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5. Assignments of error held not well founded. Various assignments of error considered, and held not to be well founded. Harvey, J., dissenting.

[3] Complaint is made that the court 'supplemented the examination by the county attorney by a number of questions to various witnesses, and that such examination, considered 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 nec

J. P. Noble, of Oberlin, and C. A. P. Fal-essary to elicit pertinent facts, in order that coner, of Atwood, for appellant. Charles B. Griffith, Atty. Gen., and Earl E. Howard, Co. Atty., of Atwood, for the State.

HOPKINS, J. The defendant, who was

charged with having stolen some harness, was convicted of grand larceny, and appeals. [1] The defendant first contends that the

court erred in permitting the state to indorse additional names on the information after

the case was called for trial. He was arrested in November, 1923. The case was tried the latter part of March, 1924. He claims that some of the witnesses, whose names were indorsed after the case was called for trial, were the most important produced by the state; that the county attorney knew the importance of their testimony, and should have earlier indorsed their names on the information. It is a matter resting in the sound discretion of the trial court whether or not the names of witnesses may be indorsed during a trial or after a case is called for trial. Continuances are sometimes caused, at no small cost, by fail ure of the state to indorse the names of witnesses on the information, where the defendant is not prepared to meet their testimony, and for that reason is entitled to a continuance. In the instant case, however, no continuance was requested; nor does the defendant appear to have been prejudiced by the action of the court in permitting the names to be so indorsed. Under the circumstances, we cannot say that the trial court abused its discretion, or that the substantial rights of the defendant were prejudiced. See State V. Logue, 115 Kan. 391, 223 P. 482, and cases cited; State v. Buckle, 116 Kan. 51, 225 P. 1035.

[2] The defendant complains of the admission of the harness in evidence. It was shown to belong to C. E. Koonts, while the information laid the ownership in W. O. Koontz. The evidence, however, disclosed that W. O. Koontz was the son of C. E. Koonts; that the son leased a farm, farm machinery, and other chattels from the father, and had a right to the exclusive use, possession, and control of the harness in question. Who had the legal title to it was of no concern to the defendant. State v. Bartholomew, 116 Kan. 590, 227 P. 366, and cases cited. See, also, Davis v. Sim, 100

the truth may be established. In fact, he should not sit still and see justice defeated See 28 R. C. L. 587; 16 C. J. 831, and cases through failure to ask pertinent questions. cited by both authorities. We are unable diced by the questions propounded by the to say that defendant's rights were preju

trial court.

special instruction after several hours' de[4] Error is predicated on the giving of a liberation by the jury. The case was given to the jury about noon. At 8 o'clock in the evening, at the request of the jury, they were returned into court and asked the court two questions: (1) "Have we a right to recommend a parole?" (2) "Have we a right to recommend mercy?" In answer thereto the court told the jury:

* * *

That, as to the matter of mercy or clemency, you have nothing to do, * * and the only question for you to decide and determine is the guilt or innocence of the defendant. As to the penalty, you have nothing to do, and such question should not in any way influence you in arriving at a verdict. As to the matter of parole from any sentence, this is a matter wholly for the court or judge to decide, and of that you have nothing to do. * * While the court does not pass on any such question until the time comes, personally, I believe any court would value the recommendation or suggestion of the jury more than court will say that you have the right, after the ordinary citizen or business man, but the doing your duty under your oath in returning a verdict, to make such recommendations or request as your good, honest judgment dictates."

After a further deliberation of two hours, the jury found the defendant guilty and "recommended a parole." It is strongly contended by the defendant that the language, "That after doing your duty under your oath in returning a verdict," etc., was, in effect, an instruction to find the defendant guilty. We do not so construe the instruction, and do not believe the jury were misled by the language. The jury undoubtedly believed that the court meant that they had a right, after doing their duty in returning their verdict, if they found the defendant guilty, to recommend a parole. While the language was not clear, and we cannot put our stamp of approval upon it, we cannot regard it as prejudicial to the rights of the defendant,

(230 P.)

rights, there should be no reversal. R. S. land was not so used for over half a century, 62-1718.

