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5. Assignments of error held not well founded. [3] Complaint is made that the court 'sup

Various assignments of error considered, plemented the examination by the county atand held not to be well founded.

torney by a number of questions to various Harvey, J., dissenting.

witnesses, and that such examination, con

sidered with other alleged indiscretions, so Appeal from District Court, Rawlins Coun- prejudiced the defendant's rights as to enty; Willard Simmons, Judge,

title him to a new trial. It is not beyond Ralph Urban was convicted of grand lar- the province of the trial judge to propound ceny, and he appeals. Affirmed.

such questions to witnesses as may be necJ. P. Noble, of Oberlin, and C. A. P. Fal-essary to elicit pertinent facts, in order that

the truth may be established. In fact, he coner, of Atwood, for appellant.

Charles B. Griffith, Atty. Gen., and Earl E. should not sit still and see justice defeated Howard, Co. Atty., of Atwood, for the State. through failure to ask pertinent questions.

See 28 R. C. L. 587; 16 C. J. 831, and cases

cited by both authorities. We are unable HOPKINS, J. The defendant, who was

to say that defendant's rights were prejucharged with having stolen some barness,

diced by the questions propounded by the was convicted of grand larceny, and appeals.

trial court. [1] The defendant first contends that the

[4] Error is predicated on the giving of a court erred in permitting the state to indorse

special instruction after several hours' deadditional names on the information after

liberation by the jury. The case was given the case was called for trial. He was ar

to the jury about noon. At 8 o'clock in the rested in November, 1923. The case was tried the latter part of March, 1924. He evening, at the request of the jury, they

were returned into court and asked the court claims that some of the witnesses, whose

two questions: (1) "Have we a right to recnames were indorsed after the case

(2) "Have we a right called for trial, were the most important

ommend a parole?"

In answer thereto produced by the state; that the county at- to recommend mercy ?” torney knew the importance of their testi. the court told the jury: mony, and should have earlier indorsed their

* That, as to the matter of mercy names on the information. It is a matter

or clemency, you have nothing to do, resting in the sound discretion of the trial and the only question for you to decide and decourt whether or not the names of witnesses termine is the guilt or innocence of the demay be indorsed during a trial or after a fendant.

As to the penalty, you have case is called for trial. Continuances are nothing to do, and such question should not in sometimes caused, at no small cost, by fail. any way influence you in arriving at a verdict. ure of the state to indorse the names of wit- this is a matter wholly for the court or judge

As to the matter of parole from any sentence, nesses on the information, where the defend- to decide, and of that you have nothing to do. ant is not prepared to meet their testimony, * While the court does not pass on any and for that reason is entitled to a continu- such question until the time com s, personally, ance. In the instant case, however, no con- I believe any court would value the recomtinuance was requested; nor does the defend- mendation or suggestion of the jury more than ant appear to have been prejudiced by the the ordinary citizen or business man, but the action of the court in permitting the names doing your duty under your oath in returning

court will say that you have the right, after to be so indorsed. Under the circumstances, a verdict, to make such recommendations or we cannot say that the trial court abused its request as your good, honest judgment dicdiscretion, or that the substantial rights of tates." the defendant were prejudiced. See State V. Logue, 115 Kan. 391, 223 P. 482, and cases After a further deliberation of two hours, cited; State v. Buckle, 116 Kan. 51, 225 P. the jury found the defendant guilty and 1035.

"recommended a parole.” It is strongly con[2] The defendant complains of the ad-tended by the defendant that the language, mission of the harness in evidence. It was “That after doing your duty under your oath shown to belong to C. E. Koonts, while the in returning a verdict," etc., was, in effect, information laid the ownership in W. 0. an instruction to find the defendant guilty. Koontz. The evidence, however, disclosed We do not so construe the instruction, and that W. 0. Koontz was the son of C. E. do not believe the jury were misled by the Koonts; that the son leased a farm, farm language. The jury undoubtedly believed machinery, and other chattels from the fa- that the court meant that they had a right, ther, and had a right to the exclusive use, after doing their duty in returning their possession, and control of the harness in verdict, if they found the defendant guilty, question. Who had the legal title to it was to recommend a parole. While the language of no concern to the defendant. State v. was not clear, and we cannot put our stamp Bartholomew, 116 Kan. 590, 227 P. 366, and of approval upon it, we cannot regard it as cases cited. See, also, Davis v. Sim, 100 prejudicial to the rights of the defendant, Kan, 66, 163 P. 622.

and, unless it did affect his substantial





(230 P.) rights, there should be no reversal. R. S. , land was not so used for over half a century, 62–1718.

