(52 Kan. 258)

THROOP et al. v. MAIDEN. (Supreme Court of Kansas. Nov. 11, 1893.) ATTACHMENT-SUFFICIENCY OF LEVY-POSSESSION.

1. To make and maintain an attachment levy upon personal property, the officer must take such possession as the nature of the property will permit; and an attempted levy by an officer who does not, by himself or another for him, take and retain actual and exclusive control of the property, is invalid.

2. In the month of October, an officer attempted to levy an order of attachment on 40 acres of standing corn, which had ceased to grow, but was not sufficiently dry to crib, and caused the same to be appraised. He notified the attachment debtor of the levy, but did not authorize such debtor to hold possession of the corn for him, nor place it in the charge of any one else. Neither did he post any notice that he claimed possession under the attempted levy. No control or dominion over the property was exercised by the officer until winter,-a period of about two months,-when he returned, and posted notice of a proposed sale of the corn. During that time, two-fifths of the corn had been gathered and used by the attachment lebtor, whose possession had never, in fact, been disturbed, but who had been told by the officer that he was at liberty to take sufficient corn from the field to feed his stock. Held, that the attempted levy is void, against one to whom the property was mortgaged, and whose mortgage was filed for record four days after the attempted levy.

(Syllabus by the Court.)

Error from district court, Butler county; C. A. Leland, Judge.

Action in replevin by Jacob B. Maiden against Charles Schram, as sheriff, and Charles Throop, as deputy sheriff. Plaintiff had judgment, and defendants bring error. Affirmed.

W. A. Phipps and Redden & Schumacher, for plaintiffs in error. Shinn & Knowles, for defendant in error.

JOHNSTON, J. This was an action of replevin brought by Jacob B. Maiden against Charles Schram, as sheriff of Butler county, and Charles Throop, his deputy, to recover the possession of 24 acres of corn which had been grown upon the farm of Maiden. On February 12, 1889, this farm was leased by Maiden to one Carleton until March of the following year, for a cash rental of $130, $65 of which was payable on the 1st day of December, 1889, and the balance on the 1st day of March, 1890. By the terms of the written lease, it was agreed that the payment of the rent should be secured by a chattel mortgage on the crops grown on the land, and such a mortgage was executed. Carleton planted and cultivated 40 acres of corn upon the farm, a portion of which is in controversy in this action. In an action brought against Carleton, an order of attachment was issued, and an attempt made to levy the same upon the corn on October 9, 1889. The chattel mortgage taken by Maiden was filed for record October 14, 1889. In pursuance of the attempted levy, a sale of the corn was made on December 14, 1889, v.34P.no.10-51

for the sum of $144. Maiden claims the property by virtue of a landlord's lien and the chattel mortgage which had been executed by Carleton. At the conclusion of the trial, the court directed a verdict in favor of Maiden, which was accordingly returned. Several errors are assigned, but the only assignment which is deemed to be substantial is the action of the court in taking the case from the jury.

It is contended that the landlord's lien which might have existed in favor of Maiden was waived by the taking of the chattel mortgage, and that, as the mortgage was not filed for record until after the levy was made, Maiden had no lien or special ownership in the property. The testimony tended to show knowledge of the interested parties of the lien or interest claimed by Maiden, but perhaps the evidence on this point is not sufficiently clear to warrant the taking of the case from the jury. On the other side, it is contended that it is shown beyond dispute that no legal levy was made, and that the property was never in the custody of the officer or of the law, or at least that it was not in such custody after the chattel mortgage had been filed for record. We are of opinion that there was no valid attachment of the property in question, and that as Maiden's mortgage, after being recorded, entitled him to the possession of the property, the questions relating to the enforcement of the landlord's lien are not important, and require no consideration. To constitute a valid attachment of personal property, it is necessary for the officer, where he can obtain possession, to take the property into his custody, and hold it subject to the order of the court, and a levy by an officer who does not obtain actual control over the property levied upon is invalid. Civil Code, § 198; Lyeth v. Griffis, 44 Kan. 159, 24 Pac. Rep. 59. A manual seizure or a removal of the property by the officer is not always required, but he must assume the control of the property by virtue of the writ, and exercise such dominion over it as the character of the property will permit. This dominion and control must be exclusive and continuous, and if the officer levying does not take and retain control by himself, or some one appointed for that purpose, the levy is invalid, against parties who subsequently obtain a lien on, or interest in, the property. It has been held that the custody should be such "as will enable the officer to retain and assert power and control over the property, so that it cannot probably be withdrawn or taken by another without his knowing it." Drake, Attachm. § 256. "It is not essential that the property should be moved or touched. It is enough that the officer assumes control under the writ, and keeps some one in charge of the property.

