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but one condition—that the land should be, stances this very act explicitly makes such a public at the time the act was passed. The distinction. It makes two exceptions with grant took effect at once upon all lands that respect to the grant of aid lands which do not were then public, that is, unoccupied. Any apply to the grant of the right of way-one in that were then occupied were not public and favor of claims to be acquired before the were not affected. Any that were then va- definite location of the line of railroad, and cant but were filed upon later were taken in the other in favor of reservations already subjection to the right of way. Thus, in Ruil. made to the United States for any purpose, road Co. v. Baldwin, 103 U. S. 426, 26 L. Ed. such as for the use of an Indian tribe under 378, it was said: "The act

makes a treaty. Leavenworth, Lawrence & Galvestwo distinct grants-one of lands, * * * ton R. R. Co. v. United States, 92 U. S. 733, the other o a right of way.

T'he 7-16, 23 L. Ed. 631. That the framers of the lands consisted of alternate sections, desig- statute deemed it necessary to mention these nated by odd numbers, on each side of the differences in set terms militates against the line of the proposed road. The grant of them suggestion that by mere implication growing was subject to the condition that if, at the out of the nature of the privilege given the time the line of road was definitely fixed, the words "public lands," when used in connecUnited States had sold any section or a part tion with the grant of a strip of ground for thereof, or the right of pre-emption or hoine- the use of a railroad, are to be given a difstead settlement had attached to it, or the ferent meaning from that attached to them same had been otherwise reseryed by the when applied to the grant of land to aid in United States for any purpose, the Secretary its construction. In the opinion in Union Pac. of the Interior should select an equal quan- Ry, Co. v. Douglas Co. (C. C.) 31 Fed. 510, it tity of other lands nearest the sections desig

was said that Congress intended by the act of nated, in lieu of those appropriated. *

1862 that a right of way should be given But the grant of the right of way *

through all lands over which it had control, contains no reservations or exreptions. It is

but the statement was broader than the occaa present, absolute grant, subject to no con

sion required. There the question presented ditions except those necessarily implied, such

was the right of the railroad company to Octas that the road shall be constructed and cupy a right of way across school sections, used for the purposes designated." It seems

and was determined upon a variety of conclear that this is the construction placed

siderations, not all of which are here appliupon the act of 1862 by the ensuing Congress.

cable. Northern Pac. R. R. Co. v. Smith, 171 The original act made no provision for con

U. S. 260, 18 Sup. Ct. 7914, 43 L. Ed. 157, demnation proceedings. But in 1861 it was

the authority of which the plaintiff in error amended (18 Stat. 3.36, 357, c. 120) by adding

invokes, turned upon exceptional circuma provision for the exercise of the right of

stances. A 400-foot right of way over public eminent domain, and for the compensation

lands was granted to the railroad company in not only of owners," but also of "claimants,"

1864. It adopted a definite route which was of land taken. The word "claimants” had

accepted by the government in 1873. But in obvious reference to occupants under the

1872 it actually constructed its road along a homestead or pre-emption laws (Western Pac.

somewhat different route, which also was R. Co. v. Tevis, 41 Cal. 489, 494 ; Northern Pac.

afterwards approved or at least acquiesced in R. Co. v. McCormick, 91 Fed. 934, 36 C. C.

by the federal authorities. The road as so

constructed crossed a town site which had A. 560; Nelson v. Railway Co., 188 U. S. 108,

already been occupied but no plat of which 23 Sup. Ct. 807. 47 L. Ed. 406), and must have been intended to apply to occupants of lands

had then been filed in the register's office. filed upon before the first enactment; for,

Such occupancy did not date back to 1864. In

1879 a patent of the town site was made to as already pointed out, those filed upon afterwards were taken subject to the right of

the town company, and thereafter Smith reway thereby granted.

ceived a conveyance from the town company

for lots lying within 200 feet of the track. It follows from this view that the juilg

