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(230 P.) judgment cannot be disturbed. Bayer y., rental as agreed. Some time in 1917 a new Cockerill, 3 Kan. 282, Syl. par. 6; Farney lease on practically the same terms was exv. Hauser, 109 Kan 75, 198 P. 178, Syl. par. ecuted by the parties for the year begin7; In re Soldier's Compensation Appeals ning March 1, 1918. At the expiration of (Doniphan's Case) 116 Kan. 601, 603, 227 P. ( this lease a new lease was not made, but 1117; Id., 116 Kan. 677, 229 P. 355.

Carlson held over and paid rental in accordAffirmed,

ance with the terms of his last lease. Some Ail the Justices concurring.

time in 1920 a lease for the real property
was executed by the parties for the year
beginning March 1, 1921, on terms substan-

tially the same as the former lease. For
SNODGRASS V. CARLSON et al. * the cash rental two notes were given of $600
(No, 25448.)
each, due at different times; the last one

That note (Supreme Court of Kansas. Nov. 8, 1924.) being due November 1, 1921.

was not paid when due, and a new note was (Syllabus by the Court.)

given for it. During the fall of 1921 plain1. Landlord and tenant C247_Statutory rent tiff and Carlson talked of a new lease, but

lien attaches at beginning of tenancy; status Carlson wanted to lease the farm land only, tory rent lien attaches to crops from com- about 200 acres of which he had then plowed mencement of their growth.

for wheat. The plaintiff did not agree to The statutory lien of a landlord for rent that, but told Carlson that if he remained attaches at the beginning of the tenancy, and on the place he would have to remain unin the case of crops from the commencement of der the terms of his existing lease. No new their growth whether or not the rent is then lease was written for the year beginning due.

March 1, 1922, but Carlson with the assent of 2. Chattel mortgages 138(3)-Lien of ten the plaintiff continued to occupy the prem

ant's crop mortgage inferior to landlord's ises until about March 1, 1923, Carlson de statutory rent lien.

livered to plaintiff one-third of the wheat The lien of a mortgage given by a tenant harvested upon the premises in 1922, but on crops is inferior to the statutory lien of the did not pay the $1,200 cash rent for that landlord for rents.

year, nor the last $600 payment of the year 3. Landlord and tenant cu 254(12)-Holding before, and plaintiff sued to enforce a lien

over to harvest crop held not new tenancy for such rent upon Carlson's share of the defeating landlord's lien.

wheat harvested on the premises in 1922. A tenant in possession of a farm under a

On October 17, 1921, Carlson executed to written lease for one year sowed wheat to which the landlord's lien for rent attached. the Planters' State Bank a chattel mortgage The tenant with the assent of his landlord held on "my two-thirds interest” in the wheat over and harvested the wheat. Held, that the then growing on the leased premises to seholding over did not constitute a new tenancy cure a note for $650. On February 20, 1922, 80 as to cut off or defeat the landlord's lien. 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.

premises (and other personal property) to se

The notes seAction by T. C. Snodgrass against S. A. cure a note for $4,020.82. Carlson and others. From an adverse judg- cured by the mortgages represented valid ment, plaintiff appeals. Reversed in part, obligations of Carlson to the bank, and the with directions.

mortgages were duly recorded.

The question presented for our decision is, Z. C. Millikin, of Salina, for appellant.

Do these mortgages give the bank a lien upC. W. Burch, B. I. Litowich, La Rue Royce, on two-thirds of the wheat grown by Carlson J. 0. Wilson, J. H. Wilson, and Alex H.

on the leased premises and harvested in Miller, all of Salina, for appellees.

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

under the terms of the lease and the statpremises between the landlord and a mort

ute for the cash rental due him under the gagee of the lessee. Plaintiff is the owner lease? The answer must be in the negative. of 800 acres of farm, meadow, and pasture

In Bank v. Equity Exchange, 113 Kan. land in Saline county. Some time in 1916 696, 698, 699, 216 Pac. 278, 279, is was said: he leaserl this land to S. A. Carlson for one year beginning March 1, 1917, and by the

“The landlord's interest, bowever, is interms of the lease Carlson was to pay plain- choate with the sowing of the seed in his tiff as rent one-third of the crops grown up- such an extent that he may sue for damages

ground; it attaches to the growing grain to on the leased premises, and in addition done by a wrongdoer (Sayers v. Railway Co., thereto the sum of $1,200. Carlson went in- 82 Kan. 123, 107 Pac. 641); it may be sold to possession under the lease, and paid the before maturity or division of the crop (Howell

