This was an action originally brought in | parties produced their tax-titles and taxthe district court of Shawnee county to set liens, and submitted such evidences to the aside certain sheriff's sales and deeds there- referee, and upon that evidence the referee under to a large number of lots levied upon found the amount of the taxes. There was as the property of Joel Huntoon. Trial was no adjudication that those liens, or any of had in the court below, and judgment ren- them, were void. There was no controverdered setting aside the title under said sale sy in any of these actions as to the validity to all of the lots in question. Afterwards of the tax-liens. They were submitted unthe plaintiffs, including the plaintiff here, der the decision of this court for an accountremoved the cause to the supreme court on ing, and they were to recover and have the error, where the judgment of the court was amount so found declared a lien upon the modified, and remanded for further proceed- lots. This gave the plaintiffs all, it seems ings, (11 Pac. Rep. 369;) whereupon the to us, that they were entitled to. They court referred the questions of fact to be pretended to own the lots, and upon that found, being a computation of certain judg- claim purchased the tax-titles thereon. ments and interest, and the amount of Their title to the lots was afterwards set taxes and tax-liens paid by plaintiffs upon aside, and they were allowed a full accountthe lots. The referee made his report, and ing for all taxes paid, and we think they the report was by the court confirmed. ought not now to complain, after having One of the plaintiffs, Willis Norton, brings submitted the evidences of such claims and the case here for review. liens to the referee in the accounting. W. C. Webb, for plaintiff in error. C. M. Foster and W. P. Douthitt, for defendant in error. The plaintiff also insists that the district court erred in sending the cause to a referee to hear and determine the questions of fact. no consent having been given by Willis Norton. The record fails to show that any exceptions were taken by the plaintiff to the reference of this cause. The referee was appointed and the reference had without objection. Plaintiff is in no condition to raise the question here for the first time. CLOGSTON, C., (after stating the facts as above.) The principal complaint urged, as we deem it, is that the supreme court in Bank v. Huntoon, 35 Kan. 577, 11 Pac. Rep. 369, misunderstood the issues and facts in the original case, and by that means misdirected the court below to find the amount The next allegation of error which we of taxes paid by the plaintiffs. The lan- shall notice is that the referee's report was guage of the court complained of is: "If not filed in time, and therefore void, and the judgments are not paid without sale, that the court erred in extending the time and the lots are again sold, then, after pay-in which the referee was ordered to make ang the costs, these taxes should be first his report. The report was filed in time, paid out of the proceeds of the sale. What as shown by the record, if the court had we have said in regard to taxes has refer- power to extend the time in which to ence to the tax-sale certificates and taxtitles held by J. R. Mulvane, which were paid by judgment creditors, and also taxes which they have subsequently paid." Now, this language is unmistakable in terms, and could not mislead the court below. It included all of the taxes of every kind paid by the plaintiffs after the purchase of these lots, including taxes, tax-certificates, and tax-titles, and the referee found the taxes due, and to be paid by Huntoon, and to be a lien upon the lots, in exact accordance with the language of this decision. A motion was made after this case was decided In the supreme court for a rehearing, which was overruled. This decision is final and conclusive, and cannot be reviewed in this action. Then, so far as the tax matters complained of in this action are concerned, no error was made by the referee, or by the district court in confirming said report. As it appears by the record now, some of these taxes were liens created before the purchase of these lots at sheriff's sale, and belonged to J. R. Mulvane, one of the plaintiffs. Afterwards these titles and taxes were distributed to the plaintiffs pro rata, according to the amounts of their judgments, and the number of lots received as payments thereon. In the original case below, the plaintiffs sought to recover a part of these taxes upon a part of the lots, and, upon all the lots they had sold and disposed of, they asked the court below to make findings of the amount of taxes of all kinds and character paid by them, and that they have credit for the sums so found. Again, in the thearing before the referee in this action, the make the report. The original time fixed for making the report was March 31, 1887. On the 30th day of March, on application of the referee, the time in which to make his report was extended until the 20th of April. On the 18th day of April, on application of the referee, the time was again extended until April 30th, and on the 28th day of April the report was duly filed. We think the court committed no error in extending the time, as the referee was an officer of the court, and, if it became necessary that further time be granted, we see no reason why the court might not extend it. True, these applications were made by the referee, but there seems to have been no objection made thereto by any of the parties. As far as the record shows, it was entirely agreeable to the parties. Much is said by the plaintiff in error in relation to the tax-titles held by John Norton, which were issued upon tax-certificates taken out by Mulvane, and transferred to Willis Norton, and by Willis Norton transferred to his brother, John