Page images
PDF
EPUB

Any

but one condition-that the land should be public at the time the act was passed. The grant took effect at once upon all lands that were then public, that is, unoccupied. that were then occupied were not public and were not affected. Any that were then vacant but were filed upon later were taken in subjection to the right of way. Thus, in Railroad Co. v. Baldwin, 103 U. S. 426, 26 L. Ed. 578, it was said: "The act * makes

The

[ocr errors]

two distinct grants-one of lands, the other of a right of way. * lands consisted of alternate sections, designated by odd numbers, on each side of the line of the proposed road. The grant of them was subject to the condition that if, at the time the line of road was definitely fixed, the United States had sold any section or a part thereof, or the right of pre-emption or homestead settlement had attached to it, or the same had been otherwise reseryed by the United States for any purpose, the Secretary of the Interior should select an equal quantity of other lands nearest the sections designated, in lieu of those appropriated. But the grant of the right of way contains no reservations or exceptions. It is a present, absolute grant, subject to no conditions except those necessarily implied, such as that the road shall be constructed and used for the purposes designated." It seems clear that this is the construction placed upon the act of 1862 by the ensuing Congress. The original act made no provision for condemnation proceedings. But in 1864 it was amended (13 Stat. 356, 357, c. 120) by adding a provision for the exercise of the right of eminent domain, and for the compensation not only of "owners," but also of "claimants," of land taken. The word "claimants" had obvious reference to occupants under the homestead or pre-emption laws (Western Pac. R. Co. v. Tevis. 41 Cal. 489, 494; Northern Pac. R. Co. v. McCormick, 94 Fed. 934, 36 C. C. A. 560; Nelson v. Railway Co., 188 U. S. 108, 23 Sup. Ct. 307. 47 L. Ed. 406), and must have been intended to apply to occupants of lands filed upon before the first enactment; for, as already pointed out, those filed upon afterwards were taken subject to the right of way thereby granted.

It follows from this view that the jugment of the trial court must be affirmed on the theory that section 2 of the act of 1862 granted no right of way over the Blou tract, because it was not at the time public land within the meaning of the term as there used. We think this conclusion is not inconsistent with any controlling decision. Expressions are used in a number of cases to the effect that a difference is to be recog nized between the grant of land and the grant of a right of way, but for the most part they relate to differences made by the statutes in express terms, or by necessary implication. and have no direct bearing upon the question here involved. In two in

stances this very act explicitly makes such a distinction. It makes two exceptions with respect to the grant of aid lands which do not apply to the grant of the right of way—one in favor of claims to be acquired before the definite location of the line of railroad, and the other in favor of reservations already made to the United States for any purpose, such as for the use of an Indian tribe under a treaty. Leavenworth, Lawrence & Galveston R. R. Co. v. United States, 92 U. S. 733, 746, 23 L. Ed. 634. That the framers of the statute deemed it necessary to mention these differences in set terms militates against the suggestion that by mere implication growing out of the nature of the privilege given the words "public lands," when used in connection with the grant of a strip of ground for the use of a railroad, are to be given a different meaning from that attached to them when applied to the grant of land to aid in its construction. In the opinion in Union Pac. Ry. Co. v. Douglas Co. (C. C.) 31 Fed. 540, it was said that Congress intended by the act of 1862 that a right of way should be given through all lands over which it had control, but the statement was broader than the occasion required. There the question presented was the right of the railroad company to occupy a right of way across school sections, and was determined upon a variety of considerations, not all of which are here applicable. Northern Pac. R. R. Co. v. Smith, 171 U. S. 260, 18 Sup. Ct. 794, 43 L. Ed. 157, the authority of which the plaintiff in error invokes, turned upon exceptional circumstances. A 400-foot right of way over public lands was granted to the railroad company in 1864. It adopted a definite route which was accepted by the government in 1873. But in 1872 it actually constructed its road along a somewhat different route, which also was afterwards approved or at least acquiesced in by the federal authorities. The road as so constructed crossed a town site which had already been occupied but no plat of which had then been filed in the register's office. Such occupancy did not date back to 1864. In 1879 a patent of the town site was made to the town company, and thereafter Smith received a conveyance from the town company for lots lying within 200 feet of the track. He brought ejectment against the railroad company, whose title was ultimately sustained. It is evidence that unless the railroad company lost some rights under the statute by its change of route, its title antedated Smith's. The land was unquestionably public land when the act was passed. If, however, it did lose priority thereby, the entire situation was changed, and the determination of the rights of the parties under such circumstances would not necessarily affect the present case. Indeed, the decision involved so many different considerations that it is difficult to evolve from it a principle of general application.