He brought ejectment against the railroad ment of the trial court must be affirmed on

company, whose title was ultimately sustainthe theory that section 2 of the act of 1862

ed. It is evidence that unless the railroad granted no right of way over the Blou tract,

company lost some rights under the statute by because it was not at the time public land

its change of route, its title antedated Smith's. within the meaning of the term as there

The land was unquestionably public land used. We think this conclusion is not incon

when the act was passed. If, however, it did sistent with any controlling decision. Ex lose priority thereby, the entire situation was pressions are used in a number of cases to

changed, and the determination of the rights the effect that a difference is to be recog- of the parties under such circumstances nized between the grant of land and the would not necessarily affect the present case. grant of a right of way, but for the most | Indeed, the decision involved so many differpart they relate to differences made by the ent considerations that it is difficult to evolve statutes in express terms, or by necessary from it a principle of general application. implication and have no direct bearing In Jamestown & Northern R. R. Co. v. upon the question here involved. In two in- Jones, 177 U. S. 123, 20 Sup. Ct. 508, 44 L.

Ed. 698, a different statute is considered—the general act (Act March 3, 1875, c. 132, 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.

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

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 al misapprehension as to the relation between the verdict 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

(76 Kan. 325) BILLINGS v. ATCHISON, T. & S. F. RY.


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. Affirmed.

A. L, Billings and 0. 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

remained to be done but to render the very PER CURIAM. Action of replevin to rejudgment that was entered. The verdict and cover possession of a horse. Defendant bad special findings alike established that the judgment below, and plaintiff brings error. plaintiff was entitled to a judgment to the ex- Busche made the defense that he purchased tent of the damages he had suffered. The the horse in good faith from one Dysert, who finding with regard to the expenses of his de- represented himself to be the owner and had fense established that he was entitled to $180 possession. Plaintiff furnished the moner on that account, and the general verdict estab- with which Dysert bought the horse in the lished that he had sustained no substantial first place, and had a written contract with: injury in any other respect. The require- Dysert by which they were to carry on the ments of all parts of the jury's return were business of buying and selling horses. He met by a judgment for $181.

testified that Dysert had possession as his The judgment is affirmed. All the Jus- agent, and with his consent delivered the tices concurring.

horse to defendant under an arrangement by which defendant, as plaintiff believed, was

to board the horse for its use. On the trial (75 Kan. 820)

defendant contended that plaintiff had held GRUBEL v. BUSCHE.

Dysert out to the world as the owner of the (Supreme Court of Kansas. July 5, 1907.)

horse by giving him the possession, control, 1. REPLEVIN-DEFENSES-FAILURE TO ASSERT

and apparent right of disposal; that he had TITLE. Where it was agreed between plaintiff and

bought it from Dysert and paid for it, beD.. his agent, that a horse in the hands of D.

lieving that Dysert was the owner, and relybelonging to plaintiff should be placed in the ing upon plaintiff's conduct; that plaintiff possession of defendant who was to use it and

was estopped by his acts and conduct to who might buy it, the fact that plaintiff fre

claim the horse afterwards. quently saw defendant in the possession of the horse without questioning his possession did not

The principal contention here is that the estop him to claim title to the horse as against court erred in instructing the jury to the defendant.

effect that, though plaintiff owned the horse, 2. SAME-ASSENT TO ACTS OF OTHERS. Where plaintiff agreed with his agent who

if, by his acts, statements, or silence he perhad possession of his horse that the agent allow

mitted Dysert to appear as the owner with defendant to use the horse, with the prospect authority to dispose of it, and defendant, inthat he would buy it and plaintiff did not learn duced by the statements, acts, or silence of that the agent had sold the horse until months after the sale, his acts then could not estop him

the plaintiff so to believe, relied thereon, and to deny title to the horse as against defendant. bought the horse in good faith, plaintiff was 3. PRINCIPAL AND AGENT-POWERS OF AGENT estopped. It is argued that there was no -SALES AND CONVEYANCES.

evidence upon which to base this and anWhere an agent, authorized to sell a horse

other similar instruction in which the words in his possession belonging to his principal, transferred the horse to B. upon the considera

