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The clause of the contract

the Abernathy cattle were infected, and that, ed there until the 13th, during which time all cattle handled through the pens and they were dipped by the defendant's emchutes which they had passed through would, ployés under the supervision of the Bureau until cleaned and disinfected, be classed as of Animal Industry, and no claim is made cattle exposed to scabies, and had received for any damage except such as was caused the order of November 5th that the yards by the delay at Argentine and the treatment were infected on account of the Elwood cat- at Waynoka. tle-that is, the cattle from Abernathy-and under consideration, so far as applicable, The infor-reads as follows: to quarantine until disinfected. mation that the shipment from Kenna, N. M., unloaded on November 3d, had been found to be infected, was received by the agent after the plaintiffs' cattle had been

unloaded.

"In order that any loss or damage to be claimed by the shipper may be fully and fairly investigated, and the fact and nature of such claim or loss preserved beyond dispute and by the best evidence, it is agreed that as a condition precedent to his right to recover any damages for any loss or injury to his said stock during the transportation thereof, or at any place or places where the same may be loaded or unloaded for any purpose on the company's road, the shipper or his agent in charge of │* the stock will give notice in writing of his claim therefor to some officer of said company, or to the nearest station agent, or, if delivered to consignee at a point beyond the company's road, to the nearest station agent of the last carrier making such delivery, before such stock shall have been removed from the place or destination above mentioned, or from the place of delivery of the same to the consignee, and before such stock shall have been slaughtered or intermingled with other stock, and will not move such stock from said station or stock yards until the expiration of three hours after the giving of such notice."

The delay at Argentine, while of itself not necessarily of great significance, becomes an important element in the case, if it thereby became necessary to unload at Waynoka in order to keep from violating the 28-hour law. The question of negligence in unloading into infected yards must rest upon the knowledge possessed by the company at the time of such unloading. It is strenuously urged that only two small portions of the yards had been occupied by infected cattle, and that the order from Inspector Allan to quarantine the yards meant and made necessary the quarantine of only such portions thereof as were actually infected. No question is made about the duty of the rail[2] While neither the shipper nor the carway company to obey the orders of the rier could tell when the cattle left Waynoka, Bureau of Animal Industry, and the plain, or even when they reached the owner's unambiguous telegram was sufficient to require the defendant to refrain from unload-ranch, what might develop as the result of the treatment while being disinfected at the ing the plaintiff's cattle in any portion of such yards. Hence it was not error for the trial court to reject evidence as to how such telegram was or should have been construed, neither was it error to speak of the yards in the charge as those that had been infected with a disease common among cattle.

The foreman of the stockyards testi

fied that the order was

"to quarantine the stockyards and close the yards for unloading purposes until yards had been disinfected and quarantine raised by B. A. I. inspector. During the time Broadhead shipment occupied my yards, the yards were subject Dr. to the supervision of the B. A. I. doctor. Warner supervised the disinfecting of the yards and spraying of the Broadhead cattle."

It is not the infection, but the dipping of the cattle, and the rough treatment incident thereto, that the plaintiffs complain of, and whatever distinctions are sought to be made between a quarantine of the yards and a quarantine of certain chutes and pens only, the cattle were by the defendant unloaded into yards, which it had been ordered to quarantine, and where they had to be disinfected, and were damaged thereby,

It is urged that written notice of plaintiffs' claim was not given as required by the eighth clause of the shipping contract, and that such notice should have been given after unloading at destination when the cattle were discovered at the owner's ranch. The testimony shows that the cattle were unloaded at Waynoka on the 6th, and remain