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

*Rehearing denied 232 P. 241.

v. Push, 27 Kan. 702); and it ripens into fully able November 1, 1921, the plaintiff waived ownership with maturity of the crop. This in any lien he had under the lease under the terest the terant is powerless to incumber or statute but such is not the effect. Gonder defeat, and he could not maintain an action to v. Dodge, 97 Kan. 562, 155 Pac. 937. It simrecover for its destruction (Sayers v. Railway ply evidenced a modification of their former Co., supra). The statute would be mockery to landlords if, at any time after planting and agreement with reference to the time of the before maturity, even the day before maturity, payment. the tenant could deprive the landlord of his [2, 3] It is argued that the holding over share of the crop, and, as between landlord of the leased premises by Carlson for anand tenant and persons claiming under the ten other year after the termination of the writant, the landlord's statutory ownership relates ten lease March 1, 1922, constituted a new to incipience of the crop.”

tenancy and hence that the plaintiff could [1] It is argued that since the note given not in any event have a lien upon the wheat by Carlson to plaintiff for a part of the cash harvested in 1922 for any portion of the rent for 1921 was not due until November rent under the written lease ending March 1 of that year, that the landlord's lien did 1, 1922. There is authority under some cir. not attach until the note was due, and hence cumstances for treating a holding over as a that the mortgage given to the bank in Oc-new tenancy (35 C. J. 1101) but this is not tober, 1921, became a lien prior to it. There construed to defeat a landlord's lien upon can be no merit in this contention. It may the crops sown and to which his lien at. just as well be argued that the lien of a tached during the terms of the lease and chattel mortgage, or of a real estate mort- which matured and were harvested during gage, does not attach to the property there the year of the holding over and generally in described until the note it is given to where there is an agreement that the holdsecure is due. A landlord would need no ing over shall be under the terms of the lien to secure the payment of cash rentals former lease it is considered as a continuing if the rentals were paid in advance; it is tenancy, just as though the lease had been only when the rentals are to be paid at the written for two years in the first instance. termination of the lease, or at some time Towle v. Weise, 64 Kan. 760, 68 Pac. 637. during the term of the lease, that the lien Here Carison wanted to keep a part of the becomes of any value.

place for another year on terms different In 16 R. C. L. 988, the rule is thus stated: from his written lease, but was told by “The statutory lien of a landlord for rent he would have to continue under the terms

plaintiff that if he continued in possession attaches at the beginning of the tenancy

in the case of crops, from the com- of the lease, and he did continue in posses mencement of their growth, whether or not sion with the assent of plaintiff. It would the rent is then due. Such lien does not de- not be difficult under this state of facts to pend upon a levy, and exists independently of hold that what was done amounted to an the institution of any proceeding for its en. agreement to hold over under the terms of forcement. The remedy by levy, distress, or the lease, but it is not necessary to resort attachment, when available, is simply to enforce a lien already existing.”

to that, for it is well settled that, where a

tenant does hold over with the assent of the To the same effect is 24 Cyc. 1250.

landlord and no new terms have been agreed There is some language in the second par- upon, the holding over is under the terms of agraph of the syllabus and corresponding his existing lease. Here the wheat was sown portion of the opinion of Wyandt v. Merrill, during the term of the written lease. The 107 Kan. 661, 193 Pac. 366, 1087, 15 A. L. R. | lien of the landlord attached to it as soon 654, which might be construed as supporting as it was sown, and the tenant was poweran opposite view, though the specific ques- less to abrogate or destroy that lien by holdtion row before the court was not considered ing over, hence it continued and could be nor passed upon in that case. To the ex- enforced out of the crop when it matured. tent that Wyandt v. Merrill tends to support At the time of the trial there was a cona view in opposition to that herein extroversy about a threshermen's lien, but that pressed, it is disapproved.

has been paid out of the proceeds of the It is argued that when plaintiff took notes wheat and is no longer of any consequence. for the cash rental to be paid him under After the threshing of the wheat in 1922 the lease, he waived the lien provided for Carlson went into bankruptcy, and the wheat by the lease under the statute. The taking was sold and the money impounded to abide of such notes did not have that effect. While the final decision of this case. The money the lien would have existed without the is not sufficient to pay plaintiff and the bank, notes, they were simply additional evidence hence neither Carlson nor his trustee in of the amount and the time when it was bankruptcy have any interest in the matter. to be paid, and did not destroy the lien for There is an intimation on behalf of the rent. 16 R. C. L. 1022.

bank that the $1,200 cash was for tbe rent It is further argued that by taking a re- of the pasture and meadow land, and hence newal note for the amount of the rent pay would not be a lien upon the crops grown

