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covery made in the public domain to the west of the Nolan-Gilmer claim would inure to appellant, he being Hall's grantee as to such rights; in other words, it is urged that, as the Randolph location had its origin in the discovery in the tunnel, in equity it belonged to Hall. This is entirely outside any issue made by the pleadings. If in fact appellees' license only authorized them to extend the tunnel through the Nolan-Gilmer territory, this did not prevent them from locating the lode discovered in the tunnel beyond the side lines of said claim, although this was not contemplated by their license. As to whether a trust was thereby created Is a question not involved in this case, and the ruling of the district court in this particular must now be upheld.

For the error pointed out in the instructions, the judgment must be reversed.

(51 Kan. 591)

HAUSNER et al. v. LEEBRICK et al. (Supreme Court of Kansas. June 10, 1893.) CHATTEL MORTGAGE-POSSESSION BY MORTGAGEE -LIEN-PRIORITY OVER ATTACHMENT.

Where a creditor, having accepted from his debtor, in good faith, to secure an existing indebtedness to him, a chattel mortgage upon a stock of goods, and under the mortgage, which is not recorded, obtains the key of the store containing the stock of goods, and takes actual possession of all of such goods, and while in such possession, invoicing the stock, is found by the sheriff, with writs of attachment in his hands to levy, and thereupon such mortgagee at once informs the sheriff of his possession of the stock of goods under the mortgage, and the sheriff demands of him the possession of the same, and takes from him the key of the store, and then makes a levy on the stock, held, that the chattel mortgage, with the actual possession of the property obtained thereunder by the mortgagee, is a prior lien to the levies of the sheriff of the attachments of creditors.

(Syllabus by the Court.)

Error from district court, Osborne county; Clark A. Smith, Judge pro tem.

Action by H. Hausner & Co. and another against F. E. Leebrick and Walter Korb, interpleader. From a judgment for defendant Korb, plaintiffs bring error. Affirmed. The other facts fully appear in the following statement by HORTON, C. J.:

This was an action brought by H. Hausner & Co. and A. McKeever against F. E. Leebrick. Hausner & Co. and McKeever were creditors of Leebrick, doing business at Atchison. Leebrick did business at Alton, in Osborne county. The plaintiffs sold goods and merchandise to F. E. Leebrick in the amounts, respectively, as follows: The amount of the claim of H. Hausner & Co against Leebrick was $150.10, together with interest thereon at the rate of 6 per cent. per annum from the 18th day of April, 1859; and the amount of the claim of Andrew McKeever against Leebrick was a balance of $474.57, with interest thereon at the rate of 6 per cent.

per annum from the 26th day of April, 1889. The petitions in both cases were filed on the 7th day of May, 1889, and on the same day separate affidavits in attachment were filed by Hausner & Co. and McKeever in their respective actions against F. E. Lee brick. The property in controversy was attached by the sheriff. On the 27th day of May, 1889, motions in both cases were filed by the defendant, Leebrick, to make one Walter Korb a party defendant, which motions were sustained by the court. On the 17th day of June, 1889, Korb filed his interplea in each of the cases, in which he alleged he was the special owner of the goods and chattels taken on the order of attachments issued in the cases; that on the 19th day of April, 1889, Leebrick was indebted to him in the sum of $1,641, with interest at the rate of 10 per cent. per annum from the 21st day of November, 1888, and that on the 19th day of April, 1889, Leebrick, to secure such indebtedness, executed to him a chattel mortgage conveying to him all the personal property taken on the orders of attachment, and also alleging he had possession of the goods on the 7th day of May, 1889, the date of the levies. Afterwards, plaintiffs filed their answers to the interplea of Korb. By agreement of the parties, and the order of the court, the cases of McKeever and Hausner & Co. against Leebrick were consolidated, and tried as one cause before the court, a jury being waived. The court made special findings of fact and conclusions of law. Upon the findings of fact and conclusions of law judgment was rendered in favor of Korb for the possession of the goods and chattels in dispute, or, in de fault of the recovery of the same, for $1,139.65, the full value thereof, and for $32.30, his damages for the detention of the same. Hausner & Co. and McKeever excepted, and bring the case here.