In Jamestown & Northern R. R. Co. v. Jones, 177 U. S. 125, 20 Sup. Ct. 568, 41 L.

Ed. 698, a different statute is considered-the general act (Act March 3, 1875, c. 152, 18 Stat. 482 [U. S. Comp. St. 1901, p. 1568]), granting a right of way over public lands to any corporation upon certain conditions. In the federal court the only question discussed related to the time the grant took effectwhether upon the construction of the road or the filing of a map. In the state court, however (Jamestown & N. R. Co. v. Jones, 7 N. D. 619, 76 N. W. 227), it was held that, although a grant was prevented from taking effect at once as to a particular tract by the existence of a pre-emption filing thereon, it would become operative upon the cancellation of that filing. This holding is supported by reasoning not applicable to the statute here involved. The act of 1875 is prospective. It makes no present grant. It rather affords a means by which a right of way may be acquired than grants one. It expressly recognizes and protects the interest of the settler who has acquired no vested right. Moreover, by the use of the phrase "possessory claims on the public lands of the United States" in section 3, there is a recognition that the term "public lands" is there employed in its broader sense. The Supreme Court of Utah has recently decided against the contention of the railroad company a question entirely similar to that here presented. Oregon Short Line Ry. Co. v. Fisher, 26 Utah, 179. 72 Pac. 931. The judgment is affirmed. All the Justices concurring.

(76 Kan. 325)

BILLINGS v. ATCHISON, T. & S. F. RY. CO.

(Supreme Court of Kansas. July 5, 1907.) TRIAL-VERDICT-SPECIAL FINDINGS-INCON

SISTENCY.

Where, in an action based upon a tort, the jury return a general verdict for nominal damages only, but in answer to a special question find that a substantial injury was sustained, for which they assess a stated compensation, a judgment rendered by the trial court for the sum of the two amounts so named will not be set aside on review at the instance of the plaintiff by reason of the apparent inconsistency between such verdict and finding.

[Ed. Note. For cases in point, see Cent. Dig. vol. 46, Trial, §§ 857-864.]

(Syllabus by the Court.)

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

Action by Lewis Billings against the Atchison, Topeka & Santa Fé Railway Company. Judgment for plaintiff for less than amount claimed, and he brings error. firmed.

Af

A. L. Billings and O. P. Ergenbright, for plaintiff in error. Wm. R. Smith, O. J. Wood, and A. A. Scott, for defendant in error.

MASON, J. Lewis Billings brought an action against the Atchison, Topeka & Santa Fé Railway Company for malicious prose

cution. A jury trial resulted in a general verdict for the plaintiff for $1. In answer to a special question a finding was made that he had been put to an expense of $180 in his defense against the prosecution of which he complained. The court rendered judgment for $181, from which the plaintiff prosecutes error.

