BUTLER et al. v. BOARD COUNTY COMMIS- | urged that all that part of the road runSIONERS OF MORRIS COUNTY. (Supreme Court of Kansas. Oct. 5, 1889.)

HIGHWAYS-ESTOPPEL.

It is too late for a non-resident owner of land through which a public road has been located and ordered opened, and who appeared before the board of county commissioners and agreed with them that if they would reconsider their action, and locate only a part of the road, and reject a portion, he would waive all damages occasioned by the location, and the board assented to his proposition, and reconsidered their action, and located only the part agreed upon, to urge upon an appeal that the waiver

was by parol, and not binding upon him.

(Syllabus by Simpson, C.)

Commissioners' decision. Error to district Court, Morris County.

Buck & Feighan, for plaintiffs in error. J. K. Owens and Miller & Ritchie, for defendants in error.

ning north from the mill, and thence east along the north line of the quarter section, was of no public use, and, if opened, would tiffs in error. greatly damage the property of the plainHe then expressly agreed that if the board would reconsider their action in adopting the report, and then amend the order so that the portion of the road north and east of Wright's mill should not be located and opened, he would be satisfied, and would not claim any damages for that portion of the road along the south line, and north to the mill. The board went with him to view the proposed road, and finally assented to his proposition, reconsidering their action, and excluded that portion of the road north and east of Wright's mill, and adopted the report as to the remainder, and ordered the road opened. This reconsidered order was made on the 9th day of July, 1885. This agreement by SIMPSON, C. This is an appeal from the Butler is fairly established by the evidence. decision of the board of county commission- While he denies it, his evidence is overborne ers of Morris county to the district court by the positive statements of the three of that county for not awarding to plain- members of the board, and by the attending tiffs in error damages arising from the loca- circumstances. On this state of facts the tion and opening of a public road through jury returned a general verdict for the countheir land. The district court impaneled a ty without special findings; but the conjury, and tried the cause, the trial resulting trolling question is, and probably was, as in a verdict and judgment in favor of the to the validity of the agreement made by county. The errors assigned here, and Butler. The board of county commissionurged by counsel, are the admission of im-ers acted on this agreement, and made their proper evidence, the rejection of proper evi-order locating and opening the road in acdence, a refusal to give certain instructions cordance with its condition; and this was asked for by the plaintiffs in error, instruc- the consideration that the plaintiffs in ertions given that were excepted to by plain- ror received for the waiver of damages. It tiffs in error, and in overruling a motion for is now contended that the plaintiffs in era new trial. On the 8th day of October, ror could not waive their damages by parol. 1884, a petition in due form was presented Their attitude with respect to this question to the board of county commissioners, ask-is such that gross injustice would be done ing for the location of a public road, begin- if their contention should be sustained. ning at the N W. corner of the S. W. 4 of They have reaped the benefits of the agree section 25, township 17, range 9 E.; thence ment, and it would be palpable injustice to east one mile, as near as practicable, on the permit them to now repudiate it. It is usehalf section line between Morris and Lyon less to discuss the abstract question as to counties. Also commencing at the S. E. whether or not damages occasioned by the corner of the S. W of the N. E. 4 of said location of a public highway through land section; thence north on the quarter sec- can be waived, by parol, by the owner. tion line, or as near thereto as is prac- There is safe ground beyond that question ticable, one-half mile; thence east on sec-upon which our decision can securely rest. tion line between sections 24 and 25 to the The agreement has been fully executed on county line. The plaintiffs in error jointly the part of the board of county commisown the N. E. 4 of section 25, except 20 sioners. All the benefit that the plaintiffs acres in the N. E. corner of the quarter sec-in error expected from the agreement have tion, and a mill-site of 9 acres near the center of the quarter section. The road as petitioned for was located along the south line of the quarter section, and through the center, passing by the mill, and then along the north line to the county road on the east line of the quarter section. Neither of the plaintiffs in error signed the petition for the location of the road. No service of notice was made on either of them, they being non-residents of the county. A proper bond was given, viewers were appointed, who reported, recommending that the prayer of the petition be granted, and the road located. At the April session of the board, in 1885, the report of the viewers was adopt ed, and the road ordered opened.