Norton. John Norton was not a party to these proceedings. As far as this record shows, he had nothing to do with the matter in any form. How it came that the tax-titles he held were submitted to the referee we are at a loss to know, but the plaintiff in error did submit them. The referee had no power to determine whether those tax-titles were good or bad, or whether John Norton was the legal holder or not. They were submitted to him, and could have been submitted to him for one purpose, and that was for the purpose of determining the amount of taxes paid thereon by the plaintiff, and for which | saie were designated by numbers, and the a lien was to be given him upon the lots. precise length and width of most of them If John Norton held tax-titles independent- was stated on said plat, or in the certifily of this transaction, and not connected cate thereto by reference therein to said with it, the finding of the referee, and de- plat; but lot No. 1, block 111, though cision thereon, would not disturb his rights, inapped, platted, and numbered, the precise he not being a party to the suit. We think length and width of said lot was not given the judgment of the court in 35 Kan. 577, 11 in figures, nor by any reference thereto in Pac. Rep. 369, fully settles the main issues the certificate on said plat, unless said plat, and errors complained of, and we therefore with the certificate and description thereon recommend that the judgment of the court as hereinafter stated, is held to make the below be affirmed. length and width of said lot definite and certain. Said block 111 and other blocks PER CURIAM. It is so ordered; all the abutted on the westerly side of said levee, justices concurring. ATCHISON & N. R. Co. et al. v. MANLEY. (Supreme Court of Kansas. Nov. 9, 1889.) RAILROAD IN STREET-EJECTMENT. and the Missouri river was upon the easterly side thereof, the general course of said levee from the south being north, about 12 degrees east. 350 FT. 108 114 220 FT (2) The following is a correct copy of said map and plat of lot 1, block 111, and The Atchison town company platted a tract of the blocks, streets, and levee in the immeof land lying on the west bank of the Missouri diate vicinity thereof, as appears on said river for a town-site, indicating on the plat that original map, except that on the original there was a street along the river, but failing to map said adjacent blocks are divided into show the width of the street, or to indicate by fig-lots, and alleys are laid out through them, ures the dimensions of the lots and blocks fronting which are not here represented: thereon. Subsequently, under authority of the legislature, a highway of a specified width was established along the river, within the limits of the city, and thereafter the city authorized a railroad company to construct and maintain a railroad upon the highway so established, which was done. The ground occupied by the company does not extend beyond the limits of the highway, and the occupancy of the highway by the railroad company has continued from that time until the present. An owner of a lot fronting on the street claimed that, according to the plat and dedication, the railroad company was occupying a portion of his lot, and brought an action to eject it therefrom. Held that, as the railroad was constructed upon a highway or street of the city established as aforesaid, and was laid thereon by authority of the city, the action of ejectment cannot be maintained. (Syllabus by the Court.) Error from district court, Atchison county; H. M. JACKSON, Judge. Action in ejectment, brought by George Manley against the Atchison & Nebraska Railroad Company and the Burlington & Missouri River Railroad Company in Nebraska, for the recovery of lot No. 1, in block No. 111, in the city of Atchison. The second trial of the action was had before the court without a jury, in May, 1887, when the following conclusions of fact and of law were found and stated: "(1) On March 4, 1856, the Atchison Town Company, a corporation duly organized, by its officers caused to be made out and platted and duly acknowledged by its chief officer a map or plat of that part of the city of Atchison usually known and designated as 'Old Atchison,' and the same was duly filed for record in the office of the register of deeds in and for the city and county of Atchison, Kan., on March 5, 1856. Said land so mapped and platted contained a great number of lots and blocks, streets and alleys, including the lot in controversy, to-wit, lot 1, block 111, Old Atchison, and the levee east thereof, upon which said lot No. 1 abutted. Most of the grounds reserved on said plat for public uses were therein set forth and described by their boundaries, courses, and extent, and it was stated thereon whether they were intended for avenues, streets, lanes, alleys, or other public uses, and all the lots intended for MOUND RILEY STREET STREET B109 SHORT STREET B 113 75 FT B 110 NOTE. The discrepancy between the marked lengths 113 and 114 and the north lines of said blocks appears on and the apparent lengths of the south lines of the blocks the original plat. "(3) The north side of block 108 on said plat is the northern boundary of said town plat, and an alley 15 feet wide was platted north and south through the middle of the north part of said block 108, and lots are platted lengthwise east and west on both sides of said alley. Said lots on the north side of said block 108, and on the east and west sides of said alley, are marked on said plat as being each 150 feet long, making the distance 315 feet between the north-west corner and the north-east corner of said block 108. Blocks 108, 109, 110, and 111 are in a row from north to south, and Washington street is on the west, and Short street is on the east, of said row of blocks; and said two streets are