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corporation for governmental purposes, and act. Clearly, the statute was not intended to is in no sense a business corporation; that apply to damages of the nature complained the powers and obligations of the county are of. such only as the law prescribes or as arise We conclude, with some reluctance, that by necessary implication therefrom. Eiken- the judgment of the court must be sustained, berry V. Township, infra; Marion Co. v. and it is so ordered. All the Justices concur. Riggs, infra; 11 Cyc. 497; 7 Am. & Eng.
ring. Encyc. Law, 947. Cities, however, in this state, are municipal corporations, and neither their powers nor obligations are so restricted,
(77 Kan. 809) and decisions as to their liability for negli
FOSKUHL et al. v. HERZER. gence have no application here.
(Supreme Court of Kansas. July 5, 1907.) We have not been cited to any statute, and BOUNDARIES - ASCERTAINMENT
RECOGNI believe none exists, which imposes any obli
TION OF ACQUIESCENCE. gation upon a county to respond in damages
In ejectment, the boundaries of certain
government townships were in dispute. It apfor the negligence or even wrongful act of its peared that over 20 years previously a survey officers in relation to the maintenance of had been made to establish the boundaries, and public roads or bridges, except section 579, roads were laid out in conformity thereto on Gen. St. 1901, which reads; “Any person who
petitions signed by plaintiff's immediate gran
tors, fire guards were made, fences built, trees shall without contributing negligence on his planted, and other permanent improvements part sustain damage by reason of any de
made with reference to that survey. About two fective bridge, culvert, or highway, may re
years later another survey was made by an ex
perienced surveyor, who claimed to have located cover such damage from the county or town
some of the government corners, but in making ship wherein such defective bridge, culvert it he relied on information given him by anor highway is located, as hereinafter provid- other surveyor as to the location of a certain ed; that is to say, such recovery may be
corner, and the evidence as to the location of
that corner was in dispute. The court decided from the county when such damage was caus- that the first of the two surveys should govern. ed by a defective bridge constructed wholly Held, that the finding should not be disturbed. or partially by such county, and when the
Error from District Court, Ford County ; chairman of the board of county commission
E. H. Madison, Judge. ors of such county shall have had notice of such defects for at least five days prior to
Separate actions, consolidated and tried as the time when such damage was sustained;
one, by Charles Herzer against A. J. Fos.
kuhl, J. J. Morrison, and Mattie E. Nevins. and in other cases such recovery may be from the township where the trustee of such town
Judgment for plaintiff, and defendants bring ship shall have had like notice of such de
error. Affirmed. fect.”
Since first the state was organized, F. Dumont Smith, for plaintiffs in error. it has been the duty of counties and the town- Sutton & Scates, for defendant in error. ships thereof to maintain public roads and bridges, but not until the passage of the above
PER CURIAM. In the early settlement of statute, in 1887, was either the county or Ford county it appears that considerable township liable in damages resulting from the confusion resulted in land surveys in some failure so to do. Eikenberry v. Township of
localities for the reason that no government Bazaar, 22 Kan. 556, 31 Am. Rep. 198; Com'rs corner stones could be found. This was esof Marion County v. Riggs, 24 Kan. 255. pecially true in townships 27, 28, and 29, The language of section 579, supra, at first range 22. In 1885 the county surveyor, one blush, seems quite inclusive in its terms; pos- Mather, undertook to survey and subdivide sibly broad enough to include damages claim- these three townships. He started at the ed in the petition herein. A consideration, sixth standard parallel in Clark county and however, of the former law upon the subject, ran north on the range line between ranges and of the radical change therein by the pro- 21 and 22. From the southeast corner of visions of this enactment, even when strictly township 29, range 22, he ran north a disconstrued, and especially of the qualifying tance of 18 