corporation for governmental purposes, and is in no sense a business corporation; that the powers and obligations of the county are such only as the law prescribes or as arise by necessary implication therefrom. Eikenberry v. Township, infra; Marion Co. v. Riggs, infra; 11 Cyc. 497; 7 Am. & Eng. Encyc. Law, 947. Cities, however, in this state, are municipal corporations, and neither their powers nor obligations are so restricted, and decisions as to their liability for negligence have no application here.

We have not been cited to any statute, and believe none exists, which imposes any obligation upon a county to respond in damages for the negligence or even wrongful act of its officers in relation to the maintenance of public roads or bridges, except section 579, Gen. St. 1901, which reads: "Any person who shall without contributing negligence on his part sustain damage by reason of any defective bridge, culvert, or highway, may recover such damage from the county or township wherein such defective bridge, culvert or highway is located, as hereinafter provided; that is to say, such recovery may be from the county when such damage was caused by a defective bridge constructed wholly or partially by such county, and when the chairman of the board of county commissioners of such county shall have had notice of such defects for at least five days prior to the time when such damage was sustained; and in other cases such recovery may be from the township where the trustee of such township shall have had like notice of such defect." Since first the state was organized, it has been the duty of counties and the townships thereof to maintain public roads and bridges, but not until the passage of the above statute, in 1887, was either the county or township liable in damages resulting from the failure so to do. Eikenberry v. Township of Bazaar, 22 Kan. 556, 31 Am. Rep. 198; Com'rs of Marion County v. Riggs, 24 Kan. 255. The language of section 579, supra, at first blush, seems quite inclusive in its terms; possibly broad enough to include damages claimed in the petition herein. A consideration, however, of the former law upon the subject, and of the radical change therein by the provisions of this enactment, even when strictly construed, and especially of the qualifying words "without contributing negligence on his part," compels the conclusion that the enactment is intended only to authorize the recovery of damages suffered in the use of a highway or bridge, for the purposes for which they are maintained, which, after the requisite notice, is negligently allowed to remain defective. The petition charges, as the basis of the claim for damages, an illegal and wrongful act to which there can be no "contributing negligence." If the plaintiff had even assisted in the removal of the bridge, he would not thereby have been guilty of contributory negligence, although by so doing he evidenced his consent to the illegal

act. Clearly, the statute was not intended to apply to damages of the nature complained of.

We conclude, with some reluctance, that the judgment of the court must be sustained, and it is so ordered. All the Justices concurring.

(77 Kan. 809)

FOSKUHL et al. v. HERZER. (Supreme Court of Kansas. July 5, 1907.) BOUNDARIES - ASCERTAINMENT RECOGNI TION OF ACQUIESCENCE.

In ejectment, the boundaries of certain government townships were in dispute. It appeared that over 20 years previously a survey had been made to establish the boundaries, and roads were laid out in conformity thereto on petitions signed by plaintiff's immediate grantors, fire guards were made, fences built, trees planted, and other permanent improvements made with reference to that survey. About two years later another survey was made by an experienced surveyor, who claimed to have located some of the government corners, but in making it he relied on information given him by another surveyor as to the location of a certain corner, and the evidence as to the location of that corner was in dispute. The court decided that the first of the two surveys should govern. Held, that the finding should not be disturbed.

Error from District Court, Ford County; E. H. Madison, Judge.

Separate actions, consolidated and tried as one, by Charles Herzer against A. J. Foskuhl, J. J. Morrison, and Mattie E. Nevins. Judgment for plaintiff, and defendants bring error. Affirmed.

F. Dumont Smith, for plaintiffs in error. Sutton & Scates, for defendant in error.

PER CURIAM. In the early settlement of Ford county it appears that considerable confusion resulted in land surveys in some localities for the reason that no government corner stones could be found. This was especially true in townships 27, 28, and 29, range 22. In 1885 the county surveyor, one Mather, undertook to survey and subdivide these three townships. He started at the sixth standard parallel in Clark county and ran north on the range line between ranges 21 and 22. From the southeast corner of township 29, range 22, he ran north a distance of 18 miles before finding any government corners or pits or mounds called for in the field notes. Twelve miles north of the south line of Ford county he reached the Arkansas river, which he declined to consider a witness mark on account of the shifting, sandy condition of the banks. In township 27, north of the river, he reached the Santa Fé trail, mentioned in the field notes of the government surveys, and at the northeast corner of township 27, range 22, he found a government stone. In the distance of 18 miles he found, however, an excess of about 36 chains, amounting to almost a half mile, and he apportioned this excess from the south line of the county to the trail between

