judgment cannot be disturbed. Cockerill, 3 Kan. 282, Syl. par. 6; Farney Ail the Justices concurring. (230 P.) Bayer v., rental as agreed. Some time in 1917 a new lease on practically the same terms was executed by the parties for the year beginning March 1, 1918. At the expiration of this lease a new lease was not made, but Carlson held over and paid rental in accordance with the terms of his last lease. Some time in 1920 a lease for the real property was executed by the parties for the year beginning March 1, 1921, on terms substantially the same as the former lease. For the cash rental two notes were given of $600 each, due at different times; the last one SNODGRASS v. CARLSON et al.' (Supreme Court of Kansas. Nov. 8, 1924.) being due November 1, 1921. That note was not paid when due, and a new note was given for it. During the fall of 1921 plaintiff and Carlson talked of a new lease, but Carlson wanted to lease the farm land only, about 200 acres of which he had then plowed for wheat. The plaintiff did not agree to that, but told Carlson that if he remained on the place he would have to remain under the terms of his existing lease. No new lease was written for the year beginning March 1, 1922, but Carlson with the assent of the plaintiff continued to occupy the premises until about March 1, 1923. Carlson delivered to plaintiff one-third of the wheat harvested upon the premises in 1922, but did not pay the $1,200 cash rent for that year, nor the last $600 payment of the year before, and plaintiff sued to enforce a lien for such rent upon Carlson's share of the wheat harvested on the premises in 1922. On October 17, 1921, Carlson executed to the Planters' State Bank a chattel mortgage on "my two-thirds interest" in the wheat then growing on the leased premises to secure a note for $650. On February 20, 1922, Carlson and wife executed to the same bank a mortgage on "my two-thirds interest in Appeal from District Court, Saline Coun- all of the growing wheat" on the leased ty; Dallas Grover, Judge. Action by T. C. Snodgrass against S. A. Carlson and others. From an adverse judgment, plaintiff appeals. Reversed in part, with directions. Z. C. Millikin, of Salina, for appellant. premises (and other personal property) to secure a note for $4,020.82. The notes secured by the mortgages represented valid obligations of Carlson to the bank, and the mortgages were duly recorded. The question presented for our decision is, on two-thirds of the wheat grown by Carlson Do these mortgages give the bank a lien upon the leased premises and harvested in 1922 (one-third of it having been delivered to plaintiff in accordance with the terms of HARVEY, J. This case involves the prior- the lease) prior to the lien of the plaintiff ity of liens upon crops grown upon rented premises between the landlord and a mortgagee of the lessee. Plaintiff is the owner of 800 acres of farm, meadow, and pasture land in Saline county. Some time in 1916 he leased this land to S. A. Carlson for one year beginning March 1, 1917, and by the terms of the lease Carlson was to pay plaintiff as rent one-third of the crops grown up on the leased premises, and in addition thereto the sum of $1,200. Carlson went into possession under the lease, and paid the under the terms of the lease and the statute for the cash rental due him under the lease? The answer must be in the negative. In Bank v. Equity Exchange, 113 Kan. 696, 698, 699, 216 Pac. 278, 279, is was said: "The landlord's interest, however, is inchoate with the sowing of the seed in his such an extent that he may sue for damages ground; it attaches to the growing grain to done by a wrongdoer (Sayers v. Railway Co., 82 Kan. 123, 107 Pac. 641); it may be sold before maturity or division of the crop (Howell For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes v. Push, 27 Kan. 702); and it ripens into full ownership with maturity of the crop. This interest the tenant is powerless to incumber or defeat, and he could not maintain an action to recover for its destruction (Sayers v. Railway Co., supra). The statute would be mockery to landlords if, at any time after planting and before maturity, even the day before maturity, the tenant could deprive the landlord of his share of the crop, and, as between landlord and tenant and persons claiming under the tenant, the landlord's statutory ownership relates to incipience of the crop." [1] It is argued that since the note given by Carlson to plaintiff for a part of the cash rent for 1921 was not due until November 1 of that year, that the landlord's lien did not attach until the note was due, and hence that the mortgage given to the bank in October, 1921, became a lien prior to it. There can be no merit in this contention. It may just as