It is argued that, according to the uncontradicted and unimpeached evidence adduced by the plaintiff, he had suffered substantial injury outside of the specific item for which $180 was assessed as compensation, and that justice requires that a new trial be granted on that account. In the brief of the plaintiff it is said: "Neither jury, nor the judge sitting as a juror, in the hearing of the motion for a new trial, allowed plaintiff anything for the 'extreme humiliation and disgrace' that his undisputed testimony shows he suffered; and yet, this was, without doubt, the actual damage from which plaintiff suffered most." The former provision of the statute (Gen. St. 1901, § 4755) that "a new trial shall not be granted on account of the smallness of the damages, in an action for an injury to the person or reputation, nor in any other action where the damages shall equal the actual pecuniary injury sustained," has been repealed. Laws 1905, p. 549, c. 332. Therefore the trial court doubtless had the power, if convinced that there was just occasion for such action, to set aside the verdict on the theory that its amount was inadequate, and that it was on that account contrary to the evidence. But there is nothing for this court to act upon in that connection. We cannot say that because there was no direct contradiction of certain testimony offered in behalf of the plaintiff the jury were bound to give it full credit, nor is their determination in that regard subject to review here. This is the general rule (Taylor v. Modern Woodmen, 72 Kan. 443, 83 Pac. 1099, 5 L. R. A. [N. S.] 283), and it applies with especial force to the plaintiff's personal statement of the extent of his mental suffering.

There is an obvious inconsistency between the general verdict and the special finding referred to. It is not clear why the jury, having decided in favor of the plaintiff and estimated his actual loss through the defendant's wrongful act at $180, returned a general verdict for only $1, but it does not follow that they were actuated by any unworthy motive. They may have been under a misapprehension as to the relation between the verdict and the finding. and the finding. They may have supposed that the amount stated in the one need not be included in the other. Unless the trial court was convinced that the jury were guilty of some intentional misconduct in the matter, or acted under the influence of passion or prejudice, there was no occasion for granting a new trial; and, unless a new trial were granted, nothing

remained to be done but to render the very judgment that was entered. The verdict and special findings alike established that the plaintiff was entitled to a judgment to the extent of the damages he had suffered. The finding with regard to the expenses of his defense established that he was entitled to $180 on that account, and the general verdict established that he had sustained no substantial injury in any other respect. The requirements of all parts of the jury's return were met by a judgment for $181. The judgment is affirmed. tices concurring.

(75 Kan. 820)

All the Jus

[blocks in formation]

Where it was agreed between plaintiff and D.. his agent, that a horse in the hands of D. belonging to plaintiff should be placed in the possession of defendant who was to use it and who might buy it. the fact that plaintiff frequently saw defendant in the possession of the horse without questioning his possession did not estop him to claim title to the horse as against defendant.

2. SAME ASSENT TO ACTS OF OTHERS.

Where plaintiff agreed with his agent who had possession of his horse that the agent allow defendant to use the horse, with the prospect that he would buy it and plaintiff did not learn that the agent had sold the horse until months after the sale, his acts then could not estop him to deny title to the horse as against defendant. 3. PRINCIPAL AND AGENT-POWERS OF AGENT -SALES AND CONVEYANCES.

Where an agent, authorized to sell a horse in his possession belonging to his principal, transferred the horse to B. upon the consideration of B.'s surrender of a note against the agent, the sale passed no title as against the principal.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 40, Principal and Agent, §§ 574-577.] 4. TRIAL INSTRUCTIONS

EVIDENCE.

CONFORMITY TO

Where it appeared in an action for the recovery of a horse sold by plaintiff's agent to defendant that plaintiff authorized the agent to allow defendant to use the horse, with the prospect that he would purchase it, that plaintiff did not learn that the agent had sold the horse until long after the sale, and that defendant as consideration for the transfer of the horse only surrendered a note he held against the agent, it was error to instruct that, if plaintiff by his acts, statements, or silence permitted the agent to appear as the owner of the horse with authority to dispose of it, and defendant induced thereby bought the horse in good faith, plaintiff was estopped.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 46, Trial, § 596.]

Error from District Court, Wyandotte Wyandotte County; J. McCabe Moore, Judge.

