cated, and appraise the value of the portion taken out of each quarter section or other lot of land, and assess the damages to the remainder thereof. That on the 17th day of February, 1887, said commissioners were duly sworn to honestly and faithfully discharge their duties as such commissioners. That said application for the appointment of said commissioners, their appointment, and oath of office were duly made and taken under article nine of chapter twenty-three of the Compiled Laws of Kansas. That, before having said commissioners proceed with their work in condemning said route through said county of Lincoln, said defendant desired to purchase as much as possible of the right of way along said route, and for that purpose employed men to negotiate with and purchase said right of way from the owners and those interested in the real estate along said route. That said defendant, and the men employed by it as aforesaid, during the month of July, 1887, negotiated with said plaintiff for the purchase of the right of way for its said proposed railroad through the lands described in said petition, and as a result of such negotiations | said plaintiff and defendant agreed upon the amount of compensation that plaintiff should receive of defendant for said right of way through said lands, on account of said plaintiff's interest therein; and said plaintiff then contracted with said defendant to permit defendant to retain its roadbed and right of way over said lands, and along said route, and to receive said compensation in full payment for plaintiff's interest in the value of said lands so taken, and the damages to the remainder thereof, and that said negotiations, agreement, and contract were had and made after work was done on the grading of said roa d-bed on said route through said lands. That said agreement was verbal. That, whatever part of said lands has been injured or appropriated by defendant, such appropriation and injury have been occasioned by the construction and grading of said road-bed on said route, and such construction and grading were ratified by plaintiff under said agreement and contract. That | on or about the 4th day of August, 1887, said commissioners performed their duties, and filed their report in the office of the county clerk of said county, and defendant did not have said commissioners condemn said right of way through said lands, for the reason that it relied upon said contract and agreement, and the performance thereof by the parties thereto; but defendant has fully completed the condemnation proceedings embraced in said report, and has paid the amounts of damages therein awarded. That during said year, and before the defendant had constructed any part of its road-bed for said railroad, in said county of Lincoln, it made a map and profile of said route through said county, and filed the same in the office of the county clerk of said county. Wherefore said defendant prays judgment for costs herein." To this answer the plaintiff filed a general denial.

Trial had at the November term of the court for 1887, before the court with a jury. The jury returned a verdict for the plain

tiff, and assessed his damages at $345.50. They also returned the following special findings of fact: "Question. Did the defendant cut any timber on the premises of plaintiff, without his consent? Answer. Yes. Q. If you answer the previous question in the affirmative, what was the value of that timber to those premises? A. $15. Q. Did the defendant, through its contractors, enter upon the premises of plaintiff without his consent, and dig up any clay or loam? A. Yes. Q. If you answer the last question in the affirmative, state how much such clay or loam was worth. A. $30 per acre. Q. Does it appear from the evidence that the damage in controversy herein to the lands described in plaintiff's petition, to-wit, the west half of section three, (3,) in township ten, (10,) range eight (8) west, in Lincoln county, Kan., were occasioned in the construction by defendant of its railroad described in its amended petition? A. Yes. Q. Did the said defendant, in the construction of its said railroad through said lands, damage any of the improvements thereon? If so, describe such improvements, and state the amount of damage to each of such improvements. A. Q. Did the defendant, in the construction of its said railroad through said lands, injure any of the fences thereon? If so, what was the actual damage to the fences so injured, at the time they were so injured? A. Yes. No evidence as to the amount of damages. Q Did the defendant, in the construction of its railroad through said lands, destroy any of the fences thereon? If so, what was the actual value of the fences at the time they were so destroyed? A. Yes. No evidence as to the amount of damages. Q. Did the defendant, in the construction of its said railroad through said lands, tread down any of plaintiff's grass then growing upon said lands? If so, what was the actual value of said grass at the time it was trodden down? A. Yes. $0.50. Q. Did the said defendant, in the construction of its said railroad through said lands, ent and destroy any corn owned by the plaintiff, and growing thereon? If so, what was the actual value of the corn at the time it was so cut and destroyed? A. No. Q. Did the defendant, in the construction of its said railroad, cut down, destroy, carry away, and convert to its own use any of the ash and other trees then growing on said lands? If so, what was the actual value of said trees at the time they were so cut down, destroyed, carried away, and converted to said defendant's use? A. Yes. $15. Q. How many acres of land did the defendant take and appropriate in the construction of its railroad through said lands? A. About five acres. Q. In the construction by the defendant of its said railroad through said lands, from how many acres of such land did it actually remove the soil, clay, or stone? A. About two acres. Q. Did the defendant. in the construction of its railroad bed forsaid railroad through said lands, remove off from the entire tract any of the soil, clay, or stone of which said lands were composed? A. No. Q. How many cubic yards of earth are there in said road-bed of the defendant on said land? A. 4,500. Q. What is it

