ket value of his right of possession to the remaining portion of the land immediately before and immediately after the appropriation of the right of way, with interest thereon from the date of filing the report of the commissioners. The attention of the jury was directly called to the fact that the plaintiff had not then perfected his title, and that he could recover damages only to the extent of the injuries caused to his actual existing interest in the land.

Lastly, it is contended that the defendant company acquired a right of way over this land by virtue of the act of congress of March 3, 1875, which was prior to the rights of the plaintiff under his homestead entry. Section 1 of this act reads: "That the right of way through the public lands of the United States is hereby granted to any railroad company duly organized under the laws of any state or territory, except the District of Columbia, or by the congress of the United States, which shall have filed with the secretary of the interior a copy of its articles of incorporation, and due proofs of its organization under the same, to the extent of one hundred feet on each side of the central line of said road; also the right to take from the public lands adjacent to the line of said road material, earth, stone, and timber necessary for the construction of said railroad, also ground adjacent to such right of way for station buildings, depots, machine shops, side tracks, turnouts, and water stations, not to exceed in amount twenty acres for each station, to the extent of one station for each ten miles of its road." Section 4: "That any railroad company desiring to secure the benefits of this act shall within twelve months after the location of any section of twenty miles of its road, if the same be upon surveyed lands, and, if upon unsurveyed lands, within twelve months aft er the survey thereof by the United States, file with the register of the land office for the district where such land is located a profile of its road, and upon approval thereof by the secretary of the interior the same shall be noted upon the plats in said office, and thereafter all such lands over which such right of way shall pass shall be disposed of subject to such right of way: provided, that if any section of said road shall not be completed within five years after the location of said section, the rights herein granted shall be forfeited as to any such uncompleted section of such road." It is contended that this act was a grant in praesenti to the defendant of a right of way over the public domain, to be thereafter designated in the manner provided by the act, and that when the defendant located its line, and obtained an approval by the secretary of the interior of such location, the defendant's rights related back to the date of the passage of the act, and are superior to those of the plaintiff, whose homestead entry was made intermediate the time of the passage of the act

and the location of the defendant's road. The cases of Railroad Co. v. Baldwin, 103 U. S. 428; Bybee v. Railroad Co., 11 Sup. Ct. Rep. 641; Noble v. Railroad Co., 13 Sup. Ct. Rep. 271,-are cited in support of this contention. In the first case named the supreme court of the United States had under consideration the act of July 23, 1866, granting to the St. Joseph & Denver City Railroad Company a right of way. The general course of this road was stated in the act, and certain points upon its route were named. It was held that the act was a grant in praesenti, and that the railroad company's rights, after their line was definitely located, were fixed as of the date of the act. In the Bybee Case, the grant was under an act of congress of July 25, 1866, to such company organized under the laws of Oregon as the legislature of said state should thereafter designate, to aid in the construction of the railroad and telegraph line from the Central Pacific Railroad in California to Portland in Oregon, and the court held that also a grant in praesenti. In the case of Noble v. Railroad Co., the court had under consideration this act of March 3, 1875. The real point of controversy in the case was whether Secretary Noble could annul the approval by his predecessor of the location of the company's line of road, and thereby defeat its rights, and the court held that he could not. It is true that in the opinion the following language occurs: "The language in that section is that the right of way through the public lands of the United States is here granted to any railroad company duly organized under the laws of any state or territory," etc. "The uniform rule of this court has been that such an act was a grant in praesenti of lands to be thereafter identified. Railway Co. v. Alling, 99 U. S. 463. The railroad became at once vested with a right of property in these lands, of which it can only be deprived by a proceeding taken directly for that purpose." It will be noticed that no question was before the court arising between the railroad company and a person claiming adversely a right to any particular tract of land. The attention of the court was directed to the question whether, on the approval of the map and profile by the secretary of the interior, the company's rights became vested, or whether the matter was still within the control of the secretary of the interior. The court held the action of the secretary in approving the location of the road final. What is said with reference to the grant being one in praesenti was not necessary to a decision of the case. It was only necessary for the court to hold that the company's rights vested on the approval of the location by the secretary. Relation back to the date of the act would be wholly unimportant as affecting the decision of the question before the court. If the act has the. effect claimed by counsel, very surprising results follow. The defendant company was

not in existence at the time of the passage of the law. It is very difficult to see how congress could have made a grant which should take effect at the date of its passage, and thereby confer present rights on a company, the existence of which was not then even foreshadowed. If, under this act, the defendant company acquired a right of way to construct any railroad contemplated by its charter over any lands then belonging to the government, it follows that any and every corporation existing at the time the act was passed, or which has been or may hereafter be created while this act remains in force, has the, right already vested to construct railroads over what was the public domain on the 3d of March, 1875, and this without reference to the great increase in the value of the lands in many parts of Kansas and other states since that time. This construction of the law does not seem to have been thought of by any of the railroad companies that have constructed so many miles of road since that time, but the practice of purchasing or condemning a right of way has been universally followed.