Replevin by E. J. Grubel against Henry Busche to recover possession of a horse. From a judgment of the district court, affirming a judgment of the justice's court for defendant, plaintiff brings error. Reversed and remanded.

PER CURIAM. Action of replevin to recover possession of a horse. Defendant had judgment below, and plaintiff brings error. Busche made the defense that he purchased the horse in good faith from one Dysert, who represented himself to be the owner and had possession. Plaintiff furnished the money with which Dysert bought the horse in the first place, and had a written contract with Dysert by which they were to carry on the business of buying and selling horses. He testified that Dysert had possession as his agent, and with his consent delivered the horse to defendant under an arrangement by which defendant, as plaintiff believed, was to board the horse for its use. On the trial defendant contended that plaintiff had held Dysert out to the world as the owner of the horse by giving him the possession, control, and apparent right of disposal; that he had bought it from Dysert and paid for it, believing that Dysert was the owner, and relying upon plaintiff's conduct; that plaintiff was estopped by his acts and conduct to claim the horse afterwards.

The principal contention here is that the court erred in instructing the jury to the effect that, though plaintiff owned the horse, if, by his acts, statements, or silence he permitted Dysert to appear as the owner with authority to dispose of it, and defendant, induced by the statements, acts, or silence of the plaintiff so to believe, relied thereon, and bought the horse in good faith, plaintiff was estopped. It is argued that there was no evidence upon which to base this and another similar instruction in which the words "allowed or permitted" were used to characterize the conduct of plaintiff. Without going into a review of the evidence, it is enough to say that we think there was some evidence upon which to base these and the other instructions complained of. It appears that Busche, the defendant, and Grubel, the plaintiff, have been intimate friends for years; that Busche drove the horse for two months after the time he claims to have bought it, and plaintiff saw him frequently with it and made no objection or claim of ownership. Both parties testified, and each flatly contradicted the other about conversations concerning the horse and Dysert's relations with plaintiff and their knowledge of what he had done and had authority to do. The merits of the case rest almost wholly upon the weight and credibility of the evidence, much of which is circumstantial. Two juries, one before a justice of the peace, and the other in the district court, have found the facts in favor of defendant. The judgment is affirmed.

On Rehearing.

On rehearing our attention has been specially called to the absence of any testimony

Nathan Cree, for plaintiff in error. Getty showing that at and prior to the sale of the Hutchings, for defendant in error. horse Grubel by his acts estopped himself

from asserting ownership. It appears from the evidence to be undisputed that Grubel was the owner and Dysert his agent to sell the horse. It was agreed between Grubel and Dysert that the horse should be placed in the possession of Busche who was to use it, and who might buy it. Therefore the

fact that Grubel frequently saw Busche in the possession of the horse could not of itself estop Grubel; and if, as it appears, he never learned of the sale until months after it was consummated his acts then could not estop him, because Busche did not purchase on the strength of what Grubel said or did after the sale, and was not prejudiced thereby. Moreover, an agent with authority to sell has only the implied power to sell for cash, and it is undisputed that Busche paid no cash but merely surrendered to the agent Dysert a note which he held against Dysert. It is well settled that a sale under such circumstances passes no title as against the owner. "Where an agent, as such, having a general authority to sell, transfers his principal's goods to a third party in payment of his (the agent's) debt, the principal may, as a general rule, recover from the third party the goods so transferred, or the value thereof." 1 A. & E. Enc. of Law, 1174. See, also, Mechem on Sales, § 1455.

It is said in Barnard et al. v. Campbell et al., 55 N. Y. 456, 14 Am. Rep. 289: "Two things must concur to create an estoppel by which an owner is prevented from asserting title to and is deprived of his property by the act of a third person without his assent: (1) The owner must have clothed the person, assuming to dispose of the property, with the apparent title to or authority to dispose of it. (2) The person alleging the estoppel must have acted and parted with value, upon the faith of such apparent ownership or authority, so that he will be the loser if the appearances to which he trusted are not real."