miles before finding any governwords "without contributing negligence on his ment corners or pits or mounds called for part," compels the conclusion that the enact- in the field notes. Twelve miles north of the ment is intended only to authorize the recov- south line of Ford county he reached the Arery of damages suffered in the use of a high- kansas river, which he declined to consider way or bridge, for the purposes for which a witness mark on account of the shifting, they are maintained, which, after the req- sandy condition of the banks. In township uisite notice, is negligently allowed to re 27, north of the river, he reached the Santa main defective. The petition charges, as the Fé trail, mentioned in the field notes of the basis of the claim for damages, an illegal government surveys, and at the northeast and wrongful act to which there can be no corner of township 27, range 22, he found a “contributing negligence." If the plaintiff government stone. In the distance of 18 had even assisted in the removal of the miles he found, however, an excess of about bridge, he would not thereby have been guilty | 36 chains, amounting to almost a half mile, of contributory negligence, although by so do and he apportioned this excess from the ing he evidenced his consent to the illegal | south line of the county to the trail between these points. The range line between 22 and penning v. Cannon, 28 Kan. 665, to the effect 23 was run in the same manner with the that, where known government corners are same results, except that a point 11 miles shown, or, in cases where they have disapnorth of the south line of the county he came peared, if their location can be ascertained, to Mulberry creek. The government field the monuments must govern, and the field notes called for a corner stone just south of notes of the government survey must be disthis creek as the southwest corner of section regarded. The rules laid down in those cas6, township 28, range 22. No apparent change es are well-settled rules in cases of disputhad taken place since the original govern- ed surveys, but it by no means follows that ment survey in 1868, and he therefore took the trial court erred. It is not conceded by this as a true witness mark, and proceeded defendant in error that there was conclusive to apportion the excess found by actual meas- evidence of the actual location of any governurement from that point south over the 11 ment corners in township 27, or that the miles, and to apportion the remaining excess "Van Trump” corner testified to by Gen. from that point north to the trail. He then Fonda was proven to have been a government surveyed and subdivided townships 28 and corner. On the contrary, it was contended 29 in range 22, except a small portion of the by plaintiff below that no government cornorth part of township 28, and set up corner ners were ever found or ascertained in the stones. He was called away about this time, three tiers of townships which included townand never returned to complete the survey ship 27, and several surveyors so testified. and subdivision of the north tier of sections The controversy in the evidence was waged of township 28. The Mather survey appears over these disputed facts, and there was, we to have been generally acquiesced in by the think, sufficient evidence to warrant the public. Roads were laid out upon petition finding of the court. On the other hand, the in townships 28 and 29, fences built, hedge testimony of Gen. Fonda and Surveyor Black rows plowed, trees set out, according to this was, we think, sufficient to have sustained a survey. The immediate grantors of plaintiffs finding to the contrary if the court had takin error petitioned for public roads in ac- en that view. cordance with this survey. This controversy
Another rule laid down in Tarpenning v. arises over the fact that plaintiffs in error Cannon, supra, has, we think, a forceful aphave taken possession of portions of tracts plication to the facts and circumstances of of land claiined by defendant in error who this case. The rule is stated to be: "A boundbrought separate actions in ejectment. These ary line long recognized and acquiesced in is were consolidated and tried as one. The generally better evidence of where the real court found generally for plaintiff, and de- line should be than any survey made after fendants seek by this proceeding to reverse the original monuments have disappeared." the judgment.
