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In Jordan v. Elliott, [cited in] 41 Amer. Rep. 190, it is said—

“That any contract produced by actual intimidation ought to be held void, whether arising from a result of merely personal infirmity, or from circumstances which might produce a like effect upon persons of ordinary firmness.” Sup. Ct. Pa., March, 1882.

In the case of U. S. V. Huckabee, 83 U. S. 414, Mr. Justice CLIFFORD, in delivering the opinion of the court, among other things, said:

“Duress, it must be admitted, is a good defense to a deed or any other written obligation, if it be proved that the instrument was procured by such means; nor is it necessary to show, in order to establish such a defense, that actual violence was used, because consent is the very essence of a contract, and if there be compulsion, there is no binding consent. And it is well settled that moral compulsion, such as that produced by threats to take life, or to inflict great bodily harm, as well as that produced by imprisonment, is sufficient in legal contemplation to destroy free agency, without which there can be no contract, because in that state of the case there is no consent. Unlawful duress is a good defense to a contract, if it includes such degree of conStraint or danger, either actually inflicted or threatened and impending, as is sufficient in severity or apprehension to overcome the mind and Will of a person of ordinary firmness. * * * Positive menace of battery to the person, or of trespass to lands, or of destruction of goods, may undoubtedly be, in many cases, sufficient to overcome the mind and will of a person entirely competent in all other respects to contract; and it is clear that a contract made under such circumstances is as utterly without the voluntary consent of the party menaced as if he were induced to sign it by actual Violence. Nor is the reason assigned for the more stringent rule, that he should rely upon the law for redress, satisfactory, as the law may not afford him anything like a sufficient and adequate compensation for the injury.”

In Anderson v. Anderson, 9 Kan. 112, Mr. Chief Justice KINGMAN, speaking for this court, said:

“The only other error urged in this court is as to the instructions. But little of the evidence is in the record, and there is nothing in the scraps preserved that tends in any way to show that the plaintiff in error was not a boma fide purchaser for a valuable consideration. So far as we can perceive, the jury decided the case on the ground that defendant in error signed the deed under duress. If she did so, she never gave that consent to the alienation of the homestead that the constitution requires, and the court submitted this question fairly to the jury under proper instructions. As we understand the law on this point, the good faith of the purchaser cuts no figure, and the court correctly refused the first instruction asked by plaintiff in error.” Brown v. Pierce, 7 Wall, 214; Chit. Cont. 217; 2 Greenl. Ev. 283; Raker V. Morton, 12 Wall. 158; Watkins v. Baird, 6 Mass. 506; 4 Amer. Dec. 170–173; Whitefield v. Longfellow, 13 Me. 146; Guilleaume v. Rowe, 94 N.Y. 268; Helm V. Helm, 11 Kan. 19.

The authorities holding that duress is not available as a defense where the note is purchased before maturity, for value and without notice, are to the effect that there is no distinction in fact between a note the signature to which is obtained by fraud, and one where the signature is obtained by duress. This is hardly sound doctrine. If a person signs a note “under the compulsion of force, with the only alternative of submitting to great bodily injury or indignity,” he is certainly not a free agent and is nowise in default. Actual fraud is any cunning, deception, or artifice used to circumvent, cheat, or deceive another; and fraud, as usually defined in courts of equity, includes all acts, omissions, and concealments which involve a breach of legal or equitable duty, trust, or confidence justly reposed, and are injurious to another; or by which an undue and unconscientious advantage is taken of another. 1 Story, Eq. Jur. § 187. Now, a person whose signature is obtained to a note by fraud only is in a different condition ordinarily than one who signs an instrument under threats and dangers of personal violence or great indignity; and while fraud in obtaining the signature of a person would be fatal in a case between the original parties, yet, to some extent, both parties being in fault, neither should be allowed to take advantage of his own wrong as against an innocent party. Hence the doctrine that mere fraud between the original parties will be no defense or bar to the title of a bona fide holder of the note for value. But a person who signs a note or any other obligation under threats and dangers of great bodily injury or indignity cannot be said to be at fault or guilty of wrong. The conduct of James C. Rodgers in obtaining the note and mortgage is exceedingly reprehensible and deserving of the severest condemnation. If possible, all loss occasioned the plaintiff from his purchase of the note and mortgage should fall upon Rodgers, as he evidently is the wrong-doer and ought to be made responsible for the unlawful acts committed by him. The judgment of the district court will be affirmed. (All the justices concurring.)

(34 Kan. 158)

CoHEN v. ST. Louis, F. S. & W. R. Co.
Filed October 9, 1885.

