(7 Kan. App. 388) LATHEN v. CAMPBELL. (Court of Appeals of Kansas, Southern Department, E. D. Jan. 18, 1898.) SCHOOL DISTRICTS-ELECTION OF OFFICERS-Aus- 1. A school district is a political subdivision of the state, and when the voters thereof legally assemble for the purpose, and make a choice of persons for public officers, such proceeding constitutes an election by the people, within the meaning of article 4 of our state constitution, and the voting must be by ballot. 2. School districts are specifically exempted from the operation of the Australian ballot act. 3. In all elections, in this state, for the choice of any officer, unless it is otherwise expressly provided, the persons having the highest number of votes for any office shall be deemed to have been elected to that office. 4. The result of a ballot expresses the election of the candidates, and it is not necessary that such election be formally declared. (Syllabus by the Court.) Error from district court, Franklin county; A. W. Benson, Judge. Action by T. S. Lathen against Olive Campbell to recover the office of treasurer of school district No. 20, Pottawatomie township, Franklin county, Kan. From a judgment for defendant, plaintiff brings error. Reversed. C. A. Smart, for plaintiff in error. J. W. De Ford and W. A. De Ford, for defendant in error. The SCHOONOVER, J. This action was commenced by plaintiff in error in the district court of Franklin county, to require defendant in error to surrender to plaintiff in error the office of treasurer of school district No. 20, Pottawatomie township, Franklin county, Kan. The cause was submitted to the court upon an agreed statement of facts. court found and rendered judgment in favor of defendant in error, and plaintiff in error brings the case to this court. The following are the agreed facts: "That on July 27th, 1893, being the regular and proper date affixed by law for the annual school meeting in Kansas, the qualified electors of school district Number 20, Franklin county, Kansas, met at the school house at about two o'clock p. m., for the purpose of holding the regular annual school meeting as required by law. The director being absent, the meeting was called to order by one of the electors, and Leroy Bates, also an elector, was elected chairman of the meeting. After hearing the reports of the treasurer and clerk of said district, the meeting proceeded to elect a treasurer for the ensuing three years. George Nofsinger, T. S. Lathen, the plaintiff, and Olive Campbell, the defendant, were each nominated for that office. The meeting then proceeded to voting by writing the name of the candidate intended to be voted for upon small slips of paper, and depositing them in a hat that was passed about by tellers to collect the ballots. Aft er all had voted who desired, the ballot was counted, and was as follows: Mr. Nofsinger received ten votes; Mr. Lathen received thirty-two votes; and Mrs. Campbell received twenty-eight votes. Thereupon the chairman announced that there had been no election, no one having received a majority of all of the votes cast. Thereupon, Mr. Lathen, the plaintiff, and his friends, raised the question that a plurality was all that was required to elect, and that he (Lathen) had been duly elected. After discussing that question for some time, a recess was taken, and the Statutes of Kansas sent for, and the school law, or a portion of it, read in the meeting, after it reconvened, and the chairman decided that no one had been elected. Thereupon a motion was made to proceed and reballot, which motion was carried. This motion was followed by another,—that each elector come forward and deposit his ballot on the chairman's desk, which motion was carried. All this time, however, Mr. Lathen and his friends protested, and objected, and insisted that an election had already been had, and that Mr. Lathen had been legally elected, and that there was no vacancy to be filled. The friends of Mr. Lathen then asked that the chairman and clerk furnish him with a certified transcript of the proceedings up to that time, which request was put in the form for motion, and was lost. A second ballot was taken, all present, including the plaintiff, voting. T. S. Lathen received thirty votes. Olive Campbell received forty-three votes. The chairman declared Mrs. Campbell duly elected. After transacting other business pertaining to the welfare of the school, the meeting adjourned. It appeared, further, from the evidence, that certain persons who voted when the first ballot was taken were not present when the second ballot was taken, and that certain persons who voted when the second ballot was taken were not present when the first ballot was taken; also, that both parties possess all necessary qualifications to hold the said office." The question presented for our consideration is, was plaintiff in error or defendant in error elected treasurer of said school district? A school district is a political subdivision of the state, and when the voters thereof legally assemble for the purpose, and make a choice of persons for public officers, such a