worth per cubic yard to remove the earth composing said road-bed on said lands, back to the ditches from which it was taken in the making of said road-bed? A. 7 cents per cubic yard. Q. Do you, in your general verdict, allow the plaintiff any damages to said land by reason of the construction of said road-bed forsaid railroad thereon, except the cost of removing said road-bed back to the ditches from which it was taken? If so, how much? A. Yes. $30.50. Q. If the last question is answered in the affirmative, then the jury will answer the following question: For what injury to said lands is the amount of damages set forth in the last answer above allowed? A. Trees, $15; damages to cultivated land, $15: grass, 50 cents. Q. Did the defendant, in the construction of its said roadbed for said railroad, remove any of the clay on said land? If so, how many yards of clay was so removed? A. 50 yards. Q. What was the actual value of the clay so removed, at the time of such removal, in the construction by said defendant of its said road-bed for said railroad on said lands? A. $30 per acre. Q. Did the defendant, in the construction of its said road-bed for said railroad, remove any of the stone on said land? If so, how many cubic yards of stone was so removed? A. No. Q. What was the actual value of the stone so removed, at the time of such removal, in the construction by defendant of its said road-bed for said railroad on said lands? A. Nothing. Q. In the construction by the defendant of its said road-bed for its said railroad through said land, how many feet of land did it appropriate on each side of the center line of said road-bed? A. 45 feet. Q. Has the defendant laid any ties or iron on its said road-bed on said land? A. No. Q. How many acres of land are there included in the ditches made by said defendant in the construction of its said road-bed on said lands? A. About two acres. Q. How many acres of land are there included in the inner lines of said ditches on said lands? A. Three acres, or thereabout." The court rendered judgment for $376.50, increasing the amount of the judgment by giving treble damages for the trees and grass in controversy. The railroad company filed its motion for a new trial, which was overruled. It excepted, and brings the case here.

Geo. R. Peck, A. A. Hurd, and R. F. Thompson, for plaintiff in error. W. J. Patterson and M. Summerfield, for defendant in error.

HORTON, C. J., (after stating the facts as above.) This was an action brought by J. B. Watkins against the Chicago, Kansas & Western Railroad Company to recover damages for trespass on real estate, committed in July, 1887. The land was owned by Watkins, but at the time of the trespass Monroe Smith was in the actual possession of the land, and entitled to the crops as tenant. It is claimed by the railway company that it is not responsible for the trespass, it having shown that the grade, the cutting down of trees, etc., was done by contractors having charge of the construction of its road. It appears, however, from the evidence and the admissions

of the railway company upon the trial, that the contractors were set to work by the agents of the company to clear the right of way and construct its road-bed. Therefore it is liable, as it caused and directed the work. Whether the axe be used by himself, by his employe, his vendee, or one occupying no contract relation to him is immaterial, for he cuts the trees who causes them to be cut. Welsh v. Cooper, 8 Pa. St. 217; Fox v. Northern Liberties, 3 Watts & S. 103. In the latter case, it was said that a municipal corporation could become a trespasser by previously authorizing or subsequently ratifying the trespass of its officer. It is an elementary rule that he who procures a trespass to be committed is liable with those who committed it, and it has been often recognized in our cases. There is no hardship involved in the application of the rule to this case, for in good conscience the corporation should bear the consequences of an act which it caused or procured to be done. The contractors and the laborers who cleared off the right of way, cut down the trees, and constructed the grade, had no interest in the matter beyond the pay for their work, and they did what the railway company directed. This case is wholly different from Railway Co. v. Fitzsimmons, 18 Kan. 34. In that case the contractors had sole control of the turn-table, which they negligently left without guard or lock. The railway company was not responsible for the negligence of the contractors, because in no way a party to it.