* The possession of the officer must not be temporary in its character. It must continue as long as it is desired that the at

tachment lien should remain in force. An abandonment of the possession is an abandonment of the levy. The property must not be restored to the real or apparent custody of the defendant. The change of possession must be actual and substantial, and not merely formal or colorable. It is not indispensable that the officer should be in visible possession every moment; but his connection with and control of the property ought, nevertheless, to be so continuous that it cannot probably be removed or disturbed without his knowledge." Freem. Ex'ns, § 262.

It is clear that the levy, in this instance, does not meet the requirements of the law. The officer went to the field on October 9th, and declared a levy upon 40 acres of corn standing therein, and caused it to be appraised. Although it had ceased to grow, and some of it had been gathered, still it was not dry enough to crib. He delivered a copy of the order to Carleton, and informed him that he had levied upon, and was going to hold custody of, the corn. He then left the field, and did not return to or exercise any dominion over the property levied upon until December 3, 1889, when he came back to advertise a proposed sale. He not only did not retain possession of the corn, but he failed to put it in the charge or keeping of another for him, and no notice was posted that a seizure had been made, or that possession was claimed by virtue of an attachment lien. Instead of retaining exclusive control, as the law requires, he actually gave his consent that the defendant in the attachment suit should go into the field, and gather sufficient corn to feed his stock. Although a levy was made upon 40 acres of corn, when he returned to sell it, more than two months later, it was found that only 24 acres of that which he had attempted to levy upon remained. Carleton, who never surrendered possession of the corn, had harvested and used 16 acres of the same. Attention is called to authorities holding that, to retain possession of ungathered crops, it is not necessary to place a guard over them; but under our statutes, and the authorities cited, we cannot hold that the officer exercised such dominion and control as will sustain the levy or lien. He did not exercise such control, nor employ such means, as an owner usually employs, in caring for his crops. As we have seen, no attention was paid to it by the officer for a period of about two months, nor was any care exercised for its preservation, and during that time two-fifths of the crop had been gathered, and taken away. An attachment levy is created by statute, and to obtain it the prescribed conditions must be substantially followed. To maintain the validity of an attachment levy, and the lien thereby created, the officer serving the attachment order must take, retain, and continue in the legal custody or control of the property levied upon. Wap. Attachm.

177. In Crisman v. Dorsey, 12 Colo. 567, 21 Pac. Rep. 920, the validity of a levy upon an unthreshed crop of wheat, standing in the field, was considered. The wheat was left upon the farm of the defendants, and was not placed in the charge of any one by the officer, and nothing was done to indicate that the wheat had passed from the possession of the owners. The court held, after an extended consideration of the statute and authorities, that there was no valid attachment. It was said that it was incumbent upon the officer to do whatever might be necessary to take the property into custody. "After the levy of the process, the possession of the property should be his. It should be subject to his dominion and control. His possession must be exclusive. His dominion cannot be shared with the defendant. The effect of the levy must be to place the property in custodia legis. It cannot be held adversely to the court, or to the officer." In this case, there was no arrangement for Carleton that he should hold under the offcer, but, on the other hand, he was undisturbed in his possession, and continued to hold it adverse to the officer, and to the court. In view of all the circumstances, we think that there was no valid attachment lien against the claims of Maiden under his mortgage, which, at least, became effective on October 14, 1889,-long prior to the actual custody of the officer. For that reason, no error was committed by the court in directing a verdict in favor of the defendant in error. The judgment of the district court will be affirmed. All the justices, concurring.