[5] Error is claimed in the giving of certain instructions and the refusal to give others. We have examined the record, and conclude that the requested instructions were properly refused, and that the instructions given fairly covered the issues in the case. Other objections raised have been considered, but we find nothing which would warrant a reversal.

The judgment is affirmed.

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

HARVEY, J. (dissenting). There is no reason why the court should not tell the jury the law in respect to the punishment, and that is that the jury has nothing to do with the punishment. Their function is to decide the question of the guilt or innocence of the defendant, and the question of the extent of the punishment that will be imposed, in the event they find him guilty, should not be taken into consideration by them. This instruction might properly be embodied in the instructions given to the jury in the first instance, as some of the trial courts habitually do in criminal cases. Under our law, the punishment for most offenses is an indeterminate sentence; hence the trial court has nothing to do with the extent of the punishment. It is true that for some offenses the court is authorized to issue a parole, but the question of whether a parole should be issued is one that should never be taken into consideration either by the court or by the jury in determining the guilt or innocence of the defendant. The real test is: Would this instruction have been prejudicially erroneous, if given as one of the instructions in the first instance? I think no one will contend that it would not have been error. Why is it not error, then, if given at a time, in the deliberations of the jury, when the question of punishment is the only thing preventing a verdict?

KANSAS CITY v. BOARD OF COM'RS OF
WYANDOTTE COUNTY et al. (No. 25871.)
(Supreme Court of Kansas. Nov. 18, 1924.)

(Syllabus by the Court.)

Municipal corporations 719(4)-City may lease disused public levee on condition lessee make it sightly, sanitary, and useful for original purpose.

Where strip of land on the bank of a navigable s、ream was included in a town site and platted and dedicated as a public levee, but through want of river navigation such strip of

and where by accretion the strip of land so dedicated had increased in acreage to many times its original extent, but remained for many years in disuse, subject to overflow by recurring floods, and a seedbed for noxious weeds and a breeding ground for malaria, at the threshold of a large and rapidly growing city, it is held that it was not beyond the discretionary powers of the city government to lease the property and grant a license for its use to a private corporation for a term of years for a consideration of money rent, and upon condition that the lessee or license should construct certain desirable improvements on the property designed to protect it from floods and to make it sightly, sanitary, and consistently useful with its original purpose as a public levee, and tending to promote such use, and where the contract stipulates that no use shall be made of the property at variance with nor prejudicial to its actual or potential use as a public levee.

Appeal from District Court, Wyandotte County; E. L. Fischer, Judge

Action by the City of Kansas City against the Board of Commissioners of Wyandotte County, and the Woods Bros. Corporation. From a judgment for plaintiff, the defendant last named appeals. Affirmed.

Guy E. Stanley, of Kansas City, Mo., for appellant.

H. J. Smith, City Atty., of Kansas City, Kan., for appellee.

DAWSON, J. This was an amicable action to obtain a declaratory judgment on the validity of a contract, by which the city of Kansas City leased a certain tract of land to Woods Bros. Corporation for a term of years. The land involved consists of what once was a narrow strip of platted ground in the original town site of Wyandotte, now Kansas City, on the right bank of the Missouri river, north of the mouth of the Kansas river. The original dedicators of the town of Wyandotte set aside this strip of ground in 1857 for a public levee. At that early time and for some years following, there was 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 neglect. For over half a century it has been of no practical service as a public levee. By accretion of silt and slow recession of the

Missouri river, the original, narrow strip along the river bank dedicated as a public levee in 1857 has grown until there are now about 111 acres in the tract. Some shanties have encroached thereon; some small industries have been conducted there on sufferance; but for the most part the platted levee and its accretions have been put to no use. Surrounded by the industry and bustle of a great and growing city, it has remained