It is next claimed that the jury was not properly instructed as to the measure of damages, and that it was error to instruct the jury to consider the difference in value of the land before and after the grade. As the case is now presented, it is unnecessary to decide the particular question argued in the brief of the railroad company, as to what damage is allowable in an action of trespass, where it appears upon the trial there is permanent injury or a permanent use. The railroad company, in this case, relied upon a license or contract given by Watkins under which the acts complained of were done, but the fact whether there was such a contract was submitted to the jury upon conflicting testimony, and the jury found against the company. The verdict disposes of that question. There was no showing upon the trial that any right of way was obtained through the land by a deposit of condemnation money. Until the money is paid or deposited, the company obtains no right to the land condemned, unless it is the right to make its survey. It was not shown upon the trial that any ties or rails had been laid upon the right of way, or that any railroad was in operation. Therefore the condemnation proceedings cut no figure in the case. Railway Co. v Ward, 10 Kan. 352. In that case it was said: "In this state a corporation does not obtain a right of way for a railroad by appropriation until full compensation therefor be first made in money or secured by a deposit of money to the owner; and, if it builds its road over the land of a person without first obtaining the owner's consent or the right of way, it is a trespasser, and liable as such."

Again, the railway company asked the court to instruct the jury: "If you find from the evidence that the defendant did, about the time set forth in the petition and before the commencement of this action, enter upon the premises of plaintiff, and construct a grade thereon, then the plaintiff is entitled, as his damages in this action against the defendant for the erection of such grades, to the amount that it will actually cost to remove the grade back to the ditches from which it was taken, together with any other damages that may accrue to the land comprising the ditches and included within them." The court charged substantially as requested, and, while it also charged the jury to take into consideration the difference between the value of the land before and after the grade was constructed, the jury, by their special findings, limited the damages (with a single exception, to be noted hereafter) within the instruction prayed for. They found there were 4,500 yards of dirt in the grade or embankment, and that it would be worth seven cents per yard to level it down, making $315. They found the value of the trees destroyed to be $15; the damage to the cultivated land by the grade, $15; and damage to grass, 50 cents,-making the verdict $345.50. The trial court trebled the damages for the trees and grass, and rendered judgment for $376.50. The damage to the grass of 50 cents, and the treble damages allowed, cannot be sustained. Monroe Smith was the tenant in the actual possession of the land, and he is the person entitled to recover damages, if any, for the crops, including growing grass. 3 Suth. Dam. 365; Arn v. Matthews, 39 Kan. 272, 18 Pac. Rep. 65. It appears from the testimony that Smith was paid for the crops on the right of way. When treble damages are recoverable they ought to be assessed by the jury, under proper instructions. The jury are to give all damages authorized by the statute. Sections 285-288, Civil Code; sections 1, 2, c. 113, Comp. Laws 1885. The judgment of the trial court must be corrected by deducting the 50 cents allowed for grass, and the treble damages given by the court for the trees, etc. The case will be remanded, with direction to modify the judgment aecordingly; all the justices concurring.

CHICAGO, K. & N. Ry. Co. v. Cook. (Supreme Court of Kansas. Jan. 11, 1890.) CONDEMNATION PROCEEDINGS-PARTIES-RUNNING OF STATUTE OF LIMITATIONS-ADMINISTRATORS' SALES.

1. A party who is not named in a condemnation award, or in any of the proceedings, appealed from the assessment of value and damages, and filed a petition on the appeal, claiming that he is the owner of the strip of land appropriated. The railroad company denied his ownership. Held, that the burden is on such an appellant to prove title or exclusive possession for the period covered by the statute of limitations.