(52 Kan. 237)

MISSOURI PAC. RY. CO. v. RENFRO. (Supreme Court of Kansas. Nov. 11, 1893.) SURFACE WATER-OBSTRUCTION BY RAILWAY-LIABILITY TO ADJOINING LANDOWNER.

1. The rule of the common law as to the flow of surface water affirmed. Railroad Co. v. Hammer, 22 Kan. 763; Railway Co. v. Steck, 33 Pac. Rep. 601, 51 Kan.

2. A railway company, in the absence of negligence or unskillfulness in the construction of its road, will not be liable to an adjoining landowner for injuries from the overflow of surface water occasioned by the obstruction of the roadbed.

3. Where a railway company, for the purpose of properly constructing its roadbed, takes earth from one part of its premises, and uses it upon the roadbed, thus leaving a ditch along each side of it, in the usual and ordinary way of constructing railways in level or prairie countries, the company will not be liable to an adjoining landowner, through whose premises a right of way has been properly condemned and paid for, on account of injuries occasioned by surface water, even though the effect of such ditches and roadbed may be to prevent surface water, which before flowed upon the land, from coming upon it, or to draw from adjoining land surface water which would otherwise re main there, or to shed surface water over land on which it would not otherwise go. (Syllabus by the Court.)

Error from district court, Wilson county; L. Stillwell, Judge.

Action by Samuel H. Renfro against the Missouri Pacific Railway Company. There was judgment for plaintiff, and defendant brings error. Reversed.

J. H. Richards and C. E. Benton, for plaintiff in error. S. S. Kirkpatrick, for defendant

in error.

In

HORTON, C. J. This was an action in the court below by Samuel H. Renfro against the Missouri Pacific Railway Company to recover damages to his premises, resulting from surface water. Before the damages occurred, a right of way was properly condemned for the railway company through his premises, and the damages assessed for the construction of the road were received by him. his petition, Renfro alleged that the railway was negligently and unskillfully constructed, with deep ditches upon the sides thereof, for a mile or more, and that a narrow and insufficient culvert was constructed under the road on his land, so that the surface water collected and conducted down on his land was unable to pass through the same. Upon the trial, the jury found that the road was improperly and negligently constructed, as follows: "By digging long and continuous ditches along said railroad, and tearing down embankment at hedge north of plaintiff's premises; thereby conducting a large volume of water onto said premises that would not otherwise run there; thereby cutting a ditch through plaintiff's land, and otherwise damaging it. Also, by constructing a culvert so small through railroad grade that the water could not run off without flooding plaintiff's land west of railroad." The examination of the evidence, however, shows that there was no evidence introduced to sustain the finding that the railroad was not properly constructed. The railway company had a right to construct and maintain its road, and all of its acts were done upon its right of way, for which Renfro received compensation. The "long and continuous ditches" referred to in the findings were caused by taking dirt from either side of the line of the road for the purpose of constructing a roadbed. The plaintiff testified: "Question. This road is now level, about with the ground? Answer. Graded up. Q. This road is built through here, and there are barrow pits on both sides of it, where they took out the dirt to make the grade? A. Yes, sir. Q. Those ditches are where they took out the dirt to make the grade? A. Yes, sir." The "tearing down of the embankment at the hedge north of Renfre's premises" was not complained of in the petition, and, even if it were, it appears from the evidence that the railway could not have been constructed without cutting through the hedge, and, therefore, that was not an improper or negligent act. The plaintiff testified: "Q. Now, the hedge row crosses the

railroad here? A. Yes, sir. Q. And, in making that right of way, they cut a place through the hedge row? A. Yes, sir. Q. And the water turned into that ditch? A. Yes, sir. Q. They couldn't very well build a road without doing that, could they? A. No, sir. Q. They couldn't at all? A. No, sir; but I don't consider that I am responsible for that."