Waynoka yards, still each had equal knowl-
edge and means of knowledge when the cat-
tle left Waynoka, so that a written notice
that the shippers would claim damages for
injuries already apparent could not have
been of any benefit or advantage to the de-
fendant company. Under such circumstances

the rule is well settled that written notice
is not required. Railway Co. v. Frogley, 75
Kan. 440, 89 Pac. 903; Darling v. Railway
Co., 76 Kan. 893, 901, 93 Pac. 612, 94 Pac.
202; Railway Co. v. Wright, 78 Kan. 94,
95 Pac. 1132; Cockrill v. Railway Co., 90
Kan. 650, 136 Pac. 322. But as to damages
subsequently developing as the result of such
dipping notice was required, unless waived,
so that the carrier could be advised that a
claim would be made for such damages, as
Giles
well as for those already apparent.
v. Railway Co., 92 Kan. 322, 140 Pac. 875.
The suggestion that the notice should have
been deferred until the cattle were discov-
ered at the ranch of the owner does not ac-
cord with the language of the clause in the
shipping contract under consideration.

[3] The defendant requested the court to submit to the jury eight special questions. The four submitted were answered to the effect that the cattle were held in the yards under the orders of the Bureau of Animal Industry, and sprayed and disinfected under government supervision; that the yards at Waynoka were under quarantine after 2

The judgment is reversed, and the cause remanded for further proceedings in accordance herewith.

JOHNSTON, C. J., and BURCH, MASON, PORTER, MARSHALL, and DAWSON, JJ., concurring.

o'clock November 6, 1913, which quarantine 141 Pac. 999; Adams v. Railway Co., 93 Kan. took effect November 3, 1913. Questions 5 475, 481, 144 Pac. 999. and 6 were whether the defendant was notified on November 6th that portions of the yards held infected cattle, and, if so, when such notice was served. It is argued that it was desired by these two questions to show, if possible, that the notice that the Kenna shipment was infected was not received until after the plaintiffs' cattle were unloaded. While not very material, and while it is conceded that the evidence on this point is somewhat convincing in favor of the defendant, it would have been proper to submit these interrogations, although their refusal cannot be held to be materially prejudicial. Question 8 asked the jury to state in what manner the eighth clause of the shipping contract was complied with. This question was so utterly improper in form and substance that the court could not do otherwise than refuse its submission. Question 7 was: "If you find the defendant negligent, then state in what respect or respects you consider the defendant negligent."

The plaintiffs had alleged two acts of negligence, the delay at Argentine and the unloading at Waynoka, and the court had with considerable care instructed as to each, charging that:

WEST, J. (dissenting). In my judgment the instruction given by the trial court concerning notice was in accord with the declarations of this court in Railway v. Frogley, 75 Kan. 440, 443, 89 Pac. 903, Darling v. Railway Co., 76 Kan. 893, 901, 93 Pac. 612, 94 Pac. 202, Railway Co. v. Wright, 78 Kan. 94, 96, 95 Pac. 1132, and Cockrill v. Railway Co., 90 Kan. 653, 136 Pac. 322, and correctly stated the law.

ADAMS v. ROBERSON et al. (STATE,
Intervener). (No. 19871.)
(Supreme Court of Kansas. Feb. 12, 1916.)
(Syllabus by the Court.)

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OF PROOF.

"They claim that these two items of negli-lating to the adjudication of claims to island The provision of the statute of 1913, regence form the basis of the damages they sus- school land, that a cause brought thereunder tained." shall stand for trial with the settler as plain

"Drawing your attention now to the first allegation of negligence, the delay at Argentine, if there was a delay. There is no evidence that the delay at Argentine injured these cattle in and of itself, but it becomes important in connection with another branch of this case.

*

** Now, if this delay in Argentine made it necessary for them to unload the cattle at Waynoka in order to comply with this rule, then it becomes important. In other words, if they had not delayed the shipment in Kansas City, might they have arrived at their destination within the 28 hours? So the delay in Kansas City becomes important in that regard; * and so, gentlemen, it becomes quite important for you to inquire, Did the delay in Kansas City make it necessary to unload the cattle at Way, noka? because, it being admitted that they did unload the stock into the Waynoka, yards, they were bound to furnish yards there reasonably

safe for the cattle."

