as to others who are also within its provisions. The object of the law is to promote the safety of persons and property and to protect the people of the state from imposition and fraud. Authority to enact the law is derived from the police power of the state, reserved to it from the grant of powers to the federal government. As an incident of the police power, the state may reimburse itself for the cost of inspection by charging the necessary expense upon the business or commodity creating the necessity for inspection. When, however, adequate remuneration has been secured, the police power is exhausted. Of course, the books need not precisely balance. It is not possible to determine in advance exactly what sums may be realized from the administration of an inspection law, and there is no objection that some revenue above the cost of inspection may result. Such revenue, however, must be purely incidental to the practical operation of the law, and, whenever revenue and not recompense becomes the palpable and unmistakable object, the law fails as an inspection law. The law is challenged as in contravention of certain provisions of the Constitution of the United States. It is not necessary to discuss the very interesting questions thus raised. Certain features of the law are challenged as useless, inefficacious, and absurd. The court prefers to leave the determination of these questions to the next Legislature. The inspection fees paid by various defendants under protest should be returned to them. The provisions of the law were such as to coerce inspection and, as a consequence, the payment of inspection fees. The statute did not provide for the payment of a reasonable inspection fee, and no officer of the state had authority to accept less than the statutory fee if tendered. There being no valid law for the collection of any sum as an inspection fee, the state has no right to retain the funds indicated. The peremptory writ is denied, and the custodian of the sums referred to as paid under protest is directed to return them to the proper parties. All the Justices concurring. COLLINS v. MORRIS. (No. 19920.)* (Supreme Court of Kansas. Feb. 12, 1916.) (Syllabus by the Court.) The court finds as a fact that the fee of 10 cents per barrel chargeable for the inspection of kerosene, gasoline, benzine, and other petroleum products under section 8 of chapter 200 of the Laws of 1913, is clearly and 1. NEW TRIAL 124-MOTION-Purpose. grossly in excess of the amount reasonably necessary to effectuate the lawful purposes of the act; that at the time of its enactment, and ever since that time, the law was, and has been, depended on by the executive and legislative departments of the state government as a revenue measure to bring to the state treasury large sums of money in known excess of the cost of administering the law as an inspection law; that the Legislature of 1915, although cognizant of the facts and although of the opinion that 3 cents per barrel was an adequate inspection fee, failed to change the law; and that the fee is charged and collected for revenue purposes, and not merely to defray the cost of inspection. The conclusion of law is that the portion of section 8, fixing the fee at 10 cents per barrel, as an inspection fee, is void; that section 1 of article 11 of the Constitution, requiring a uniform and equal rate of assessment and taxation, forbids collection of the fee as a property tax; and that no other provision of law authorizes collection of the fee. The purpose of a motion for a new trial is to inform the trial court what errors are relied upon in order that the court may, by granting a new trial, correct any error shown to exist. Cent. Dig. §§ 250-253; Dec. Dig. 124.] [Ed. Note.-For other cases, see New Trial, 2. APPEAL AND ERROR 169-PRESENTATION BELOW-REVIEW. "Only such matters as were considered by the trial court are open to review in the Supreme Court." Brock v. Corbin, 94 Kan. 542, 146 Pac. 1150. While the Legislature probably would not pass an inspection act without providing for the collection of an inspection fee, the action of the Legislature of 1915 clearly demonstrates that the present law would be continued in force without the provision for an inspection fee of 10 cents. Consequently no occasion exists for declining to execute any provision of the law except the one held to be void and those subsidiary provisions which depend upon it. [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. 88 1018-1034; Dec. Dig. 169.] 3. APPEAL AND ERROR 302-PRESENTATION BELOW - ADMISSION OF EVIDENCE-MOTION FOR NEW TRIAL. Following Washbon v. Bank, 86 Kan. 468, 121 Pac. 515, it is held, where no complaint of the admission of evidence over plaintiff's objection was made in the motion for a new trial, the question cannot be raised in this court. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. 88 1744-1752; Dec. Dig. m 302.] 4. TRESPASS 55-INJURIES TO PROPERTYDEFENSE-EXTENT OF LIABILITY. "It is not for the wrongdoer who causes an injury to decide whether an owner should have used his land for a particular purpose nor the use to which it can most profitably be employed." Barker v. Railway Co., 94 Kan. 61, 65, 145 Pac. 829. [Ed. Note.-For other cases, see Trespass, Cent. Dig. § 143; Dec. Dig. 55.] 