this. duty, or that it is negligence per se for a railway company to have upon its right of way buildings which are combustible. Is the error in these instructions cured by other instructions wherein the jury were told that defendant would be liable if it "negligently permitted" combustible materials and structures to be and remain upon its right of way? We think not. While the instructions are to be considered as a whole, the jury had been already told that it was the duty of the company to keep its right of way from combustible materials and structures, which was equivalent to an instruction that a violation. of such duty was per se negligence.

It is insisted, however, that the error is ured by certain findings of the jury by which the negligence of defendant company is fixed irrespective of any negligence in reference to buildings. The findings upon which this claim is based are as follows: "No. 5. Q. Is it not a fact that switch engine No. 2319, on the day of the fire and prereding the fire complained of, was equipped with a reasonably good, safe, and approved system of apparatus for preventing the escape of fire and sparks? A. No. No. 6. Q. If you answer the fifth question in the negative, then please state in what respect said system of apparatus in use upon said engine was bad or defective. A. By defective netting. No. 7. Q. Is it not a fact that said switch engine No. 2319, upon the day of the fire, and previous to the fire, was in good condition, and that its apparatus for preventing the escape of fire and sparks was in good condition? A. No. No. 8. Q. If you answer the seventh question in the negative, then please state any defect that existed in said switch engine No. 2319 at the time of and immediately previous to the fire? A. Too coarse netting for switch engine. No. 21. Q. Did the fire originate from the improper construction of the engine or from the faulty condition or want of repairs of said engine No. 2319? A. Faulty condition of netting." Ordinarily where two or more specific acts of negligence are pleaded and relied upon, a finding to the effect that one act of negligence alone existed is sufficient to support a verdict for the plaintiff where the act of negligence found can be said to be the proximate cause of the injury. The findings and theory upon which the case was tried, however, make it apparent that the jury coupled two acts of negligence together as the proximate cause the defective netting of the engine and maintaining combustible buildings on or near the right of way. This appears from their answer to question No. 13 where they were asked, in the event they should find that the fire was caused by the negligence of defendant, to state fully in what such negligence consisted. The answer was: "By defective sheds and engines." In answer to question No. 8, with respect to what defect they found in the engine, they answered: "Too coarse netting for a switch engine." There was evidence that a finer

netting can be used on a switch engine than a road engine where greater speed is required. The care required of the company to keep its engines in proper condition, always depends, to some extent, upon the circumstances under which the engine is used. Switch engines as a rule are employed in and ne near railroad yards and not usually through fields where grass, weeds, and other combustible rubbish naturally accumulate. The jury may not have been willing to rest their verdict on the sole ground that the netting used in the switch engine was too coarse. In our opinion they considered the switch engine defective, in view of the highly combustible structures which they found the company negligently permitted to remain so near to its right of way, and the error in the instruction with reference to the duty imposed upon the company to keep the right of way clear from combustible structures was not cured by the separate finding that the netting was defective. It follows, therefore, that the judgment must be reversed and the cause remanded for another trial.

JOHNSTON, C. J., GREENE, BURCH, MASON, and SMITII, JJ., concurring.

GRAVES, J. I dissent from the above decision. The instruction held to be erroneous, when fairly construed, does not state that it is negligence per se for a railroad company to permit combustible material and structures to be upon its right of way, and a jury would not be likely to get such an impression from its language. The statement of the instruction is that, if the railroad company negligently permitted such combustible materials and structures to be and remain on its right of way and thereby caused the fire, then it would be liable. When, and under what circumstances, permitting such material to be on the right of way, would amount to negligence is not stated in this instruction. The jury, however, by reference to other instructions given, would find a clear and full statement of the measure of the company's duty in this respect. Among these instructions are the following: "Sixth: It was the duty of the defendant railway company, in order to avoid the setting out and communicating of fire, to exercise reasonable and ordinary care under the circumstances, in the design and construction of its engine No. 2319, and of the spark arrester and netting therein, and the same degree of care to prevent the same from being out of repair, and the same degree of care in the operation of the same; and the same degree of care in using suitable fuel or coal in the same; and the same degree of care in keeping its right of way and its grounds adjacent to its right of way, and in close proximity to its tracks, free and clear of dry and combustible material and structures. And, if you should find from the evidence that the fire in question was set out or communicated from said engine No. 2319, and

caught upon dry, combustible material or buildings upon the right of way or grounds of the defendant adjacent to said right of way, and in close proximity to its tracks, and thence spread and communicated to and burned the property in question of the plaintiff, to the damage of plaintiff, and if you should find from the evidence that said fire was caused by a failure on the part of the defendant railway company to exercise such ordinary and reasonable degree of care under the circumstances in any of said particulars, then you should find for the plaintiff. Seventh. A railroad company is bound to use ordinary care and diligence to prevent setting out fire; that is, such a degree of care as an ordinarily prudent and careful person would use under like and similar circumstances. In determining what is ordinary care and diligence under the circumstances in this case, the jury should take into consideration all the facts and circumstances which have been developed by the evidence. degree of care which it is incumbent upon