*

Having given these instructions, and the jury having been thus plainly charged concerning the two claims of negligence on which the plaintiff's relied, it was not only proper, but a matter of right, that question 7 should have been submitted. To this effect have been the decisions for more than a -generation. Central Branch U. P. R. Co. v. Hotham, 22 Kan. *41; Johnson v. Husband, 22 Kan. *277; City of Wyandotte v. Gibson, 25 Kan. *236; Foster v. Turner, 31 Kan. 58, 1 Pac. 145; W. & W. Rld. Co. v. Fechheimer, 36 Kan. 45, 12 Pac. 362, and cases cited; A., T. & S. F. Rld. Co. v. Ayers, 56 Kan. 176, 42 Pac. 722; Barker v. Railway Co., 89 Kan. 573, 132 Pac. 156; Cole v. Railway Co., 92 Kan. 132, 139 Pac. 1177; Jones v. Interurban Railway Co., 92 Kan. 809, 813,

tiff and the protestant as defendant, and shall be fully tried and determined as other civil cases, implies that the burden of proof rests upon the

settler.

[Ed. Note. For other cases, see Public Lands, Cent. Dig. §§ 152-164, 166-169; Dec. Dig. 54.]

2. PUBLIC LANDS 54 ISLAND SCHOOL LANDS-LANDS OPEN TO SETTLEMENT.

Under the statute as it existed prior to 1915, the only tracts lying within the original banks of navigable rivers that were open to settlement as school land were such as had at one time constituted islands.

[Ed. Note.-For other cases, see Public Lands,
Cent. Dig. §§ 152-164, 166-169; Dec. Dig.
54.]

3. NAVIGABLE WATERS 44-ACCRETIONS-
ACQUISITION OF TITLE-RIPARIAN OWNER.
A riparian owner is not prevented from ac-
quiring title by accretion by the fact that the
addition to his land is influenced by artificial
causes, in which he has had no part.
Waters, Cent. Dig. §§ 266-278, 281, 282; Dec.
Dig. 44.]

[Ed. Note.-For other cases, see Navigable

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

determination against the settler, the judgment may include an order for his ejection from the premises.

[Ed. Note.-For other cases, see Public Lands, Cent. Dig. §§ 152-164, 166–169; Dec. Dig. 54.]

Appeal from District Court, Barton County. Action by S. E. Adams against E. K. Roberson and others, wherein the State intervened. From judgment for defendants, plaintiff appeals. Affirmed.

F. Dumont Smith, of Hutchinson, and S. H. Allen, of Topeka, for appellant. Osmond & Cole, of Great Bend, for appellees.

MASON, J. Samuel E. Adams settled up on a tract of land lying between the original banks of the Arkansas river, and filed a petition asking to be allowed to purchase it as

island school land. E. K. Roberson and W. B. Cornell filed protests, each claiming a portion of the tract as an accretion to patented land of which he was the owner, lying south of the river. The state, intervening by the county attorney, also claimed the title. The papers were certified to the district court in accordance with the statute. Laws 1913, c.

295, § 3. A trial resulted in a verdict and

judgment for Roberson and Cornell, and Adams appeals. The city of Great Bend was also a defendant; but as it has made no ap pearance here, and no error is urged with specific reference to it, no discussion of its relation to the case is thought necessary.

[1] 1. The appellant complains because the burden of proof was placed upon him. He argues that, as the title to the bed of the stream was originally in the state, it was incumbent upon Roberson and Cornell, in order to give themselves any standing, to show affirmatively that the tracts which they claimed were accretions. This might be true as between these parties and the state, but no one except Adams is complaining. The statute above cited declares that in the situation here presented the

"said cause shall regularly stand for trial with the settler as plaintiff and the protestant as defendant, and the state as intervener, and the issues of fact and of law, and all claims of the respective parties to such lands, shall be fully

tried and determined as other civil cases.'