5. TRESPASS 45 INJURIES TO STANDING TREES TREBLE DAMAGES EVIDENCE. In an action under section 9692 of the General Statutes of 1909 by a landowner to recover treble damages for the destruction of trees, where plaintiff has elected to recover the distinct value of the trees, which the evidence shows can For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes be determined independent of the land, and has offered no evidence of the value of the land before and after the trees were destroyed, it is error to admit over plaintiff's objections proof that the land would sell for as much or more for farming purposes without the trees as with them. REVIEW [Ed. Note.-For other cases, see Trespass, Cent. Dig. §§ 116-122; Dec. Dig. 45.] 6. APPEAL AND ERROR 1003 EVIDENCE-REVERSAL. While it is not the province of this court to weigh the evidence, it may determine that there is or is not sufficient evidence to support the verdict; and in this case the court determines the verdict is contrary to the evidence, and therefore the judgment is reversed. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3938-3943; Dec. Dig. 1003.] 7. MEASURE OF DAMAGES. Certain expressions in the opinion in the case of Railway Co. v. Lycan, 57 Kan. 635, 47 Pac. 526, are held to be obiter and are disapproved. Appeal from District Court, Miami County. Action by J. C. Collins against John Morris. From judgment for defendant, plaintiff appeals. Reversed, and new trial ordered. E. J. Sheldon and S. J. Shively, both of Paola, for appellant. Lane & Lane, of Paola, for appellee. PORTER, J. This is an action to recover treble damages for the malicious destruction of trees. Plaintiff and defendant own adjoining farms, and the trees destroyed were six shade trees which plaintiff alleges were growing on his land near the partition fence. There was a verdict and judgment in favor of defendant, from which the plaintiff appeals. The specifications of error in plaintiff's brief are: First, the admission of incompetent and immaterial testimony over his objections; second, the rejection of competent testimony offered by the plaintiff; third, overruling the motion for a new trial; fourth, rendering a verdict for defendant; fifth, ordering a judgment for defendant. The case was submitted to a jury on evidence and instructions, and no judgment was ordered, so the fifth assignment need not be considered. At the outset we are confronted with the objection which defendant makes to any consideration of the first and second specifications, which relate to the admission of evidence, because they are raised for the first time in this court. As the principal questions argued in plaintiff's brief relate to the rulings of the court admitting certain testimony offered by the defendant it will be necessary to consider the grounds of the motion for a new trial, which is set out in defendant's brief. The grounds are stated as follows: "Now comes the plaintiff and moves the court for a new trial of the issues at law and fact in the above-entitled case, for the reason that the verdict is contrary to the evidence, and for the further reason that the verdict is contrary to law as given under the influence of passion and prejudice, and not a fair consideration of the evidence, and for the further reason that the plaintiff did not have a fair trial." Nowhere is there any reference to rulings of the court on the admission of testimony. A new trial was asked: First, because the verdict is contrary to the evidence; second, because it is contrary to law as "given under the influence of passion and prejudice, and not a fair consideration of the evidence"; and, third, because the plaintiff did not have a fair trial. The amended Code (section 305, Gen. St. 1909, § 5899) provides that a new trial may be granted on the application of the party aggrieved when it appears that his rights are "substantially affected: "First, because of abuse of discretion of the court, misconduct of the jury or party, or accident or surprise which ordinary prudence could not have guarded against, or for any other cause whereby the party was not afforded a reasonable opportunity to present his evidence and be heard on the merits of the case. "Second, erroneous rulings or instructions of the court. given under the influence of passion or preju"Third, that the verdict, report or decision was dice. "Fourth, that the verdict, report or decision is in whole or in part contrary to the evidence. "Fifth, for newly discovered evidence material for the party applying, which he could not, with reasonable diligence, have discovered and produced at the trial. procured by the corruption of the party obtain"Sixth, that the verdict, report or decision was ing it." The third reason stated in the motion, "that the plaintiff did not have a fair trial," is not a statutory ground, unless it be made to appear that he was prevented from having a fair trial by one of the six grounds set forth in the statute. [1] There is nothing in the motion challenging the attention of the trial court to the principal claim now raised in this court, that incompetent or immaterial testimony in favor of defendant was admitted over the plaintiff's objections. The purpose of a motion for a new trial is to inform the trial court what errors are relied upon in order that the court may, by granting a new trial, correct any error shown to exist. It would not be fair to the other litigant, nor fair to the trial court, nor to this court, if a defeated litigant were permitted to secure the