parallel from the northern boundary of said plat, south to the south side of block 110. The north line of block 111 is platted as being the same length east and west as the three blocks north of it. The blocks due west from No. 111 are between parallel streets, and are of same width north and south, but are not all subdivided into lots of uniform shape and size, though the lots in the three blocks next west of No. 111 are uniform in shape and size, and are platted lengthwise east and west, and as being the same width north and south as the lots in said block No. 111 in the foregoing plat. On the west end of the west lots in the said third block west of No. 111 each lot is marked as being 45 feet wide. By comparison with fixed lines and distances upon such original plat, the distance across the levee due west from the north-east corner of block No. 111 to the river is 150 feet, and there is no evidence as to width of said levee at the time said plat was made, nor at any other time, except as stated in this conclusion of fact. "(4) The president of said Atchison Town Company indorsed upon said map and plat his certificate, and a description of lots, blocks, streets, alleys, avenues, and public grounds, by which, together with the figures marked upon said blocks, streets, alleys, and avenues, nearly all thereof were definitely described, bounded, and located, and the sizes thereof accurately designated; but the length and width of some of said lots was not made definite and certain by any figures marked thereon or given in said certificate thereto, but said certificate, and the description therein, so far as it refers to said lots, streets, alleys, and public grounds, the size of which is not made definite and certain, is in words and figures following: 'The blocks and lots on the river or levee street have not all been fully marked out and measured, nor the width of the levee street fully settled upon. As soon as fully understood, the same will be added hereto; the town company claiming the control and right and privilege of changing said levee street, and the lots and blocks front. ing on the river, as they may hereafter determine upon. When, if any, alterations are made, the same will be added thereto and explained. And the town company reserves the control and right to platted streets until the title is procured from the United States.' No addition or explanation of the matters referred to in said statement and certificate was ever made upon said town plat, or any reference thereto. * * share No. 25, in the Atchison Town Com- "(7) On January 31, 1865, a public road was laid out along said river bank east of block 111, from a point about 791 feet south of said block, and was made about 8 or 9 feet wide by excavating from the bluff on the west, and filling in on the east, side of such road-way. Prior to that time there was a road-way or trail used along the river bank upon which teams traveled. Said public road was used by the public until the Atchison and Nebraska Railroad was graded, and its track laid thereon, as stated in these conclusions of fact. It does not appear that said town company was notified or took any part in the proceedings of locating said road. "(8) On February 25, 1869, the president and chief engineer of the Atchison and Nebraska Railroad made a certificate, and on March 19, 1869, they filed with the county clerk of said Atchison county a map showing the location of the Atchison and Nebraska Railroad from a point fifty feet north of the east end of Atchison street (which is two blocks, or 791 feet, south of the south side of block 111) northward to the county line. On April 2, 1869, Peter T. Abell, president of said Atchison Town Company, executed a deed to said Atchison and Nebraska Railroad Company, granting a right of way, in the following language: The following described right of way to construct its railroad over and along and near the bank of the Missouri river from a point about 50 feet north of the north line of Atchison street, in the city of Atchison, state of Kansas, to the northern limits of said city of Atchison, that the right of way over said grant is to the width of fifty feet on each side of the center of the track of said railroad, as the same shall be located, for and during the time of the organization of said company.' And said deed was filed with the register of deeds in and for Atchi"(6) On January 19, 1859, said town com- son county, Kan., on November 9, 1882, and pany, by deed duly executed by its presi- duly recorded. It does not appear, except dent, conveyed a number of lots in said as inferred from the execution of said deed, plat to George H. Fairchild by deed con- that the said P. T. Abell was authorized taining the words and figures following: by said town company to execute salo Whereas, said Fairchild, as the holder of deed. "(5) Said land so mapped and platted was thereafter duly patented by the United States, and the legal title thereto vested in said town company. "(9) On May 18, 1869, the mayor and "(12) From the facts above found and council of the city of Atchison passed an stated, said lot 1, block 111, is 315 feet long, Ordinance entitled 'An ordinance granting and the north side thereof, and the defendthe right of way to the Atchison and Ne-ants the Atchison and Nebraska Railroad braska and Leavenworth, Atchison and Company, as owner of the track, and the Northwestern Railroad Companies.' By Burlington & Missouri River Railroad Com the terms of section 1 of said ordinance pany in Nebraska as lessee under said there was granted to the Atchison and Ne- Atchison and Nebraska Railroad Company, braska Railroad Company the right to are wrongfully in the possession of 28 and construct and operate its railroad over and 7-10 feet of the east end of said lot between along the levee in the city of Atchison from the