As observed, the Mather line was generally About 1887 Gen. Fonda, an experienced acquiesced in by the public since 1883, roads surveyor, was ordered by the county commis- were laid out in conformity thereto on petisioners of Ford county to make a survey of tion signed by the immediate grantors of these three townships. He had previously plaintiffs in error, fire guards were made, made partial surveys with Eckert, another fences built, trees planted, and other permasurveyor, and claimed to have located the nent improvements made with reference to northwest and northeast corners of town- it; and courts should hesitate to change the ship 28, range 22, as government corners. boundaries of lands in cases where it is conHe relied, however, to some extent upon in
ceded that the lines were never surveyed by formation given him by Eckert as to the lo- the government except theoretically, and overcation of what is referred to in the evidence turn the boundaries which have been so long as the “Van Trump" corner at the northwest recognized, unless upon the clearest kind of corner of township 28. The corners in dis- proof. pute are the exterior corners of township 28, The judgment will therefore be affirmed. range 22. Black, Ford, Eckert, Lewis, and other surveyors testified, and a number of plats and surveys were introduced in evi
(76 Kan. 234) dence. Plaintiffs in error concede that the
BALIN et al. v. OSOBA et al. general finding of the court in favor of de
(Supreme Court of Kansas. July 5, 1907.) fendant in error concludes them, unless the court erred in a matter of law, and their
DEED-DELIVERY-EVIDENCE. contention is that thie record shows conclu
Where a contract is made for the sale of
land, the consideration being the assumption of sively that township 27 was surveyed and the
an existing mortgage and the payment of a sum governnent corners found and proven, and of money at a future date (no note for the dethat what is known as the "Fonda” corner ferred payment being contemplated), and the is a government corner, and the court erred
vendor files for record a deed from himself to
the vendee, who thereupon goes into possession in refusing so to regard it. The claim is of the land and thereafter pays the taxes theremade that the court disregarded the rules on and the interest on the mortgage as they acin reference to surveys established by the
crue, this situation continuing for two years cases of Everett v. Lusk, 19 Kan. 195, MC
without objection by the grantor, these facts
warrant an inference that he intended that the Alpine v. Reichenek er, 27 Kan. 257, and Tar- title should pass and a finding that there was a constructive delivery of the deed, notwithstand- the land were carried on entirely by corresing it was never manually delivered.
pondence, most of the letters had been lost, [Ed. Note.-For cases in point, see Cent. Dig.
and each party relied upon oral testimony to vol. 16, Deeds, § 136.]
establish their contents. This testimony be(Syllabus by the Court.)
ing conflicting, the judgment must be interError from District Court, Greenwood preted as establishing that the defendants County; G. P. Aikman, Judge.
contracted for immediate possession and had Action by Hynek Balin and others against
no actual notice of the life interest of MarJoseph Osoba and others. Judgment for gretha Balin in the land. They had no condefendants, and plaintiffs bring error. Af
structive notice of it, for the instrument firmed.
creating it was not recorded, and the posses
sion of Margretha Balin gave no warning Jackson & Darby, for plaintiffs in error,
of a claim on her part, for persons dealing Lew E. Clogston, for defendants in error.
with her grantee were justified in regarding
her execution of a warranty deed as a reMASOX, J. John Balin died intestate own- nunciation of any such claim. "Possession ing a farm, the title to which passed to his of real estate by the grantor in a warranty widow, Margretha Balin, their sons Hynek deed does not impart notice to a purchaser and Joseph Balin, and their daughters Chris- from the grantee of secret equities existing tina Osoba and Johanna Ullman. In 1888 a in favor of the person occupying the land. conveyance was made to Margretha Balin by The possession in such case by one who has all the other heirs excepting Mrs. Osoba. In conveyed the land indicates that he is hold1901 Margretha Balin made a warranty deed ing the premises for a temporary purpose to Ilynek Balin, which was duly filed for rec- only, as a tenant at sufferance of his grantee." ord, he at the same time executing an instru- Hockman v. Thuma, 68 Kan. 519, 75 l'ac. 486. ment which was never recorded by which he These considerations limit the present ingave her a lease to the property for her life quiry to one question: Was the court warand agreed at her death to pay $100 to each ranted in finding that there was a valid deof his sisters. Thereafter he and his mother livery of the deed executed by Hynek Balin lived upon