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It was clearly the purpose of the Legislature, in designating the settler as the plaintiff, to cast upon him, as the instigator of the proceedings, the burden of proving facts necessary to his recovery-among others, that the land claimed was of such character as to be open to settlement. This was decided in Winters v. Myers, 92 Kan. 414, 140 Pac. 1033.

[2] 2. The plaintiff criticizes the instructions as ignoring the fact that the state owns the bed of the river, and in this connection cites the present act, making all abandoned beds of navigable streams school lands, and providing for their sale whether they were ever islands or not. Laws 1915, c. 322. The case was tried in 1914, and as the law then

that had constituted actual islands within twenty years prior to 1913. Laws 1913, c. 295, §§ 1, 9; Means v. Kennedy, 154 Pac. 245. Moreover, the jury were specifically told that the title to the bed of the river was in the state.

[3] 3. The theory presented by the plaintiff at the trial was that an island had formed in the river bed and grown until it had covered the site in question. The defendant undertook to combat this mainly by showing that there never had been an island at the point of settlement. This was the principal issue to which the evidence on direct and irreconcilable. each side was directed, and the conflict was structed in substance that the land belonged The court into the defendants, if it had been gradually added to riparian tracts owned by them, by accretion or reliction; and those processes made to the definitions. were clearly defined, no objections being In 1884 several

spans at the south end of a bridge across the ed in with earth and a dam was run out river above the land in controversy were fillfrom the bank a short distance upstream,

The made land was shown to be largely due to this work. The plaintiff asked an instructract in dispute was formed by the diversion tion that he was entitled to a verdict if the of the stream caused by the fill and dam. This request seems intended to present the contention that a riparian owner can acquire no title to land formed in the bed of a stream, if its formation is brought about by artificial causes, although he may have had no part in them. That view has sometimes been taken, but the weight of authority is to the contrary. 1 R. C. L. 233; 1 A. & E. Encycl. of L. 468; 1 Enc. L. & P. 805; 29 Cyc. 351; 1 Kinney on Irrigation and Water Rights (2d Ed.) § 538, page 928. We accept the majority doctrine, which we do not understand to be now controverted by the plaintiff; for, while a formal objection to the instruction referred to is made in the specification of errors, it has not been pressed in the argument.

for the protection of the road so formed.

[4] 4. The plaintiff does contend, however, that there was no evidence to sustain a finding that the defendants had acquired title by accretion or reliction, for the reason that it conclusively appeared from the evidence of both parties that the immediate effect of the fill and dam was to divert the channel of the river, so that what had previously been the bed of the stream, adjoining the tracts now owned by the defendants, became at once tillable land, the ownership of which was in the state; its emergence being due to the process of avulsion. It is true that most of the evidence is consistent with that theory, and much of it has at least an apparent tendency to support it. A number of the witnesses say that the immediate ef