Israel Moore and Solomon & Bland, for plaintiffs in error. Hays & Woods, for de fendants in error.

HORTON, C. J., (after stating the facts.) The trial court specially found, among other things, that on the 21st of November, 1888, F. E. Leebrick was indebted to Walter Korb in the sum of $1,641; that on that date he gave him his promissory note, due in six months, bearing interest from date at the rate of 10 per cent. per annum; that on the 19th of April, 1889, Leebrick executed and delivered to Korb a chattel mortgage upon the stock of goods and merchandise in dispute; that on the same day, about half an hour after the delivery of the mortgage, Lee brick delivered the possession of his stock of goods to Korb, telling him he could take possession thereof, and sell sufficient to pay his indebtedness; that Leebrick left the county very soon afterwards for Washington Territory; that the next morning Korb, in

person, went to the store, and remained in personal charge of the same for three or four days, when he went to his home, in Stockton, Rooks county, leaving Mrs. Leebrick, the wife of F. E. Leebrick, in charge, under an arrangement with her that she should sell the goods, and account to him for the proceeds thereof; that during the time that Korb and Mrs. Leebrick had charge of the store, including what he sold, and what she accounted to him for, he received $73 as the proceeds of the sales; that Korb, after he returned from Stockton, on May 7, 1889, took personal control of the store; that on the same day the sheriff appeared, and levied upon the stock; that at the time the sheriff made the levy he found Korb in control of the store, and was informed by him that he had a mortgage on the stock, and was in possession under his mortgage.

This court has decided very often that “a debtor, even in failing circumstances, may prefer creditors, if the same is done in good faith, and this not only in the form of actual payment of money to the particular creditors preferred, but also in the form of the sale, or appropriation of property, or the giving of chattel mortgages to such creditors." Tootle, Hosea & Co. v. Coldwell, 30 Kan. 125, 1 Pac. Rep. 329; Avery v. Eastes, 18 Kan. 505; Campbell v. Warner, 22 Kan. 604. This court has also ruled that, "in all cases where there is a voluntary delivery of the possession of the property by the mortgagor to the mortgagee under the mortgage, such delivery will render the mortgage valid as to all persons not then having any specific right or lien upon the property, provided the mortgage was previously valid as between the parties thereto." Cameron v. Marvin, 26 Kan. 612; Bank v. Sargent, 20 Kan. 576; Frankhouser v. Ellett, 22 Kan. 127; Dayton v. Bank, 23 Kan. 421. It is admitted that the chattel mortgage

was

never deposited with the register of deeds, and the contention of the plaintiffs is that there was no actual or continued change of the goods mortgaged after the delivery of the chattel mortgage, and that the findings of the trial court are not sustained by the evidence. We think otherwise. It appears from the following testimony that the material facts found are fully supported: Korb testified, among other things, as follows: "Question. Where was you when you took this mortgage of Mr. Leebrick? Answer. I was in Leebrick's store, in Alton. Q. What transpired there, after you took the mortgage, in reference to the possession of the goods described in this mortgage? A. Mr. Leebrick had to go to Washington Territory, and I told him that he had better turn the goods over to me, to secure me, and he did. Q. How soon after this mortgage was made, did he turn the goods over to you? A. Probably half an hour. Q. Had there been any sales of