these points. The range line between 22 and 23 was run in the same manner with the same results, except that a point 11 miles north of the south line of the county he came to Mulberry creek. The government field notes called for a corner stone just south of this creek as the southwest corner of section 6, township 28, range 22. No apparent change had taken place since the original government survey in 1868, and he therefore took this as a true witness mark, and proceeded to apportion the excess found by actual measurement from that point south over the 11 miles, and to apportion the remaining excess from that point north to the trail. He then surveyed and subdivided townships 28 and 29 in range 22, except a small portion of the north part of township 28, and set up corner stones. He was called away about this time, and never returned to complete the survey and subdivision of the north tier of sections of township 28. The Mather survey appears to have been generally acquiesced in by the public. Roads were laid out upon petition in townships 28 and 29, fences built, hedge rows plowed, trees set out, according to this survey. The immediate grantors of plaintiffs in error petitioned for public roads in accordance with this survey. This controversy arises over the fact that plaintiffs in error have taken possession of portions of tracts of land claimed by defendant in error who brought separate actions in ejectment. These were consolidated and tried as one. The court found generally for plaintiff, and defendants seek by this proceeding to reverse the judgment.

About 1887 Gen. Fonda, an experienced surveyor, was ordered by the county commissioners of Ford county to make a survey of these three townships. He had previously made partial surveys with Eckert, another surveyor, and claimed to have located the northwest and northeast corners of township 28, range 22, as government corners. He relied, however, to some extent upon information given him by Eckert as to the location of what is referred to in the evidence as the "Van Trump" corner at the northwest corner of township 28. The corners in dispute are the exterior corners of township 28, range 22. Black, Ford, Eckert, Lewis, and other surveyors testified, and a number of plats and surveys were introduced in evidence. Plaintiffs in error concede that the general finding of the court in favor of defendant in error concludes them, unless the court erred in a matter of law, and their contention is that the record shows conclusively that township 27 was surveyed and the government corners found and proven, and that what is known as the "Fonda" corner is a government corner, and the court erred in refusing so to regard it. The claim is made that the court disregarded the rules in reference to surveys established by the cases of Everett v. Lusk, 19 Kan. 195, McAlpine v. Reicheneker, 27 Kan. 257, and Tar

penning v. Cannon, 28 Kan. 665, to the effect that, where known government corners are shown, or, in cases where they have disappeared, if their location can be ascertained, the monuments must govern, and the field notes of the government survey must be disregarded. The rules laid down in those cases are well-settled rules in cases of disputed surveys, but it by no means follows that the trial court erred. It is not conceded by defendant in error that there was conclusive evidence of the actual location of any government corners in township 27, or that the "Van Trump" corner testified to by Gen. Fonda was proven to have been a government corner. On the contrary, it was contended by plaintiff below that no government corners were ever found or ascertained in the three tiers of townships which included township 27, and several surveyors so testified. The controversy in the evidence was waged over these disputed facts, and there was, we think, sufficient evidence to warrant the finding of the court. On the other hand, the testimony of Gen. Fonda and Surveyor Black was, we think, sufficient to have sustained a finding to the contrary if the court had taken that view.

Another rule laid down in Tarpenning v. Cannon, supra, has, we think, a forceful application to the facts and circumstances of this case. The rule is stated to be: "A boundary line long recognized and acquiesced in is generally better evidence of where the real line should be than any survey made after the original monuments have disappeared." As observed, the Mather line was generally acquiesced in by the public since 1885, roads were laid out in conformity thereto on petition signed by the immediate grantors of plaintiffs in error, fire guards were made, fences built, trees planted, and other permanent improvements made with reference to it; and courts should hesitate to change the boundaries of lands in cases where it is conceded that the lines were never surveyed by the government except theoretically, and overturn the boundaries which have been so long recognized, unless upon the clearest kind of proof.

The judgment will therefore be affirmed.

(76 Kan. 234)

BALIN et al. v. OSOBA et al. (Supreme Court of Kansas. July 5, 1907.) DEED-DELIVERY-EVIDENCE.

Where a contract is made for the sale of land, the consideration being the assumption of an existing mortgage and the payment of a sum of money at a future date (no note for the deferred payment being contemplated), and the vendor files for record a deed from himself to the vendee, who thereupon goes into possession of the land and thereafter pays the taxes thereon and the interest on the mortgage as they accrue, this situation continuing for two years without objection by the grantor, these facts warrant an inference that he intended that the title should pass and a finding that there was a

constructive delivery of the deed, notwithstanding it was never manually delivered.