We think the fourth section of the act above quoted clearly provides that the grant shall take effect only after the approval and filing of the map and profile, and that the words, "and thereafter all such lands over which such right of way shall pass shall be disposed of subject to such right of way," clearly imply that lands disposed of prior thereto will not be subject to any burdens imposed thereon by said act. This view of the law was intimated by this court in the case of Railroad Co. v. Johnson, 38 Kan. 142, 16 Pac. Rep. 125; but in that case there was no claim that the railroad company had complied with the act. In this case it is claimed that the act has been complied with, but it appears from the map introduced in evidence that it was not approved by the secretary of the interior until July 11, 1888, while the condemnation proceedings were completed on the 8th day of the preceding May. By instituting proceedings to condemn the land the company would seem to have admitted the right of the plaintiff to compensation, and we think a subsequent compliance with the act of congress could not have the effect to defeat the plaintiff's right of recovery.

Though the amount of the verdict appears large, no complaint is made that it is not supported by the evidence, or that it was given under the influence of passion or prejudice. Judgment will be affirmed. All the justices concurring.

(51 Kan. 756)

CRAWFORD v. CITY OF TOPEKA et al. (Supreme Court of Kansas. July 8, 1893.)

CITIES BILLBOARDS-REGULATION.

1. Cities of the first class may regulate the erection and maintenance of structures used for advertising purposes and placed upon lots near the street line, so as to fully protect per

sons passing along the streets; but such regulations must be reasonable, and an ordinance providing that "no person shall erect any billboard or other structure for advertising purposes unless the same is placed at such distance from the line of any street or sidewalk as shall exceed at least five feet the height of such billboard or structure," and prescribing a punishment for a violation of this provision, is unreasonable and invalid.

2. In general, an owner has the right to erect such buildings or other structures upon his property as he pleases, and may put the premises to any use as may suit his pleasure, providing he does not in doing so annoy, injure, or threaten harm to others. (Syllabus by the Court.)

Error from district court, Shawnee county; John Guthrie, Judge.

Action by Lester M. Crawford against the city of Topeka and Furman Baker, as street commissioner of said city. Judgment for defendants. Plaintiff brings error. Reversed.

A. A. Hurd and Robert Dunlap, for plaintiff in error. D. C. Tillotson, for defendants in error.

JOHNSTON, J. L. M. Crawford brought this action to enjoin the city of Topeka and its street commissioner from tearing down and removing billboards, fences, and other structures upon which advertisements were posted. It appears that Crawford, under agreements with the owners of lots in different parts of the city, had erected upon the line of the lots structures similar to closely built fences, which were from 8 to 10 feet in height, upon which to post bills and advertisements of shows and entertainments which were to occur at his opera house in the city. In some cases structures like fences which were already upon the lots were used by him for this purpose, and in other cases the agreements with the owners provided that the structures should inclose the lots as a fence. Many of them had been in use for several years, and in March, 1890, the street commissioner notified Crawford that they must be taken down and removed within five days, so as to conform with a certain ordinance, or the commissioner would remove them. From the testimony it appears that most of them were substantial and safe structures, and the objection by the city authorities was, not that they were insecure, but rather that they did not comply with the provisions of an ordinance previously passed. It provides that "no person shall erect any billboard or other structure for advertising purposes, unless the same is placed at such distance from the line of any street or sidewalk as shall exceed at least five feet the height of such billboard or structure; nor shall any person attach any sign or bulletin to any lamp-post in this city; and any person found guilty of violating any provi sion of this section shall, on conviction, be fined in a sum not less than three nor more than twenty dollars for each offense, and each day's continuance after conviction shall be deemed a separate and distinct offense."

The reasonableness of this regulation and the validity of the ordinance were the principal subjects of contention in the court below and the ones presented for decision here. At the end of the trial the temporary injunction originally granted was dissolved, and the relief asked by the plaintiff was denied.