goods in the mean time? A. No, sir. Q.. What time of the night or day was this? A. Along in the evening, after dark. I don't know just what time, but about dark. Q. How long did you remain there, in possession of the goods? A. I think I stayed there myself about three days, or something like that, and then I went back home. Q. Where did you live at that time? A. At Stockton. Q. Who did you leave the goods in charge of when you went away? A. Mrs. Leebrick. Q. In what capacity? A. She agreed to take care of them for me, and turn over the proceeds of the sales to me. Q. When did you come back from Stockton? A. Oh, I think I was away, probably, four or five days. I don't remember, exactly. I think, about that time. Q. How much sales had you made up to the time the attachments were levied? A. The sales amounted to, I think, $73. Q. Did he (Leebrick) deliver you the goods? A. Yes, sir. Q. Where did he live at that time? A. In Alton. Q. In that same building? A. No, sir. Q. Where were these goods? A. In what they call the 'Lloyd Building,' in Alton. Q. What did you do the next morning after this? A. I went down, and went into the store. Q. What was the arrangement with Mr. Leebrick about how you were to sell these goods? A. I was to sell them the best I could. Q. For what purpose? A. To pay his debt. Q. Was you in the store when the sheriff came to attach in this case? A. Yes, sir. Q. What was you doing in the store, and who was there? A. Cash Walker, of Alton, was in there, and we were invoicing the goods at that time. Q. Cash Walker and you were invoicing the goods? A. Yes, sir. Q. Any one else? A. No, sir. Q. What conversation occurred between you and the sheriff before this attachment was levied? A. I told the sheriff that I had possession of the goods, and they were mine, at that time. Q. Did you tell him what claim you had them on? A. Yes, sir; I told him I had a mortgage on them to secure an amount of money that Mr. Leebrick owed me. Q. Did the sheriff, at the time he took possession of the goods, take all the goods and fixtures away? A. Yes, sir; he demanded possession, and took the key from me. Q. And took everything? A. Yes, sir. Q. Did he return any portion of them to you? A. No, sir. W. A. Ware, the sheriff, testified that: Question. You are the sheriff of this county? Answer. Yes, sir. Q. You served the attachments in this case? A. Yes, sir. Q. In both of these cases? A. Yes, sir. Q. Who did you find in possession of the stock of goods when you went to serve the attachments? A. Walter Korb. Q. The interpleader here? A. Yes, sir. Q. Who else was in the store? A. C. M. Walker, I believe. Q. What were they doing there? A. They were taking an invoice of the goods. Q. What conversation did you have with Mr. Korb, with reference to his right and claim on those goods, before you attached them?

A. I told him that I had attachment writs to levy on the goods, and he said the goods were his, and in his possession. Q. What did he say about the claim he had upon them? A. I think he told me had a chattel mortgage upon them. Q. Did he tell you the amount of the claim? A. I don't remember as to that. It is likely he did, but I don't remember what the amount was." As the chattel mortgage was valid between the parties at the time of its execution, and as Korb took actual possession of all the mortgaged property before the sheriff levied thereon, and as the sheriff, representing the attaching creditors, had notice of such possession, and the mortgage under which it was taken, the judgment of the trial court must be affirmed All the justices concurring.

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1. The state has the right of appeal from a judgment of a district court sustaining a plea in abatement, quashing the information, and discharging the defendant.

2. An information charging the defendant with violations of the prohibitory liquor law, verified positively by the county attorney, is sufficient, where his information as to the offenses charged is based on the testimony of witnesses subpoenaed and examined under the provisions of paragraph 2543 of the General Statutes of 1889, without filing the sworn statements of witnesses.

(Syllabus by the Court.)

Appeal from district court, Chautauqua county; M. G. Troup, Judge.

Information charging Joe Huffman with the unlawful sale of intoxicating liquors. From a judgment quashing the information the state appeals. Reversed.

John T. Little, Atty. Gen., and B. S. McGuire, for the State. John W. Shartell, for appellee.