channel of the river and carry it over to the fendants to be the owners of the lands in north bank. The context, however, seems to question, and ordered the plaintiff to be indicate that in some cases the word "chan- ejected therefrom. The plaintiff contends nel" was used as the equivalent of "current," that in any event the defendants were entiand that changes in the channel were spoken tled to no affirmative relief, and in particuof, without any intention of referring to an lar that the order of ejectment was unauthoractual change in the river bed. No instruc- ized, because the statute makes no provision tion was given specifically with regard to for it. As the case was submitted to the avulsion, and none was asked. But the jury jury, the verdict is fairly to be regarded as were told that, for the defendants to have including a finding that the land was formed acquired title by accretion or reliction, the by accretion to the south bank, and therefore change must have been gradual and imper- belongs to the defendants. The language of ceptible. We think the evidence justified a the act of 1913 already quoted-that "the issubmission to the jury of the question wheth- sues of fact and of law, and all claims of er title was so acquired, and a finding there- the respective parties to such lands, shall be on in favor of the defendants. The witness- fully tried and determined as in other civil es differed greatly, not only in recollection, cases"-indicates a purpose to have all conbut in expression. One of them, whose resi- troversies between the parties with respect dence dated back to 1878, said that since to the land threshed out and disposed of in that date there had been no channel, in the the proceeding there provided for. The statordinary stage of the river, east of the bridge ute in a sense protects a settler in entering (the bridge runs north and south); that the and occupying a portion of a tract which channel ran along about the center; that may in fact be the lawful property of anoththe first year there was no channel at all-er occupant; it creates a procedure by which no water, except during a freshet. Another the rights of all parties after such settlesaid that the tract washed in and filled up ment may be speedily litigated. The settleto the bank first; that "when this approachment is really the first step in a proceeding to the bridge was built it stopped the flow of the water materially; that is, it didn't flow so fast, and the water naturally would settle along the south bank of the river and fill it up"; that the land "was formed by the settling of muddy water after it passed the approach to the bridge; the water naturally flows slower east of that approach, and the sediment of the river would naturally settle there"; that "it settled along the south bank of the river, from the south bank out"; that "when there was any water in the river it was there" (referring to the south side of the river east of the bridge); that there was no channel on the south side separated from the main river (implying that there was as a part of the main river). Another testified that the water went clear to the old (south) bank; that the land was "filled up against the bank out into the river"; that the dam "threw all the current of the water to the north side." Another said that "the river

gradually filled in on the south side and floated away from them" (the defendants' lands). A witness for the plaintiff testified that the dam drove the stream towards the north, and afterwards the south channel became filled up. When asked whether the Adams tract grew up in the bed of the river, or from the south bank, he answered that it grew from the south side. The plaintiff's present theory does not square with evidence given in his behalf that after the dam was built there was a stream 40 feet wide between the south bank and the alleged island on which settlement was made, and that the island grew to the south bank.

to determine the character of the land, and for that reason is given qualified protection. An adjudication that the land is not open to settlement determines that the plaintiff has no right of possession, and it would be out of harmony with the spirit of the law to allow him to retain it until another judgment should be obtained against him in some other form of action.

The judgment is affirmed. All the Justices concurring.

LINDERHOLM v. KANSAS CONFERENCE
OF THE SWEDISH EVANGELICAL
LUTHERAN AUGUSTANA SYNOD IN
NORTH AMERICA. (No. 19880.)*
(Supreme Court of Kansas.

Feb. 12, 1916.)

(Syllabus by the Court.) RELIGIOUS SOCIETIES

31-EXCOMMUNICATION OF MEMBER-ACTION FOR DAMAGESDEMURRER TO EVIDENCE.

church council of Bethany Lutheran Church at The plaintiff was excommunicated by the Lindsborg, an unincorporated religious society of which he was a member. The by-laws of the church provided for an appeal to the conChurches. The by-laws also contained the folference, a voluntary association of Lutheran lowing provision: "The decision of the conference in the matter shall in all events be final." The plaintiff appealed to the conference, which ratified the action of the council. The plaintiff filed a motion for a new trial. The conference decided that the document could lead to no further consideration of the cause. The plaintiff sued the conference for damages for not hearing the motion for a new trial. A demurrer was sustained to his evidence. Held, the demurrer was properly sustained because the plaintiff failed to show any church rule, custom, or usage requiring the conference to consider a motion for [5] 5. The judgment not only denied the a new trial, the conference was not bound by the plaintiff's claim, but also declared the de-common-law rules of civil procedure, and the by

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

*Rehearing denied March 17, 1916.

law quoted forbids further action by the confer- | ence after it has decided an appeal.

[Ed. Note.-For other cases, see Religious Societies, Cent. Dig. 88 199-207; Dec. Dig. 31.]

Appeal from District Court, McPherson County.

Action by Justus B. Linderholm against the Kansas Conference of the Swedish Evangelical Lutheran Augustana Synod in North America. From judgment for defendant, plaintiff appeals. Affirmed.

John F. Hanson, of Lindsborg, for appellant. Grattan & Grattan, of McPherson, for appellee.