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

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 ground in question, and westward upstream for several miles along the Kansas river, is the Kaw Valley drainage district, where a system of dikes and embankments has been constructed for purposes of protection against floods. To the northward, also, along the right bank of the Missouri river, is the Fairfax drainage district, where an extensive system of dikes has been erected for the same purposes. To link up the Fairfax drainage dikes with the Kaw Valley drainage dikes, by improving this long-neglected pub. lic levee, as well as to put the property to some practical use consistent with the purpose of its original dedication, and to have it cleaned up and made sanitary and sightly, the city has leased the levee and its 100odd acres of accretions to the defendant corporation for 30 years at $20 per acre per annum. The lease contemplates the diking of the property to prevent recurrence of floods and submergence, the laying out of streets, the construction of sewers and paving, the erection of industrial plants and warehouses, and the construction of facilities for any river traffic which may materialize during the term of the lease, all consistent with and apparently helpful to and promotive of the use of the property as a public levee. It is provided:

"The party of the second part agrees that said property shall not be used for any purpose which will conflict with its use as a public landing or public levee, party of the first part reserving to itself all such rights, or in violation of any state law or city ordinance now in force or that may be in force in the future and during the life of this lease."

The trial court made findings of fact and held:

"That the city, being in full lawful control, possession, and dominion of said land, had the lawful right and authority to execute the lease involved in the form and manner in which it was executed, and it is of material benefit to the city, its citizens and taxpayers, and the public, and that the terms of such lease [should] be carried out.

Kan. 309; State ex rel. v. City of Manhattan, 115 Kan. 794, 225 P. 85, and citations. But here there is no attempt to divert the property to a use at variance with the purpose for which it was dedicated. Rather the contrary. By the lease it is proposed to improve the property so that it will be better adapted to the purpose of a public levee, and perchance to attract to it such traffic as usually is conducted on and about a public levee. The city has unquestioned power to lay a pavement and construct driveways on this public levee. It has power, and probably it is its duty, to improve this property, to clean it up and make it sightly and sanitary, and to dike it to prevent recurring overflows. And it would be a narrow construction of the city's powers to hold that, while it could lawfully make these improvements itself, it has no power to cause them to be made through a contract with a lessee or licensee. Nor will it be disputed that whether or not a particular use of land dedicated as a public park, levee, or commons amounts to a diversion from the uses for which it was dedicated depends upon the circumstances of the dedication and on the intention of the dedicator, and is therefore largely a question of fact. Thus in Bailey v. City of Topeka, 97 Kan. 327, 154 P. 1014, L. R. A. 1916D, 491, where a gift of land had been made to the city for a public park, and the deed of gift, provided that "said real estate shall be inalienable by said city of Topeka, either by way of deed, conveyance, lease, or in any other manner," the question arose whether concessions in the park for refreshment and lunch stands, and to rent boats, bathing suits, and dressing rooms, for which the city exacted and received pay, was a perversion of the purposes for which the property was given to the city. The court said:

"We see nothing in the conduct referred to that is inconsistent with the public character of the park, or that conflicts with the terms The exclusive character of the of the gift. privilege conferred is not the basis of any legitimate objection. For as no 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 wrongland for levee purposes, should the need there-ed by the monopoly created. ** for arise, and does not impair or cloud the legal title held by the defendant county. "That such lease was in all respects valid, and all the terms thereof were and are within the lawful power and authority of the grantor therein."

Were this conclusion and judgment correct?