We think the ordinance is not reasonable nor valid; hence the ruling of the court cannot be sustained. As has been seen, it proscribes the erection or use of any structure near the lot line for advertising purposes, no matter how substantial and secure it may be. Municipalities may be and are vested with large powers in protecting the health and safety of the people and in promoting the welfare of the public. They have been given authority to prevent and remove nuisances, to protect the walks and ways, and, where they are dangerous, may compel the owners of adjacent property to erect and maintain railings, safeguards, and barriers along the same. They may enter and inspect all dwelling houses, yards, inclosures, and buildings, to ascertain whether any of them are in a dangerous state, and may take down and remove such structures as have become insecure or dangerous; and, further, may require the owners of insecure and dangerous buildings and other erections to render the same secure and safe, at the owner's cost. They may regulate the use of the streets and public grounds, and may regulate or prohibit awnings and awning posts, and all other structures projecting upon or over the street or sidewalk. Fire limits may be established, within which the erection of wooden buildings or structures which would readily communicate fire may be prohibited. Gen. St. 1889, par. 555. In none of these provisions do we find anything which warrants the city to prohibit the erection of safe and substantial structures on any portion of a lot, if, indeed, any such power can be given. In general, it may be said that the owner of real estate has the right to erect such buildings or other structures upon it as he may please, and put the premises to any use which may suit his pleasure, providing that he does not in doing so imperil or threaten harm to others. Tied. Lim. 439. All statutory restrictions of the use of property are imposed upon the theory that they are necessary for the safety, health, or comfort of the public; but a limitation without reason or necessity cannot be enforced. In what way can the erection of a safe structure for advertising purposes near the front of a lot endanger public safety any more than a like structure for some other lawful purpose? Why does the posting or painting of an advertisement upon a secure wall or structure render it insecure? An owner may desire to use a structure or billboard for an inclosure of his lot, as well as for posting advertisements. In one instance that was the desire and purpose of the owner in this case.

If the wall or inclosure was 10 feet high, then, under the ordinance, the owner would be required to set it back 15 feet from the front of the lot. What reason is there for the surrender or loss of the use of that portion of the lot? Or why should the pasting of a piece of paper upon a secure inclosure make such a loss necessary? Although the police power is a broad one, it is not without limitations, and a secure structure, which is not an infringement upon the public safety, and is not a nuisance, cannot be made one by legislative fiat, and then prohibited. Yates v. Milwaukee, 10 Wall. 497; 1 Dill. Mun. Corp. 374. It is doubtless within the power of the city to prohibit the erection of insecure billboards or other structures, require the owners to maintain them in a secure condition, and to provide for their removal at the expense of the owners in case they become dangerous. Perhaps regulations may be made with reference to the manner of construction so as to insure safety, but the prohibition of the erection of structures upon the lot line, however safe they might be, would be an unwarranted invasion of private right, and is without legislative authority. In Langan v. City of Atchison, 35 Kan. 318, 11 Pac. Rep. 38, an insecure billboard, which had been fastened to the sidewalk, fell upon one who was passing, and injured him. It appeared to have been in a weak and insecure condition for some time, and the officers of the city knew that it was not erected in a safe and proper manner, and, before its fall, that it was in a condition to endanger persons passing upon the sidewalk. It was held that the city was liable in damages for the injury, upon the theory that it was its duty to keep the streets and walks in a safe condition for persons passing over and along them. It was further held that it was the duty of the corporate authorities to remove or abate any nuisance, and that, under the power given to the city to prevent and remove nuisances and to regulate all structures projecting upon or over the streets or walks, it was bound to remove or protect the sidewalk from the imperfectly constructed and insecure billboard standing so near the sidewalk as to fall upon it. This authority sanctions the regulation of such structures so far as to make them secure, but nothing is said which would justify the prohibition of the erection of structures that are absolutely safe. None of the structures proposed to be removed extended beyond the lot, and hence are not to be regarded as if they projected over the street. The regulation as to the erection and maintenance of such structures may be made sufficiently rigid to fully protect the public; but they must be reasonable, and when they pass beyond the bounds of reason and necessity, and impair private property rights, they must be pronounced invalid. The unreasonableness of the ordinance in question is easily seen when it is considered

that the mere posting of a harmless paper upon a structure changes it from a lawful to an unlawful one. A person may erect a fence around his lot without violating the ordinance, but just as soon as an advertisement is posted or painted thereon it is brought within the condemnation of the ordinance, and the owner is liable to prosecution and punishment. Treating the ordinance as unreasonable and invalid, as we must, the ruling of the court below in denying the injunction was erroneous, and hence there must be a reversal. All the justices concurring.