and where by accretion the strip of land so [5] Error is claimed in the giving of cer- dedicated had increased in acreage to many tain instructions and the refusal to give oth-times its original extent, but remained for We have examined the record, and con

many years in disuse, subject to overflow by

recurring floods, and a seedbed for noxious clude that the requested instructions were

weeds and a breeding ground for malaria, at properly refused, and that the instructions the threshold of a large and rapidly growing given fairly covered the issues in the case. city, it is held that it was not beyond the disOther objections raised have been considered, I cretionary powers of the city government to but we find nothing which would warrant a lease the property and grant a license for its reversal.

use to a private corporation for a term of The judgment is affirmed.

years for a consideration of money rent, and upon condition that the lessee or licensen

should construct certain desirable improveJOHNSTON, C. J., and BURCH, MASON, MARSHALL, DAWSON, and HOPKINS, JJ., tect it from floods and to make it sightly, sani.

the property designed pro. concurring.

tary, and consistently useful with its original

purpose as a public levee, and tending to proHARVEY, J. (dissenting). There is no mote such use, and where the contract stipureason why the court should not tell the lates that no use shall be made of the property jury the law in respect to the punishment, at variance with nor prejudicial to its actual or and that is that the jury has nothing to do potential use as a public levee. with the punishment. Their function is to

Appeal from District Court, Wyandotte decide the question of the guilt or innocence of the defendant, and the question of the County; E. L. Fischer, Judge extent of the punishment that will be im

Action by the City of Kansas City against posed, in the event they find him guilty, the Board of Commissioners of Wyandotte should not be taken into consideration by County, and the Woods Bros. Corporation. them. This instruction might properly be From a judgment for plaintiff, the defendant embodied in the instructions given to the last named appeals. Affirmed. jury in the first instance, as some of the Guy E. Stanley, of Kansas City, Mo., for trial courts habitually do in criminal cases. appellant. Under our law, the punishment for most of H. J. Smith, City Atty., of Kansas City, fenses is an indeterminate sentence; hence Kan., for appellee. the trial court has nothing to do with the extent of the punishment. It is true that DAWSON, J. This was an amicable acfor some offenses the court is authorized to tion to obtain a declaratory judgment on the issue a parole, but the question of whether a validity of a contract, by which the city of parole should be issued is one that should Kansas City leased a certain tract of land to never be taken into consideration either by Woods Bros. Corporation for a term of the court or by the jury in determining the years.

The land involved consists of what guilt or innocence of the defendant. The once was a narrow strip of platted ground in real test is: Would this instruction have the original town site of Wyandotte, now been prejudicially erroneous, if given as one

Kansas City, on the right bank of the Misof the instructions in the first instance? I souri river, north of the mouth of the Kansas think no one will contend that it would not river. The original dedicators of the town have been error.

Why is it not error, then, of Wyandotte set aside this strip of ground if given at a time, in the deliberations of in 1857 for a public levee. At that early the jury, when the question of punishment time and for some years following, there was is the only thing preventing a verdict ?

considerable navigation on the Missouri river, and the levee was or might have been of some potential public service incidental thereto. With the coming of railroads, however, river navigation declined, and the strip

of land in question was left in idleness and KANSAS CITY V. BOARD OF COM'RS OF neglect. For over balf a century it has been WYANDOTTE COUNTY et al. (No. 25871.) of no practical service as a public levee. By (Supreme Court of Kansas.

accretion of silt and slow recession of the Nov. 18, 1924.)

Missouri river, the original, narrow strip (Syllabus by the Court.)

along the river bank dedicated as a public Municipal corporations 719(4)-City may

levee in 1857 has grown until there are now lease disused public levee on condition lessee about 111 acres in the tract. Some shanties make it sightly, sanitary, and useful for have encroached thereon; some small indusoriginal purpose.

tries have been conducted there on sufferWhere { strip of land on the bank of a

ance; but for the most part the platted navigable scream was included in a town site levee and its accretions have been put to no and platted and dedicated as a public levee, but use. Surrounded by the industry and bustle through want of river navigation such strip of of a great and growing city, it has remained

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

in idleness and unsightliness, subject to occa- , variance with the purpose for which it was sional overflow, a seedbed for noxious weeds, dedicated. County of Franklin v. Lathrop,

9 and a breeding ground for malaria and kin- Kan. 453; Leavenworth County v. Brewer, 9 dred diseases. South of the platted strip of Kan. 309; State ex rel. v. City of Manbatground in question, and westward upstream tan, 115 Kan. 794, 225 P. 85, and citations. for several miles along the Kansas river, is But here there is no attempt to divert the the Kaw Valley drainage district, where a property to a use at variance with the pur. system of dikes and embankments has been pose for which it was dedicated. Rather the constructed for purposes of protection against contrary. By the lease it is proposed to floods. To the northward, also, along the improve the property so that it will be better right bank of the Missouri river, is the Fair-adapted to the purpose of a public levee, and fax drainage district, where an extensive perchance to attract to it such traffic as ususystem of dikes has been erected for the ally is conducted on and about a public levee. same purposes.