the place, he managing it and giv- to Christina and Joseph Osoba? It was ading her as rent one-third of the crops. In mitted there was no actual, physical delivery 1903 llynek Balin entered into negotiations of the document itself to either of the granwith Christina Osoba and her husband, who tees. After it had been recorded it was rewere then living in Pennsylvania, for the turned to the grantor, who bas ever since reconveyance of the land to them, in considera- tained it. Nevertheless, if the filing of the tion of their assuming an existing mortgage deed for record was intended by the grantor and paying $100 to Johanna Ullman upon the and accepted by the grantees as a constructive death of Margretha Balin. Afterwards a dis- delivery, the law will give it that effect. It is pute arose, Ilynek asserting that it had been well settled that delivery is largely a matter understood that the conveyance was to be of intention, that a manual delivery is not subject to the mother's life lease, and Chris- necessary, that although registration may not tina and her husband denying this, and dis- itself constitute delivery it is a circumstance avowing any knowledge of such lease or of from which delivery may be inferred and any claim on the part of Margretha to an will be inferred in the absence of some sufinterest in the property. Whatever the fact ficient reason to the contrary. These propmay have been in this respect, on November ositions are elementary, and are supported by 28, 1903, Hynek signed, acknowledged, and the texts and citations to be found in 13 Cyc. placed on record a warranty deed to Chris- 561, 562, 569, and 567, and in 9 A. & E. Encycl. tina and her husband, purporting to transfer of L. 153, 154, and 159. In the present case a complete title except for the mortgage, it must be borne in mind that the grantees which it recited was to be paid by the gran- had done everything required of them by the tees. According to the claim of Christina contract as they stated it. No cash payand Joseph Osoba, which has some support ment was to be made, and no note was to be in the evidence. Hynek then moved to another given. The deed upon its face showed their farm which he had bought with the proceeds assumption of the mortgage debt. They had of the mortgage, and their son assumed pos- paid the installments of interest, and the resession and control of the place in their be- mainder of the purchase price was not due half, and thereafter they paid the interest on until the death of Margretha Balin. Their the mortgage and the taxes on the land as going into possession anti paying taxes and they accrued. In July, 1905, they came west interest sufficiently established their acceptand began living upon the farm themselves ance of the deed, with its obligations as well with the others. A few weeks later they ex- as its benefits. The silence of Ilynek Balin pelled Margretha from the property, and she a considerable period, perhaps about and Ilynek then began an action against them two years, not being otherwise explained by to recover possession and declare the dead a any testimony which the court was bound to nullity. The court gave judgment for the de- believe, warranted the inference that he refendants, and the plaintiffs porosecute error. garded the transaction as completed. True,
Although the negotiations for the sale of he afterwards demanded that Christina and
state of the deceased's health several months prior to his death. lleld, that such statements cannot be regarded as admissions of the beneficiary made in connection with his proof of death. (Syllabus by the Court.)
Error from District Court, Neosho Coun. ty; L. Stillwell, Judge.
Action by George W. Wheatley against the Triple Tie Benefit Association. Judgment for plaintiff, and defendant brings error. Affirmed.
Coleman & Williams and Dawes & Rutherford, for plaintiff in error. Brown & Grigsby and E. L. Burton, for defendant in error.
Joseph Osoba should execute an acknowledg. ment of Margretha's life interest as a condition for the final delivery to them of the deed, but in view of all the evidence this may have been an afterthought. As was said of a similar situation in Kelsa v. Graves, 64 Kan. 777, 68 Pac. 607: "The fact that the plaintiff executed the deed and at the same time recorded it is entitled to consideration, and while the recording of the deed is not conclusive, and may be rebutted by circumstances or proof of a contrary purpose, still there were acts and words of the parties showing an intention to treat the instrument as a conveyance, and both parties, according to the proof offered in behalf of the defendants, acted as if the property had actually passed by the transfer. There was sufficient proof of the conveyance, constructive delivery, and an acceptance by the grantee; and, although there was contradictory evidence given in behalf of plaintiff, the general finding of the court settl's all such disputes in favor of the defendants."