(52 Kan. 41)

CHICAGO, K. & N. RY. CO. v. ELLIS.1 (Supreme Court of Kansas. July 8, 1893.) EMINENT DOMAIN-COMPENSATION LIFE INTEREST-PARTIES ON APPEAL-PRIVILEGED COMMUNICATIONS-HUSBAND AND WIFE.

1. Where the award of commissioners appointed to assess damages for the right of way of a railroad company gives to a person in possession of the land, a part of which is appropriated, and having only a life interest therein, a gross sum for compensation, as the owner thereof, such person may appeal from the award, and he will not be required to join with him, in his appeal, the owner of the legal title of the land.

2. Upon the trial of the action upon such an appeal the party appealing can only recover damages for such an interest or estate in the land as he can establish in himself. If the railroad company desires the person holding the legal title of the land, in such a case, to be before the court, for its protection in any way, it is its duty to bring him in.

3. The fact that a person having a life estate of the land appeals cannot inure to the benefit of one holding the legal title, but not appealing.

4. In no case can either the husband or wife testify concerning any communication made by one to the other during the marriage. Subdivision 3, § 323, Civil Code.

(Syllabus by the Court.)

Error from district court, Thomas county; Charles W. Smith, Judge.

Proceedings by the Chicago, Kansas & Nebraska Railway Company to condemn land owned by John Ellis. Damages were awarded from which the railway company appealed to the district court, where trial was had before the court and a jury, and judgment rendered for a still larger amount. The railway company brings the case here on error. Reversed.

The other facts fully appear in the following statement by HORTON, C. J.:

On the 8th day of May, 1888, the board of county commissioners of Thomas county, state of Kansas, on the application of the Chicago, Kansas & Nebraska Railway Company, laid off and condemned a route and line for the railway company through the S. E. 4 of section No. 33, in township No. 7, of range 34 W., in that county. The commissioners awarded the sum of $230 as the value of the land taken and the damage to

1 For opinion on rehearing, see 34 Pac. Rep. 852.

the property not taken, from which the railway company appealed. In the district court the plaintiff filed a petition consisting of two counts, in the first of which, among other things, it was alleged "that the legal title to said tract of land was at the date of said appropriation, and still is, owned by Susan A. Ellis, the wife of this plaintiff; that her title was originally acquired by and through the plaintiff, who paid the consideration therefor, and was and is held in trust for the use and benefit of plaintiff, and under a valid agreement, made at the time of such conveyance to her, that he should have the use and benefit of said land, and might occupy the same, so long as he should live, or should desire the same; that plaintiff's interest in the land taken, and the improvements thereon, was at the date thereof $100, and that, by reason of the appropriation of his interest in the land, that the remaining portion thereof was damaged and lessened in value in the sum of $300." In the second count of said petition it was alleged, among other things, "that since the date of the appropriation of said land, as herein before stated, by the defendant, Susan A. Ellis, owner of the legal title to the land, has, for a valuable consideration, by an instrument in writing, duly executed, and a copy of which is annexed hereto, marked 'Exhibit A,' sold, assigned, and transferred to this plaintiff all her claim and right to any and all damages against the defendant by reason of such appropriation, and to the compensation due therefor, and all her right, title, and interest in and to the award heretofore made as aforesaid, by such county commissioners, for the land so condemned and appropriated by said defendant, and in and to all damage caused by such appropriation to the remaining portion of said land, assessed as afore said, and in and to any award or damages that may be awarded or assessed therefor in this court, or on any appeal that might be taken from the determination of said board of county commissioners. That the actual value of the land so taken, with the improvements thereon, was at the date thereof $200, and by reason of such appropriation the remaining portion of the land was damaged and lessened in value in the sum of $400." The railway company, in its answer, denied all the allegations in each and every count of the petition, except the condemnation and appropriation of the right of way over the land, and the award of the commissioners. Upon the trial, at the November term for 1889, before the court and a jury, judgment was rendered in favor of the plaintiff against the railway company for $452.21 and costs. The railway company brings the case here.