To link up the Fairfax The city has unquestioned power to lay a drainage dikes with the Kaw Valley drainage pavement and construct driveways on this dikes, by improving this long-neglected pub public levee. It bas power, and probably it lic levee, as well as to put the property to is its duty, to improve this property, to clean some practical use consistent with the pur- it up and make it sightly and sanitary, and pose of its original dedication, and to have to dike it to prevent recurring overflows.' it cleaned up and made sanitary and sight. And it would be a narrow construction of ly, the city has leased the levee and its 100- the city's powers to hold that, while it could odd acres of accretions to the defendant cor- lawfully make these improvements itself, it poration for 30 years at $20 per acre per an- has no power to cause them to be made num. The lease contemplates the diking of through a contract with a lessee or licensee. the property to prevent recurrence of floods Nor will it be disputed that whether or not a and submergence, the laying out of streets, particular use of land dedicated as a public the construction of sewers and paving, the park, levee, or commons amounts to a divererection of industrial plants and warehouses, sion from the uses for which it was dedicatand the construction of facilities for any | ed depends upon the circumstances of the river traffic which may materialize during dedication and on the intention of the dedithe term of the lease, all consistent with and cator, and is therefore largely a question of apparently helpful to and promotive of the fact. Thus in Bailey v. City of Topeka, 97 use of the property as a public levee. It is Kan. 327, 154 P. 1014, L. R. A. 1916D, 491, provided:

where a gift of land had been made to the "The party of the second part agrees that city for a public park, and the deed of gift, said property shall not be used for any pur- provided that "said real estate shall be inpose which will conflict with its use as a pub- | alienable by said city of Topeka, either by lic landing or public levee, party of the first way of deed, conveyance, lease, or in any part reserving to itself all such rights, or in other manner," the question arose whether violation of any state law or city ordinance now in force or that may be in force in the concessions in the park for refreshment and future and during the life of this lease."

lunch stands, and to rent boats, bathing

suits, and dressing rooms, for which the city The trial court made findings of fact and exacted and received pay, was a perversion held:

of the purposes for which the property was "That the city, being in full lawful control, pos- given to the city. The court said: session, and dominion of said land, had the lawful right and authority to execute the lease "We see nothing in the conduct referred to involved in the form and manner in which it that is inconsistent with the public character was executed, and it is of material benefit to of the park, or that conficts with the terms the city, its citizens and taxpayers, and the of the gift. The exclusive character of the public, and that the terms of such lease privilege conferred is not the basis of any [should] be carried out.

legitimate objection. For as one has a "That such lease does not interfere with right to engage in the activities referred to exor impair the right of the city to use such cept by permission of the city, no one is wrong

* Nor do land for levee purposes, should the need there- ed by the monopoly created. * for arise, and does not impair or cloud the they involve the loss of control over it by the legal title held by the defendant county.

public officers. Clearly it is not inconsistent “That such lease was in all respects valid, with the conditions imposed by the donor of and all the terms thereof were and are within the property that visitors to the park should the lawful power and authority of the grantor be afforded facilities for obtaining refreshtherein."

ments, for boating, and for bathing. No reason

exists why they should not pay a fair price for Were this conclusion and judgment cor- what they eat or drink, or for the boating or rect?

bathing equipment they use. The city might The city ad full dominion and control through its employees furnish these conveniover this so-called public levee. Douglas

ences directly, collecting reasonable charges County v. City of Lawrence, 102 Kan, 656, not render the transaction objectionable. The

therefor. The fact that a profit resulted would 171 P. 610. The city could not give counte- incidental revenue would not characterize the nance to any disposition of the property at transaction as commercial rather than govern





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(280 P.) mental.