The

the defendant to exercise was such a degree of care as was properly adapted to the existing facts and circumstances. Eighth. In operating a railway through the city of Emporia, the defendant railway company was bound to exercise a degree of care reasonably proportioned and adapted to the risk of setting out fire and the danger therefrom. And, if you should find from the evidence that there were, at the place in question, wooden buildings with wooden roofs on the grounds or right of way of the defendant railway company, and close to its tracks, and that there were numerous wooden buildings and much combustible materials of other persons in the near vicinity, and that the weather was hot and dry, and that the risk of fire being communicated from the engines of defendant railway company and of damages therefrom were thereby increased, then it was the duty of defendant railway company to exercise a degree of care reasonably proportioned and adapted to the increased risk and danger of setting fire out from any of its engines and its catching on any such wooden buildings of defendant railway company and communicating to other property in the vicinity."

If the instruction complained of, can be properly held to be erroneous, when taken from the body of the instructions given, and considered alone, still, the other instructions so far modify it as to cure its misleading or erroneous features, the judgment should be affirmed.

(74 Kan. 644)

GALENA WATER CO. v. CITY OF
GALENA.

(Supreme Court of Kansas. Nov. 10, 1906. Rehearing Denied Dec. 8, 1906.)

1. WATERS AND WATER COURSES-WATER SUPPLY-PURCHASE OF WORKS BY CITY.

A city granted a franchise to a water company, to construct and operate a system of

waterworks for such city during the term of 20 years, reserving the option to purchase the plant at the end of 15 years, at its fair and eq-. uitable value. It was provided that if the city should elect to make the purchase, and the parties were unable to agree upon the price, that question might be submitted to the district court for determination. At the end of the 15 years the city duly elected to purchase the plant, and the parties being unable to agree upon its value, the question was submitted to the district court for decision. Held, that the contract of purchase was complete when the city made its election, and the conveyance of the property, when executed, will relate back to that time, and the rights of the parties should be adjusted

as of that date.

2. SAME-DETERMINATION OF VALUE.

Where a city exercises its right to purchase a system of waterworks, which is established and in operation in such city, and is required to pay therefor a fair and equitable price, if the parties cannot agree as to the amount of such purchase price, and the determination thereof is submitted to a court, the fact that such plant is an established system, in operation, and has an unexpired franchise, should be considered as elements of value in such determination.

(Syllabus by the Court.)

ty; W. B. Glasse, Special Judge.

Error from District Court, Cherokee Coun

Action by the city of Galena against the Galena Water Water Company. Judgment for plaintiff, and defendant brings error. Modified.

On April 6, 1889, the city of Galena, by ordinance No. 61, granted to what is now known as the "Galena Water Company," the right to construct and operate a system of waterworks, in said city.

Section 1 of such ordinance reads: "That Adam H. McCormick, his associates, or assigns are hereby granted the right to construct, maintain, and operate and own a system of waterworks in the city of Galena, Cherokee county, Kansas, to supply said city and its inhabitants with water suitable for domestic and fire purposes.

Said

grantees to have the right to maintain, establish, construct, and operate said works, as herein specified for a term of twenty (20) years from the date of completion of said works, unless such rights shall sooner terminate, as hereinafter provided, by purchase or otherwise, and continue to use and operate said works as hereinafter provided."

The city reserved the privilege of purchasing said waterworks system, by sections 10, 11, and 12 of said ordinance, which read:

"Sec. 10. The city shall have the right to purchase said waterworks and appurtenances at the expiration of fifteen (15) years from the date of commencement of hydrant rental, at their fair and equitable value, which shall be placed at the actual value of the works, lands, buildings, machinery and equipments including the franchise hereby granted. Such value (in case the parties cannot agree) to be determined by arbitration as provided by statute, or if that method is not satisfactory, then by the district court of Cherokee county, as other questions of fact. Any delay in such proceedings not to forfeit

the right of the city to make such purchase. And any incumbrance on said works at the time purchased shall be assumed or paid by said city provided said incumbrance does not exceed the purchase price.