proceeding constitutes an election by the people, within the meaning of article 4 of our state constitution (Gen. St. 1897, c. 52, § 29; Freeland v. Stillman, 49 Kan. 197207, 30 Pac. 235; Bouv. Law Dict. tit. "Elections"; 6 Am. & Eng. Enc. Law, 260; Police Com'rs v. City of Louisville, 3 Bush, 602); and the voting must be by ballot (Const. art. 4; State v. Board of President & Directors of St. Louis Public Schools, 112 Mo. 213, 20 S. W. 484). School districts are specially exempted from the operation of the Australian ballot act. Gen. St. 1897, c. 52, § 29. The statute of this state provides that "in all elections for the choice of any officer, unless it is otherwise expressly provided, the person having the highest number of votes for any office shall be deemed to have been elected to that office." Id. § 108. The result of the first ballot taken expressed the election of plaintiff in error, and it was not necessary that he be formally declared elected. People v. Stone (Mich.) 44 N. W. 333. We cannot agree with defendant in error's learned counsel in their contention that plaintiff in error renounced his rights under the first vote by his participation in the second, or that he was estopped thereby. Plaintiff in error was duly elected. The judgment of the district court is reversed. All the judges concurring. (7 Kan. App. 554) WICHITA & W. RY. CO. v. HART. (No. 263.) (Court of Appeals of Kansas, Southern Department, C. D. Jan. 14, 1898.) RAILROADS-KILLING STOCK-FENCES. 1. Where an injury to stock resulted from the failure of a railway company to fence its right of way, and no evidence was introduced by said company tending to prove that a fence could not have been built and maintained at the point where the stock entered the right of way from a pasture which was inclosed, except as to part of it next to the right of way, it was not error for the court to refuse to give an instruction based on the impracticability of building such a fence. 2. Case No. 262, between the same parties (51 Pac. 933), is followed as to other alleged errors. (Syllabus by the Court.) Error from district court, Kingman county; W. O. Bashore, Judge. Action by Henry Hart against the Wichita & Western Railway Company. Judgment for plaintiff, and defendant brings error. Affirmed. J. W. Gleed and Fred W. Bentley, for plaintiff in error. W. M. Wallace, for defendant in error. MILTON, J. In this case Henry Hart recovered a judgment based upon a verdict in the sum of $80 damages, and $40 as attorney's fees, against the Wichita & Western Railway Company, for injuries alleged to have been done to a gelding, a mare, and a young colt, by reason of the engine and cars of said company frightening the animals, and causing them to run from the railroad track over and upon a stone embankment on the right of way of said railroad. It was alleged that the animals came upon the right of way at a point where it was not fenced. from an inclosed pasture of plaintiff. The case was pending in the district court at the same time that case No. 262 and a third case were pending between the same parties. Defendant's motion to consolidate the cases was overruled. For the reasons stated in case No. 262 (just decided) 51 Pac. 933, we hold that reversible error was not committed in overruling the motion. It appears that for a long distance the right of way has never been fenced next to said pasture. The Ninescah river runs close to the right of way at the south side of the pasture, which is north of the railroad, and a part of its nearest bank is riprapped at the right of way. The evidence of plaintiff as to the character and extent of the damage, and as to the exact manner in which it was done, is not very satisfactory, but none was offered to contradict any feature of it, except as to the extent of the damage. We discover no evidence tending to prove that the railway company could not have built and maintained a fence along the right of way next to the river, although the evidence indicates that, if built, occasional freshets might have carried part of it away. In the absence of evidence tending to prove the impracticability of building and maintaining a fence at the place mentioned, it was not error for the court to refuse to give the instruction asked for by the railway company upon that proposition. As to the sufficiency of the demand, we refer to the decision in case No. 262. No other specification of error seems to require consideration. We think the verdict and judgment are sufficiently supported by the evidence to be allowed to stand. The judgment is affirmed. All the judges concurring. ERROR-RAILROADS-KILling of 1. A trial court has some discretion in the matter of consolidating cases, under section 83 of the Civil Code, and its action in overruling a motion to consolidate will not be reversed, in the absence of a clear showing of abuse of discretion. 2. Where, over the objection of defendant, expert evidence was received on behalf of plaintiff as to a matter concerning which no direct testimony was offered, and where the special findings of the jury show that their verdict was not affected by such expert evidence, the error is immaterial. 