ALLEN, J. The county attorney filed an information charging the defendant with the unlawful sale of intoxicating liquors, which he verified positively by his own oath. The defendant appeared, and filed his plea in abatement, which reads as follows: "Comes now the defendant, and, for his plea in abatement herein, says that this action ought to be abated for the following reasons, to wit: That this action is instituted by the county attorney upon his own motion, and without any personal knowledge of the alleged offenses, but solely upon information by him derived from the examination of witnesses by him taken, by causing divers witnesses to appear before him in obedience to subpoenas, and to then and there testify before him, and said county attorney did then and there take such testimony, as re

quired by law, and caused the same to be reduced to writing, and signed by such witnesses, which said testimony has been suppressed by said county attorney, and not filed in this cause as required by law. Wherefore, said defendant prays that said action may be abated." To this plea the county attorney demurred. The court overruled the demurrer, held the plea good, quashed the information, and discharged the defendant. The state appeals.

A motion is filed, on behalf of the defendant, to dismiss the action in this courtFirst, because the order appealed from was not an appealable order; second, because there is no sufficient transcript of the record of the case to warrant a review. The first ground stated in the motion is not good. Section 283 of the Criminal Code expressly authorizes an appeal by the state in this case. Since the filing of this motion, by leave obtained from this court, the record has been withdrawn, a sufficient certificate from the clerk of Chautauqua county affixed thereto, and the transcript refiled. This obviates the second objection raised in the mo tion. No brief is presented on behalf of the defendant.

Paragraph 2543, Gen. St. 1889, authorizes the county attorney to subpoena witnesses for the purpose of ascertaining whether violations of the prohibitory liquor law have been committed, and directs that the testimony of the witnesses shall be reduced to writing, and signed by them, and then provides: "If the testimony so taken shall disclose the fact that an offense has been committed against any of the provisions of this act the county attorney shall forthwith file such statement, together with his complaint or information against the person having committed the offense, in some court of competent jurisdiction; and such statement or testimony, together with the informatioin or complaint of such county attorney, when verified by him on information and belief, shall have the same effect as if such information or complaint had been verified positively." The court below held that an information filed by the county attorney, and sworn to by him positively, in a case of this kind, where the county attorney's knowledge as to the commission of the offense was derived solely from the examination of witnesses, was insufficient to put the defendant on trial, unless the sworn statements of the witnesses were also filed with it. The correctness of this ruling is now challenged. We are unable to perceive any good reason why a county attorney may not, if he feels warranted in so doing, verify an information charging a violation of the prohibitory liquor law, as well as any other offense, positively, and why such information, so verified, is not sufficient. It may be said that the statute imposes on him the duty of filing the sworn statements of the witnesses, and that the defendant should only be placed on trial

for those acts disclosed by the sworn statements where the county attorney had no knowledge of any other violations of the law. If it be conceded that the defendant has such right, it does not necessarily follow that the information is insufficient, or that the verification thereof is defective. We are not called on to decide whether the trial court, on a motion made therefor by the defendant, ought to compel the prosecuting attorney to file these statements, nor whether, over his objection, the defendant should be forced to trial without the filing of them. We do hold, however, that the failure to so file them does not abate the action, and is not ground for quashing the information, or discharging the defendant. State v. Moseli, 49 Kan. 142, 30 Pac. Rep. 189. Judgment will be reversed. All the justices concurring.

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1. Where a railroad company, under a city ordinance, or the statute, constructs and operates its road in a street or highway, but leaves sufficient space between the roadbed and abutting land or lots for ordinary vehicles, teams, and travel, there is no such obstruction of access to abutting land or lots as to permit damages for any depreciation in value thereof.

2. If a railroad company, in constructing its road and surfacing its track, makes holes or other temporary obstructions in a street or highway, an abutting lot or land owner may recover all special damages suffered by him prior to the commencement of his action; but on account of such defects or obstructions in the street or highway he cannot recover for the supposed depreciation in value of his property, upon the ground of a permanent appropriation for the right of way.

(Syllabus by the Court.)

Error from district court, Dickinson county; M. B. Nicholson, Judge.

Action by the Union Investment Company against the Chicago, Kansas & Western Railroad Company to enjoin defendant from constructing its road along a certain street, and for damages to plaintiff's land fronting said street. Plaintiff had judgment for damages, and defendant brings error. Reversed.

