(35 Kan. 58) MISSOURI PAC. RY. Co. v. JOHNSTON. RAILROAD COMPANY-FENCES-KILLING Cattle. Where the owner of domestic animals, in a county where the herd law of 1872 was in force, kept the same confined on his own farm, in a pasture inclosed with a good and lawful fence, and the animals, without fault of the owner, escaped from the pasture, in the night-time, into a public highway, and wandered upon uninclosed lands through which a railway runs, adjoining the farm of their owner, and are run over and killed by an engine at a place on the railway where it is wholly unfenced, and their escape from the pasture was not and could not, by the use of ordinary care, have been discovered by the owner until after they were killed, held, that such animals cannot be said to be "allowed to run at large;" and further held, that the railway company, under the stock law of 1874, was liable for the value of the animals so killed. Error from Neosho county. This was an action brought by R. A. Johnston against the Missouri Pacific Railway Company on August 23, 1884, under the railway stock law of 1874, to recover damages for five three-year old steers belonging to the plaintiff, alleged to have been killed June 4, 1884, by the defendant in the operation of its railway. The cause was submitted to the court upon the following agreed statement of facts: "The defendant is a corporation, duly organized and incorporated under the laws of the state of Missouri. On the fourth day of June, 1884, and long prior to said date, and ever since then, the defendant has been the owner of certain locomotive engines and cars, and has been engaged in operating a railroad through the county of Neosha, in the state of Kansas. On or about the fourth day of June, 1884, the plaintiff was the owner of five three-year old steers, of the value of two hundred and seventy-five dollars, and kept the same confined on his own farm, in a pasture inclosed with a good and lawful fence, in said county of Neosho. On the night of said fourth day of June, 1884, said steers, without fault of plaintiff, escaped from said pasture into a public highway, and wandered thence into and upon certain uninclosed lands in said county of Neosho, owned and possessed by one Alva Clark, through which runs defendant's railway, said lands of Alva Clark adjoining the farm of plaintiff, upon which was said pasture. "Said steers entered upon said railway, in said county of Neosho, from said lands of Alva Clark, and were then and there in the night-time, and upon the same night they escaped from the pasture, run over and killed by the engines and cars of said defendant about two hundred yards from the pasture from which they escaped as aforesaid. The said railroad of defendant in said county of Neosho, at the time and place where said steers entered into the same and were killed, was wholly unfenced, and was not inclosed with any fence whatever to prevent said animals from being on said road. From the time of the escape of said steers from the pasture until they were killed there was no one in charge or pursuit thereof; and their escape from the pasture was not and could not by the use of ordinary care have been discovered by plaintiff until after they were killed. On the eighth day of November, 1872, the board of county commissioners of said county of Neosho, under and by virtue of the powers in them vested by an act entitled "An act providing for the regulation of the running at large of animals," approved February 24, 1872, did direct, by an order then duly made, that on and after the twentieth day of December, 1872, no steer or other animal in said order named should be allowed to run at large within the bounds of said county of Neosho, which order was entered upon the records of said board of commissioners on the said eighth day of November, 1872, and was published for four successive weeks next after said entry was made in the Neosho County Journal, a newspaper then published in said county of Neosho, and has been in full force and effect in said county of Neosho at all times since said twentieth day of December, 1872. On the seventh day of June, 1884, and more than thirty days before the commencement of this action, the plaintiff made demand of H. H. Ludlie, who was then the duly-authorized and acting ticket agent and station agent of said defendant at South Mound, in said county of Neosho, for the value of said steers, but said defendant has ever since failed and refused to pay the same. Fifty dollars is a reasonable attorney's fee for the prosecution of this suit. "It is hereby agreed that the above-entitled action shall be submitted to the court upon the foregoing agreed statement of facts, the court to be at liberty to draw inferences of fact. "HUTCHINGS & DENISON, Attys. for Plaintiff. "DAVID KELSO, Attorney for Defendant." Judgment was rendered December 8, 1884, in favor of the plaintiff for $275, with interest from June 4, 1884, and the sum of $50 was allowed for attorney's fee, together with the costs, taxed at $10.95. The railway company excepted to the judgment, and brings the case here. David Kelso, for plaintiff in error. Hutchings & Denison, for defendant in error. HORTON, C. J. In this case it appears from the agreed