well be argued that the lien of a chattel mortgage, or of a real estate mortgage, does not attach to the property therein described until the note it is given to secure is due. A landlord would need no lien to secure the payment of cash rentals if the rentals were paid in advance; it is only when the rentals are to be paid at the termination of the lease, or at some time during the term of the lease, that the lien becomes of any value. * In 16 R. C. L. 988, the rule is thus stated: "The statutory lien of a landlord for rent attaches at the beginning of the tenancy * in the case of crops, from the commencement of their growth, whether or not the rent is then due. Such lien does not depend upon a levy, and exists independently of the institution of any proceeding for its enforcement. The remedy by levy, distress, or attachment, when available, is simply to enforce a lien already existing." To the same effect is 24 Cyc. 1250. There is some language in the second paragraph of the syllabus and corresponding portion of the opinion of Wyandt v. Merrill, 107 Kan. 661, 193 Pac. 366, 1087, 15 A. L. R. 654, which might be construed as supporting an opposite view, though the specific question now before the court was not considered nor passed upon in that case. To the extent that Wyandt v. Merrill tends to support a view in opposition to that herein expressed, it is disapproved. It is argued that when plaintiff took notes for the cash rental to be paid him under the lease, he waived the lien provided for by the lease under the statute. The taking of such notes did not have that effect. While the lien would have existed without the notes, they were simply additional evidence of the amount and the time when it was to be paid, and did not destroy the lien for rent. 16 R. C. L. 1022. It is further argued that by taking a re able November 1, 1921, the plaintiff waived any lien he had under the lease under the statute but such is not the effect. Gonder v. Dodge, 97 Kan. 562, 155 Pac. 937. It sim Ply evidenced a modification of their former agreement with reference to the time of the payment. [2, 3] It is argued that the holding over of the leased premises by Carlson for another year after the termination of the written lease March 1, 1922, constituted a new tenancy and hence that the plaintiff could not in any event have a lien upon the wheat harvested in 1922 for any portion of the rent under the written lease ending March 1, 1922. There is authority under some circumstances for treating a holding over as a new tenancy (35 C. J. 1104) but this is not construed to defeat a landlord's lien upon the crops sown and to which his lien attached during the terms of the lease and which matured and were harvested during the year of the holding over and generally where there is an agreement that the holding over shall be under the terms of the former lease it is considered as a continuing tenancy, just as though the lease had been written for two years in the first instance. Towle v. Weise, 64 Kan. 760, 68 Pac. 637. Here Carlson wanted to keep a part of the place for another year on terms different from his written lease, but was told by plaintiff that if he continued in possession he would have to continue under the terms of the lease, and he did continue in possession with the assent of plaintiff. It would not be difficult under this state of facts to hold that what was done amounted to an agreement to hold over under the terms of the lease, but it is not necessary to resort to that, for it is well settled that, where a tenant does hold over with the assent of the landlord and no new terms have been agreed upon, the holding over is under the terms of his existing lease. Here the wheat was sown during the term of the written lease. The lien of the landlord attached to it as soon as it was sown, and the tenant was powerless to abrogate or destroy that lien by holding over, hence it continued and could be enforced out of the crop when it matured. At the time of the trial there was a controversy about a threshermen's lien, but that has been paid out of the proceeds of the wheat and is no longer of any consequence. After the threshing of the wheat in 1922 Carlson went into bankruptcy, and the wheat was sold and the money impounded to abide the final decision of this case. The money is not sufficient to pay plaintiff and the bank, hence neither Carlson nor his trustee in bankruptcy have any interest in the matter. There is an intimation on behalf of the bank that the $1,200 cash was for the rent of the pasture and meadow land, and hence upon the farm land. (230 P.) There were no sepa- 14. Appeal and error 1060 (1)—Refusal to discharge jury for remarks of attorney admonishing jury to answer special questions cautiously