3. The written demand required by paragraph 1253, Gen. St. 1889, to be given to a railroad company prior to commencing an action against it for the killing of stock, need not specify the particular breach of statutory duty on the part of such company which might be relied on as fixing its liability. (Syllabus by the Court.) Error from district court, Kingman county; W. O. Bashore, Judge. Action by Henry Hart against the Wichita & Western Railway Company. From a judgment for plaintiff, defendant brings error. Affirmed. Fred W. Bentley and J. W. Gleed, for plaintiff in error. W. M. Wallace, for defendant in error. MILTON, J. Defendant in error, as plaintiff, recovered a judgment, based on the verdict of a jury, in the sum of $139, as damages and attorney's fees, in the district court of Kingman county, against the Wichita & Western Railway Company. The plaintiff's bill of particulars alleged that a four year old filly belonging to him, and valued at $99, had been killed by a train of cars of the railroad company, and that the damage had occurred as a result of the company's failure to maintain a sufficient gate at a private crossing over the railroad track where it passed through said plaintiff's farm; the animal in question having escaped from an inclosed field, and entered upon the right of way through the said gate. The jury made a number of special findings, one being that the gate was insufficient, and another that the damage resulted from the failure of the defendant company to maintain a sufficient gate. These findings are supported by the evidence of plaintiff, which is directly contradicted by the evidence on behalf of the defendant. The theory of the plaintiff below was that the sliding gate, which was made of pine boards and placed between two posts at each end, had been gradually worked back by a very high wind, in the nighttime, sufficiently to allow four horses, including the one killed, to go through it from the pasture to the right of way of the railroad. His statement that he had closed the gate in the evening preceding the death of the animal was not disputed. The evidence of the railroad company tended to prove that the gate would have been broken, rather than moved, by a strong wind, and that it was not broken by the wind that night. The jury on this point made the following findings: "No. 27. Q. When the gate was closed, with the west end resting on the ground, could the same be blown open by a strong wind? A. Yes. No. 28. Q. Would not the gate be broken by the wind before it would be blown open? A. No." The jury also found that a demand had been duly made upon the company, prior to the commencement of the action, for the amount of damage claimed. It seems that Hart had brought three suits before a justice of the peace, each involving the killing of different animals by the said railroad company, and that the company had carried all of the cases into the district court by appeal. While these cases were pending, the company moved to consolidate them. In support of the motion, the three bills of particulars were introduced, and Hart admitted the identity of plaintiff and defendant in the three cases. The motion was overruled, defendant excepting. One of the cases was then tried, resulting in a judgment for Hart. The defendant thereupon paid this judgment, and then moved the court to dismiss each of the other actions, for the reasons stated in the motion to consolidate. This motion was also overruled. Plaintiff in error earnestly contends that the court erred in overruling these motions. An examination of the bills of particulars shows that each alleges damage done by the defendant company; but the time when, and the manner in which, the damage was wrought are different, as are also the animals injured or killed. To prove the allegations of one bill of particulars would have required evidence different from that necessary to sustain those of either of the others. The record does not show that notice of the motion to consolidate was given to the plaintiff or waived by him. While the three actions might have been consolidated, and thus tried by the same jury, we think the statute intends to grant to the trial court some discretion in such cases. We are unable to say that abuse of discretion is shown by the record. The relief sought by plaintiff in error is a new trial. If that were awarded in this case, and in the third of the three cases referred to (which is also decided by us at the present term, 51 Pac. 932), it would be impossible to consolidate the three cases, and such impossibility would result from the act of plaintiff in error in satisfying the judgment in the case first tried. Complaint is made of the action of the court in allowing witnesses for plaintiff to testify as experts as to the gate being sufficient or in sufficient for the purpose for which it was built, and as to whether or not it was so constructed that it could be opened by the force of the wind or by stock rubbing against it. Some of this evidence was improper, especially that part relating