reversal of a judgment on grounds not presented to the court below. If there be reversible error in a verdict or judgment, the interests of justice and of both parties as well as of the public are best served by the granting of a new trial at once, rather than after the delay and costs incident to an appeal. It is precisely for the same reasons that the amended Code (section 307; Gen. St. 1909, § 5901) requires that, where the exclusion of evidence is relied upon, the excluded evidence must be produced before the For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes . trial court so the trial judge may pass upon that some of them were worth as much as it and determine whether a new trial should be granted. Thompson v. Thompson, 94 Kan. 168, 171, 146 Pac. 344; Broady v. Fire Association, 94 Kan. 245, 146 Pac. 343. [2] "Only such matters as were considered by the trial court are open to review in the Supreme Court." Brock v. Corbin, 94 Kan. 542, 146 Pac. 1150 (syl. 4). [3] In a recent case, Washbon v. Bank, 86 Kan. 468, 121 Pac. 515, it was ruled as follows: "Certain evidence was admitted over the objection of plaintiffs. No complaint of the ruling was made in the motion for a new trial. Held; that the question cannot be raised in this court." Syl. 1. The errors of which the plaintiff now complains respecting the admission of testimony would have been sufficiently set forth if in his motion for a new trial he had merely alleged "erroneous rulings" in the language of the second ground provided in the statute. "In a motion for a new trial it is sufficient to set forth the grounds in the language of the statute, and, where such a motion recites 'erroneous rulings' as one of its grounds, appellant can have a review of any ruling made on the trial respecting the admission of evidence." Coal Co. v. Nicholson, 93 Kan. 638, 145 Pac. 571 (syl. 2). $20 each. It can be said, therefore, that there was no dispute in the evidence that the trees possessed a value as shade trees. The testimony of the defendant himself shows that he destroyed the trees purposely and maliciously. It is true on the trial defendant made some effort to show that a few of the trees destroyed stood on the line between the two farms, that the fence was not the true line, and therefore he owned a portion of these particular trees and had the right to burn them; but this was clearly an afterthought, and, if his contention respecting the line were true, and if it were conceded that because he owned a portion of one or two of the trees he could destroy them, it furnished no defense to his act in burning the others. Besides, his own testimony is an admission that he burned the trees purposely and maliciously because he became angry at the plaintiff for claiming that he was farming land that did not belong to him. On cross-examination he testified as follows: "Q. You set fire to the tree? A. Yes; I did. Q. What did you do that for? You intended to burn the tree? A. Mr. Collins write for mehe wanted to rent my-he said I farmed 20 feet of the public highway; that is where the trouble came there." The failure to raise the question below is unfortunate; for the court is satisfied there! [5, 6] While it is not the province of this was prejudicial error in the admission of court to weigh the evidence, it may detercertain testimony respecting the measure of mine that there is or is not sufficient evidamages. This, however, furnishes some rea- dence to support the verdict. Glenn v. Railson for what might under ordinary circum- road Co., 94 Kan. 83, 145 Pac. 865. In this stances be regarded as a rather technical case the verdict cannot, in our opinion, be consideration of the other errors assigned. sustained by the fact that there was eviWe find nothing to indicate that the verdict dence from which the jury might have found was given under the influence of passion or that some of the trees destroyed were on the prejudice. The court, over the objections of division line, and therefore the defendant plaintiff, permitted the defendant to prove owned an interest in some of them. Beby a number of witnesses that the destruc- cause of his own admissions the verdict tion of the shade trees caused no damage should have been set aside. As a new trial or injury to the real estate. These witnesses must be ordered, it is proper to say that were permitted to testify that, in their opin- the objections to evidence showing the value ion, the land was just as valuable for farm- of plaintiff's land immediately before and ing purposes without as with the shade after the trees were destroyed should have trees, and one or two of defendant's witness- been sustained. The plaintiff seeks to recov es thought the destruction of the trees bene-er as damages treble the value of the trees fited the land and made it even more valua- as appurtenant to the land under the proble than before. The court having admitted visions of the statute. Gen. Stat. 1909, § the incompetent evidence, it was the duty 9692. of the jury to consider it; and the fact that they found for the defendant indicates that they did so because of this evidence, rather than that they were influenced by prejudice or passion. There remains only the first ground stated in the motion, that the verdict is contrary to the evidence. The plaintiff's testimony showed that the shade trees were valuable. A few of them were oak, and others elm. The