held not reversible error. rate leases, nor does the lease specifically provide that the $1,200 was for the pasture land. The entire 800 acres was leased under one lease, and the rent to be paid was onethird of the crops raised and $1,200 in cash. Hence the cash rent was a lien upon the crops grown upon the premises. Firstenberger v. McBee, 113 Kan. 110, 213 Pac. 813. There are some findings to the effect that Carlson did not use the pasture on the premises during the summer of 1922, except for his own horses and cattle, but that a neighbor put stock in the pasture without charge, and further that Carlson did not put up the alfalfa on the premises that year, nor put out and cultivate the corn, but that his son did these things. A tenant cannot evade the payment of rent by conduct of this char acter. The court found the sum due plaintiff for rent, but held that he had no lien prior to that of the bank. The judgment is reversed in so far as it denies appellant's lien on the crops attached and the proceeds thereof, and directs the payment of the claim of the Planters' State Bank from the proceeds of the sale of wheat and the court is directed to pay the plaintiff the sum found due him out of the money impounded, and the balance, if any, to be paid to said bank. BURCH, J., not sitting. Appeal from District Court, Scott County; Roscoe H. Wilson, Judge. Action by P. L. Lynch against John Barton Payne, as Director General of Railroads and agent of the United States Government. From a judgment for plaintiff, defendant appeals. Reversed, and new trial ordered. Wm. R. Smith, Owen J. Wood, and Alfred A. Scott, all of Topeka, and William Osmond, of Great Bend, for appellant. Ed. R. Bane, R. D. Armstrong, and D. B. Lang, all of Scott City, for appellee. MASON, J. P. L. Lynch owns the northwest quarter of section 36, lying about 2 miles south and a little west of Scott City. The track of the Santa Fé railroad runs nearly LYNCH v. PAYNE, Director General of Rail- north and south about 20 rods east of his roads. (No. 24535.) (Supreme Court of Kansas. Nov. 8, 1924.) (Syllabus by the Court.) 1. Waters and water courses 38-Existence of water course held for jury. The evidence is held sufficient to take to the jury the question of the existence of a water course, the flow in which had been obstructed by a railroad embankment to the injury of the plaintiff. 2. Special findings approved. Special findings are held not to be without evidence, or inconsistent with each other, or with the general verdict. 3. Appeal and error 1050(1)-Plaintiff's evidence of difference in value of land per acre before and after injury held not reversible error. The fact that the plaintiff's witnesses were allowed to testify to the difference in the value of land per acre before and after an injury, instead of telling what the values were, is held not to constitute reversible error, where there was other evidence in proper form to the same effect, and the defendant introduced no evidence on the subject. east line, and is on an embankment some 2 feet high. Lynch brought this action against the Director General of Railroads, who was then operating the road, charging the destruction of 15 acres of growing alfalfa by the backing up of water caused by this embankment. He recovered a judgment for $1,500, and the defendant appeals. [1] 1. The defendant asks a reversal on the ground that the evidence did not support a finding of the existence of a water course on the plaintiff's land which extended as far east as the railroad; reliance being placed large ly upon the opinion in Gibbs v. Williams, 25 Kan. 214, 37 Am. Rep. 241. The railroad east of the plaintiff's land crosses a basin of low ground; Lion creek and its tributaries, flowing eastward, drain a considerable territory extending some 15 miles to the west. A wit ness testified that this creek enters the basin through sections 35 and 36 and into section 31, which would indicate its extension beyond the railroad. Another testified that a person just seeing the place where there is a bridge on the railroad grade might call it the bed of the stream, but he would call it a depression; that the bank at the railroad For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes grade at the point indicated was well defined | water followed the same course. The railroad in places; that it was fairly steep; that the chain of lagoons that runs through the plaintiff's place is well defined and easy to see; and that the track goes right through the lagoon, and there was another further west. Another gave testimony to the effect: Lion creek "has its course through the northeast and northwest quarters of section 36. *** As it comes towards the basin, the banks are not as high. The course is very distinct