On the 17th day of April, 1885, Butler, one of the plaintiffs in error, appeared before the board, and requested them to go with him and examine for themselves as to the

accrued to them, and now they will not be heard to say that the agreement is not valid because not in writing. This agreement is a complete bar to any action for damages that could be instituted by the plaintiffs in error. There can be no question of jurisdiction in view of the facts, and all other errors complained of are immaterial, as damages were expressly waived, and the sole object of this action is to recover for them.

We recommend the affirmance of the judg

ment.

PER CURIAM. It is so ordered; all the justices concurring.

ATCHISON, T. & S. F. R. Co. v. WOODCOCK. (Supreme Court of Kansas. Oct. 5, 1889.) APPEAL-REVERSAL.

When the special findings of a jury are in

public utility of a part of the road. He conflict with the general verdict, and inconsist

ent with each other, and are so uncertain and in- [back to Wilder, a distance of some two or complete that this court cannot render judgment three miles. Woodcock alleges that he was on them, the judgment rendered by the trial court not well at the time, and that the walk will be reversed, and the cause remanded for fur-back to Wilder in the hot sun aggravated ther proceedings.

(Syllabus by Simpson, C.)

Commissioners' decision. Error from district court, Johnson county; J. P. HINDMAN, Judge.

his illness. He attempted to transact his business at Wilder, and in that vicinity, but rapidly grew worse, went home, and was laid up for a couple of months. He was at this time in the employment of a Geo. R. Peck, A. A. Hurd, and Robert | nursery-man of Wyandotte county, and Dunlap, for plaintiff in error. A. Smith was receiving a salary of $50 per month Devenney, for defendant in error. and his expenses. This statement of the case is taken literally from the brief of his attorney, and embraces a fair statement of the facts as given in evidence on the trial. The jury gave him a verdict for $55, and that amount, with costs. The jury returned answers in writing to special interrogatories, and among such answers are the following: "Eighth. That Woodcock did not know, at the time he got upon said train, or at any time before it took its departure from Kansas City Mo., that by the rules and regulations of the defendant company it was forbidden to stop at Wilder and discharge passengers.' "Twenty. Woodcock was not guilty of any negligence, or the want of ordinary care, or of any fault upon his part in the premises, which in any manner contributed to his alleged injuries." "Twenty-third. Woodcock entered the train by reason of none of the servants being then at the car to forbid his entering and taking a seat on that ticket." "Twenty-fifth. The plaintiff, Woodcock, exercised reasonable diligence to ascertain the proper train for him to get upon." To the ninth special interrogatory submitted by the railroad company, in these words: "By the use of ordinary diligence could the plaintiff have ascertained that the train which he was about to take passage on

SIMPSON, C. On the 1st day of June, 1886, Allen Woodcock went to the Union depot at Kansas City, Mo., for the purpose of taking a train to Wilder, Johnson county,judgment was rendered in his favor for Kan., a station on the Atchison, Topeka & Santa Fe Railroad, 17 miles west of Kansas City, Mo. He purchased a ticket at the Union depot ticket-office, near 10 o'clock A. M. of said day, entitling him to ride on a passenger train of the Atchison, Topeka & Santa Fe Railroad Company, from Kansas City, Mo., to Wilder. The ticket was not restricted or limited upon its face to any particular train. It seems that two trains of the Atchison, Topeka & Santa Fe Railroad Company departed from the Union depot every morning, both of which ran through the town of Wilder,-one train called the "local" and the other a “through train." The "local" usually departed at 9:30 A. M., and the other train left at 10:40 A. M., according to schedule time. At the time Woodcock purchased his ticket, he asked the ticket agent, "How soon can I go to Wilder?" and the agent replied, "You can go right away; the train is ready." Woodcock immediately started out of the depot building to get upon the train, and as he passed out of the door facing the platform where the train stood, he met a man dressed in a gray uniform, with gilt but-did not stop at Wilder?"- the jury antons on his coat, and a badge on his cap, swered, "Yes." There is an irreconcilable of whom he asked, “Which is the Santa Fe conflict between these two special findings, train?" and he replied by pointing to the and we are at a loss to determine how a train that Woodcock got upon. Mr. W. judgment can be rendered while they reproceeded directly to that train, and got main in the record. At least we shall not on the side of the train next to the depot. undertake the task. As neither party made He walked up the steps of the front end of any attempt to have the conflict removed, the rear coach, with his heavy grip in his by sending the jury back, or in any other hand, and took a seat, and remained there manner correcting the error, the court, of for 15 or 20 minutes before the train start- its own motion, ought to have had the ju ed. At the time he got upon the train there ry return such intelligent answers to these were none of the servants of the railroad special interrogatories as would enable a company to be seen, of whom he could judgment to be pronounced upon them, make inquiry. Just before the train reached and made them consistent with each other Wilder, the conductor took up his ticket, and with the general verdict. This court and informed him that he was on the has said in the case of Railroad Co. v. wrong train, and that this train did not Gants, 38 Kan. 608, 17 Pac. Rep. 54, that "it stop at Wilder. Woodcock insisted that he is the duty of a person about to take passage was ignorant of any other train earlier or on a railroad train to inform himself when, later; that he had been misled by the tick- where, and how he can go or stop, accordet agent and the Union depot usher; and ing to the regulations of the railroad comhe demanded that the train be stopped at pany." And again, it is held in that same Wilder, and he be given an opportunity to case: 'Where a person purchases a railroad get off; but the conductor refused so to do, ticket for a designated station upon a railand demanded that he pay fare from Wild-road, without making any inquires, or ascer er to Lawrence,-that being the first station at which the train stopped after leaving Kansas City, Mo. The conductor said if he refused to pay to Lawrence he would have to stop the train and put him off. The train was run some distance west of Wilder, and there stopped. Woodcock was put off the train, without violence, and walked