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(230 P.)
upon the farm land. There were no sepa- 1 4. Appeal and error 1060(1)-Refusal to
rate leases, nor does the lease specifically discharge jury for remarks of attorney ad-
provide that the $1,200 was for the pasture

monishing jury to answer special questions
land. The entire 800 acres was leased under

cautiously held not reversible error. one lease, and the rent to be paid was one

Where an attorney in addressing the jury third of the crops raised and $1,200 in cash. urged them to answer the special questions Hence the cash rent was a lien upon the they would vitiate the general verdict, a re

cautiously, because if not answered properly
crops grown upon the premises. Firsten- fusal to discharge the jury is held not to war-
berger v. McBee, 113 Kan. 110, 213 Pac, 813. rant a reversal.

There are some findings to the effect that 5. Now trial @ww.l-New trial granted where
Carlson did not use the pasture on the prem-

only special findings on one of issues set
ises during the summer of 1922, except for aside.
his own horses and cattle, but that a neigh-

Where one of the issues was whether the
bor put stock in the pasture without charge, Director General of Railroads had notice or
and further that Carlson did not put up the knowledge of the obstruction of a water course
alfalfa on the premises that year, nor put by the roadbed as constructed by a former own-
out and cultivate the corn, but that his son

er, and the only special findings on that issue
did these things. A tenant cannot evade were set aside, it is held a new trial on that
the payment of rent by conduct of this char- issue should have been granted.
acter.

Appeal from District Court, Scott County;
The court found the sum due plaintiff for

Roscoe H. Wilson, Judge.
rent, but held that he had no lien prior to
that of the bank. The judgment is reversed Action by P. L. Lynch against John Barton
in so far as it denies appellant's lien on the Payne, as Director General of Railroads and
crops attached and the proceeds thereof, and agent of the United States Government.
directs the payment of the claim of the From a judgment for plaintiff, defendant
Planters' State Bank from the proceeds of appeals. Reversed, and new trial ordered.
the sale of wheat and the court is directed Wm. R. Smith, Owen J. Wood, and Alfred
to pay the plaintiff the sum found due him A. Scott, all of Topeka, and William Osmond,
out of the money impounded, and the bal- of Great Bend, for appellant.
ance, if any, to be paid to said bank.

Ed. R. Bane, R. D. Armstrong, and D. B.

Lang, all of Scott City, for appellee.
BURCH, J., not sitting.

MASON, J. P. L. Lynch owns the north-
west 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 y. PAYNE, Director General of Rail- north and south about 20 rods east of his roads. (No. 24535.)

east line, and is on an embankment some

212 feet high. Lynch brought this action (Supreme Court of Kansas, Nov. 8, 1924.)

against the Director General of Railroads, (Syllabus by the Court.)

who was then operating the road, charging

the destruction of 15 acres of growing alfalfa
1. Waters and water courses ww38-Existence by the backing up of water caused by this
of water course held for jury.

embankment. He recovered a judgment for
The evidence is held sufficient to take to the
jury the question of the existence of a water

$1,500, and the defendant appeals.
course, the flow in which had been obstructed

(1) 1. The defendant asks a reversal on by a railroad embankment to the injury of the the ground that the evidence did not support plaintiff.

a finding of the existence of a water course on

the plaintiff's land which extended as far east
2. Special findings approved.

as the railroad; reliance being placed large-
Special findings are held not to be without ly upon the opinion in Gibbs v. Williams, 25
evidence, or inconsistent with each other, or
with the general verdict.

Kan. 214, 37 Am. Rep. 241. The railroad east

of the plaintiff's land crosses a basin of low
3. Appeal and error om 1050(1)-Plaintiff's ev. ground; Lion creek and its tributaries, flow-

idence of difference in value of land per acre ing eastward, drain a considerable territory
before and after injury held not reversible extending some 15 miles to the west. A wit-
error.

ness testified that this creek enters the basin
The fact that the plaintiff's witnesses were through sections 35 and 36 and into section
allowed to testify to the difference in the value 31, which would indicate its extension be-
of land per acre before and after an injury,

Another testified that a
instead of telling what the values were, is hela yond the railroad.
not to constitute reversible error, where there person just seeing the place where there is
was other evidence in proper form to the same

a bridge on the railroad grade might call it
effect, and the defendant introduced no evidence the bed of the stream, but he would call it a
on the subject.

depression; that the bank at the railroad For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

ous,

grade at the point indicated was well defined | water followed the same course. The railroad in places; that it was fairly steey; that the was constructed in 1909, as I recall it. Prior chain of lagoons that runs through the plain to the construction of the railroad, the water tiff's place is well defined and easy to see; would stand in this creek bed, we would have and that the track goes right through the weeks at a time in the creek bed. I don't re

big rains, and the water would stand there for lagoon, and there was another further west. member of its overflowing the surrounding Another gave stin to the effect :

country outside of the creek bed.” Lion creek “has its course through the northeast and northwest quarters of section 36.

