an order, yet, when the correto relief.

spondence of the parties plainly recognizes The judgment therefore will be affirmed. the existence of a contract, whereby one

party is led to believe that he in fact had

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Note. - Right to accept offer after subKENTUCKY COURT OF APPEALS.

mitting counter proposition.

It is well established that an offer must FOREST G. SHAW, Appt.,

be accepted in order to constitute a con

tract; and, also, that it must be accepted INGRAM-DAY LUMBER COMPANY.

upon the terms and conditions contained in

the offer. An aceptance upon new and dif(152 Ky. 329, 153 S. W. 431.) ferent terms proposed by the acceptor can

not bind the one first making the offer, in Sale right to accept rejected offers. the absence of his assent to the new and dif

1. One who, in response to a quotation ferent terms so proposed. for flooring, orders a quantity with an ir- The counter proposition made by the perregular matching to which the quotation son to whom the offer is addressed, accorddid not apply, which the seller declines to ing to the weight of authority, operates as fill, cannot perfect a contract by merely a rejection of the original offer. Mechem, notifying the seller that regular matching Sales, $ 229; Elliott, Contr. § 41; Page, will be satisfactory, since, having rejected' Contr. § 46; 9 Cyc. 290. LR.A.1915D.


a contract, and acted in reliance thereon | would have made upon the lumber if reto his damage, the other party will be es-ceived. By an amended answer it was furtopped from denying the existence of the ther alleged by appellant that the contract contract.

it had with appellee for the purchase of John Single Paper Co. v. Hammermill the lumber in question was made by means Paper Co. 96 App. Div. 535, 89 N. Y. Supp. of letters which passed between them, and 106; Pitcher v. Lowe, 95 Ga. 423, 22 S. E. these letters, both those written by appel678; Bauman v. McManus, 75 Kan. 106, lant to appellee and those received by it 10 L.R.A.(N.S.) 1138, 89 Pac. 15.

from the latter on the subject of the lumber, Though an acceptance, when really quali- were introduced in evidence on the trial of fied, can never complete a contract, it will the case. The burden of proof was upon the not in all cases operate as a rejection of appellant to establish its set-off and counthe pending offer.

terclaim, and, after the introduction of its Mechem, Sales, art. 230; Johnson v. evidence, the court, upon appellee's motion, King, 2 Bing. 270, 9 J. B. Moore, 482. peremptorily instructed the jury to find

Messrs. Duslin, Sapinsky, & Dullin for for it. Thereupon judgment was entered appellee.

dismissing appellant's set-off and counter

claim, and allowing appellee its debt and Settle, J., delivered the opinion of the costs, and from that judgment this appeal court:

is prosecuted. As there could have been no The appellee sued the appellant in the misapplication of the law by the trial court below upon an account of three car- court in granting the peremptory instrucloads of lumber sold and shipped it, aggre- tion, if the letters relied on by appellant gating $538.45; and for the further sum of to prove the contract alleged to have been $2.04 paid by appellee to a notary public made by it with appellee failed to do so, for protesting a draft it drew upon appel- the question presented for our decision by lant for the amount of the above account, the appeal is mainly one of fact. which draft the latter refused to pay, there- In our opinion only four of the several by necessitating its protest for nonpayment. letters found in the record throw any real The petition credited appellant on the light upon the question of fact to be deteramount thus sued for with $194.87 freight mined. These include the letter from apcharges paid by the latter upon two car-pellant to appellee of June 19, 1909, the loads of the lumber, leaving a balance of answer of appellee thereto of June 22, 1909, $345.62, for which judgment was prayed. that of appellant to appellee of June 24, Appellee's claim was not controverted by 1909, and appellee's answer to same of appellant, but the latter pleaded, in its June 28, 1909. These four letters are in answer, a set-off and counterclaim by way words and figures as follows: of damages for a larger amount, resulting, as alleged, from appellee's breach of a

Louisville, Ky., June 19th, 1909. contract for the sale and delivery to it of Ingram-Day Lumber Co. five other cars of lumber; the damages thus

Lyman, Miss. claimed being, as alleged, profits, after Gentlemen :deducting freight charges, which appellant We have orders for the following stock

It follows from the fact that the counter standing that you will deliver to me all proposition is a rejection of the original of the papers you have in reference to the fer, that such offer ceases, and the person to land, U. S. patent and other deeds,” cannot whom it was addressed, and who has made thereafter be unconditionally accepted by a counter proposition, cannot thereafter ac- the person to whom addressed. Egger v. cept it.

Nesbitt, 122 Mo. 667, 43 Am. St. Rep. 596, In Frith v. Lawrence, 1 Paige, 434, where 27 S. W. 385. the person to whom an offer was addressed In Flomerfelt v. Hume Bros. 11 Tex. Civ. accepted it conditionally, it is stated that App. 30, 31 S. W. 679, where a third person he, having declined to accept the offer as proposed to assume the indebtedness of a proposed, could not, by any subsequent as firm on certain conditions, to which a credsent to the original offer, make a valid con- itor of the firm replied, offering other contract binding on the person thus making the ditions, it is stated that this new proposioffer.

tion was equivalent to a rejection of the Thus, an offer by the lessor to cancel a original proposal, and the original offer lease on certain terms, to which offer the thereby lost its vitality, and could not lessee makes reply proposing other terms, thereafter be accepted by the creditors to cannot. after the proposal of the other whom it was made. terms, be accepted by the lessee.

Fox v.

One who, in reply to an offer to furnish Turner, 1 Ill. App. 153.

any number of tons of iron rails, not less An offer to convey land by a quitclaim than 2,000 nor more than 5,000, on terms deed, to which the person addressed replies, specified, writes the person making the offer, accepting the proposition "with the under- 'directing him to enter an order for 1,200

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