east line thereof and the line parallel the northern boundary of said city to the therewith, and 28 and 7-10 feet distance south side of Park street, in said city; and therefrom, and have been in such possession by section 3 of said ordinance a right of since the summer of 1869, claiming the posway was granted to the Leavenworth, session thereof under said deed from said Atchison and Northwestern Railroad Com- Atchison Town Company, and under said pany to cross the streets and alleys from ordinance, both of which are herein before the south part of said city to Main street mentioned, and said defendants wrongfultherein. During the years of 1869 and 1870 ly withhold such possession. the road bed of said Atchison and Nebras"CONCLUSIONS OF LAW. ka Railroad was graded, and the track thereof was laid upon said public road mentioned in conclusion of fact No. 7, so that said track was completed to the state line by January 1, 1871; and the track of said railroad company has ever since that time been maintained on that line and has been in constant use as a railroad operated between Atchison, Kan., and the city of Lincoln, in the state of Nebraska. On January 1, 1873, there was a short side track west of the main track, commencing at or near the center of Atchison street, and extending northward a short distance, but not as far northward as to block 111; and about that time a side track was constructed west of said main track, and be- "(4) The defendants the Atchison and tween that and the middle of said block 111, Nebraska Railroad Company and the Burbut the exact date of the grading for or lay-lington and Missouri River Railroad Coming said track is not disclosed, and the space so occupied by said railroad track has been continuously occupied thereby since the construction thereof. **(10) in 1884 the north-west corner of said block 111 could be established by corner stones found on Washington street, and in that year a survey thereof was made, and the actual distance from the north-west corner of said block to the first or most westerly track of said railroad | was 286 3-10 feet, and from that point to the middle of the next track east (the main track) the distance was 16 3-10 feet, and from the middle of the main track to the east side of the most easterly track of that railroad was 27 and 5-10 feet, and the entire distance from said north-west corner of said block to the east side of said most easterly track was 330 1-10 feet, and said most easterly track was so far towards the river that the same was overflowed in time of high water. Said lot 1, block 111, was again surveyed about April 5, 1887, when the entire distance from the north-west corner thereof to the water's edge was 340 8-10 feet. "(11) Said block 111 is on the river bluff, and the highest part of said lot is about 100 feet higher than the river, and such higher and much the largest part of said lot is level, but at the east part it descends to the river very steeply. At that point the formation of the bluff is clay and loose shelving rock, and stands as near perpendicular as such formation will maintain in a state of nature. It is very steep, but the soil is not sufficiently firm to stand precipitous, but rather it shelves. "(1) The plat of old Atchison made by the Atchison Town Company, together with the certificate and description written thereon, made the location and size of lot 1, block 111, definite and certain. "(2) The deed executed by said Atchison Town Company by P. T. Abell, its president, to George H. Fairchild, was not void under the act of the territorial legislature of 1855, but the same was valid, and passed all of the title acquired by said Atchison Town Company from the government to George H. Fairchild, the grantee therein. "(3) The plaintiff is the owner of all of said lot 1, block 111, and is entitled to the possession thereof. pany in Nebraska are in the possession of a strip off from the east end of said lot 1 of the width of 28 and 7-10 feet, the west line of which strip is parallel with the east line of said lot as platted. The said two defendants wrongfully withhold the possession thereof from the plaintiff. "(5) The plaintiff's right to said property is not barred by the statute of limitations of the state of Kansas; such statute not having become a bar at the time of the commencement of this action. "(6) The plaintiff is entitled to a judgment for the possession of said strip 28 7-10 feet off the east end of said lot 1, the same being bounded on the west side by a line parallel with the eastern boundary of said lot 1, and is also entitled to recover his costs herein as against said two defendants. "(7) The defendant the Chicago, Burlington and Quincy Railroad Company is entitled to judgment herein upon its disclaimer filed in this cause, and also to its costs in this action" The defendant railroad companies moved the court for judgment upon the conclusions of fact found, and also for a new trial, which motions were overruled, and judgment given in favor of the plaintiff, Manley. They excepted to the rulings, and bring the case here for review. W. W. Guthrie, for plaintiffs in error. L. F. Bird, for defendant in error. JOHNSTON, J., (after stating the facts as above.) The evidence and findings of the court leave the question of the location and boundaries of lot 1, in block 111, in great | 1868, and constructed in 1869 and 1870, along doubt. The railroad company claims that this narrow roadway, and it has been ʊcthe plat and dedication was so indefinite cupied with several tracks and used by the and incomplete as to the blocks, lots, and company ever since. The testimony introstreets along the river front as to be inval- duced by Manley shows that the distance id. The town-site was platted in 1855, but from the center of the main track to the the certificate of dedication