and well marked, however, but the banks are flatter." He said: was constructed in 1909, as I recall it. Prior to the construction of the railroad, the water big rains, and the water would stand there for would stand in this creek bed, we would have weeks at a time in the creek bed. I don't remember of its overflowing the surrounding country outside of the creek bed." There was other evidence to the same effect and much of a contrary tendency. Considering the evidence for the plaintiff in its most favorable aspect, we think there was enough to carry the case to the jury on the question of the existence of a water course. “There is a branch that comes in about a mile It is not necessary that the flow should be west of Lynch's. The stream from that point on has an almost direct east course. The banks are not steep, but the channel is formed of what we might style as lagoons along. Well, they look like buffalo wallows, only they are very long, about 22 feet deep. I am not so very well acquainted with the place where the railroad crosses this creek on 36. I am more familiar with where it crosses the wagon roads, both west and east of the railroad. As before stated, the banks are not steep, and the width of the channel, if I would call it that, is something like 100 feet, I guess. I would judge the height of the banks is 21⁄2 feet. I am acquainted with the course of this creek east of the wagon road for about 4 of a mile. It is just a series of what we would call lagoons, long, low lagoons, which form the channel." The plaintiff testified: "I am acquainted with the stream known as Lion creek. Have known it 27 or 28 years. It heads in above Modoc, comes east through my place. There are tributaries west of Modoc, and one called Rocky Jaw comes in from the west, could not say how far down, about 1 mile west of my place. The water comes through Lion creek frequently, ever since I have known it, sometimes once or twice a year, and sometimes it may be 3 or 4 or 5 years before the water would come down. I recall one in It stance about 20 years ago. It always flowed constant. "There must be a permanent source of supply, but it is not essential to a water course that the flow should be constant and continuous. Surface water may be the source of supply, and the flow from that source is necessarily intermittent and somewhat irregular. It is sufficiently permanent if the accumulated surface water flows through a well-defined channel. made by the water flowing with some regularity during the heavy rains which ordinarily occur in that region. To constitute a water course it is not necessary that the supply should be from springs, nor that the water should be discharged through a channel into another water course. The fact that the channel of the stream in question grew less distinct, and that it practically passed out of sight before the waters reached Dry creek, does not argue that the stream lacks the characteristics of a water course." Brown v. Schneider, 81 Kan. 488, 106 P. 41, 135 Am. St. Rep. 396. Nor are continuous abrupt banks and the absence of vegetation from the bed essential features of a water course. 40 Cyc. 556; Railway Co. v. Scott, 71 Kan. 874, 81 P. 1131. In the case last cited it was said: "The jury found that the plaintiff's land was not bottom land; that there were no bluffs or gorges on either side of the ravine; that the banks had been plowed across in places; that in certain places vegetation grew in the bottom of the ravine; that, where the ravine passed through the land of one McDonald, the banks had been plowed, and alfalfa sowed, and that he once raised a crop of millet in the ravine. We do not think that the defendant was entitled to judgment on these special findings, notwithstanding the general verdict. Bluffs and gorges are not necessarily essential to a water course, nor do we think that the fact that the banks of this ravine were plowed in places, or that occasionally crops matured in parts of it, is conclusive that it was not a water course." An earlier opinion contains this language, referring to a situation somewhat analogous to that here presented: "Of the existence of a natural water course, within the terms of that rule, there can be no doubt. An area of country of several hundred acres (one to two sections, the witnesses state) is drained. The country is bluffy, and deep ravines have been cut in the hills for the outflow of water falling on this surface. In one of the Kan.) LYNCH v. PAYNE ravines there is a small perpetual flow from "(9) How often did water run through section 36? Only when heavy rain fell on watershed." "(11) Was the flood which caused the damage to plaintiff an unprecedented one? No." With respect to the challenged findings we think, upon grounds