George R. Peck, A. A. Hurd, and Robert Dunlap, for plaintiff in error. John H. Mahan, for defendant in error.

HORTON, C. J. In March, 1887, the Union Investment Company was the owner of a tract of land known as "Richland Park," an addition to the city of Abilene, which it had platted into lots and blocks. In June, 1887, the Chicago, Kansas & Western Railroad Company began the construction of its road and telegraph line upon Third street of this addition. On the 23d of June, 1887, the Union Investment Company commenced this action to enjoin the construction of the rail

road.

Subsequently, and on October 15, 1888, that company filed an amended petition, claiming $5,000 damages against the railroad company for wrongfully and unnecessarily digging up the street, elevating its roadbed, and unnecessarily impairing the usefulness of the street as means of ingress and egress to the abutting lots upon which the road was constructed. Upon the trial in the case the jury returned a verdict for $300 against the railroad company, and judgment was rendered thereon. The railroad company excepted.

Third street is eighty feet wide. The embankment for the road and tracks was placed about the center of the street, but nearer the north half. The grade was about a foot and a half, and to the top of the rails about two feet. The distance between the embankment and the lots upon the north side was thirty feet, and from the lots on the south side to the embankment over forty feet. In surfacing up the track there were some holes dug along the sides of the street from two to four feet in width and length and about a foot deep. These holes interfered with the passing and repassing of vehicles and travel. Before the construction of the railroad the grade of the street had never been established, and the abutting lots were vacant and unimproved. The embankment and tracks for the railroad occupied about five feet. On account of the grade it was difficult to cross over the track from one side to the other, but there were good crossings at the street crossings, made by the railroad company. The recov ery in the case was solely for the depreciation in the value of the lots by alleged permanent obstructions. The instructions to the jury permitting such a recovery were misleading. Such damages cannot be sustained upon the testimony introduced. Of course, a railroad company cannot wrongfully and unnecessarily block up and obstruct a street or highway, and if a lot or land owner receives actual injury from such obstruction, special to him, and not such as affects the public in general, he may have a cause of action. But in this case there was no permanent taking and appropriation of the whole street, or of any part of the street immediately adjoining the abutting lots, so as to completely or substantially obstruct the ingress to or egress from the lots. Railroad Co. v. Larson, 40 Kan. 301, 19 Pac. Rep. 661; Railroad Co. v. Cuykendall, 42 Kan. 234, 21 Pac. Rep. 1051; Railroad Co. v. Smith, 45 Kan. 264, 25 Pac. Rep. 623; Railway Co. v. Mahler, 45 Kan. 565, 26 Pac. Rep. 22. As was said in the Andrews Case, 30 Kan. 590, 2 Pac. Rep. 677: "The public, in grading the alley, or in permitting a railroad company to occupy it, may in some cases render its use less convenient, and still not give the plaintiff any right of action against any person or corporation for damages. Thus the public may grade the alley so that it would be much above the surface of the plaintiff's