** Nor do

they involve the loss of control over it by the public officers. Clearly it is not inconsistent with the conditions imposed by the donor of the property that visitors to the park should be afforded facilities for obtaining refreshments, for boating, and for bathing. No reason exists why they should not pay a fair price for what they eat or drink, or for the boating or bathing equipment they use. The city might through its employees furnish these conveniences directly, collecting reasonable charges therefor. The fact that a profit resulted would

The city ad full dominion and control over this so-called public levee. Douglas County v. City of Lawrence, 102 Kan. 656, not render the transaction objectionable. The 171 P. 610. The city could not give counte-incidental revenue would not characterize the

mental. *

(230 P.)

veniences referred to is a proper incident to the management of the park, and the method followed is so naturally adapted to the desired end that it must be regarded as a matter of administrative detail, not necessary to be specifically authorized by the Legislature." Pages 329, 330 (154 P. 1014).

*

*

The furnishing of the con- [ pose it cannot, at least without the exercise of
the paramount right of eminent domain, be ap-
propriated to a use of a different character, in
disregard of the trust under which it is held,
and in violation of the rights of the donors and
their legal representatives. * * In ac-
with
cordance
this doctrine,
the
common cannot be cut up into building lots
and used for the erection of shops, and it may
be doubtful whether it could be taken under
an act of the Legislature and a vote of the
city government of Boston, or of the citizens
of Boston, and used by a railroad corporation
for a freight yard.
which the decision stands is that the new use
* * The ground on
is not at variance with the general purpose
of the donors, and that accordingly it was with-
in the power of the authorities, representing
the public as beneficiaries under the trust, to
provide for this additional use of the property."
Codman v. Crocker, 203 Mass. 146, 89 N. E.
177.

While there is general accord among the courts that property dedicated for public use can neither be leased, sold, nor otherwise diverted to purposes different from those to which it was dedicated, yet the "rule of reason" holds sway on this phase of the law as in all others. Thus in Codman v. Crocker, 203 Mass. 146, 89 N. E. 177, 25 L. R. A. (N. S.) 980, the question arose as to the use of the historic Bostom Common, a tract of land in the town of Boston which had been set apart by the early colonists as a training ground for the local militia, and as a cow

pasture for the local inhabitants. For generations the public authorities had endeavored to preserve the famous common to the purpose of its dedication, as nearly as the changing conditions of the changing centuries would permit, yet gradually it became impracticable to use the property as a cow pasture, and, indeed, it became eventually little better adapted as a training ground for the town militia. And so, with the lapse of

years, trees were planted on the common, walks were laid out, fountains and monuments erected, and other provisions were made for the comfort and pleasure of the public in their use of the place. With still further changes in the municipal life and customs of the town, the question arose a part of the common would amount to a diversion of the property from the purposes of its dedication. The court, in effect, answered this question in the negative. In the opinion it was said:

whether the construction of a tunnel under

*

*

And see notes to same in 25 L. R. A. (N.

s.) 980 et seq.

A case somewhat analogous to the one at bar arose in the city of Hannibal, Mo. One Glascock had platted and dedicated a strip of land as a public levee and landing place for river craft along the bank of the Mississippi, in Hannibal. At the time of the dedication and ever since there has actually existed

some river traffic at Hannibal, so as to call for some actual use of the public levee, al

though through want of maintenance and repairs that use had become negligible. The Supreme Court of Missouri held that there might be another lawful use of the property consistent with, and which tended to promote the use of, the property as originally dedicated; i. e., by the construction of railroad tracks, grading, paving, and extending the streets, constructing crossings, reconstructing a boathouse, and enlarging the facilities for franchise to a railway company to lay its landing boats, and that the granting of a

tracks on the levee in consideration of its undertaking to make such improvements was not illegal. The case received exhaustive treatment; but we can only take space to quote one section of the syllabus, which, however, contains the gist of the decision:

"The owner of land along the Mississippi river in 1836 platted it, and on the plat marked and designated a certain part as a 'public levee' and a 'public landing,' and the plat was recorded, and thereafter that part was used and is still used as a public landing for steamboats, and the city granted to the railroad company the right to construct a double-track railroad through the center and the full length thereof, and spur tracks, but required it to grade and pave the levee a distance of 750 feet, and to extend the streets and to provide safe, well