The judgment rendered not only denied the plaintiffs' petition, but also quieted the defendants' title against them. Complaint is made that the latter part of the judgment was outside of the issues made by the pleadings, inasmuch as no affirmative relief was asked in the answer. A decision for the defendants on the merits, however, necessarily had the effect to bar any future claim of either of the plaintiffs to the property, and no prejudice rould result from this fact being given positive expression.
The judgment is affirmed. All the Justices concurring.
(76 Kan. 251) TRIPLE TIE BENEFIT ASS'N v. WHEAT
BURCH, J. The defendant is a fraternal benefit association. It issued a certificate to Alpheus Wheatley, one of its members, entitling him to participate in the beneficiary fund of the association in a stated amount which at his death should be paid to George W. Wheatley. Subsequently the membership of Alpheus Wheatley was suspended for nonpayment of dues, and he was reinstated upon an application supported by a certificate in which he made certain declarations regarding the state of his bealth. Afterwards he died, The association furnished a blank form satisfactory to itself upon which proof of death should be made, which included a certificate under seal by the president and secretary of the local lodge, a statement by the attending physician, and an undertaker's certificate. A form duly filled out reached the association. There is some dispute in the evidence whether the beneficiary, George W. Wheatley, procured the document to be prepared and forwarded, but this question may be passed by, and it may be assumed that he furnished the proof of death. In an action based upon the beneficiary certificate brought by the beneficiary against the defendant, the answer charged that the health certificate upon which the member was reinstated was false, in that at the time it was made he was under medical treatment for the disease from which he died. The physician's statement forming part of the proof of death contained facts not essential to proof of death which became known to him in a professional way only and which supported the allegations of the answer. The defendant offered it in evidence, but it was excluded, and judgment having gone for the plaintiff, the defendant assigns error.
The defendant argues that, notwithstanding the manner in which the physician's information was required, his statement should have been received in evidence as an admission of the plaintiff made in connertion with his proof of death. l'pon this question the authorities are dividel, but it may be left wholly at one side. The blank furnished by the defendant and actually used by the attending physician contained the following matter immediately preceding the statement itself:
(Supreme Court of Kansas. July 5, 1907.) INSURANCE-BENEFIT ASSOCIATIONS — PROOF
OF DEATII - STATEMENTS OF ATTENDING PHYSICIAN.
The by-laws of a fraternal beneficiary association required satisfactory proof of death before payment of a beneficiary certificate. It furnished blanks upon which such proof should be made. The following printed note preceded the blank to be filled by the attending physician: "Note to Attending Physician: The purpose of the following statement is twofold: First, to establish proof of death and the cause. Second, to give such information concerning the personal and family history of deceased, together with predisposing causes leading to last illness, as well as the various matters of importance necessary in tabulating vital statistics. Attending hysicians are urged to give under general remarks any information, which, in their judgment, tended to shorten the natural duration of life. You are assured that this statement will be used only for the purpose of gathering correct and accurate information, and will in no case be used as a basis for litigation." A beneficiary submitted proof of death upon one of these blanks in which the attending physician made statements beyond those necessary to establish Geath, and which gave information obtained in a professional way concerning the
"Medical Proof and Cause of Death. of the member's death, and that is all, in "Note to Attending Physician: The pur- cases where it is a death claim. Now this pose of the following statement is twofold: proof is made by Mr. Baird, a medical genFirst, to establish proof of death and the tleman who was on the stand this morning cause. Second, to give such information con- and who testified far enough to show the cerning the personal and family history of manner in which he acquired his knowledge deceased, together with predisposing causes with reference to the alleged cause of the leading to last illness, as well as the various death.
As I stated, this was made matters of importance necessary in tabulat- by a medical gentleman, who, so far as the ing vital statistics. Attending physicians are case now stands, acquired his knowledge urged to give under general remarks any professionally; and, without enlarging the information, which, in their judgment, tend- matter further, I think it is my duty to ed to shorten the natural duration of life. sustain the objection." Since, however, the You are assured that this statement will be ruling was correct, it is immaterial if an used only for the purpose of gathering cor- insufficient reason were given for it. rect and accurate information, and will in The judgment of the district court is afno case be used as a basis for litigation. firmed. All the Justices concurring.