BURCH, J. The action is one for damages for the refusal of a church conference to hear a motion for a new trial. A demurrer was sustained to the plaintiff's evidence, and he appeals.

Linderholm was a member of the congregation of Bethany Lutheran Church, an unincorporated religious society at Lindsborg. The by-laws of the church contained the following provisions:

"Should the warning be without any effect as to the one called, the church council shall suspend or excommunicate according to the word of God. The person excommunicated loses then all his rights to any part in the congregation's real or personal property. If the member is not satisfied with the church council's decision concerning himself, he may appeal to the conference on the condition that he, within a week, gives notice to the church council after he has received notice of the decision, and states his reason and grounds for his appeal. The decision of the conference in the matter shall in all events be final."

Charges were preferred against Linderholm and he was excommunicated. He appealed to the conference, a voluntary association of Lutheran Churches. The conference sustained the action of the church, as appears by the following transcript of its proceedings.

"Conference Minutes 1904. Mr. J. B. Linderholm had appealed to the conference from the decision of the church council of Bethany congregation at Lindsborg.

"The conference elected a committee to take this appeal into consideration and to go through the documents and as a result thereof to lay resolutions before the conference. As members of this committee were elected Rev. S. E. Glad, and C. A. Henry and Mr. Gust Burk.

"At the sixth session this committee rendered the following report:

again have attempted to bring about a reconciliation with him.

"(d) The committee moves, that the action of the church council be ratified. "The Committee. "The report was accepted by the conference." The plaintiff, through his attorney, John which the conference disposed of in the folF. Hanson, filed a motion for a new trial lowing manner:

"Decided that whereas, the conference already decided this matter or case these writings cannot be given or lead to any further consideration on the part of the conference."

This action of the conference is the foundation of the plaintiff's claim for damages, the specific allegation of the petition being:

"That plaintiff by the refusal of said conference to sit and hear said motion for new trial as aforesaid has been damaged in the sum of $5,000."

The record of the proceedings in the district court contains no statement by the court respecting the defect or defects in the plaintiff's proof, and failure to establish any material allegation of the petition is fatal to recovery. Conceding, but not deciding, that damages might have been awarded for a departure from orderly church procedure, there is no proof that the conference was guilty of such conduct.

Church sprung from the Swedish Lutheran There was evidence that the Lindsborg Church in Sweden, that "there is a tendency to follow that and get precedents from that when it can reasonably be adopted," but that trial procedure depends in this country on custom and usage, and it is customary to proceed in some reasonable way. What the usages and customs of the Lutheran Church in this country or in any other country may formerly have been or may now be, respecting new trials by conferences after decisions of appeals from church councils, was not shown.

The plaintiff offered in evidence a provision of the church law of Sweden which states that "in other matters of practice the cause shall proceed on appeal the same as in the secular courts." The offer was rejected, but the evidence will be treated as if it had been admitted. referred to are the courts of Sweden. There The secular courts was no proof or offer of proof that new trials and it is impossible to declare or to infer are a part of the procedure in those courts, that the provision offered in evidence related in any way to the subject of new trial. Beyond this, the testimony went no further than that there is a "tendency" to follow Swedish precedents. How far this tendency prevails, and how far it has been superseded by modern American customs, does not appear, and, so far as the proof discloses, a new trial after a conference decision on appeal may be quite contrary to such customs. "(c) That in his appeal he admits his irresponThe attorney for the plaintiff, testifying, sibility for coarseness and peculiarities' with not as an expert in church law and custom,

"The committee elected to consider the appeal sent to the conference by J. B. Linderholm, reports as follows:

"(a) It appears that said Linderholm has on account of unkind judgments and threats been refused admittance to the Lord's Supper, and that after continued obstinacy and unbecoming conduct during divine service has been excommunicated by the church council;

"(b) That although Linderholm has in writing bound himself to desist from strife he nevertheless has continued as before in publications, in word and action;

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