for the most part already indicated, those numbered 2, 3, 4, and 11 are supported by the evidence; that findings 1, 5, 6, and 9 are consistent with the verdict; and that there is no irreconcilable conflict between findings 7 and 11. [3] 3. Upon the issue of the amount of damages two witnesses testified that the alfalfa land was worth $200 before the flood and $100 after it. Another said such land in alfalfa was worth $250 an acre, and without it not over $100. Complaint is made because two others were permitted to say that the Counsel contends did not cause the overflow. that, because the company owned the fee of the difference in value between such land with right of way, and because the ditches dug and and without alfalfa was $100 an acre. deepened by it were so dug and deepened for method of showing depreciation has been conthe necessities of its track, its action was demned (W. & W. Rd. Co. v. Kuhn, 38 Kan. proper, and afforded no ground of complaint by 675, 17 P. 322), but, as there was some complaintiff of its results, and challenges the con-petent evidence to the same effect, and the trary ruling of the court in these respects. The court was right. A party cannot on his own land, or because of the necessities of his own business, divert the flow of a natural water course without paying any party injured the damages he sustains therefrom. This doctrine is clear, and a railroad company has no greater rights than any other landowner." U. P. Ry. Co. v. Dyche, 31 Kan. 123, 1 P. 243. This defense offered none at all on this matter, we regard the challenged rulings as nonprejudi cial. [4] 4. In the course of the argument to the jury, the plaintiff's attorney urged them to be very careful in answering the special questions, "because, if they did not answer them properly, the effect would be to set Counsel for [2] 2. Reversal is also asked on the ground aside their general verdict." that some of the special findings are incon- the defendant interrupted him, asking the sistent with the evidence, some with the gen-court to declare a mistrial, and to discharge with each other. the jury, which request was refused, and no eral verdict, and some Omitting two, which will be referred to later, admonition was given. Reversal is asked on account of the episode. The need of having they read: "(1) Was the damage to plaintiff due to rain the special findings harmonize with the genfalling over a large surface of land, which nat-eral verdict and with each other is not a Brick Co. v. Zimmerurally flowed upon and over a depression at matter to which the attention of the jury should be directed. one end of the track? Yes. man, 61 Kan. 750, 60 P. 1064; Rairoad Co. v. Burrows, 62 Kan. 89, 61 P. 439. The only order asked by the defendant in that connection, however-the discharge of the jurywas too drastic: and it does not seem probable that prejudice resulted. "(2) Was there, through section 36, a distinct channel, with well-defined banks, cut through the turf, and into the soil by the flowing of the water? Yes. "(3) If you answer the preceding question 'Yes.' was such channel continuous and of such character clear across the section up to the railroad embankment? Yes. "(4) Did such channel present on casual glance to every eye unmistakable evidence of Yes. the frequent action of running water? "(5) If you answer questions 2, 3, and 4 in the affirmative, describe fully the bed and banks of the water course, giving width of channel, height and slope of banks, and stating whether any considerable part of the bed was grassed over. Starting at west side of section 36, banks 1% to 22 feet, width 50 to 100 feet for about 40 rods; from there east for about 80 rods grassed over; from there to railroad about 1% feet more or less. "(6) Was there a permanent source of supply of water, or was the flow only occasional and caused by rains? Occasional, by rain. "(7) Had the railroad embankment caused any damage from the time of its construction in 1909 up to the time of the floods in 1919? No." [5] The railroad was built in 1909 by the Garden City, Gulf & Northern Railway Company, which in 1911 sold it to the Santa Fé. The Director General of Railroads took posAn instrucsession of it some years later. tion was given that in order to recover it was necessary for the plaintiff to show "That the Director General of Railroads had notice or knowledge of the fact that such embankment did not contain an ample passage way for such water as might reasonably have been anticipated to flow down said Lion creek." The two special findings, not already quoted, read: "(8) What, if any, notice did the Director General of Railroads, or any of his predecessors, have that the railroad embankment was a menace to the property of plaintiff? By noti |