There was other evidence to the same ef* * * As it comes towards the basin, the banks fect and much of a contrary tendency. Conare not as high. The course is very distinct and sidering the evidence for the plaintiff in its well marked, however, but the banks are flat- | most favorable aspect, we think there was ter."

enough to carry the case to the jury on the He said:

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

constant. west of Lynch's. The stream from that point on has an almost direct east course. The banks “There must be a permanent source of supare not steep, but the channel is formed of what ply, but it is not essential to a water course we might style as lagoons along. Well, they that the flow should be constant and continulook like buffalo wallows, only they are very

Surface water may be the source of suplong, about 242 feet deep. I am not so very well ply, and the flow from that source is necessarily acquainted with the place where the railroad intermittent and somewhat irregular. It is sufcrosses this creek on 36. I am more familiar ficiently permanent if the accumulated surface with where it crosses the wagon roads, both water flows through a well-defined channel. west and east of the railroad. As before stated, made by the water flowing with some regularity the banks are not steep, and the width of the during the heavy rains which ordinarily occur in channel, if I would call it that, is something that region.

To constitute a water like 100 feet, I guess. I would judge the height course it is not necessary that the supply should of the banks is 212 feet. I am acquainted with be from springs, nor that the water should the course of this creek east of the wagon road be discharged through a channel into another for about 34 of a mile. It is just a series of water course. The fact that the channel of what we would call lagoons, long, low lagoons, the stream in question grew less distinct, and which form the channel."

that it practically passed out of sight before the

waters reached Dry creek, does not argue that The plaintiff testified:

the stream lacks the characteristics of a water "I am acquainted with the stream known as

course." Brown v. Schneider, 81 Kan. 488, 106 Lion creek. Have known it 27 or 28 years. It P. 41, 135 Am. St. Rep. 396. heads in above Modoc, comes east through my place.

Nor are continuous abrupt banks and the There are tributaries west of Modoc, and one called Rocky Jaw comes in from the absence of vegetation from the bed essential west, could not say how far down, about 1 mile features of a water course.. 40 Cyc, 556; west of my place. The water comes through Railway Co. v. Scott, 71 Kan. 874, 81 P. 1131. Lion creek frequently, ever since I have known In the case last cited it was said : it, sometimes once or twice a year, and some

"The jury found that the plaintiff's land was times it may be 3 or 4 or 5 years before the not bottom land; that there were no bluffs or water would come down. I recall one in

gorges on either side of the ravine; that the stance about 20 years ago. It always flowed banks had been plowed across in places; that in the same course. Up near Modoc the banks in certain places vegetation grew in the bottom are very high, in places 50 feet. About a mile of the rarine; that, where the ravine passed west of my place it seems to spread out. It

through the land of one McDonald, the banks is just like a depression or low place. It is easy had been plowed, and alfalfa sowed, and that he to follow it. I never made any measurement

once raised a crop of millet in the ravine. We as to the height of the banks, I would say do not think that the defendant was entitled to something like 18 inches or 2 feet. Where the judgment on these special findings, notwithcreek starts into my place on the west side, I standing the general verdict. Bluffs and gorges should say it was 60 or possibly 80 rods, there

are not necessarily essential to a water course, is a deep place, 2 or 3 feet, and it will gradually nor do we think that the fact that the banks of rise, and go on for 40 yards, and there will be this ravine were plowed in places, or that ocanother place of the same character. These casionally crops matured in parts of it, is condeep places are just connected by a small de-clusive that it was not a water course.” pression that is grassed over. At the west side of my place I would say that the depression is

An earlier opinion contains this language, 100 feet wide, as nearly as I could estimate it, referring to a situation somewhat analogous and where the railroad grade comes, it is about the same. I would say the banks at the railroad to that here presented: were about 2 feet high. Right east from the “Of the existence of a natural water course, railroad fill it is the same as on the west side. within the terms of that rule, there can be no There is a deep depression like that on the doubt. An area of country of several hundred west side of my place, then that rises again acres (one to two sections, the witnesses state) and dips on towards Coflin's place, east of me. is drained. The country is bluffy, and deep raIt continues in this way for about 112 miles. vines have been cut in the hills for the outflow Prior to the construction of the railroad, the of water falling on this surface. In one of the