"Sec. 11. If the city shall fail to purchase at the end of fifteen (15) years, it shall then have the same rights under the same conditions at the end of twenty (20) years.

"Sec. 12. At the expiration of twenty (20) years, if the city is not the owner of said works, the grantees shall have the right to maintain and operate the same continuously, the city then having the right to purchase at the expiration of every five (5) years thereafter and having the right to continue to use the fire hydrants upon such terms as may be then agreed upon, but under no circumstances at a greater price than that stipulated in this ordinance."

Afterwards the company constructed its system of waterworks, which was completed and in operation August 1, 1889, from which date the 20 years during which the franchise continued began to run. August 1, 1904, the city duly elected to purchase the waterworks system under the provisions of the ordinance. The parties being unable to agree upon the value of the plant, the city of Galena, on September 26, 1904, filed a petition in the district court of Cherokee county, as provided by the above-mentioned ordinance, for the purpose of obtaining a decree fixing such value.

On September 20, 1905, the issues were referred to Hon. S. H. Allen, with instructions to take testimony, and report findings of fact and conclusions of law. The principal controversy before the referee was whether or not the unexpired franchise granted by the city to the waterworks company, and the fact that the plant was an established and going concern, should be considered in determining the fair and equitable value of the waterworks system within the meaning of the ordinance. The city insisted that nothing should be considered outside of the actual cost of construction less the depreciation by use and decay. The referee found and returned these two items of value separately, so that the controversy could be finally adjusted without the necessity of another trial. The value of the property August 1. 1904, in its entirety was fixed at $75,400. The value of the plant as a going concern, including the franchise, was fixed at $15,214.73. December 21, 1905, the district court entered its decree upon the report of the referee, in which it found that the fair and equitable value of the plant was $60.185.27, being the amount found by the referee, less the $15,214.73. That the property was encumbered with a mortgage of $40,000, bearing interest at 6 per cent. per annum. That when the city elected, August 1, 1904, to purchase the waterworks system, it then became entitled to the property. That since that date the company has operated the plant, and received the profits thereof.

The court decreed that the city should pay to the company the sum of $20,185.27, with interest thereon from August 1, 1904, being the date of purchase at the rate of 6 per cent. per annum until paid. That it should also assume and pay the incumbrance of $40,000 with the interest thereon from August 1, 1904. It was further decreed that the net profits arising from the operation of the plant since August 1, 1904, until final payment by the city should be regarded as a credit to that extent on the purchase price of the property.

Edward E. Sapp and Henry C. Solomon, for plaintiff in error. Sapp & Wilson, A. L. Majors, and S. C. Westcott, for defendant in

error.

GRAVES, J. (after stating the facts). The plaintiff in error insists that the district court erred in the manner specified in each of the 69 assignments of error but, for the sake of reaching an early decision upon the more substantial questions involved in the controversy, it waives all of these errors except the findings upon the value of the property, the time when the sale became operative, and the adjustment of the purchase price. We have therefore confined our examination of the case to these questions. We think the district court erred in excluding from its estimate of the "fair and equitable" value of the waterworks system, the sum of $15.214.73, that being the amount found by the referee to be the value of the plant as a going concern, including the franchise. A system of waterworks in a city, without the right to operate there, or without being connected with water takers, and not in a running condition, would be comparatively worthless. The water company was the owner of these important elements of value, and it seems reasonable that they should not be taken without compensation.

The language of section 10 of the ordinance by which the franchise was granted to the waterworks company, in defining the meaning of fair and equitable value says: "Which shall be placed at the actual value of the works, lands, buildings, machinery, and equipments, including the franchise hereby granted." The parties evidently contemplated that the value of the plant should be fixed by the same standard that would be adopted if the purchaser had been an outside party instead of the city, in which case these elements would be included without question. In the case of Town of Bristol v. Bristol Waterworks (R. I.) 49 Atl. 974, the plaintiff granted a franchise to the defendant to operate a system of waterworks in the city for 50 years, reserving the option to purchase the plant at any time after 10 years and within 15 years, for a fair and reasonable price. The reservation as stated in the ordinance reads: "And that the town may, at its option, purchase the said waterworks,

and all the pipes, reservoirs, and appurtenances connected, used, or belonging therewith, at any time after 10 years, and within 15 years herefrom for a fair and reasonable price."