to stock rubbing against the gate, as there was no direct testimony on that point; but the jury's findings show that they believed the gate was blown open, and there was evidence tending to sustain this finding. The error is immaterial. Counsel contend that the demand made upon the railroad company prior to the commencement of the suit should have stated, among other things, that plaintiff's claim arose from the failure of the company to maintain a good and lawful fence. We discover no merit in this novel contention. The object of requiring the notice is evidently that a railroad company shall have a reasonable time, prior to the bringing of an action, in which to investigate and determine its course with respect to the matter. The bill of particulars, or the petition, must be looked to for a statement of the facts constituting a cause of action. We think a clear issue, touching the sufficiency of the railroad fence, including the gate, was raised by the pleadings, and that the court did not err in his instructions, when they are considered as a whole. The part set out in the brief of counsel for plaintiff in error, when read in its proper connection, is not subject to the objections urged against it. As to the constitutionality of the statute allowing attorney's fees in cases of this class, we refer to the decision of our supreme court in Railroad Co. v. Mathews, 49 Pac. 602, which has been followed by us in several recent cases. No substantial reason to the contrary appearing, the judgment of the district court is affirmed. All the judges concurring. (7 Kan. App. 543) STEINBUCHEL et al. v. KANSAS MIDLAND RY. CO. (Court of Appeals of Kansas, Southern Department, C. D. Jan. 14, 1898.) EMINENT DOMAIN-RIGHT OF WAY-HARMLESS ER ROR. 1. The evidence examined. Held, that the trial court committed no error in admitting or in refusing to strike out certain testimony. 2. The instructions refused and the instructions given set forth. Held, that the instructions given correctly state the law as to the principal fact to be determined by the jury. 3. Where an instruction relating to one of the minor facts is misleading, the judgment will not be reversed, where the party complaining is not prejudiced thereby. (Syllabus by the Court.) Error from district court, Sedgwick county; C. Reed, Judge. Action by Louis Steinbuchel and others against the Kansas Midland Railway Com pany. There was judgment for defendant, and plaintiffs bring error. Affirmed. W. J. Babb and F. Nighswonger, for plaintiffs in error. Stanley & Vermillion, for defendant in error. SCHOONOVER, J. The plaintiffs in error commenced this action in the court below to recover damages for the alleged permanent appropriation of a strip of land by defendant in error for a right of way for its road. In the petition damages are claimed for the permanent appropriation of a part of the property, and by reason of this appropriation damages to the remainder. The only question presented in the court below was whether there had been a permanent appropriation of a part of plaintiffs' property. The defendant, in its answer, alleges: "That heretofore it was duly authorized to construct its line of railroad into and through a portion of the city of Wichita, and upon and along Dover street and Mosley avenue, in said city; that at the time it constructed the said line of railroad it did, by mistake, supposing that the same was constructed wholly within Mosley avenue where the same lies opposite the lands described in plaintiffs' petition, so construct the same as to touch said lands, and place a very small portion of its track upon said lands; that it afterwards ascertained said mistake, and caused said track to be removed wholly from said premises described in the plaintiffs' petition, since which time its said railroad has in no manner been constructed upon or operated over or upon any portion of the premises described in the plaintiffs' petition; and this defendant says that it does not at this time occupy with the said railroad or tracks any portion of the premises described in plaintiffs' petition, and does not desire to acquire any right of way, easement, or title thereto." The issue was tried to a jury, and resulted in a verdict and judgment for defendant. The plaintiffs below, now plaintiffs in error, bring the case here for review, and for their assignment of error say that the trial court erred in admitting and in refusing to strike out improper testimony, in giving and refusing to give. certain instructions, in refusing to grant a new trial upon the newlydiscovered testimony, and in overruling the motion of plaintiffs for a new trial. The rulings of the court upon the admission of testimony have been examined. No error appearing, we pass to the consideration of other questions. Plaintiffs contend that the trial court erred in refusing to give the following instructions: "(5) It was the duty of the defendant, in erecting and building its railroad, to know at its peril where the line of its railroad was being built, and if it went upon the land of these plaintiffs then it would be liable in