taining what train stops at the station to which he desires to go, and subsequently takes his seat upon a car of a train which, according to the regulations of the company, does not stop at the station for which he has the ticket, and such person refuses to pay his fare, on demand of the conductor, to the next station at which the train

Commissioners' decision. Error from district court, Woodson county; L. STILL WELL, Judge.

The plaintiff in error, plaintiff below, was the owner of the north half of section 32, town 25, range 16, in Woodson county, and in February, 1887, the Chicago, Kansas & Western Railroad Company, in the method provided for by law, condemned a right of way through this tract. Commissioners were appointed, and their report filed with the county clerk upon the 15th day of February. On the 22d the plaintiff appealed from the award of damages. Trial was had at the district court on the 15th March. Before the trial the defendant offered to confess judgment for $300.50. On the trial by court and a jury a judgment was rendered in favor of plaintiff for $250.

G. R. Stephenson and Slavens & Warner, for plaintiff in error. Geo. R. Peck, A. A. Hurd, and H. D. Dickson, for defendant in error.

is to stop, and also refuses to leave the train when requested so to do by the conductor, after he has stopped the train at a suitable place for that purpose, such person is a trespasser upon the train." In 38 Kan. 507, and 16 Pac. Rep. 937, in the case of Railroad Co. v. Hinsdale, it is held that "it is the duty of a passenger to inform himself of the regulations governing the transit and conduct of the trains, if such rules are reasonable. If a passenger disregards the regulations adopted by a company as to the purchase of tickets, or the running of trains, by failure upon his part to make any inquiries, and such neglect is not induced by the company's agent having authority in the matter, the company is not liable therefor." These cases were carefully considered, and we regard the law arising on the state of facts presented in this record well settled, and against the right of Woodcock to recover in this action. He did not make any inquiry as to the running of the trains. It was his duty to inform himself, before he entered the train, as to whether it stopped at Wilder. Failing to make any such inquiry, either of the ticket agent or of the employes upon the platform, he did not exercise ordinary diligence, and the result was due to his own negligence and carelessness. We make this statement of the law that must govern a new trial of this case, if one is ever had. One of these special findings is inconsistent with the general verdict, and directly conflicts with another special finding upon the same question. When the jury returned their verdict into court, either party could have called the attention of the court to the inconsist-ant, concerning a passage-way to be left unency, and objected to their reception; this was not done, but the questions presented on a motion for a new trial, and ́on a motion by the railroad company for judgment on the findings. This case falls within the rule announced in Harvester Works Co. v. Cummings, 26 Kan. 367, and Railroad Co. v. Townsdin, 38 Kan. 78, 15 Pac. Rep. 889. We are unable to enter judgment, because of the inconsistency of the special findings with the verdict and with each other. It is recommended that the judgment be reversed, and the cause remanded, with instructions to grant a new trial.