In reference to the culvert being too small, it is sufficient to say that the company was not compelled to construct a culvert upon his own land to carry off surface water. In Railroad Co. v. Hammer, 22 Kan. 763, it was decided that: "The simple fact that the owner of one tract of land raises an embankment upon it which prevents the surface water falling and running upon the land of an adjoining owner from running off said land, and causes it to accumulate thereon to its damage, gives to the latter no cause of action against the former; nor is the rule changed by the fact that the former is a railroad corporation, and its embankment raised for the purpose of a railroad track, nor by the fact that a culvert could have been made under said embankment sufficient to have afforded an outlet for all such surface water." In that case, Brewer, J., speaking for the court, remarked: "No exception is shown to the general rule by the fact that the party raising the embankment is a railroad corporation, and the embankment raised upon its right of way for use as a railroad track, nor by the fact that a culvert could have been placed in such embankment sufficient to have afforded an outlet for all such surface water, nor by the fact that a culvert was placed therein insufficient to afford such outlet. There is a conflict in the decisions of the different states upon the subject of surface water, because some follow the rule of the civil law, and others the rule of the common law. The rule of the common law has already been adopted in this state, and under that rule one landowner has the right to use and improve his own land for the purpose for which similar land is ordinarily used, and he may build upon it, or raise or lower its surface, even though the effect may be to prevent surface water which before flowed upon it from going upon it, or to draw from adjoining land surface water which would otherwise remain there, or to shed surface water over land on which it would not otherwise go. In the late case of Railway Co. v. Steck, 51 Kan. - 33 Pac. Rep. 601, the authorities concerning the nonliability for damages resulting from surface water are collected. In that case it was held that: "An owner of land, who builds an embankment thereon which obstructs the flow of surface water that falls and accumulates upon his neighbor's land does not become liable for the injury arising therefrom, unless the passageway through which it flows is such as to constitute a water course." Jordan v. Railway Co., (Minn.) 43 N. W.

Rep. 849, is very similar to the one at bar. It was observed by the chief justice: "The case is therefore one where a railroad company, for the purpose of properly constructing its roadbed, takes earth from one part of its premises, and uses it upon the roadbed, thus leaving an excavation or ditch along each side of it, which is the usual and ordinary way of constructing railroads in prairie countries. * ** It is conceded that the defendant had a right to construct and maintain its railroad, and that its acts were done upon its right of way, rightfully acquired. It is to be regarded, therefore, as an owner doing the acts complained of on its own premises; and its duty and liability are to be measured by the rule as to the duty and liability in respect to surface waters that attaches in the case of an owner in the use of his own land." See, also, Johnson v. Railway Co., (Wis.) 50 N. W. Rep. 771; Lessard v. Stram, 62 Wis. 112, 22 N. W. Rep. 284; Abbott v. Railway Co., 83 Mo. 271; Henderson v. City of Minneapolis, (Minn.) 20 N. W. Rep. 322; Hanlin v. Railway Co., 61 Wis. 515, 21 N. W. Rep. 623; Ang. Water Courses, (7th Ed.) 118-121; and Hannaher v. Railroad Co., (Dak.) 37 N. W. Rep. 717. In the latter case, it was remarked: "If, by the usual and ordinary construction of its road, the surface of the earth was necessarily changed. and the currents of the surface water were interrupted and diverted, it was one of those ordinary incidents of railroad construction which might have been reasonably expected to have resulted from such work, and one that plaintiffs themselves were bound to have guarded against, and to have used such precautions as were in their power to remedy. Any other rule would require railroad companies, in level countries, to build their roads upon elevated trestle, or encounter the hazard of some disturbance of surface elements." If the petition had not alleged that the railway was constructed in a negligent and unskillful manner, it would have been demurrable; but as it appeared from the evidence that the railway was constructed in the usual and ordinary manner, and that the ditches complained of were the mere incidents of, or necessary to, the proper construction of the road, no liability to the landowner for injuries from surface water rested upon the railway company.