[Ed. Note. For cases in point, see Cent. Dig. vol. 16, Deeds, § 136.]

(Syllabus by the Court.)

the land were carried on entirely by correspondence, most of the letters had been lost, and each party relied upon oral testimony to establish their contents. This testimony being conflicting, the judgment must be inter

Action by Hynek Balin and others against Joseph Osoba and others. Judgment for defendants, and plaintiffs bring error. Affirmed.

Jackson & Darby, for plaintiffs in error. Lew E. Clogston, for defendants in error.

In

MASON, J. John Balin died intestate owning a farm, the title to which passed to his widow, Margretha Balin, their sons Hynek and Joseph Balin, and their daughters Christina Osoba and Johanna Ullman. In 1888 a conveyance was made to Margretha Balin by all the other heirs excepting Mrs. Osoba. In 1901 Margretha Balin made a warranty deed to Hynek Balin, which was duly filed for record, he at the same time executing an instrument which was never recorded by which he gave her a lease to the property for her life and agreed at her death to pay $100 to each of his sisters. Thereafter he and his mother lived upon the place, he managing it and giving her as rent one-third of the crops. 1903 Hynek Balin entered into negotiations with Christina Osoba and her husband, who were then living in Pennsylvania, for the conveyance of the land to them, in consideration of their assuming an existing mortgage and paying $100 to Johanna Ullman upon the death of Margretha Balin. Afterwards a dispute arose, Hynek asserting that it had been understood that the conveyance was to be subject to the mother's life lease, and Christina and her husband denying this, and disavowing any knowledge of such lease or of any claim on the part of Margretha to an interest in the property. Whatever the fact may have been in this respect, on November 28, 1903, Hynek signed, acknowledged, and placed on record a warranty deed to Christina and her husband, purporting to transfer a complete title except for the mortgage, which it recited was to be paid by the gran

According to the claim of Christina and Joseph Osoba, which has some support in the evidence, Hynek then moved to another farm which he had bought with the proceeds of the mortgage, and their son assumed possession and control of the place in their behalf, and thereafter they paid the interest on the mortgage and the taxes on the land as they accrued. In July, 1905, they came west and began living upon the farm themselves with the others. A few weeks later they expelled Margretha from the property, and she and Hynek then began an action against them to recover possession and declare the deed a nullity. The court gave judgment for the defendants, and the plaintiffs prosecute error. Although the negotiations for the sale of

contracted for immediate possession and had no actual notice of the life interest of Margretha Balin in the land. They had no constructive notice of it, for the instrument creating it was not recorded, and the possession of Margretha Balin gave no warning of a claim on her part, for persons dealing with her grantee were justified in regarding her execution of a warranty deed as a renunciation of any such claim. "Possession of real estate by the grantor in a warranty deed does not impart notice to a purchaser from the grantee of secret equities existing in favor of the person occupying the land. The possession in such case by one who has conveyed the land indicates that he is holding the premises for a temporary purpose only, as a tenant at sufferance of his grantee." Hockman v. Thuma, 68 Kan. 519, 75 l'ac. 486.

These considerations limit the present inquiry to one question: Was the court warranted in finding that there was a valid delivery of the deed executed by Hynek Balin to Christina and Joseph Osoba? It was admitted there was no actual, physical delivery of the document itself to either of the grantees. After it had been recorded it was returned to the grantor, who has ever since retained it. Nevertheless, if the filing of the deed for record was intended by the grantor and accepted by the grantees as a constructive delivery, the law will give it that effect. It is well settled that delivery is largely a matter of intention, that a manual delivery is not necessary, that although registration may not itself constitute delivery it is a circumstance from which delivery may be inferred and will be inferred in the absence of some sufficient reason to the contrary. These propositions are elementary, and are supported by the texts and citations to be found in 13 Cyc. 561, 562, 569, and 567, and in 9 A. & E. Encycl. of L. 153, 154, and 159. In the present case it must be borne in mind that the grantees had done everything required of them by the contract as they stated it. No cash payment was to be made, and no note was to be given. The deed upon its face showed their assumption of the mortgage debt. They had paid the installments of interest, and the remainder of the purchase price was not due until the death of Margretha Balin. Their going into possession ant paying taxes and interest sufficiently established their acceptance of the deed, with its obligations as well as its benefits. The silence of Hynek Balin for a considerable period, perhaps about two years, not being otherwise explained by any testimony which the court was bound to believe, warranted the inference that he regarded the transaction as completed. True, he afterwards demanded that Christina and

Joseph Osoba should execute an acknowledgment 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 settles 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 could 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. WHEATLEY.