In construing this language, the court said: The res to be bought by the town under this option is exactly what would be the subject of purchase by a third party who should offer to buy of the defendant the Bristol Waterworks. It comprises the material plant and the rights possessed by the defendant and exercised in the use of the material plant. If the sale were to be made to some third party, could it be doubted that it would include the franchise derived from the town as well as the engines, pipes, and other property purchased elsewhere? The town has the option to buy, not to extinguish the rights they have given, which, together with other property and rights make up what the defendant owns. Everything which the defendant can sell to any other he can sell to the town. A fair and reasonable price to the town is what would be a fair and reasonable price to anyone else." In the case of the National Waterworks Company v. Kansas City, 62 Fed. 853, 10 C. C. A. 653, 27 L. R. A. 827, an elaborate and exhaustive opinion was delivered by Justice Brewer in which these questions are fully and clearly discussed. Each of the parties in this case, and the district court in its opinion, quote largely from this opinion, and we adopt a part of it as expressing our view upon the matters therein discussed. It reads: "The original cost of the construction cannot control for 'original cost' and 'present value' are not equivalent terms. Nor would the mere cost of reproducing the waterworks plant be a fair test because that does not take into account the value which follows from the established connections between the pipes and the buildings of the city. It is obvious that the mere cost of purchasing the land, constructing the buildings, putting in the machinery and laying the pipes in the streets-in other words, the cost of reproduction-does not give the value of the property as it is to-day. A completed system of waterworks, such as the company has, without a single connection between the pipes in the streets and the buildings of the city, would be a property of much less value than that system connected, as it is, with so many buildings, and earning, in consequence thereof, the money which it does earn. The fact that it is a system in operation, not only with a capacity to supply the city, but actually supplying many buildings in the city-not only with a capacity to earn, but actually earningmakes it true that the 'fair and equitable value' is something in excess of the cost of reproduction. The fact that the company does not own the connections between the pipes in the streets and the buildings, such connections being the property of the indi87 P.-47

vidual property owners, does not militate against the proposition last stated, for who would care to buy, or at least give a large price for, a waterworks system without a single connection between the pipes in the streets and the buildings adjacent. Such a system would be a dead structure, rather than a living and going business. The additional value created by the fact of many connections with buildings, with actual supply and actual earnings, is not represented by the mere cost of making such connections. Such connections are not compulsory, but depend upon the will of the property owners, and are secured only by the efforts on the part of the owners of the waterworks, and inducements held out therefor. The city, by this purchase, steps into possession of a waterworks plant-not merely a completed system for bringing water to the city, and distributing it through pipes placed in the streets, but a system already earning a large income by virtue of having secured connections between the pipes in the streets and a multitude of private buildings. It steps into possession of a property which not only has the ability to earn, but is in fact earning. It should pay therefor not merely the value of a system which might be made to earn, but that of a system which does earn."

We think the district court was right in adjusting the rights of the parties as of August 1, 1904. The contract of purchase became fixed when the city notified the company that it had elected to take the plant, and offered to close the transaction at once. The proceedings to ascertain the value of the property was a mere formality, having nothing to do with the substance of the contract of sale. Cherryvale Water Co. v. City of Cher ryvale, 65 Kan. 219, 69 Pac. 176; Caldwell v. Frazier, 65 Kan. 24, 68 Pac. 1076; Chadsey v. Condley, 62 Kan. 853, 62 Pac. 663. The plaintiff in error insists that this is a misapplication of the law of relation, and inequitable in this case. as it requires him to remain in the charge and management of the business and account for the profits. The situation may be peculiar, but the city had the right under the contract to become the owner of the plant when it elected to do so. The purchase price could not be paid until the amount thereof was determined in the manner provided by the ordinance, and the possession of the property could not be changed until payment was made. This situation is the direct and natural result of the contract made by the parties, and must have been contemplated by them. This application of the law of relation seems to be the only way to fully protect the rights of the parties and to carry out their agreement. The criticism of the plaintiff in error, therefore, is not well taken.

The district court is directed to modify its judgment so as to fix the fair and equitable value of the property at the sum of $75,

400 on August 1, 1904, and otherwise adjust the other matters on the same basis as in its former judgment, and extend the time of payment by the city a reasonable time. The costs of this court will be equally divided. All the Justices concurring.

(74 Kan. 631)

STATE V. KELEIER.

(Supreme Court of Kansas. Nov. 10, 1906. Rehearing Denied Dec. 8, 1906.)

1. HOMICIDE-CONSPIRACY-FURTHERANCE OF

COMMON PURPOSE.