HOLT, C., (after stating the facts as above.) The plaintiff claims there was error in the introduction of testimony, and in giving and refusing instructions. The railway divided the farm through which it ran so that a part of the pasture land was separated from the water in another part thereof. There was nothing upon the profile or notes filed with the county clerk to show there would be a passage under the track; nor was there any contract entered into between the parties concerning one. Upon the trial, testimony was offered of Mr. Bardeen, of the engineer corps of defend

der the road-bed in a ravine which the railroad would cross. He testified that the engineer's profile showed that there would be an under-crossing, near the east boundary of the land, suflicient in every way for the passage of cattle. He stated that the road-bed was not completed at the time of the trial, but directions had been given, after they had commenced work on the roadbed, not to fill up this ravine by an embankment; that there had been but very little dirt placed in the ravine when the change had been made. This testimony was objected to by plaintiff, and its admission is one of the errors claimed by plaintiff.

PER CURIAM. It is so ordered; all the The court instructed the jury in this connecJustices concurring.

LIND V. CHICAGO, K. & W. R. Co. (Supreme Court of Kansas. Oct. 5, 1889.)

EMINENT DOMAIN.

On an appeal from condemnation proceedings by a railway company, where the trial is had before the grading of the road-bed is completed, and the company introduces evidence that the engineer's profile shows that he has ordered an under-crossing through which cattle could pass under the railroad from one side to the other, but there is nothing in the profile filed by the railroad company, nor in the report filed in the county clerk's office by the commissioners appointed to assess the damages for the land appropriated, showing such crossing, the court should have instructed the jury, when requested by the owner of the land, that the company was not obliged, under the evidence, to maintain such under-crossing. (Syllabus by Holt, C.)

tion as follows: "In assessing the damages to plaintiff's land, outside of the strip taken for a right of way, you may, and should, consider the way in which the railroad cuts or divides the plaintiff's land; the shape in which the land is left; the depth of excavations or height of embankments and how they may effect the drainage; the obstruction or interruption of access to, and the division of the lands into, different parts, so that persons or stock cannot pass from one to the other, or can only pass with greater or less difficulty and danger. In connection, however, with this question as to any alleged inconvenience as regards stock passing across the right of way to or from the different parts of the farm, if you should believe from the evidence that a passage-way exists, or can be maintained, under said right of way, by which the stock can pass from one portion of the farm to the other, you will take that into

consideration with all the other evidence, Commissioners' decision. Error from disfacts, and circumstances in the case, as re-trict court, Wabaunsee county; R. B. gards the lessening or diminishing thereby SPILLMAN, Judge.

the inconvenience claimed to exist by rea- Doolittle & Stringham, for plaintiff in erson of stock having to cross the right of ror. J. T. Keagy, for defendant in error. way." Plaintiff asked the following in