"As years have gone by, there is no longer any occasion for common occupation of this land as a cow pasture, and in the sense in which the word 'training field' was then used, this is almost equally true of this other kind of use. The proper execution of the public trust requires that the property be still kept open as a common for occupation by all the people, in ways that are kindred to those in which a common would ordinarily be used under such a dedication in the early years of the colony. * * Under the changed conditions in recent years, it was held by this court that the construction of a subway through the common was not inconsistent with the purposes of the original dedication, and that it could be authorized by the Legislature, acting as the representative of the public interest. Prince v. Crocker, 166 constructed, and convenient crossings over the Mass. 347. This was virtually a decision that such a use was not a violation of the quasi trust under which the legal title is held. It does not disregard the doctrine, relied on by the plaintiffs, that where property is dedicated by donors to a public use for a particular pur230 P.-6

track, and to reconstruct the boathouse so as to afford enlarged facilities for the landing of boats, and if the improvements are carried out the city for the first time will have a properly improved levee adapted to river traffic, and boats may conveniently and safely anchor at

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 subservient to the use of the levee for river traffic, but it is not an inconsistent use, nor a diversion 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.

The judgment of the district court is therefore affirmed.

All the Justices concurring.

BALDWIN v. KANSAS SOLDIERS' COM-
PENSATION BOARD. (No. 25776.)

The learned Missouri court referred to an
Oregon case, in which a secondary use of a (Supreme Court of Kansas.
public levee was involved:

Nov. 8, 1924.)

(Syllabus by the Court.)

Appeal and error 1011 (1)—Finding sustained by evidence conclusive on appeal.'

Record examined, and held to show that the trial court's determination of a controverted fact was sustained by evidence which is conclusive on appeal.

Appeal from District Court, Labette County; Elmer C. Clark, Judge.

"In Railroad Co. v. City of Portland, 14 Or. 188, the public landing had been dedicated to public use by Coffin, the original patentee of the land. Afterwards the Legislature granted the railroad the right to occupy the same with track, side track, and depot buildings, etc., provided the company should never charge any dockage to any boat, ship, or vessel engaged in receiving or discharging cargoes at the wharf. The decision settled the right of the city and railroad. While the dedication was held irrevocable even by the Legislature, it was ruled that the placing of railroad tracks and a depot, with wharves and warehouses for the receipt and storage of freight, was not 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 trackner, County Atty., of Parsons, for appellee. and depot did not exceed the legislative power, and the act was not wholly void." State ex DAWSON, J. The plaintiff, who claimed rel. v. Dreyer, supra, p. 238 (129 S. W. 914). to have been a Kansas soldier in the World

In the lengthy but interesting case of Newport, etc., v. Taylor's Ex'rs, 55 Ky. (16 B. Mon.) 699, 804, it was held among other matters, that the dedication of lands laid out in a town on the bank of a navigable river to be a common, confers the right on the public authorities of the town to build wharves and charge wharfage. See, also, Goode v. City of St. Louis, 113 Mo. 257, 20 S. W. 1048.

Action by Thomas G. Baldwin against the Kansas Soldiers' Compensation Board. Judgment for defendant, and plaintiff appeals. Affirmed.

War, was denied compensation, and appealed to the district court of Labette county. The issue was whether the plaintiff was a bona fide resident of Kausas at the time he enlistThe trial court decided in ed in the army. the negative. Plaintiff assigns error on this finding of fact, and argues that the trial court did not give due significance to the fact that plaintiff's parents, residents of 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 levee has not been so used for half a and apart from that of his parents. Plaincentury; that its platted limits have grown tiff 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 satments 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 improving the sightliness and sanitation of the premises, and tend to induce and promote the use of the property as a public levee this court is bound to hold that no

the evidence to which the trial court gave credence was to the effect that plaintiff was not then a resident of Kansas. Since there was some competent evidence to support the trial court's finding of fact, its decision and

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