2. If the legal title to the real estate in controversy was vested in a non-resident, who was absent from the state, and who was the immediate grantor of the appellant, the statute of limitations ceased to run during the absence from the state of such grantor. The case of Morrell v. lngle, 23 Kan. 32, cited and followed.

8. If notice to the beirs and persons interested

SIMPSON, C. On the 4th day of August, 1886, the plaintiff in error, by proceedings duly had, appropriated to its use as a right of way so much of outlot No. twentyfour, in the city of Wathena, as lies within fifty feet on each side of the center line of said railway as now located." A stream called "Peter's Creek" runs through this outlot, and on the creek there is a small mill for making meal and feed, run by a Leffel turbine wheel. The mill is a frame building, about 56 feet long and 20 feet wide, and the machinery consists of burrs, bolt, sheller, and elevator. A dam, 36 feet long, constructed of timber, is on the lot, and near to the mill. The land appropriated consists of a tract, 236 feet long by 100 feet wide, off of the south end of said lot. This tract embraced the dam, and by the construction of the road the dam was destroyed by removing the same, and changing the water-course, and permanently destroying the water-power, etc. The commissioners awarded $500 for the value of the right of way, and $1,000 for damages. J. W. Cook, who claimed to be the owner of the outlot and the mill thereon, appealed to the district court of Doniphan county. At the trial in the district court, the jury awarded Cook the sum of $4,000 as damages, with $194.45 as interest. The railroad company brings the case here, and alleges many errors that are urged to be sufficient for reversal, but we shall notice only one or two of the most important.

Ordinarily, in actions of this character, the question of title is not in issue; the only controverted question being the amount of compensation to be allowed. Section 86, p. 225, Comp. Laws 1885. In the case of Railroad Co. v.Owen, 8 Kan. 409, it is said: "In the proceedings to procure condemnation, the corporation is the actor. It applies to the county commissioners to lay off the route as desired by the corporation, and to fix the value of the land which the corporation desires to appropriate, and assess the damages arising from the appropriation. The corporation is the moving cause, and the proceedings by the commissioners are all at its instance, and in its interest, and for its benefit. The object is to compel an unwilling land-owner to part with his property for a just compensation. The corporation is to give written notice to all actual occupants of the land over which the route of the road is designated, where the land has not been purchased by or donated to the company. Section 49, p. 203, Gen. St. Before the board acts, notice is to be published in a newspaper, (section 86, p. 213;) and it b also made the duty of the board to ap

praise and value and assess the damages of each owner separately, when there appears to be different interests in the land, (section 82, p. 212.) In all the proceedings up to the filing of the report, the steps are at the peril of the company. While from the fact that the occupant is entitled to notice, and all others interested are notified by the publication required, it is apparent that though interested in the land may appear, if they choose, before the commissioners to protect their interests, they are under no obligations to do so, and nothing like a default can be taken against them. If, in the discharge of their duties, the commissioners err as to the ownership of the land, can it be supposed that the company, by following the error and pay ing the wrong person, relieves itself from the obligation to pay the real owner of the land? Land-owners are not compelled to stand by with their title papers in their hands. The company does not act under any different rules than those that govern any land-buyer. If he buys from the wrong person, he does so at his peril. It is the duty of the railroad company to ascertain who are the owners of the land it desires to appropriate, and it is at the risk of the company that it pays for the land. Such being the state of the case, and the obligation of the company, where no appeal is taken, what change is wrought by the appeal? The law is that an appeal shall be had from the determination of the commissioners as to the value of the land so appropriated.' Section 86, p. 213, Gen. St. This is the main issue to be tried. It is probably true that by appropriate plead ings the company would be authorized to show that the appellant did not own the entire land, but that a separate interest is in another, or that some one else owned all the land. But, unless such an issue is made by the pleadings, the position of the appellant as to the question of title is not different from what it was before the ap peal was taken. The appellant is placed by the law, and by his own action in tak ing the appeal, in the position of saying: "The appraisement of my land, and the assessment of damages made by the commissioners, is too small. I desire a retrial of that issue in the district court.' Is he bound to show a perfect legal title, such as would entitle him to recover in ejectment? We think not. He was not attempting to recover money of the company. He proved that he was in the occupancy of the land, claiming absolute title. This is prima facie evidence of title to land everywhere, as well as to personal property. 2 Greenl. Ev. § 555; Ward's Heirs v. McIn. tosh, 12 Ohio St. 231. It is enough to sus tain trespass, and to resist a recovery in ejectment, until a perfect legal title is shown; that is, an actual possession under a claim of absolute title is prima facie evidence of seisin in fee-simple, and sufficient till the contrary appears." This embodies the law as stated in Mills on Eminent Domain.