damages. (6) You are instructed that if defendant, prior to the commencement of this action, took possession of the real estate described in the plaintiffs' petition, or any part thereof, and built its railroad upon and over or across the same without any formal condemnation proceedings, and without having procured any title to the same, and that defendant thereupon commenced operating its line of railroad upon and along said land, and while it was so in possession of said real estate and operating its said railroad upon, along, and over the same the plaintiffs commenced their action for the purpose of recovering the damages sought in this case, then you should find for the plaintiffs and against the defendant, and assess their damages in such sum as, in your judgment, the evidence will warrant, not exceeding the sum of fifteen hundred ($1,500) dollars. (7) The court instructs you that the defendant cannot avoid any liability in this action which existed at the time of its commencement, by getting off of the plaintiffs' land after the action was commenced. (8) If the jury believes from the evidence that the defendant was notified, prior to the construction of its railroad across the east side of plaintiffs' premises, that in so doing it would encroach upon said premises; and if the jury further believe that said railroad was thereafter constructed over and across a narrow strip of land off of the east side of plaintiffs' premises, and was used after such construction, for the space of three to three and a half years since the bringing of the first suit for damages by plaintiffs, and long after the bringing of this suit, then the jury must find for plaintiffs." The instructions given are as follows: “(5) It was the duty of the defendant, in locating and building its railroad, to know at its peril where the line of its railroad was being built, and, if it went upon the land of these plaintiffs, and built its railroad upon the land of plaintiffs, then it would be liable in damages, subject to the instructions given.” “(7) The court instructs you that the defendant cannot avoid any liability in this action which existed at the time of its commencement, by getting off of the plaintiffs' land after the action was commenced; provided that you further find from all the evidence in the case that said defendant permanently appropriated said land to its use at the time of its entering upon the same. (8) If the jury believe from the evidence that the defendant was notified, prior to the construction of its railroad across the east side of plaintiffs' premises, and that in so doing it would encroach upon said premises; and if the jury further believe that said railroad was thereafter constructed over and across a narrow strip of land off of the east side of plaintiffs' premises, and that said land was permanently appropriated for railroad purposes, and so used, after such construction. for the space of three to three and a half years since the bringing of the first suit for damages by plaintiffs, and long after the bringing of this suit,-then the jury must find for plaintiffs. (9) The jury are further instructed that if you find from the evidence that the plaintiffs' property is located on the corner of Third street and Mosley avenue, and that the defendant does not obstruct the means of ingress to and egress from plaintiffs' premises, then, in that event, you cannot allow plaintiffs any damages for obstructing their ingress or egress from their property by the way of or over Mosley avenue. (10) The court instructs the jury that this is an action on the part of plaintiffs to recover damages for the permanent appropriation of said land. Now, in this connection the court further instructs the jury that if, under the evidence, they should find that the defendant went upon plaintiffs' land through a mistake, then this is a fact to be considered in order to enable the jury to determine whether the defendant made a permanent appropriation of plaintiffs' lands at the time it entered upon same." The question to be considered by the jury was whether there had been a permanent appropriation of the property. Under the petition there could be no recovery for trespass, for temporary appropriation, or for injury to the property by reason of the company's railroad track having been located in the street in front of the property. The instructions given, under the pleadings and evidence, fairly presented the law applicable to the issue and principal fact to be determined by the jury. The ninth instruction is misleading, and does not state the law (Railway Co. v. Fox, 42 Kan. 490, 22 Pac. 583), but, the jury, by their general verdict, having found that there had been no permanent appropriations of plaintiffs' property, we cannot say that the plaintiffs in error were prejudiced thereby. The principal question having been fairly submitted to the jury, and their verdict having been approved by the trial court, we feel that the errors complained of are not sufficient to require a reversal of the case. The judgment of the district court is affirmed, all the judges concurring. |