The instructions complained of were not based upon the evidence and, besides, ignored the principle of law applying to a case where the purchaser in dealing with an agent parts with nothing of value, but merely exchanges for the property of the principal the agent's own debt.

The cause will be reversed and remanded for another trial.

(76 Kan. 328)

INTERNATIONAL TEXT-BOOK CO. v.

PIGG.

(Supreme Court of Kansas. July 5, 1907.) CORPORATIONS-FOREIGN CORPORATIONS-AC

TIONS.

Under the agreed facts in this case, the plaintiff in error was a foreign corporation, and was, at the time of the rendition of the judg ment in the court below. "doing business in the state of Kansas," and was not entitled to maintain any action in the courts thereof by reason

of its failure to comply with the corporation laws of the state.

[Ed. Note. For cases in point, see Cent. Dig. vol. 12, Corporations, § 2920.] Porter, J., dissenting. (Syllabus by the Court.)

Error from District Court, Shawnee County; A. W. Dana, Judge.

Action by the International Text-Book Company against A. T. Pigg. Judgment for defendant, and plaintiff brings error. Affirmed. W. H. Cowels (David C. Harrington, of counsel), for plaintiff in error. T. D. Humphreys, for defendant in error.

SMITH, J. The plaintiff in error brought this action in the court of Topeka on a written contract of date October 12, 1905, and set forth as follows:

"Said defendant subscribes for a scholarship in the commercial law course in the International Correspondence Schools, an educational establishment conducted by the plaintiff at Scranton, Pa.; instruction papers and questions to be furnished by plaintiff as studies proceed; scholarship, when paid for, to be nonforfeitable and transferable on payment of stipulated transfer fees; defendant to pay for said scholarship the sum of $84.60, payable $5 at the signing of the contract, and $5 a month thereafter till fully paid, but in case of default in the payment of any installment all to become due at the option of this plaintiff; and with a further option to said defendant to pay out in full within sixty days at an aggregate of $72."

The defendant answered, in abatement, that plaintiff was a foreign corporation, for profit, that it was transacting business in this state out of which business the contract arose, and that it had not complied with the corporation laws of Kansas and was not entitled to maintain the action. The reply denied that the plaintiff was doing business in the state of Kansas, and admitted all other facts alleged in the bill of particulars.

At the trial the case was submitted upon the following agreed statement, without other evidence, to wit:

"The parties hereto submit this action to the court for decision upon an agreed statement of facts, as follows:

"(1) The plaintiff is a corporation organized and existing under the laws of the state of Pennsylvania, and is the proprietor of the International Correspondence Schools, located at Scranton, Pa.

(2) That on Oct. 10, 1905, the defendant executed in Topeka, Kan., an agreement in writing, a copy of which is hereto attached, marked 'Exhibit A,' and made a part hereof. That on or about the 16th day of October, 1905, said agreement was received by the plaintiff in Scranton, Pa., and was by it there approved and accepted. That the plaintiff thereupon delivered to the defendant the scholarship in the International Correspondence Schools referred to in said agreement,

and has duly performed all conditions thus far to be performed under the terms of said agreement and scholarship. A blank form of the certificate of scholarship is hereto attached, marked 'Exhibit B.'

"(3) That unless the plaintiff is debarred from maintaining this action by reason of its failure to comply with the statutes of Kansas, as hereafter appears from this statement of facts, the plaintiff is entitled to judgment as prayed for in the bill of particu lars.

"(4) The plaintiff is a corporation having a capital stock, and the profits, if any, from the operation of the corporation, belong to the corporation to be distributed in dividends or otherwise applied as it may elect.

"(5) All the executive officers of the plaintiff corporation reside, and exercise their functions as such executive officers, at Scranton, Pa., and not in Kansas.