struction, which was refused: "The road

SIMPSON, C. This action was commenced way for cattle and wagons testified to may in the district court of Wabaunsee county, be filled up at any time by the defendant, by the defendant in error, under article 7, c. said defendant not being under any obliga-36, Comp. Laws 1885. The suit was to pertions to keep up and maintain the same." manently restrain the officers of the city of We cannot say that there was material er- Alma, a city of the third class, from executror in the introduction of this testimony, al-ing, issuing, and delivering certain bonds though we think it would have been of very for general improvements, voted at an elec little value under proper instructions. The tion held on the 18th day of July, 1887, alpresumption was that the road would be leging that said election was without aubuilt in accordance with the profile in the thority of law, fraudulent, and void. A recounty clerk's office, and under the report straining order and a temporary injunction made by the commissioners. To be sure, the were both issued and served. The city offiroad-bed might be changed, and, if it had cers answered, and with other defenses albeen changed before the case was tried, leged that before the restraining order or such change would have been proper to the temporary injunction was served upon have been introduced in testimony, and them, or any one of them, and before they probably the statement of the engineer, had any notice of the issuance of the same, and his profile, showing a proposed change the said bonds had been executed, issued, in the road-bed, might have been compe- sold, and delivered. At the trial the court tent testimony tending to show the inten- made special findings of fact, and among tion of the railroad company to build_its them is the following: "That a temporary road in the manner therein indicated. But restraining order was granted in this case if it had built its road in such manner, by the court on the 22d day of July, 1887, there was nothing in the statement and and on the same day served upon the deprofile of the engineer to compel it to main- fendants John F. Limerick, mayor, and tain it for any length of time. In the ab- Tom E. Guest, clerk of the city of Alma; sence of any report and profile filed with the and that a temporary injunction was grantproper officer showing this under-crossing, ed on the 9th day of August, 1887, by the the company would not have been under judge of this court, at chambers, upon noobligations to maintain it, but could have tice; that upon the trial of this cause the filled up the ravine at its pleasure. We defendants, without objection on the part think the instruction asked for by the plain- of the plaintiff, offered evidence tending to tiff should have been given, and for the re- prove that, before the said restraining orfusal to give it shall recommend that the der was served upon the mayor and clerk, case be reversed. As the case goes back for they had executed, issued, and delivered a new trial, it is probable that the road- said bonds, and the court finds as a fact bed is now constructed across this ravine. that the bonds voted at the election on the If the railroad company has made an un- 18th day of July, 1887, were executed, isder-crossing, and intends to maintain it, sued, sold, and delivered before the tempothat fact should appear either by amend-rary restraining order was served upon the ment of the profile and report in the office mayor and clerk." The trial court also of the county clerk, or by a recital in the finds, as a conclusion of law, that the plainjudgment that the case was tried and dam- tiff below is entitled to a perpetual injuncages awarded upon the theory that the tion to enjoin and restrain the defendants crossing was to be maintained by the com- from executing, issuing, or delivering the pany. Railroad Co. v Murphy, 19 Minn. bonds voted at said election. The only er500, (Gil. 433:) Mills, Em. Dom. § 213. We ror assigned that needs comment is the recommend that the judgment be reversed. judgment for a perpetual injunction, in the face of the finding that the bonds had been issued, sold, and delivered before the service of the restraining order. The function of a writ of injunction is to afford preventive relief. It is powerless to correct wrongs or injuries already committed. This is alphabetical law. The injunction provided by our Code of Civil Procedure

PER CURIAM. It is so ordered; all the justices concurring.

CITY OF ALMA et al. v. LOEHR. (Supreme Court of Kansas. Oct. 5, 1889.) INJUNCTION.

1. A perpetual injunction will not be granted on the final trial against a city, to restrain its officers from issuing, selling, and delivering its bonds in aid of local improvements, when there is an express finding by the trial court that said bonds had been issued, sold, and delivered before service of a temporary restraining order issued at the commencement of the action.

2. Under our procedure, the exclusive function of a writ of injunction is to afford only preventive relief. It is powerless to correct wrongs or injuries already committed.

(Syllabus by Simpson, C.)

is a command to refrain from a particular act." Sections 237, 238. Equity will not entertain a bill for an injunction to restrain the issuing of municipal bonds in aid of a subscription to a railway when the bonds have been actually issued and deliv ered to the company. Menard v. Hood, 68

III. 121.

It is recommended that the judgment of the district court be reversed, and the cause remanded.

PER CURIAM. It is so ordered; all the justices concurring.

STATE ex rel. v. SOWDERS et al. (Supreme Court of Kansas. Oct. 5, 1889.) CRIMINAL LAW-JUDGMENT-VACATION.

For the purpose of administering justice the district court has a very wide and extended discretion in opening up judgments, and in setting aside or modifying proceedings had before it, if it does so at the same term at which the judgment or proceedings are had, and if all the parties are present in the court, and no advantage is taken of either party.

(Syllabus by the Court.)

court has the power, on the same day, or at the same term, to open the case and hear further testimony. Of course, neither party can insist upon this, as it is a matter within the sound discretion of the court, and its ruling thereon will not be reversed, unless it appears that its discretion has been abused. Brown v. Holmes, 13 Kan. 493; Cook v. University, 14 Kan. 548; Railroad Co. v. Dryden, 17 Kan. 278; State v. Teissedre, 30 Kan. 476, 2 Pac. Rep. 650; West v. Cameron, 39 Kan. 736, 18 Pac. Rep.

Error from district court, Shawnee coun-894. Again, a party against whom a judg ty: JOHN GUTHRIE, Judge.