(230 P.) ravines there is a small perpetual flow from “(9) How often did water run through seca spring, evidently, although the bulk of the tion 36? Only when heavy rain fell on waterwater flowing through these ravines is from shed.” rain and snow. The configuration of the coun (11) Was the flood which caused the damtry is such that they deserve protection as age to plaintiff an unprecedented one? .No." natural water courses. The same may be said of the ditches running from the foot of these With respect to the challenged findings we ravines and uniting just north of the wagon think, upon grounds for the most part already road. As to that extending thence to the river, indicated, those numbered 2, 3, 4, and 11 are and which is called by different witnesses a supported by the evidence; that findings 1, drain, a ditch, a slough, a swale, and a depres- 5, 6, and 9 are consistent with the verdict ; sion, the testimony is far from satisfactory; and yet we are constrained to say that there and that there is no irreconcilable conflict was enough to uphold the verdict; that, by between findings 7 and 11. the deepening of the ditches along the railroad [3] 3. Upon the issue of the amount of track, the water flowing down through these damages two witnesses testified that the alravines, ditches, etc., was partially diverted falfa land was worth $200 before the flood and thrown upon the plaintiff's field of rye, can- and $100 after it. Another said such land in not be doubted. Possibly the flood was so great alfalfa was worth $250 an acre, and without that the land would have been covered anyway. it not over $100. Complaint is made because Certainly the railroad ditches helped, if they two others were permitted to say that the did not cause the overflow. Counsel contends 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. This 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. y. Kuhn, 38 Kan. proper, and afforded a 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. defense offered none at all on this matter, we The court was right. A party cannot on his own land, or because of the necessities of his regard the challenged rulings as nonprejudiown business, divert the flow of a natural wa

cial. ter course without paying any party injured the [4] 4. In the course of the argument to the damages he sustains therefrom. This doctrine jury, the plaintiff's attorney urged them to is clear, and a railroad company has no greater be very careful in answering the special rights than any orner landowner." U. P. Ry. questions, “because, if they did not answer Co. v. Dyche, 31 Kan. 123, 1 P. 243.

them properly, the effect would be to set [2] 2. Reversal is also asked on the ground aside their general verdict." Counsel for 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 eral verdict, and some with each other. the jury, which request was refused, and no Omitting two, which will be referred to later, admonition was given. Reversal is asked on they read:

account of the episode. The need of having "(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 urally flowed upon and over a depression at matter to which the attention of the jury one end of the track? Yes.

should be directed. Brick Co. v. Zimmer“(2) Was there, through section 36, a distinct man, 61 Kan. 750, 60 P. 1064 ; Rairoad Co. v. channel, with well-defined banks, cut through | Burrows, 62 Kan. 89, 61 P. 439. The only the turf, and into the soil by the flowing of the order asked by the defendant in that connecwater? Yes.

tion, however—the discharge of the jury“(3) If you answer the preceding question 'Yes.' was such channel continuous and of such

was too drastic: and it does not seem probcharacter clear across the section up to the able that prejudice resulted. railroad embankment? Yes.

[5] The railroad was built in 1909 by the “(4) Did such channel present on casual Garden City, Gulf & Northern Railway Comglance to every eye unmistakable evidence of pany, which in 1911 sold it to the Santa Fé. the frequent action of running water? Yes. The Director General of Railroads took pos

“(5) If you answer questions 2, 3, and 4 in session of it some years later. An instructhe affirmative, describe fully the bed and tion was given that in order to recover it banks of the water course, giving width of channel, height and slope of banks, and stating

was necessary for the plaintiff to showwhether any considerable part of the bed was “That the Director General of Railroads had grassed over. Starting at west side of section notice or knowledge of the fact that such em36, banks 112 to 242 feet, width 50 to 100 feet | bankment did not contain an ample passage for about 40 rods; from there east for about way for such water as might reasonably have 80 rods grassed over; from there to railroad been anticipated to flow down said Lion creek." about 112 feet more or less. "(6) Was there a permanent source of sup

The two special findings, not already quotply of water, or was the flow only occasional ed, read : and caused by rains? Occasional, by rain. "(8) What, if any, notice did the Director

"(7) Had the railroad embankment caused General of Railroads, or any of his predecesany damage from the time of its construction in sors, have that the railroad embankment was 1909 up to the time of the floods in 1919? No." Ia menace to the property of plaintiff? By noti

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