statement of facts that the plaintiff's cattle escaped from his pasture, and wandered from the public highway upon the uninclosed land of one Alva Clark, through which the defendant's railway runs. The railway was not fenced, and the cattle entered upon it, and were run over by a train. Their escape had not been discovered, and there was no one in pursuit. The herd law of 1872 was in force in the county. It is claimed on the part of the railway company, defendant below, that the plaintiff was bound, at all events, to restrain his cattle; that the killing of the cattle was the result of concurring wrongs, and as the law can neither apportion the damages nor attribute the result to defendant's default, disregarding that of plaintiff, no recovery can be had. Railway Co. v. Lea, 20 Kan. 353, and Shear. & R. Neg. § 39, are cited. In Railway Co. v. Lea, the owner permitted his cow to run at large, in violation of the herd law, and while so running at large the animal strayed upon the track of the railroad and was killed. In this case the owner of the animals kept them confined on his farm in a pasture inclosed with a good and lawful fence, and, without his fault, they escaped in the night-time from the pasture into a public highway, and wandered thence into uninclosed lands upon the defendant's railway, which railway was wholly unfenced. Therefore the case of Railway Co. v. Lea is not controlling. On the other hand, the agreed statement of facts brings the case within the following decisions of this court: Railway Co. v. Wiggins, 24 Kan. 588; Railway Co. v. Bradshaw, 33 Kan. 533; S. C. 6 Pac. same. Rep. 917; Railway Co. v. Roads, 33 Kan. 640; S. C. 7 Pac. Rep. 213. In Railway Co. v. Wiggins it was held that even in herd-law counties the rigorous doctrine of the common law does not prevail, and that an animal cannot be said "to be allowed to run at large" where the owner has taken reasonable precautions to confine the In Railway Co. v. Bradshaw it was held that, under the railway stock law of 1874, a railway company is required to inclose its road with a good and lawful fence as against all animals against which such a fence would be a protection; and it was further held in the case that where an unfenced railway passed through a farm, and a hog belonging to the owner of the farm escaped, without fault on the part of the owner, and strayed upon the railway within the limits of the farm, and was there killed by the railway company in the operation of its road, that the railroad company was liable. In Railway Co. v. Roads it was said that where hogs escape from a pen in which they are inclosed, by mere accident, no negligence can be properly attributed to the owner therefor; and it was further said that the mere fact that the animals were trespassing upon the land from which they went upon the unfenced railroad track, where they were killed, will not, where the plaintiff is without fault, defeat a recovery. Upon these decisions the judgment of the district court must be affirmed. (All the justices concurring.) (35 Kan. 39) SPALDING and others v. WATSON. Filed March 5, 1886. TAXATION-ASSESSMENT-TAX DEED. A quarter section of land may be divided into 80-acre tracts, and assessed and taxed separately; and this may be done in some cases although the property may belong to one individual; and where a quarter section is so assessed and taxed, it will be presumed, in the absence of anything to the contrary, that the officers did their duty, and a tax deed founded upon such assessment and taxation will be held to be valid, where nothing else appears that would render it invalid. Error from Wabaunsee county. H. H. Harris and Foster & Hayward, for plaintiffs in error. R. A. Friedrich and Irwin Taylor, for defendant in error. VALENTINE, J. This was an action in the nature of ejectment, brought by George W. Watson against James W. Spalding, F. H. Foster, and F. M. Hayward, to recover the N. W. of section 33, township 13, range 13, in Wabaunsee county, Kansas. The case was tried before the court, without a jury, and the court made certain special findings of fact and conclusions of law, and rendered judgment in favor of the plaintiff and against the defendants for the recovery of the land, and for costs, and to reverse this judgment the defendants, as plaintiffs in error, now bring the case to this court. The plaintiff below claims title under the original patent issued by the United States, on September 10, 1860, to Samuel McClellan, and also under a tax deed issued by the county clerk of Wabaunsee county to C. F. Kenderdine, on September 8, 1882, and recorded on the same day. The defendants claim title under a tax deed executed by the county clerk of Wabaunsee county to B. W. Clark, on July 29, 1870, and recorded on the same day. We shall assume that the tax deed under which the defendants make their claim of title is valid, and that it cuts off all titles existing at the time when it was executed and recorded. The question, then, arises: Is the plaintiff's tax deed valid or not? If it is valid, it will also cut off all prior titles, and give to the plaintiff a perfect title to the land; for the plaintiff's tax deed is the last one executed, and was executed nearly 12 years after the