1. RAILROAD COMPANIES – ACTION BY LAND-OWNER FOR COMPENSATION FOR LAND NOT CONDEMNED. Where a railroad company has constructed and is operating its railroad through a piece of land belonging to another, without having obtained a right of way by any formal condemnation proceedings, and without having procured any title to the land over which it operates its railroad, or any easement therein, the owner of the land may waive formal condemnation proceedings and all formal modes of transfer, and elect to regard the action of the railroad company as taking the property under the right of eminent domain, and may commence an ordinary action to recover compensation for all the damages which he has sustained by reason of the permanent taking and appropriation of the right of way by the railroad company. 2. SAME—ABANDONMENT OF GRADE—APPROPRIATION BY ANOTHER COMPANY. Where a railroad grade has been constructed and afterwards abandoned, it becomes the property of the owner of the land through which it is constructed; and if another railroad company afterwards takes possession of such grade, and permanently appropriates the same to its own use, it should pay as compensation to the owner of the land the value of the land taken as enhanced by such grade. 3. SAME—CoLoR OF TITLE-IMPROVEMENTS—CONSENT OF LAND-OWNER TO USE OF LAND. Where a railroad company takes possession of a strip of land, and constructs

a railroad track thereon with the consent of a person in possession of the land claiming title thereto, and who has color of title, and afterwards the paramount owner of the land commences an action against the railroad company for compensation and damages as for the permanent taking and appropriation of the land for railroad purposes, the railroad company will not be considered as a mere trespasser on the land, and will not be required to pay for improvements made thereon by itself, but will be required to pay only the value of the land taken at the time it was taken, and the damages to the land not taken.

4. SAME—POSSESSION UNDER WOID TAx DEED AND MORTGAGE. And such will be the case where the person in possession claims title under a void or voidable tax deed which is recorded, and also holds a mortgage past due upon the land, and is also agent for the paramount owner of the land for the purpose of taking care of the land and renting it and receiving the rents.

. SAME—INTEREST FROM TIME OF TAKING LAND. Where a railroad company has taken and appropriated a strip of land for a right of way, and afterwards the owner sues the railroad company to recover compensation and damages as for the permanent taking and appropriation of the land, the owner may recover interest, or damages in the nature of interest, on the amount that should be allowed him from the time of the taking and appropriation of the land up to the time of the trial.

6. REFERENCE—JUDGMENT ON FINDINGS,

Where a case has been tried by a referee, and the referee has made special findings of fact, and the district court has confirmed his report and rendered judgment in accordance with the findings of fact, and the plaintiff in error in the supreme court does not question the correctness of the findings of fact, and the defendant in error has filed no petition in error, or cross-petition in error, the supreme court cannot, at the instance of the defendant in error, examine the evidence to determine whether the findings of fact are sustained by sufficient evidence or not.

. SAME–FINDINGS SUSTAINED. Where a case has been tried by a referee, and the referee has made special findings of fact, and the district court has confirmed the report of the referee in all particulars except as to two conclusions of law, and has set aside the report of the referee as to such conclusions, and the plaintiff in error complains of this last-mentioned ruling, and of it only, and the defendant in error has not filed any petition in error, or cross-petition in error, and the supreme court reverses the district court as to one of such conclusions, the supreme court cannot then, at the instance of the defendant in error, set aside the findings of fact which make this conclusion of law material, where there seems to be sufficient evidence to sustain such findings of fact, although the preponderance of the evidence may seem to be against such findings.

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Error from Bourbon county.

J. D. McCleverty, for plaintiff in error.

J. H. Richards, Blair & Perry, and J. H. Sallee, for defendant in error.

WALENTINE, J. This was an action brought by A. Cohen in the district court of Bourbon county, on November 17, 1881, against the St. Louis, Fort Scott & Wichita Railroad Company to recover $28,700, with interest from October 1, 1880, as damages for the permament taking and appropriation by the defendant, on or about October 1, 1880, of a strip of land through the plaintiff's premises for a right of way and for railroad purposes. The case was tried before a referee. His report is dated March 28, 1884, and was filed in the district court on May 22, 1884. The report shows that the referee found in favor of the plaintiff and against the defendant, and assessed the plaintiff's damages as follows:

For the value of the strip of land taken by the defendant, ex

clusive of the old railroad grade, - - - - $ 195 00 For the value of the old railroad grade taken and appropriated by the defendant, exclusive of the land, - - - 3,539 32 For the value of the new railroad grade constructed by the defendant itself, - - - - - - - 2,050 98 For the value of the hewed ties put upon the railroad bed by the defendant, - - - - - - - 1,491 10 For the value of the sawed ties furnished and used by the defendant for a similar purpose, - - - - - 132 68 For the value of the railroad track put upon these ties by the defendant, - - - - - - |- 6,146 00 For the injury done to the land, outside of the land taken, - 2,030 00 Making a total of - - - - - - $15,585 08

The plaintiff, however, asked in his petition for only $2,000 as injury to his land, outside of the land taken, and therefore the referee recommended that $30 of the above amount be deducted, and that judgment should be rendered in favor of the plaintiff and against the defendant for $15,555.08. A motion was made by the defendant to set aside the report of the referee and for a new trial, and a motion was made by the plaintiff to confirm the report of the referee and for judgment thereon, and the motions were heard together, and the court partly overruled and partly sustained each motion, and rendered judgment in favor of the plaintiff and against the defendant for $2,195. This judgment was intended to cover the value of the strip of land taken by the defendant and the damages to the land outside of such strip, and the court refused to render judgment for the value of the old grade, or the value of the new grade, or the value of the cross-ties or iron, or other material furnished and used by the defendant itself in constructing its railroad track. Both parties excepted to this judgment, and saved proper exceptions, not only to the judgment itself, but to all the various rulings of the court below against each of them, respectively. The defendant claims that this judgment furnished more than ample compensation to the plaintiff for all damages which he sustained; and the defendant refers to the fact that the entire land, 600 acres, was sold in February, 1881, by the plaintiff to the present owner for $6,500, the plaintiff reserving the right to recover compensation from the railroad company for all damages to the land by reason of the railroad company's appropriation of the right of way over the same; and the fact that the present owner testified on the trial that the injury to the land by reason of the construction and operation of the railroad through it was only about $100. The plaintiff, however, is not satisfied with the judgment rendered in his favor by the court below, claiming that it is rendered for too small an amount, and he now brings the case to this court for review.

The plaintiff relies, for a reversal of such judgment, upon the findings of fact made by the referee, claiming that such findings authorize and require a judgment vastly greater in amount than the one rendered by the court below. He claims that the judgment should have been rendered for the full amount of the damages found by the referee, together with interest on the same from the time of the taking of the property by the railroad company, to-wit, October 1, 1880, up to the time of the finding by the referee. This would make the judgment amount to over $19,000. The defendant, however, calls in question and controverts the correctness of several of the findings of the referee, claiming that they are not authorized by the evidence, and should be virtually ignored. This claim of the defendant seems to be well founded as to some of the findings complained of; but, as the defendant has not filed any petition in error nor cross-petition in error in this court, the question arises, to what extent can we examine the evidence to see whether the findings are warranted by the evidence or not ? It seems to be admitted by the parties that an action of this kind may be maintained; or, in other words, it seems to be admitted that where a railroad company has constructed and is operating its railroad through a piece of land belonging to another, without having first obtained a right of way by any formal condemnation proceedings, and without having procured any title to the land or any easement therein, the owner of the land may waive formal condemnation proceedings and all formal modes of transfer, and elect to regard the action of the railroad company as taking the property under the right of eminent domain, and may commence an ordinary action to recover compensation for all the damages which he has sustained by reason of the permanent taking and appropriation of the right of way by the railroad company. We think such an action may be maintained. Central Branch U. Pac. It. Co. v. Andrews, 26 Kan. 703, 710, et seq.; Parsons Water-power Co. v. Knapp, 34 Kan. —-; S.C. 7 Pac. Rep. 568; U. S. v. Great Falls Manuf"g Co., 112 U. S. 645; S. C. 5 Sup. Ct. Rep. 306; S. C. 17 Chi. Leg. N. 169. The plaintiff presents the following questions to this court as being involved in this case, and with regard to which he claims the court below erred: (1) Is the owner of land through which a railroad grade has been constructed, and afterwards abandoned, entitled to compensation for such grade from another railroad company which afterwards takes possession of the grade and permanently appropriates the same to its own use? (2) Where a railroad company has taken possession of a strip of land, and constructed a railroad track thereon, without any formal condemnation proceedings therefor, and without procuring any title thereto, or easement therein, from the owner of the land, is such owner, in an action brought by him against such railroad company to recover damages for the permanent taking and appropriation of such strip, entitled to recover for all the materials and work furnished by the railroad company itself, and used in the construction of its railroad track? (3) Is a land-owner, in an action brought by himself against the railroad company to recover damages

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