"allowed or permitted” were used to chartion of B.'s surrender of a note against the acterize the conduct of Maintiff. Without agent, the sale passed no title as against the

going into a review of the evidence, it is principal.

enough to say that we think there was some [Ed. Note.--For cases in point, see Cent. Dig. vol. 40, Principal and Agent, 88 574-577.]

evidence upon which to base these and the

other instructions complained of. It appears 4. TRIAL - INSTRUCTIONS CONFORMITY TO EVIDENCE.

that Busche, the defendant, and Grubel, the Where it appeared in an action for the re- plaintiff, have been intimate friends for covery of a horse sold by plaintiff's agent to de- years; that Busche drove the horse for two fendant that plaintiff authorized the agent to allow defendant to use the horse, with the pros

months after the time he claims to have pect that he would purchase it, that plaintiff bought it, and plaintiff saw him frequently did not learn that the agent had sold the horse with it and made no objection or claim of until long after the sale, and that defendant as

ownership. Both parties testified, and each consideration for the transfer of the horse only surrendered a note he held against the agent, it

flatly contradicted the other about conversawas error to instruct that, if plaintiff by his tions concerning the horse and Dysert's relaacts, statements, or silence permitted the agent tions with plaintiff and their knowledge of to appear as the owner of the horse with authority to dispose of it, and defendant induced

what he had done and had authority to do. thereby bought the horse in good faith, plaintiff The merits of the case rest almost wholly was estopped.

upon the weight and credibility of the evi(Ed. Note.-For cases in point, see Cent. Dig. dence, much of which is circumstantial. vol. 46, Trial, $ 596.)

Two juries, one before a justice of the Error from District Court, Wyandotte

Wyandotte peace, and the other in the district court, County; J. McCabe Moore, Judge.

have found the facts in favor of defendant. Replevin by E. J. Grubel against Henry The judgment is affirmed. Busche to recover possession of a horse. From a judgment of the district court, affirming a judgment of the justice's court for

On Rehearing. defendant, plaintiff brings error. Reversed

On rehearing our attention has been speand remanded.

cially called to the absence of any testimony Nathan Cree, for plaintiff in error. Getty showing that at and prior to the sale of the of Hutchings, for defendant in error.

horse Grubel by his acts estopped himself

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. Atirmed,

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, 1903, 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

a general rule, recover from the third party be nonforfeitable and transferable on pay

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 aft, er 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

, 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 Barriard 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 eridence 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.

ment 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 law's of Kansas and was not entitled to maintain the artion. 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.

It 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, mzurked 'Exhibit A,' and made a part heredi. That on or about the 16th day of October, 190.), said agreement was received by the plaintiff in Scranton, Pa., and was by it there approved and accepted. That the plaintift thereupon delivered to the defendant the Scholarship in the International Correspondence Schools referred to in said agreement,



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

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 judgment 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

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

"(3) That unless the plaintiff is debarrel 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 partivulars.

"(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 (worporation reside, and exercise their functions as such executive officers, at Seranton, Pil., and not in Kansas.

"(6) The business of the plaintiff is prefiaring and prblishing 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 Ex libit A.

"(7) All the teachers and instructors of the plaintiif 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 forwarıl 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 f 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 solicitur collector of the district, where the applicant resides, ard by him forwarded to the plaintiff. That the receipt given for such money, with stub, und 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. IIughes 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, supplied by plaintiff, which reads, 'Local Agency International Correspondence Schools, Scranton, Pa. In his ottice are bound volumes, samples of some of the volumes that are sent out by plaintiff as pertaining to particular (Ourses, Said office is paid for by said Ilughes, and is maintained by him for the purpose of furthering the procuring of applications for scholarships for plaintiff and the collection of fens 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 Sail Ilughes is paid it fixel salary by the plaintiff, and also a commission on the numDr of applications obtained and the volume of collections made. Yumerous persons in the city of Topeka are now, and were at the time this suit was filecl, 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 pryments 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 Lad, before the commencement of this action, done quite an extensive business with numerous customers and was evidently seeking and intending to

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