(Supreme Court of Kansas. July 5, 1907.) INSURANCE-BENEFIT ASSOCIATIONS - PROOF OF DEATH STATEMENTS OF ATTENDING PHYSICIAN.

Sec

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. ond, 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 physicians are urged to give under general remarks any information, which, in their judgment, rended 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 death, and which gave information obtained in a professional way concerning the

state of the deceased's health several months prior to his death. Held, 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.

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 health. 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 connection with his proof of death. Upon this question the authorities are divided, 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:

"Medical Proof and Cause of Death. "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 physicians 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.

"Statement of the Attending Physician." The by-laws of the association simply required satisfactory proof of death. The printed note recognizes the fact that the plaintiff was under no obligation to do more than to show that the certificate which he held had matured by the death of the member, and that the attending physician, as the witness or agent of the plaintiff, was not required to break the seal of professional confidence and disclose his professional knowledge of his patient's physical condition months before the latter's death. By sending out the blank, by making the express appeal which the blank contains, and by warranting the use to be made of the information imparted, if response should be made to the appeal, it is clear that the matter became one entirely between the association and the physician. The defendant directly intervened and procured the physician's statement in its own way for its own purposes, and the facts related were not supplied by the beneficiary in connection with any effort or purpose of his own. It may be assumed that the physician would not have violated the confidence of the deceased, except under the assurance of the defendant that any revelations made would be used for none but scientific purposes. The plaintiff had no occasion to intercept the communication of the physician to the defendant so long as it was made under a promise that it would not be used to his prejudice. The guaranty of the printed note ran to the plaintiff as much as to the physician, since the document must pass through the plaintiff's hands, and even the bluntest conception of good faith would prevent the defendant from asserting that the plaintiff voluntarily propounded the disclosures to it as admissions of his own.

It is not entirely clear from the record how far the district court acted upon these considerations. In ruling out the evidence the trial judge said: "I am of the opinion that, in view of all the circumstances surrounding this piece of evidence, it is my duty to sustain the objection. The article of the constitution and by-laws of the defendant that provides about this matter of the proof of death simply calls for satisfactory proof

of the member's death, and that is all, in cases where it is a death claim. Now this proof is made by Mr. Baird, a medical gentleman who was on the stand this morning and who testified far enough to show the manner in which he acquired his knowledge with reference to the alleged cause of the death. * As I stated, this was made

by a medical gentleman, who, so far as the case now stands, acquired his knowledge professionally; and, without enlarging the matter further, I think it is my duty to sustain the objection." Since, however, the ruling was correct, it is immaterial if an insufficient reason were given for it.

The judgment of the district court is affirmed. All the Justices concurring.

(76 Kan. 285)

CITY OF CHERRYVALE v. STUDYVIN. (Supreme Court of Kansas. July 5, 1907.) 1. MUNICIPAL CORPORATIONS-NEGLIGENCE LIABILITY.

The fact that a work of municipal improvement is being carried on by the municipality is of public benefit, or even a public necessity, does not exempt the municipality from liability for damages caused by negligence in the prose cution thereof.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 36, Municipal Corporations, § 1547.]

2. SAME-CONTROL OF ALLEYS.

A city of the second class has control of the alleys therein and has the right to extend sewers under such alleys.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 36, Municipal Corporations, § 725.] 3. SAME-INJURY FROM BLASTING-EVIDENCE. Where the owner of a building abutting upon an alley through which the city is causing a ditch to be blasted for a sewer claims damages to his building by reason thereof, it is incumbent upon him to allege and prove that his building was damaged by exploding unnecessarily powerful blasts; that his injury is the result of negligence and not incidental to a careful prosecution of the work done with due regard to the place and surroundings.

[Ed. Note. For cases in point, see Cent. Dig. vol. 36, Municipal Corporations, §§ 1547-1549.] (Syllabus by the Court.)

Error from District Court, Montgomery County; Thos. J. Flannelly, Judge.

Action by J. F. Studyvin against the city of Cherryvale. Judgment for plaintiff. Defendant brings error. Affirmed.

J. B. Bellamy and Travis Morse, for plaintiff in error. Holdren & Brooks, for defendant in error.