* The furnishing of the con-, pose it cannot, at least without the exercise of veniences referred to is a proper incident to the paramount right of eminent domain, be apthe management of the park, and the method propriated to a use of a different character, in followed is so naturally adapted to the de- disregard of the trust under which it is held, sired end that it must be regarded as a mat- and in violation of the rights of the donors and ter of administrative detail, not necessary to their legal representatives. be specifically authorized by the Legislature.” cordance with this doctrine,

the Pages 329, 330 (154 P. 1014).

common cannot be cut up into building lots

and used for the erection of shops, and it may While there is general accord among the be doubtful whether it could be taken under courts that property dedicated for public use an act of the Legislature and a vote of the can neither be leased, sold, nor otherwise city_government of Boston, or of the citizens diverted to purposes different from those to of Boston, and used by a railroad corporation

for a freight yard. * * The ground on which it was dedicated, yet the “rule of rea

which the decision stands is that the new use son” holds sway on this phase of the law as is not at variance with the general purpose in all others. Thus in Codman v. Crocker, of the donors, and that accordingly it was with203 Mass. 146, 89 N. E. 177, 25 L. R. A. (N. in the power of the authorities, representing S.) 980, the question arose as to the use of the public as beneficiaries under the trust. to the historic Bostom Common, a tract of land provide for this additional use of the property." in the town of Boston which had been set Codman v. Crocker, 203 Mass. 146, 89 N. E. apart by the early colonists as a training 177. ground for the local militia, and as a cow

And see notes to same in 25 L. R. A. (N. pasture for the local inhabitants.

For gen

S.) 980 et seq. erations the public authorities had endeav

A case somewhat analogous to the one at ored to preserve the famous common to the purpose of its dedication, as nearly as the bar arose in the city of Hannibal, Mo. One

Glascock had platted and dedicated a strip changing conditions of the changing centuries would permit, yet gradually it became im- of land as a public levee and landing place for

river craft along the bank of the Mississippi, practicable to use the property as a cow pas- ) in Hannibal. At the time of the dedication ture, and, indeed, it became eventually little and ever since there has actually existed better adapted as a training ground for the

some river traffic at Hannibal, so as to call town militia. And so, with the lapse of for some actual use of the public levee, alyears, trees were planted on the common,

though through want of maintenance and rewalks were laid out, fountains and monu

pairs that use had become negligible. The ments erected, and other provisions were

Supreme Court of Missouri held that there made for the comfort and pleasure of the might be another lawful use of the property public in their use of the place. With still

consistent with, and which tended to promote further changes in the municipal life and the use of, the property as originally dedicustoms of the town, the question arose

cated; i. e., by the construction of railroad whether the construction of a tunnel under a part of the common would amount to a di- tracks, grading, paving, and extending the

streets, constructing crossings, reconstructing version of the property from the purposes

a boathouse, and enlarging the facilities for of its dedication. The court, in effect, answered this question in the negative. In the franchise to a railway company to lay its

landing boats, and that the granting of a opinion it was said:

tracks on the levee in consideration of its "As years have gone by, there is no longer undertaking to make such improvements was any occasion for common occupation of this not illegal. The case received exhaustive land as a cow pasture, and in the sense in treatment; but we can only take space to which the word 'training field' was then used, quote one section of the syllabus, which, this is almost equally true of this other kind however, contains the gist of the decision:

The proper execution of the public trust requires that the property be still kept "The owner of land along the Mississippi open as a common for occupation by all the river in 1836 platted it, and on the plat marked people, in ways that are kindred to those in and designated a certain part as a 'public levee' which a common would ordinarily be used un- and a 'public landing,' and the plat was recordder such a dedication in the early years of the ed, and thereafter that part was used and is colony. *

* Under

the changed condi- still used as a public landing for steamboats, tions in recent years, it was held by this and the city granted to the railroad company court that the construction of a subway the right to construct a double-track railroad through the common not inconsistent through the center and the full length thereof, with the

purposes of the original dedi- and spur tracks, but required it to grade and cation, and that it could be authorized by the pave the levee a distance of 750 feet, and to Legislature, acting as the representative of extend the streets and to provide safe, wellthe public interest. Prince v. Crocker, 166 constructed, and convenient crossings over the Mass. 347. This was virtually a decision that track, and to reconstruct the boathouse so as such a use was not a violation of the quasi to afford enlarged facilities for the landing of trust under which the legal title is held. It boats, and if the improvements are carried out does not disregard the doctrine, relied on by the city for the first time will have a properly the plaintiffs, that where property is dedicated improved levee adapted to river traffic, and by donors to a public use for a particular pur- boats may conveniently and safely anchor at

230 P.-6

of use.