“Statement of the Attending Physician.” The by-laws of the association simply re
(76 Kan. 285) quired satisfactory proof of death. The
CITY OF CHERRYVALE v. STUDYVIN. printed note recognizes the fact that the plaintiff was under no obligation to do more
(Supreme Court of Kansas. July 5, 1907.) tban to show that the certificate which he 1. MUNICIPAL CORPORATIONS-NEGLIGENCE
LIABILITY. held had matured by the death of the mem
The fact that a work of municipal improveber, and that the attending physician, as ment is being carried on by the municipality is the witness or agent of the plaintiff, was of public benefit, or even a public necessity, not required to break the seal of profession
does not exempt the municinality from liability
for damages caused by negligence in the proseal confidence and disclose his professional
cution thereof. knowledge of his patient's physical condition
[Ed. Note. For cases in point, see Cent. Dig. months before the latter's death. By send- vol. 36, Municipal Corporations, $ 1547.] ing out the blank, by making the express ap- 2. SAME-CONTROL OF ALLEYS. peal which the blank contains, and by war- A city of the second class has control of the ranting the use to be made of the information
alleys therein and has the right to extend sew
ers under such alleys. imparted, if response should be made to the
[Ed. Note.-For cases in point, see Cent. Dig. appeal, it is clear that the matter became
vol. 36, Municipal Corporations, § 725.] one entirely between the association and the
3. SAME-INJURY FROM BLASTING—EVIDENCE, physician. The defendant directly interven
Where the owner of a building abutting uped and procured the physician's statement in on an alley through which the city is causing a its own way for its own purposes, and the
ditch to be blasted for a sewer claims damages
to his building by reason thereof, it is incumfacts related were not supplied by the bene
bent upon him to allege and prove that his ficiary in connection with any effort or pur- building was damaged by exploding unnecessarpose of his own. It may be assumed that ily powerful blasts; that his injury is the rethe physician would not have violated the
sult of negligence and not incidental to a care
ful prosecution of the work done with due reconfidence of the deceased, except under the
gard to the place and surroundings. assurance of the defendant that any revela
[Ed. Note.-For cases in point, see Cent. Dig. tions made would be used for none but scien- vol. 36, Municipal Corporations, 88 1547-1549.] tific purposes. The plaintiff had no occa- (Syllabus by the Court.) sion to intercept the communication of the
Error from District Court, Montgomery physician to the defendant so long as it was made under a promise that it would not be
County ; Thos. J. Flannelly, Judge.
Action by J. F. Studyvin against the city of used to his prejudice. The guaranty of the
Cherry vale. Judgment for plaintiff. printed note ran to the plaintiff as much as
Deto the physician, since the document must
fendant brings error. Affirmed. pass through the plaintiff's hands, and even J. B. Bellamy and Travis Morse, for plainthe bluntest conception of good faith would tiff in error. Holdren & Brooks, for defendprevent the defendant from asserting that ant in error. the plaintiff voluntarily propounded the disclosures to it as admissions of his own.
SMITH, J. Studyvin sued the city for It is not entirely clear from the record damages alleged to have been caused to his bow far the district court acted upon these building by the negligence of the city in blastconsiderations. In ruling out the evidence ing a ditch for a sewer in an alley at the the trial judge said: "I am of the opinion side of the building. He recovered judgment that, in view of all the circumstances sur- for $554, and the city claims that he was rounding this piece of evidence, it is my duty entitled to recover only the value of two to sustain the objection. The article of the panes of glass, broken by a rock thrown in constitution and by-laws of the defendant the blasting. that provides about this matter of the proof Whether the city was negligent in doing the of death simply calls for satisfactory proof blasting is practically the only issue under