Charles Curtis and Wm. R. Hazen, for plaintiffs in error. Overmyer & Safford, for defendants in error.

ment is rendered by default may, within the sound discretion of the court, have that judgment set aside, and be let in to answer. Gheer v. Huber, 32 Kan. 319, 4 Pac. Rep. 290. Further, a trial court, for the purpose of administering justice, has a very wide and extended discretion in setting aside or modifying proceedings had in its own court, if it does so at the same term at which the proceedings were had. Hemme v. School-Dist., 30 Kan. 377, 1 Pac. Rep. 104. The action of the court on the after

HORTON, C. J. This case was here before upon a demurrer to the second count of the answer, and reversed. 37 Kan. 209, 14 Pac. Rep. 865. After the mandate of this court was received by the court below, the plaintiff filed a reply to the defendants' answer, and upon the issues joined trial was had. Judgment was rendered for the de-noon of September 18th was in the nature fendants upon the authority of McGarry v. State, 37 Kan. 9, 14 Pac. Rep. 491. Of this complaint is made.

of opening up the case heard and decided in the forenoon, for further proceedings, and this the court had a right to do within its own sound discretion. Both parties appeared by their attorneys in the afternoon, and were heard by the court. No advantage was therefore taken, and no error is apparent in the proceedings. Section 13, c. 47, Comp. Laws 1885, being the "Act providing for the maintenance and support of illegitimate children," provides, among other things, that "the judgment shall specify the terms of payment, and shall require of such defendant, if he be in custody, to secure the payment of such judgment by good and sufficient sureties; or, in default thereof, he shall be committed to jail until such

It is contended upon the part of the state that, as Peter L. Sowders was not present when the action against him was called for trial, and as his recognizance was forfeited, and judgment rendered in his absence, the case was then closed, and the court lost all further jurisdiction. Further, it is contended that, after the judgment was rendered, Sowders' liability became fixed by the judgment, and that he could not surrender himself into the custody of the court to suffer the consequences of the judgment. It appears from the record that the action against Sowders was called for trial in the forenoon of the 18th day of Sep-security be given." At the time that the ortember, 1885, and the trial had between 9 der complained of was made, the defendant o'clock A. M. and 10 o'clock A. M. of that was in the custody of the court, and thereday. In the forenoon, about the time the fore the court strictly followed the proviscourt adjourned, the attorney of Sowders ions of the statute. If the court had renotified the district judge that Sowders fused the application of Sowders to open had come into the city; that he had been be- up the judgment for further proceedings, lated, and was ready to have a trial. The we do not think it could have been held erdistrict judge replied he could not hear the roneous; but the application appealed to matter then, but directed the attorney to the discretion of the trial court, and the see the other parties and have them come court was justified, under all the circumin court at 2 o'clock P. M., and he would see stances, in granting the same. It clearly what could be done. The attorney of Sow-did not lose jurisdiction, because all parders at once notified Judge Hazen, the attor- ties were present by their attorneys, and ney for the relatrix, that an application the judgment was opened and further prohad been made to have the court set aside ceedings had upon the same day upon which the judgment against Sowders, and that it the judgment had been rendered, and before had been set down for hearing at 2 o'clock it had been entered upon the journal of the P. M. of September 18th,-the same day up-court.

on which judgment had been rendered. At Another reason, it is claimed, why the 2 o'clock the defendant, with his attorney, judgment of the lower court should be reappeared in court, and Judge Hazen, attor- versed, is "that the act of the court in deney for the relatrix, also appeared. Sow-claring a forfeiture of the recognizance was ders voluntarily surrendered himself in person to the court, and the court turned him over to the custody of the sheriff. To all of this the counsel for the relatrix objected, claiming that the court had no right so to do. After the defendant was in actual custody, the court ordered that he be committed to jail until he secured the payment of the judgment rendered against him. It has been frequently decided by this court that, after the testimony has been closed, the

a judicial act,-an adjudication of the sureties' liability,-and binding upon them until set aside, either upon an order of the court in which the forfeiture was declared, or by the supreme court upon a review of the proceedings of the lower court, that neither at the time the defendant in the bastardy case surrendered himself to the jurisdiction of the court, nor at any time since, has the forfeiture been set aside." The action of the court, in effect, set aside