any time, at either low or high water, whereas case of abuse of municipal power or diverheretofore they could land only at low water.sion of trust property to uses antagonistic * * * It is not permitted to use the tracks to or inconsistent with the purposes contemfor car yards, or for switching, but only for plated by its dedication is made to appear, passage, and its use of the levee and the rights nor any case justifying judicial interference of the public are safeguarded. The only objection to the railroad use is that it will increase with this particular exercise of the adminthe danger to life and limb of those using the istrative discretion vested in the city“governriver traffic. Held, that the railroad use of the ment. levee is and must ever be subsidiary and sub

The judgment of the district court is there servient to the use of the levee for river traf-fore affirmed. fic, but it is not an inconsistent use, nor a di All the Justices concurring. version of the trust, and the ordinances were not void or voidable." State ex rel. v. Dreyer, 229 Mo, 201, 202, Syl. par. 4, 129 S. W. 904.

BALDWIN V. KANSAS SOLDIERS' COMThe learned Missouri court referred to an

PENSATION BOARD. (No. 25776.) Oregon case, in which a secondary use of a (Supreme Court of Kansas. Nov. 8, 1924.) public levee was involved: “In Railroad Co. v. City of Portland, 14

(Syllabus by the Court.) Or. 188, the public landing had been dedicated to public use by Coffin, the original patentee of Appeal and error 1011(1)-Finding sustainthe land. Afterwards the Legislature granted

ed by evidence conclusive on appeal. the railroad the right to occupy the same with Record examined, and held to show that the track, side track, and depot buildings, etc., trial court's determination of a controverted provided the company should never charge any fact was sustained by evidence which is condockage to any boat, ship, or vessel engaged clusive on appeal. in receiving or discharging cargoes at the

Appeal from District Court, Labette Counwharf. The decision settled the right of the city and railroad. While the dedication was

ty; Elmer C. Clark, Judge. held irrevocable even by the Legislature, it Action by Thomas G. Baldwin against the was ruled that the placing of railroad tracks Kansas Soldiers' Compensation Board. Judgand a depot, with wharves and warehouses for ment for defendant, and plaintiff appeals. the receipt and storage of freight. was not Affirmed. destructive of the use, but added to its efficiency, and that the act of the Legislature, in L. E. Goodrich, of Parsons, for appellant. so far as it authorized a sale of the landing as Charles B. Griffith, Atty. Gen., Donald W. such, exceeded their constitutional powers, Stewart, Asst. Atty. Gen., and Payne H. Ratbut that the license to construct the track ner, County Atty., of Parsons, for appellee. and depot did not exceed the legislative power, and the act was not wholly void." State ex rel. v. Dreyer, supra, p. 238 (129 S. W. 914). to have been a Kansas soldier in the World

DAWSON, J. The plaintiff, who claimed In the lengthy but interesting case of New War, was denied compensation, and appealed port, etc., v. Taylor's Ex’rs, 55. Ky. (16 B. to the district court of Labette county. The Mon.) 699, 804, it was held among other issue was whether the plaintiff was a bona matters, that the dedication of lands laid out tide resident of Kausas at the time he enlistin a town on the bank of a navigable river ed in the army. The trial court decided in to be a common, confers the right on the the negative. · Plaintiff assigns error on this public authorities of the town to build finding of fact, and argues that the trial wharves and charge wharfage. See, also, court did not give due significance to the Goode v. City of St. Louis, 113 Mo. 257, 20 fact that plaintiff's parents, residents of S. W. 1018.

Missouri, had emancipated the claimant durIn view of the outstanding facts of this ing his minority, so as to leave him free to case that the strip of land dedicated for a establish a residence for himself separate public leree has not been so used for half a and apart from that of his parents. Plaincentury; that its platted limits have grown tifi contends that the evidence established by accretion to many times its original pro- the fact that he was an emancipated minor, portions, a fact which the dedicators could and that as such he had a right to establish scarcely have had in contemplation; that the a separate residence. Both contentions may property and its accretions serve no present be conceded, but they do not control this useful purpose; that the proposed improve- case. The evidence did not show, to the satmients to be effected by the lessee and li- | isfaction of the trial court, at least, that censee will, in the opinion of the city gov- plaintiff was a bona fide resident of Kansas ernment responsible for the public welfare, at the time he entered the army. Indeed, accomplish the important desideratum of the evidence to which the trial court gave improving the sightliness and sanitation of credence was to the effect that plaintiff was the premises, and tend to induce and pro- not then a resident of Kansas. Since there mote the use of the property as a public was some competent evidence to support the leverthis court is bound to hold that noltrial court's finding of fact, its decision and

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