Now, turning to the record, we find that after Cook took the appeal he filed a petition, in which he asserted ownership in the land. The railroad company filed an answer that contains a general denial. In

addition to all this, it appears from the report of the commissioners that the ownership of the outlot is not stated in the award. The record does not show in whose favor the deposit of the amount of the award was made in the county treasurer's office. Then, again, on the trial the defendant in error undertook to establish a complete legal title in himself. The whole case was conducted on the theory that the title was in issue, and the court instructed the jury that it was. There is nothing left for us to say on this state of facts but that the title was in issue, and it devolved on Cook to establish it. Whether he proved title is one of the most important questions to be determined. Counsel for defendant claim that Cook showed uninterrupted adverse possession for more than 15 years, and this is enough. We say it is enough, if the record shows such a possession.

On the trial this state of facts was developed as to the title to the outlot: A patent from the United States to Milton E. Bryant, as president of the incorporated town of Wathena, Doniphan county, Kan., of the quarter section of land in which the outlot is situate, of date July 1, 1861. A deed from M. E. Bryant and wife to John H. Cox for outlot No. 24, of record May 22, 1867. This deed is not made by Bryant in his official capacity as president of the incorporated town of Wathena, but is made as a personal conveyance. A deed signed personally by Elizabeth Cox, but reciting in the deed and acknowledgment that she is the administratrix of John H. Cox, deceased, to Charles Wright. This deed is executed on the 30th day of April, 1867. A deed from J. W. Cook, administrator of the estate of Charles Wright, deceased, to Jeremiah Johnson, of Fort Madison, state of Iowa, of date March 21, 1871. A deed from Jeremiah Johnson and wife to J. W. Cook, the defendant in error, of date January 14, 1882. During the time the title was vested in Jeremiah Johnson, he was a resident of the state of Iowa, and was absent from this state. Assuming as an undisputed fact that Cox was in the actual possession of the outlot as early as 1863, the sale to Johnson was made in 1871, 8 years after the actual possession by Cox. The deed from Johnson and wife to the defendant in error, Cook, was made on the 14th day of January, 1882, and these proceedings were instituted in June, 1886, a little more than four years after Cook acquired title. These two periods cover something over 12, and less than 13, years. Counsel for defendant in error, however, claim that the statute of limitations did not cease to run by reason of Johnson's absence from the state. "That the proper persons against whom an action to recover possession of the land should be brought are the persons who are in actual, open, and notorious possession of it. An action against a man who is not in actual possession would be unavailing." The record shows that Cook has been in possession of the land ever since the 30th of April, 1870. At least, he was in actual possession as tenant and owner for more than 15 years before these proceedings were instituted. That the Cox heirs could at any time during these 15 years have