lots, or much below it, and so that it would be very inconvenient for the plaintiff or others to pass from the one to the other; or the public might vacate a street at one end of the alley, so that the plaintiff could pass into the alley only at the other end, or might In other ways vacate streets or alleys so as to render the plaintiff's property less enjoyable, without giving to the plaintiff a cause of action. Numerous decisions have been made to the effect that for the construction of a railroad upon a street or alley with authority from the city, where it was restored to its former conditions, or where the structure did not deprive the owner of the reasonable use of the street or alley as a means of ingress to and egress from his lots, no recovery could be had. The fact that the street or alley may be narrowed by the structure, or made less convenient, or that by reason thereof the property would be less attractive or desirable, will create no liability against the company if the owner's special use and private right of entering and leaving his property have not been unreasonably abridged." Railroad Co. v. Curtan, 33 Pac. Rep. 297, (just decided;) Heller v. Railroad Co., 28 Kan. 625; Railroad Co. v. Smith, supra. See, also, Railway Co. v. Early, 46 Kan. 197, 26 Pac. Rep. 422; Railway Co. v. Mahler, supra. If the addition was not within the city of Abilene, the railroad company had the power, under the fourth subdivision of paragraph 1207, Gen. St. 1889, "to construct its road across, along, or upon any street or highway which the route of its road would intersect or touch, but the company would restore the * street or highway thus intersected or touched to its former state, or to such a state as to have not necessarily impaired its usefulness." Comp. Laws 1885, p. 218, § 47. If there was a temporary obstruction of the street on account of the holes dug by the men in surfacing the track which were left unfinished or in a dangerous condition, and the plaintiff below had suffered any special damage or injury thereby, differing in kind from the public generally, it would be entitled to recover the special damages which had accrued prior to the commencement of this action. But the depreciation in value of the property in this case is not the damages recoverable. In other words, the plaintiff below was entitled to recover, upon the facts disclosed, if anything, only such actual damages as it suffered up to the commencement of this action. Poppenheim v. Railroad Co., (N. Y. App.) 28 N. E. Rep. 518, 26 Amer. St. Rep. 486, and notes. This is not like the cases where in gress to and egress from a lot or tract of land is completely or substantially destroyed by the permanent taking and appropriation of a street or alley. Garside's Case, 10 Kan. 552; Twine's Case, 23 Kan. 585; Andrews' Case, 26 Kan. 702; Larson's Case, supra. In Railroad Co. v. Curtan, 33 Pac Rep. 297, (just decided,) the obstruction of the alley

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was treated by all the parties as permanen1 The exceptions referred to in this case were not taken in that case. See, also, Railway Co. v. Early, 46 Kan. 197, 26 Pac. Rep. 422. The judgment of the district court will be reversed, and cause remanded for further proceedings. All the justices concurring.

(24 Or. 250)

NODINE v. SHIRLEY. (Supreme Court of Oregon. June 28, 1893.) ACTION ON ACCOUNT-PARTNERSHIP TRANSACTION. In an action for a balance due on an account it was error to allow plaintiff any thing for pasturing stock which was owned by himself and defendant as partners.

Appeal from circuit court, Union county; James A. Fee, Judge.

Action by Fred Nodine against J. Q. Shirley for a balance due on account. Judgment for plaintiff, and defendant appeals. Modified.

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

This is an action brought by the plaintiff against the defendant for an alleged balance due on account. The cause was referred to take the testimony, compute the account, and report the findings of fact and conclusions of law thereon. The referee found that there was due from the defendant to the plaintiff $17,350.60, and that said plaintiff was entitled to a judgment for this sum. The court, at the hearing, approved these findings and conclusions, and judgment was rendered for said sum, and for the costs and disbursements of the action, from which judg ment the defendant appeals.

McArthur, Balleray & Rand, for appellant. A. J. Lawrence and T. H. Crawford, for respondent.

MOORE, J., (after stating the facts.) An examination of the errors assigned shows that the plaintiff failed to demand interest in his complaint, and that the referee found he was entitled to interest in the sum of $10,930.65. It also appears that on April 7, 1884, the plaintiff sold and delivered to the defendant a band of cattle, for the sum of $20,825, which formed the principal upon which the interest was computed, and that from an examination of the account it appears that at the time of said sale the plaintiff was indebted to the defendant, and that the defendant on April 9, 1884, paid to the plaintiff $10,000, April 26, $1,000, and May 1, $10,000, thus fully paying the whole claim, and for these reasons no interest should be allowed. It also appears that the referee had allowed the plaintiff $4,500 for pasturing stock, and that this stock was owned by the plaintiff and defendant as partners, and for that reason should not have been allowed in this action. The judgment of the court below will be modified, and as there is no dispute upon the facts a judgment will be there entered for the amount of the judg ment in the court below, less these two items, or for the sum of $1,919.95.

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