M. A. Low and W. F. Evans, for plaintif in error. W. S. Wilcoxon and E. A. McMath. for defendant in error.

HORTON, C. J., (after stating the facts.) It is contended that the trial court erred in overruling the motion of defendant below to dismiss the appeal. At the time of the condemnation proceedings the legal title to the land over which the right of way was condemned was in Susan A. Ellis, the wife of John Ellis. The commissioners made the award to John Ellis. He appealed. If Susan A. Ellis was dissatisfied with the award, or with any part thereof, she should have appealed. Whatever her rights are in the premises, not having appealed, she is absolutely bound by the award. The failure of the commissioners to ascertain that Mrs. Ellis had the legal title, or any interest in the land, would not prevent her from appealing. Railroad Co. v. Grovier, 41 Kan. 685, 21 Pac. Rep. 779. But we think the court did not err in refusing to dismiss the appeal. John Ellis, according to his petition, was in the actual possession of the land, and had a life interest therein. His interest was distinct from that of his wife, Susan A. Ellis. The owners of distinct interests in the same property may appeal separately. Lance v. Railroad Co., 57 Iowa, 636, 11 N. W. Rep. 612. Ellis cannot be denied his right to maintain an appeal because his wife neglected to join therein. If the award of the commissioners were jointly for John and Susan A. Ellis, or if the premises appropriated for the right of way were a part of a homestead, it is possible that Ellis could not properly prosecute his appeal without uniting his wife as appellant, or making her a party to the proceedings. Railroad Co. v. Hurst, 30 Iowa, 73; Railroad Co. v. Anderson, 42 Kan. 297, 21 Pac. Rep. 1059. But according to the evidence the land is not a homestead, and the award of the commissioners was not joint. If there had been no appeal by either, John and Susan A. Ellis might have apportioned the award among themselves according to their respective interests in the property. If the railway company desires Mrs. Ellis to be before the court, for its protection in any way, it is its duty to bring her in. Washburn v. Railroad Co., 59 Wis. 379, 18 N. W. Rep. 431. But upon the trial the appeal was heard and determined as if John and Susan A. Ellis had each perfected appeals. This was erroneous. Upon the appeal Ellis was only entitled to recover on the first count of his petition. He can only recover damages for such an interest or estate in the land taken as he can establish in himself. He could not, upon the appeal, recover anything on account of the interest or claim of his wife, who did not appeal, although she attempted to transfer and assign to him her claim or interest in the land. It would have been better for both John and Susan A. Ellis to have appealed, but for some reason Susan A. has neglected or refused so to do. Having so neglected or refused, she cannot found her appeal upon the action taken by her husband, John Ellis, even though, according to

the petition, she has since his appeal transferred, in writing, her interest or claim.

As the cause must be reversed for the error noticed, it is important to refer to evidence improperly admitted: Ellis attempted to show his interest in the land upon the trial by a verbal agreement between himself and his wife. Paragraphs 7162, 7164, 7166, Gen. St. 1889. Neither a husband nor wife are permitted to testify concerning any communication made by one to the other during the marriage. Subdivision 3, § 323, Civil Code. This is admitted, but it is answered that the railway company did not make sufficient objections upon the trial to the oral communications. An examination of the record shows that the attention of the court was called directly to the evidence as a conversation between husband and wire. We quote: "Question. Who paid the consideration for the conveyance? Answer. I paid it myself. Q. Well, state under what circumstances that conveyance was made in that way. Did you have any agreement with her [his wife] beforehand in regard to it? (Defendant objects to the question for the reason that it is incompetent, irrelevant, and immaterial; calling for a conversation, agreement, and understanding had between the plaintiff and his wife. Objection overruled. Defendant excepts.) A. We had an agreement beforehand that I was to have the land my lifetime, the same as if the deed was in my name; that I was to use it for whatever purpose that I saw fit; that I was to pay all expenses of improving the land. Q. Was that agreement in writing? A. No, sir. (Defendant objects to the answer last made by the witness, about the conditions of the agreement, and asks the court to strike it out, so far as it has been given, as incompetent, irrelevant, and immaterial, and for the reason that the witness has stated that the agreement or understanding was not in writing, and it must necessarily have been a parol communication between the parties. Objection overruled, and motion refused at this time, to which ruling of the court defendant excepts.) A. I was to use the land for whatever purpose that I saw fit, and that I was to derive all benefits from the land; that I was to have all I raised, the stock that run on the land, etc. It was to be my land my lifetime, the same as if the deed was in my name, and that I deeded her the land in case of my death, that she would have something to sell to support the family. Q. This agreement that you had with your wife, was that had about the time of the purchase of the land? (Objected to for the reason that it is incompetent, irrelevant, and immaterial. Objection overruled. Defendant excepts.) A. Yes, sir; just before this." Subsequently, when the husband testified more in detail of the communications between himself and wife, the evidence was objected to as incompetent. Railway Co. v. Usher, 42 Kan. 637, 22 Pac. Rep. 734; French v. Wade, 35 Kan. 391, 11 Pac. Rep. 138;