"(6) The business of the plaintiff is preparing and publishing instruction papers, textbooks, and illustrative apparatus for the same, for courses of study suited for teaching by correspondence through the mails, and forwarding such publications and apparatus to students and instructing them through the mail, from Scranton, Pa., in the manner set forth in Exhibit A.

"(7) All the teachers and instructors of the plaintiff corporation reside and perform their duties at Scranton, Pa.. and none of them reside in the state of Kansas.

"(8) The plaintiff in carrying out these operations employs local or traveling agents, whose title is solicitor collector, and whose duties are to procure and forward to the plaintiff at Scranton, Pa., from persons in a specified territory, on blanks furnished by the plaintiff, similar in substance to the printed portion of Exhibit A hereto attached, applications for scholarships in the International Correspondence Schools, and to collect and forward deferred payments on scholarships issued by the plaintiff. That the solicitor collector is kept informed by the plaintiff of the various fees to be collected for the various scholarships offered and the contract charges to be made for cash or deferred payments, and the terms of payment acceptable to the plaintiff, in order that applicants may, so far as practicable, adapt their applications to their needs.

The scholarship, instruction papers, textbooks, and illustrative apparatus called for under each application accepted are sent by the plaintiff from Scranton, Pa., directly to the applicant: and instruction is imparted by means of correspondence by mail between the applicant. from his residence, and the plaintiff at Scranton, Pa. Moneys paid by the applicants on account of scholarships are received in the first instance by the solicitor collector of the district, where the applicant resides, and by him forwarded to the plaintiff. That the receipt given for such money, with stub, and voucher to be sent the plain

tiff, is on a form furnished by the plaintiff, a copy of which is hereto attached, marked 'Exhibit C,' and made a part hereof.

"(9) One J. B. Hughes is solicitor collector for plaintiff for a territory including Topeka, Kan., and is soliciting students to take correspondence courses in plaintiff's schools. He has his office in Room 1, Real Estate Building, on Jackson street, in the city of Topeka, and has in the window of said office a sign, sup. plied by plaintiff, which reads, 'Local Agency International Correspondence Schools, Scranton, Pa. In his office are bound volumes, samples of some of the volumes that are sent out by plaintiff as pertaining to particular courses. Said office is paid for by said Hughes, and is maintained by him for the purpose of furthering the procuring of applications for scholarships for plaintiff and the collection of fees therefor, as above set forth; and the plaintiff has no office in the state of Kansas for the purpose of doing any business other than that herein stated. That said Hughes is paid a fixed salary by the plaintiff, and also a commission on the number of applications obtained and the volume of collections made. Numerous persons in the city of Topeka are new, and were at the time this suit was filed, and at the time the contract herein sued on was accepted, taking from plaintiff courses of instruction by correspondence. Contracts for said courses were procured, and payments thereof were and are being collected and remitted by plaintiff's solicitor collector in the manner above set forth. Said Hughes makes to the plaintiff a 'daily report' for his territory on blanks furnished by the plaintiff; and such reports show for the month of March, 1906, aggregate collections on scholarships and deferred payments on scholarships approaching $500.

“(10) The plaintiff has never filed with the Secretary of State of the state of Kansas its consent to be sued by the service of summons upon said Secretary, or any application for authority to do business in the state of Kansas, or any annual reports; and it has no certificate from the secretary of the charter board or from the Secretary of State as to such matters."

Thereupon the court of Topeka rendered judgment in favor of the plaintiff for the amount claimed, and the defendant appealed therefrom to the district court of Shawnee county. In the latter court the case was submitted upon the same pleadings and the same evidence, and judgment was therein rendered in favor of the defendant. The plaintiff brings the case here.

As disclosed by the agreed statement of facts, a principal part of the business of the plaintiff was selling scholarships in many branches of learning and collecting the pay therefor. For this purpose it maintained an agency in Kansas and bad, before the commencement of this action, done quite an extensive business with numerous customers and was evidently seeking and intending to

« PreviousContinue »