On the part of Renfro, two cases are cited from Minnesota which are claimed to be nearly identical with the case presented, and to sustain the judgment rendered. These are Hogenson v. Railway Co., (Minn.) 17 N. W. Rep. 374, and Olson v. Railroad Co., (Minn.) 37 N. W. Rep. 953. In the first case the railway company extended its road in a northeasterly and southwesterly direction. There were ditches parallel with the railroad. The water collected in these ditches, and the company, for the express purpose of draining its land, and for no other purpose,-dug

a ditch westerly from the railroad, and about three miles long, and thereby drained its land, and other low, wet, and marshy land, onto the plaintiff's. In that case the ditch complained of was made for the purpose of drainage, only, and not as incidental or necessary to the construction of the road. In the second case the railway company built a ditch at a right angle from the ditches excavated parallel to, and upon each side of, its roadbed. This ditch, also, was for the purpose of drainage, only, and not built for the purpose of properly constructing the roadbed. These two and the other cases cited in support of the judgment, excepting those from Iowa and Illinois, where the rule of the civil law as to the flow of surface water is in force, are all based upon the doctrine that a landowner may not, by way of drainage only, improve his own land by transferring to the land of another a burden which nature imposed upon his own lands; but none of the decisions from the states where the rule of the common law concerning surface water has been adopted prevent a landowner from obstructing or diverting surface water from its usual course, if the same is done in the usual and ordinary manner, and as a mere incident to the improvement of his lands, by the building of a house, a railroad, or any other like structure. There is a marked distinction between Railroad Co. v. Hammer, 22 Kan. 763; Railroad Co. v. Steck, (Kan.) 33 Pac. Rep. 601, 51 Kan. -; Jordan v. Railway Co., (Minn.) 43 N. W. Rep. 849; Hannaher v. Railway Co., (Minn.) 37 N. W. Rep. 717,-and the Hogenson and Olson, and similar cases, which is clearly noticeable, if the opinions are carefully read and examined. In fact, these cases do not conflict, but the latter cases are not applicable to the facts of this case. Therefore, the principles in the former cases control. For the list of the states that follow the common-law rule concerning surface water, and those that follow the civil-law rule, see Railroad Co. v. Davis, (Md.) 11 Atl. Rep. 822; Gould, Waters, § 265. The judg ment of the district court will be reversed, and the cause remanded for further proceedings. All the justices concurring.

(52 Kan. 201) ST. LOUIS & S. F. RY. CO. v. KIRKPATRICK.

(Supreme Court of Kansas. Nov. 11, 1893.) JUDGMENT ON CONTRACT FOR PAYMENT OF MONEY -ENFORCEMENT PENDING APPEAL.

Where a petition in error is filed in this court, and an undertaking is given to stay execution of a judgment of the district court in favor of an attorney on an implied contract to pay for services rendered defendant as its attorney, it is within the power of the trial court to permit the enforcement of such judgment in the manner provided by section 555 of the Code. Implied as well as express contracts for

the payment of money only are within the provisions of said section.

.(Syllabus by the Court.)

Error from district court, Harper county; C. W. Ellis, Judge.

Action by W. R. Kirkpatrick against the St. Louis & San Francisco Railway Company. Plaintiff had judgment, and from an order granting him leave to enforce the same, notwithstanding the filing of a bond to stay execution, defendant brings error. Affirmed.