brought their action against him. This proceeds upon the theory that section 21 of the Code applies only to personal actions, and does not apply to actions concerning real property. Unfortunately for counsel for defendant in error, this court has decided the other way. In the case of Morrell v. Ingle, 23 Kan. 32, this court says: "There remains the other question,-that arising on the statute of liniitations. The deed was of record more than five years prior to the commencement of the action, but the defendant had not been present in the state for that length of time. Upon this, counsel contends that the question of presence in or absence from the state has no effect upon the operation of the statute, so far as it is based upon the record of a deed. We cannot concur in this view. The arrangement of the sections of the statute forbids any such construction. The various sections prescribing periods of limitation in actions real and personal, and including in the former cases in which the record of a deed is immaterial, are grouped together, and then follow exceptions to those general clauses of limitation. To hold that those exceptions do not apply to all the clauses of limitation to which they are in their nature applicable is to ingraft upon the statute something not placed there by the legislature. One of those exceptions relates to the disability of the plaintiff. By what authority shall the courts say that this applies to ordinary actions for the recovery of real estate, but not to those brought by a judgment debtor against one holding under a recorded sheriff's deed? There is nothing in the language or in the arrangement to indicate any intention in the legislature to make the exception applicable in the one case, and not in the other. It certainly can apply in both cases. It would be legislating, for us to distinguish. Just so, where there is a disability on the part of the defendant. If his situation is such that he may not invoke the protection of the statute in the one case, it is for the legislature alone to say that when similarly situated he may invoke it in any other case. That the defendant was absent from the state, his own testimony shows. That, in an ordinary action to recover the possession of real estate, such absence would prevent the running of the statute, is conceded, and, we see no reason to doubt its efficacy in the present case. We see no force in the argument that because the cause of action accrues from the taking of possession, and not from the recording of the deed, therefore there is no exception to the running of the statute after the record. The truth is, the record of the deed shortens the general staute, and the fact that that is shortened in certain cases is no reason why there should be no exception in those cases. The case of Beebe v. Doster, 36 Kan. 666, 14 Pac. Rep. 150, is one in which it was held that a limitation in the tax-law must be construed without reference to the general limitations contained in the Code. The twenty-second instruction given by the trial court was as follows: "And, in determining the question of fifteen years' possession by the plaintiff and his grantor, you will also deduct the time that the said

Jeremiah Johnson was absent, if at all, from the state of Kansas, and was not in possession of the land himself or by tenant." The concluding words of this instruction are in direct conflict with the case of Morrell v. Ingle. The attorneys of the defendant below requested the court to instruct the jury that the statute of limitations would not run during the time that Jeremiah Johnson held the title, and was a non-resident of and absent from the state. The court refused to so instruct, but held the law to be as given in the twenty-second instruction, as above recited. In the eleventh instruction given by the court the jury are told: "The deed of Elizabeth Cox to Charles Wright, of date April 30, 1867, can only be regarded as conveying to said Wright the one-half interest in the land therein described. The children of said John H. Cox, deceased, would then own the other one-half interest in said land." This is in effect saying that the conveyance was the personal deed of Elizabeth Cox, and not her conveyance as administratrix of the estate of John H. Cox, deceased. This takes away all consideration of the five-years limitation, as provided in the second subdivision of section 16 of the Code of Civil Procedure, as applicable to the heirs of John H. Cox.

The deed from J. W. Cook, as administrator of the estate of Charles Wright, to Jeremiah Johnson, is attacked, and it is claimed that there is no order of the probate court requiring notice to be given to the beirs of the time and place of hearing the application to sell real estate. The reeords of the probate court produced at the trial do not show any such order prescribing notice to the heirs and all persons interested, and do not show that any notice was ever given to the heirs, either by publication or by personal service, and the reeords produced are said to be all the file papers, orders, and journal entries that can be found in the office of the probate court of Doniphan county. If there was no notice to the heirs of the time and place at which the application to sell the real estate to pay debts would be heard, the administrator's deed is probably void, even in a collateral attack, according to the case of Mickel v. Hicks, 19 Kan. 578. Deducting the absence from the state of Jeremiah Johnson, the grantee of Cook, the heirs of Wright were not barred, under the second subdivision of section 16, at the time of the commencement of these proceedings, but there is some evidence tending to raise a presumption of their death. Putting the case in the most favorable light for the defendant in error,-and we only say this by way of argument,-title to an undivided half of the outlot is only shown. In this view, it was error to overrule the motion of the railroad company that the award in no event exceed the sum of $2,000. For the error in instruction 22, as well as on the motion, we are compelled to reverse the case, and remand it for a new trial.

As another trial is to be anticipated, we might say, in view of it, that as the statute makes it obligatory on the part of a railroad company that constructs its road across, along, or upon any stream of wa ter, water-course, etc., to restore the