To render one who is not present and does not aid or assist in a murder guilty thereof by reason of a former conspiracy with the slayer, it must appear that the murder was within the contemplation of the conspiracy, or was the natural and probable outcome thereof.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 26, Homicide, $$ 48-51.]

2. SAME-PROBABLE RESULT.

A conspiracy to steal money from a barn, where it was supposed to be hidden, is not such a conspiracy as would naturally and probably result in the murder of the owner of the money at a place entirely remote from the barn, and under circumstances in no way connected with obtaining money from the barn.

[Ed. Note. For cases in point, see Cent. Dig. vol. 26. Homicide, §§ 48-51; vol. 14, Criminal Law, §§ 1082-1098.]

3. SAME-INSTRUCTIONS.

In such a case, and in the absence of evidence showing any connection between the conspiracy and the murder, except that the murder was for the purpose, on the part of the slayer, to obtain the money, it is error to instruct the jury that they may find the absent conspirator guilty of the murder if they find the murder was the natural and probable outcome of the conspiracy.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 26. Homicide, §§ 48-51; vol. 14, Criminal Law, §§ 1082-1098.]

4. CRIMINAL LAW-NEW TRIAL.

Section 5652, Gen. St. 1901, extends the provision of the Civil Code (Gen. St. 1901, § 4754) relating to new trials on the ground of newly discovered evidence to criminal procedure, although a new trial on this ground is not authorized by the express provisions of section 5713, providing the grounds upon which a new trial in criminal cases may be granted.

[Ed. Note. For cases in point, see Cent. Dig. vol. 15, Criminal Law, §§ 2306-2317.] 5. SAME-NEWLY DISCOVERED EVIDENCE.

When an application for a new trial in a criminal case is made on this ground, and it conclusively appears that the new evidence is in fact newly discovered, that it is material for the party applying, and could not with reasonable diligence have been discovered and produced on the trial, and the effect of the evidence is doubtful or impossible to determine, a new trial should be granted.

[Ed. Note. For cases in point, see Cent. Dig. vol. 15, Criminal Law, §§ 2318-2323.] (Syllabus by the Court.)

Appeal from District Court, Graham County; Chas. W. Smith, Judge.

Charles Keleher was convicted of murder, and appeals. Reversed.

M. A. Chambers, F. D. Turck, David Ritchie, and G. W. Jones, for appellant. C. C.

Coleman, John S. Dawson, and H. J. Harwi (Garver & Larimer, of counsel), for the State.

SMITH, J. In attacking the proceedings of the court numerous errors are assigned, but the questions raised may all be considered under the following heads: (1) The sufficiency of the information as embracing the charge of murder in the second degree. (2) The sufficiency of the evidence and variance therein. (3) The instructions given and refused. (4) The rulings on motions in arrest of judgment and for a new trial. The charging part of the information in this case reads as follows: "That on or about the 15th day of November, A. D. 1905, in said county of Graham and state of Kansas, one Charles Keleher did then and there unlawfully, feloniously, willfully, deliberately, premeditatedly, and of his malice aforethought kill and murder one Charles Wetzel, then and there being, by striking him, the said Charles Wetzel, on the head with a deadly weapon, the same being a singletree, or some other blunt instrument. A better description of said deadly weapon the plaintiff is unable to give. The said deadly weapon he. the said Charles Keleher, then and there in his hands had and held. And so the State of Kansas, plaintiff, says that at the time aforesaid and by the means aforesaid he, the said Charles Keleher, did unlawfully, feloniously. willfully, deliberately, premeditatedly, and of his malice aforethought kill and murder Charles Wetzel, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the state of Kansas."

The statute defining murder in the first degree reads as follows: "Every murder which shall be committed by means of poison. or by lying in wait, or by any kind of willfull, deliberate and premeditated murder, or which shall be committed in the perpetration or an attempt to perpetrate any arson, rape, robbery, burglary or other felony, shall be deemed guilty of murder in the first degree." The section defining murder in the second degree reads: "Every murder which shall be committed purposely and maliciously but without deliberation and premeditation shall be deemed murder in the second degree." It is contended by appellant that under the statutory definition of murder in the first degree "there are four different kinds of murder provided for. In other words, murder in the first degree may be committed in four different ways: First, by means of poison; second, by lying in wait; third, by any other kind of willful, deliberate, and premeditated killing; fourth, when the killing is committed in the perpetration or attempt to perpetrate some other felony. We take it from the reading of this statute that in the first three ways in which murder may be committed as defined by this statute that the willful intent to kill is one of the essen

* * *