plaintiff testified that he had planted them when he first acquired title to the land in the late 70's and early 80's. Some of the witnesses for defendant admitted that the trees had a value of at least $5 each, and [4, 7] In Railway Co. v. Lycan, 57 Kan. 635, 47 Pac. 526, it was held that, where trees are destroyed, and they had a distinct value susceptible of distinct measurement, the value of the trees or things destroyed is the best measure and the most satisfactory method of determining the value of the loss. This doctrine was reaffirmed in Barker v. Railway Co., 94 Kan. 61, 65, 145 Pac. 829, where it was said in the opinion: "It is not for the wrongdoer who causes an injury to decide whether an owner should have used his land for a particular purpose nor the use to which it can most profitably be employed. He is liable to pay for the loss of the property appurtenant to real estate which is actually of the land, such as buildings and trees, and the evidence indicates that there was no difficulty in determining the value of the trees destroyed and the extent of the loss sustained." 94 Kan. 66, 145 Pac. 831. In the opinion in the Lycan Case, supra, Mr. Justice Allen, speaking for the court, after recognizing that the best measure of the damage is the value of the thing destroyed as an appurtenant to or part of the realty, used this language: other property right. Sentiment and utility combine to give it value.". To the same effect see Remington v. Walthall, 82 Kan. 234, 108 Pac. 112, 31 L. R. A. (N. S.) 957. The correct rule for the measurement of damages to trees as trees is recognized in Barker v. Railway Co., supra, 94 Kan. 61, 145 Pac. 829, holding that, where fruit trees which have a distinct value as part of the "If for any reason the injury to the realty land are destroyed by the negligent act of should be in fact less than the value of the thing another, and their value and the damages destroyed, the plaintiff's recovery would be lim- can be definitely measured, and the court ited to the actual diminution in value of the applies that rule, the defendant cannot comrealty," which, he adds, "might be shown, either on cross-examination of the plaintiff's wit-plain that the court failed to apply the rule nesses or as a matter of defense." Railway Co. v. Lycan, 57 Kan. 635, 642, 47 Pac. 526, 528. as to the difference in the value of the land before and after the destruction. In that case, too, the court expressly held that the owner of the trees may recover their value as damages without regard to whether the land could have been used more profitably without them. "The owner is entitled to plant an orchard on his land, whether or not it is the most profitable use to which it can be applied, and, if the fruit trees are destroyed, he is entitled to claim damages from the wrongdoer for being deprived of such use and of the value of the trees." Barker v. Railway Co., supra (syl. 2). The language just quoted from the opinion was not necessary to the decision of that case. It was obiter. Applied to a certain class of cases where the plaintiff sues to recover the damages to the land itself, it may and doubtless would apply; but where, as in this case, the plaintiff has elected, as he undoubtedly may, to recover for the value of the specific thing destroyed, and has offered no proof tending to show that he seeks to recover damages to the realty alone, and, on the other hand, has offered evidence to show The before and after value of the land upthe distinct value of the thing destroyed, it on which a trespass has been committed is would be absurd to say that the wrongdoer, sometimes a proper measure of the damages who has committed a willful act in destroysustained. In other cases where the thing ing shade trees or trees in an orchard, may destroyed is fruit or shade trees the plaintiff escape all liability for his wrongdoing by in an action under the statute has the right proof that the land would sell for as much to elect to sue for three times their value or more for farming purposes without the trees as with them. Is it conceivable that because there are residence lots in some places upon which there are more shade trees growing than 99 persons in 100 would care to have if they owned the premises, that fact, if conceded, would justify another in committing a trespass and cutting down some of the trees? A farmer leaves a magnificent elm or oak standing in a field. Its shade and roots injure a quarter of an acre or more of the soil for farming purposes. by uprooting the tree the owner may add to the strictly commercial value of the field for purposes of raising corn or wheat. But, when the field becomes a meadow or pasture, the tree has a practical value; it furnishes shade for cattle, and, aside from its utility, it may have to the owner of the soil a value difficult to estimate in dollars and cents. It may be a tree which "perhaps has been as trees, and the wrongdoer cannot defeat his right to recover by showing that the land was of the same or greater value after the destruction of the trees. We conclude that the evidence as to the value of the land before and after the destruction of the trees should not have been admitted. The judgment, however, cannot be reversed on that ground, because it is raised for the first time in this court. For the reason that the judgment is manifestly contrary to the evidence, it will be reversed, and a new trial ordered. All the Justices concurring. BOARD OF COM'RS OF JEFFERSON (Supreme Court of Kansas. Feb. 12, 1916.) A drainage district organized under chapter 215 of the Laws of 1905 is a "public corporation" created by the Legislature to perform pubstatute is any duty imposed upon the drainage lic functions. Neither by common law nor by district to build or maintain bridges where its ditches cross a public highway, and therefore the board of county commissioners cannot main For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes Kan.) HASELTINE v. NUSS see Bridges, [Ed. Note.