explicitly de- river is 38 feet, and that only about 15 feet clared that the width of the levee street west of this track was in use by the railwas not fully settled upon, and that the road company, and that opposite to the blocks and lots on the river and levee were lot in controversy the railroad company not fully measured and marked out. The only occupied about 551⁄21⁄2 feet, which was all lot in question was located on the levee, the territory lying between the bluff and the and, although the exterior lines of the lot river. Thus it appears that the entire and block were shown on the plat filed, no space occupied by the company at this figures showing the dimensions or extent point is less than the width of the highway of these were given. The dimensions of which was established, and over which the other blocks and lots and the width of the company was authorized to build. the streets were indicated upon the plat Having procured from the city the right to filed by figures placed thereon, but as to the build and maintain its road, it is rightfully levee and the lots fronting thereon the in possession, if the highway was legally town company reserved the right to change established. No objection is made to the and fix their width, boundaries, and extent legality of this highway, unless it is found as they might thereafter determine. No al- in the suggestion made in the seventh findteration was ever made in the plat, nor ing of fact, where the court states that "it was any amended plat filed. A distribu- does not appear that said town company tion of lots was made among the share- was notified or took any part in the proholders of the town company in 1859, and ceedings locating said road." But no nothe lot in controversy was apportioned and tice to the town company was essential to conveyed to a stockholder named Fairchild, the laying out of the highway. The lots through whom the defendant in error had been distributed and conveyed in 1859, claims. The railroad company claims under six years prior to the time that the road a conveyance from the town company exe- was established, and it is not stated or cuted in 1869, purporting to convey a strip of claimed that notice was not given to Fairland along the west bank of the river 100 feet child or other lot-owners, nor that any of wide, and also under an ordinance of the the statutory requirements were not comcity of Atchison, enacted in 1869, granting plied with. From the facts disclosed in the the company a right of way over the levee record, it must be held that a street 66 feet orstreet, which it asserts was a public high-in width was legally established upon the way established in 1865. We think the levee. While the fee of the street was in the judgment is not supported by the evidence county, the control of the same was in the and findings. Without determining the city, and it was within the power of the effect of the original dedication, it is clear city to grant to the railroad company the that ejectment will not lie. It is found up-right to construct and operate its road on sufficient testimony that a public high-over this levee or street. Railroad Co. v. way was established along the west side Garside, 10 Kan. 552. There is no claim of the river in 1865. This highway was laid that the road was not constructed in a leupon what is called the" Levee Street," and gal and proper manner, as the ordinance covered the ground now occupied by the of the city provided; but, this being an acrailroad company, and it is the possession tion of ejectment, the right to recover damof a part of this that Manley now seeks to ages for such failure is not involved. Acrecover. It was established as a state road cording to the testimony and findings the under the authority of an act of the legis- railroad is laid upon an established street lature which provided that it should not be within the city. In pursuance of ample less than 66 feet in width. Laws 1861, c. power conferred upon the company by the 70. The road record introduced in evidence city to occupy and use the street for this showed the report that the commissioners public purpose, and as this occupancy and appointed under this act made to the coun-use has never been abandoned, it follows ty commissioners on April 15, 1865, the approval thereof, and the establishment thereon of a state road along the west bank of the Missouri river, from Atchison street, in the city of Atchison, to the north limits of the city, and so on to the Doniphan county line. The road thus established was used as a highway by the public from that time on, and was so used when the railroad track was constructed thereon. A precipitous bluff, about 100 feet high, extended to within about 56 feet of the river at the point in question, and in some places much closer, so that the highway was made with great difficulty by excavating from the bluff, and filling into the river, and in places it was so difficult to make a road that it was only improved and widened to the extent of about eight or nine feet, until the railroad was built. The railroad was surveyed in that Manley cannot maintain an action to dispossess or eject the company from the street so occupied; and hence we need not examine and decide the other questions presented in the case. The judgment of the district court will be reversed, and the cause remanded, with instructions to render judgment in favor of the plaintiffs in error; all the justices concurring. COULSON V. WING et al. (Supreme Court of Kansas. Nov. 9, 1889.) ADMINISTRATOR'S SALE OF LANDS To Pay Debts -LANDS PATENTED TO HEIR-PARTIES. of a deceased person, such land does not become a 1. Where a patent to land is issued to the heirs part of the estate of the deceased, and cannot be sold under an order of the probate court to pay the debts of the decedent. Such sale is a nullity, and |