defendant's tax deed. The plaintiff's tax deed is founded upon a tax sale made in the year 1879 for the taxes of 1878, and the principal objection urged against its validity is that the land in dispute was not assessed and taxed in 1878 as one tract, but was assessed and taxed as two 80-acre tracts, to-wit, "the east half" of said quarter section, and "the west half" of said quarter section. Now, why this mode of assessment should render the tax deed void or any of the tax proceedings void we cannot understand. Eighty-acre tracts of land, or half quarter sections, are legal subdivisions, and when government lands are offered for sale at public auction they are always so offered in half quarter sections, (Rev. St. U. S. c. 7, § 2353;) and in Iowa, when the owner of any real estate is unknown, it is always required that each sixteenth part of the section, or other smallest subdivision of land, shall be assessed and taxed separately. McClain, Ann. St. Iowa 1882, tit. 6, c. 1, § 826. And it is generally safer where the names of the owners of lands are unknown, and where separate portions of the lands are susceptible of clear description, to assess them in separate tracts, as they may be owned by different persons; and if they are, and a joint assessment should be made and all the lands taxed together, the owner of one tract could not ascertain the amount of the taxes due on his land or pay the same, nor could he redeem his land from the taxes when sold without paying all the taxes imposed upon all the other lands assessed and taxed with his. Shimmin v. Inman, 26 Me. 228, 233. See, also, Shaw v. Kirkwood, 24 Kan. 476; Kregelo v. Flint, 25 Kan. 695. At the time when the assessment was made in the present case, and now, the act relating to taxation provided, among other things, as follows: "Sec. 44. Each assessor shall make out, from such sources of information as shall be within his reach, a correct and pertinent description of each piece, parcel, or lot of real property, in numerical order as to lots and blocks, sections or subdivisions, in his township or city, as the case may be, and he may require the owner or occupant of such property to furnish such description." Comp. Laws 1879, c. 107, § 44. In the absence of anything to the contrary, it will be presumed that the assessor did his duty. Indeed, in the absence of anything to the contrary, it will always be presumed that all officers do their duty. We might further say that the land in controversy was vacant and unoccupied from the beginning up to March 1, 1883; that the patent for such land was not recorded in the county until some time in the year 1883; and that the land was continuously assessed and taxed in separate 80-acre tracts from the year 1864 up to the present time, from 1864 up to 1870 as "unknown," and from that time up to 1878 in the name of B. W. Clark, the grantor of the defendants; and, presumably, it was so assessed and taxed from the year 1870 up to 1878 with the approval of Clark, and, presumably, he paid the taxes as thus imposed up to and including the year 1877; and, if so, why should his subsequent grantees, the present defendants, now complain? It is also provided in the act relating to taxation as follows: "Sec. 139. No irregularity in the assessment roll, nor omission from the same, nor mere irregularities of any kind in any of the proceedings, shall invalidate any such proceedings, or the title conveyed by the tax deed; nor shall any failure of any officer or officers to perform the duties assigned to him or them, upon the day specified, work an invalidation of any such proceedings or of said deed." Comp. Laws 1879, c. 107, § 139. We have examined the authorities cited by counsel for the defendants, (plaintiffs in error,) and do not think that they are applicable. under the facts of this case and the statutes of this state. We think the tax deed under which the plaintiff claims title is valid. There are some other objections urged against the validity of this tax deed, but we do not think that they are at all tenable. The judgment of the court below will be affirmed. (All the justices concurring.) (35 Kan. 43) CLARK and another, Adm'x, etc., v. PHELPS. Filed March 5, 1886. 1. WITNESS-CROSS-EXAMINATION. While it is proper for a court to permit a party, on cross-examining the witness of the adverse party, to put questions to the witness, the answers to which may tend to show bias or prejudice towards the party conducting the cross-examination, yet where many such questions have been asked and answered, and the exact relations and feelings existing between the witness and the party conducting the cross-examination have been shown, the court may not commit material error in refusing to permit further questions for the same purpose to be asked; and held, in the present case, that no material error was committed in this respect. 2. TRIAL-ERRORS. Other matters considered, and held, that the court did not commit material error with reference thereto. 3. WITNESS-IMPEACHMENT. The plaintiff introduced evidence for the purpose of impeaching the testimony of one of the witnesses for the defendant, and in doing so introduced some evidence that could not have been introduced in any other manner, |