-For other cases, Cent. Dig. §§ 17-19; Dec. Dig. 9; Drains, Cent. Dig. 4; Dec. Dig. 13.] Appeal from District County. tain an action against the district to recover the district, like the county, is a quasi public Action by the Board of County Commissioners of Jefferson County against the Delaware River Drainage District of Jefferson County. From a judgment for defendant, plaintiff appeals. Affirmed. H. T. Phinney, of Oskaloosa, and Waggener, Challiss & Crane, of Atchison, for appellant. S. D. Bishop, of Lawrence, for appellee. In draining the swamps and lowlands of the district, the drainage board performs a public service and promotes the public health and welfare. Section 35 of chapter 215 of the Laws of 1905 declares the purpose of the act to be "to encourage the improvement of natural watercourses, to protect lands from damage and injury by overflow, and promote the public health, convenience, and welfare." PORTER, J. In 1905 the Delaware River drainage district was duly organized in Jefferson county under the provisions of chapter 215 of the Laws of 1905. Thereafter the corporation proceeded to establish a system The drainage district was incorporated as for the drainage of lands included in the district, and it became necessary to cut ditch- "a body politic and corporate," to which was es across certain public highways. At three granted the "exclusive control of the beds, of these places the county board some years channels, banks and of all lands the title to later was obliged to erect bridges, and after- which is vested in the state of Kansas lying ward brought this action to recover from the between the banks at high-water mark of all drainage district the cost and expense there-natural water courses within such district." of, aggregating over $12,000. The court sustained a demurrer to the petition and rendered judgment in defendant's favor for costs. The plaintiff appeals. Section 7. The fact that the construction of the drains and ditches was intended to, and does, improve and render more valuable the lands of private individuals who alone are charged with the cost of the improvement, makes the corporation none the less a quasi public one. Nor does that fact in any sense relieve the county from its duty to maintain and keep the public highways in fit condition for travel. In the act authorizing the creation of the drainage district, the Legislature made no provision for the payment by the district of the expense of erecting these bridges. No authority is given the district to levy a tax or assessment upon the lands benefited by the drainage system to pay for bridges, at least for those erected after the cost and expense of the system of drainage had been once ascertained and assessed. The only question for determination is whether the county can recover from the drainage district. The plaintiff relies largely upon the principle which controlled the decision in State v. Irrigation Co., 63 Kan. 394, 65 Pac. 681. That was a case where a private corporation constructed an irrigation canal for its own purposes. At a place where the canal crossed a public highway it became The statnecessary to construct a bridge. ute under which the irrigation company constructed the ditch expressly made it the duty of the proprietors of any such irrigation canal to build all necessary bridges and viaducts for the use of the public in crossing. Laws of 1891, c. 133, § 31. It was therefore held to be the duty of the corporation to erect the bridge. And it was held, also, that this duty rested upon the irrigation company independent of the statute, upon the same principle which compels a railway company, where its railroad intersects a public highway, to restore the highway to its former condition of usefulness, and, if necessary to accomplish that end, to erect and maintain bridges. It is well established that this liability is imposed upon a private corporation State v. Irrigation Co., suby common law. But pra, and cases cited in the opinion. that principle has no application to a case where the construction of ditches or embankments by a public corporation makes it necessary to improve a highway. The drainage Dig. The judgment sustaining the demurrer will be affirmed. All the Justices concurring. HASELTINE v. NUSS et al. (No. 19889.* (Supreme Court of Kansas. Feb. 12, 1916.) (Syllabus by the Court.) TION OF STREETS-REVERSION OF LAND. 1. MUNICIPAL CORPORATIONS 663–VacaThe statutory rule followed that, on the vacation of a street, the land "so vacated reverts to the owners of the lots adjacent or abutting or land." thereto according to the frontage of said lots [Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. §§ 1438-1440; Dec. 663.] For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes *Rehearing denied March 17, 1916. |