A. A. Hurd and Robert Dunlap, for plaintiff in error. Geo. E. McMahon, for defendant in error.

ALLEN, J. This case grows out of the case between the same parties decided at the last session of this court. 34 Pac. Rep. 400. After judgment had been rendered in the district court in favor of Kirkpatrick, the railway company filed a petition in error in this court, and a supersedeas bond to stay execution. Plaintiff filed a counter bond, and applied to the court, under section 555 of the Code, for leave to enforce the judgment. The court granted the application. The only question presented in this case is upon this ruling.

It is contended here, as it was in the principal case, that the judgment was for unliquidated damages for failure to furnish a pass. We have already ruled adversely to the plaintiff in error on that contention, and held that plaintiff's recovery was for services rendered under an employment from the railway company. In Water-Power Co. v. Brown, 23 Kan. 695, it was held that the contract need not be express, and that the trial court had a discretion as to granting the order. The case of Bentley v. Brown, 37 Kan. 17, 14 Pac. Rep. 435, is to the same effect. It was there held that the collection of a judgment against attorneys who had collected money which they refused to pay over to their client might be allowed, under this provision of the Code, notwithstanding the fact that the amount of plaintiff's recovery had been reduced by an allowance upon their counterclaim for legal services. This was an action on an implied promise to pay the plaintiff for his services as an attorney, rendered at defendant's request, and it was within the discretion of the trial court to grant the order complained of. Judgment affirmed. All the justices concurring.

The section provides: "In an action arising on contract for the payment of money only, notwithstanding the execution of the undertaking in the last section mentioned, to stay proceedings, if the defendant in error give adequate security to make restitution in case the judgment is reversed or modified, he may, upon leave obtained from the court below, or a judge thereof in vacation, proceed to enforce the judgment," etc.

1. Where a case made contains all of the pleadings, the general verdict, the special findings, the motions for judgment, a motion for a new trial, and a sufficient statement of the rulings of the court, the supreme court may direct what judgment the district court should have rendered in the premises.

2. Section 422a of the Civil Code (Laws 1889, c. 131, § 1) is not unconstitutional, upon the ground that it is in violation of section 16, art. 2, of the constitution of the state, as it is a new or supplemental act, providing how the cause of action granted by section 422 of the Civil Code, for the benefit of families of persons killed by the wrongful act or omission of another, may be enforced, when the deceased is a nonresident, or when no personal representative has been appointed. Said section is simply a change of remedy, but not the creation of a new cause of action.

3. Where a death of a person was caused by the wrongful act or omission of another, in this state, on the 24th of December, 1887, and no personal representative is or has been appointed, an action is properly brought by the widow of the deceased for the benefit of herself and children, after section 422a (Laws 1889, c. 131, § 1) went into force, if commenced within two years after the death complained of.

4. Where two or more railroad companies are consolidated under the statutes of the state, the new or consolidated company is answerable for the obligations of the old or constituent companies, including torts, in the absence of all evidence or stipulations to the contrary. (Syllabus by the Court.)

Error from district court, Bourbon county; J. S. West, Judge.

Action by Helen A. Berry against the Kansas City, Ft. Scott & Memphis Railroad Company to recover for the death of plaintiff's husband. Defendant had judgment, and plaintiff brings error. Reversed.

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

On December 24, 1887, William Y. Berry was an engineer of the Missouri Pacific Railroad Company, which company at that time was operating the Missouri, Kansas & Texas Railway. He ran an engine from Sedalia, Mo., to Ft. Scott, Kan., and while on one of his trips he was killed in Ft. Scott, Bourbon county, in this state, at a crossing by a train of the Kansas City. Ft. Scott & Gulf Railroad Company, which in April, 1888, was consolidated with other railroads, under the laws of Kansas, and constituted and became the Kansas City, Ft. Scott & Memphis Railroad Company. At the time of the killing, Berry was a citizen and resident of Sedalia, Mo., where he had a wife and two children living. He died intestate, and no letters of administration were ever issued, nor was any administrator of his estate ever appointed, in either Kansas or Missouri. On the