for the jury, and, as has been seen, the court charged that such authority might be found from the conduct of the agent. This instruction was clearly erroneous. In determining the liability of the principal, the question in some cases is not what authority was intended to be given to the agent, but what authority was a third person dealing with him justified, from the acts and sayings of the principal, in believing was given to the agent. Banks v. Everest, 35 Kan. 687, 12 Pac. 141. While the acts of the principal will sometimes estop him from denying the authority of an agent who oversteps the limitations imposed upon him, it is clear that the agency or authority cannot be proven by the unauthorized or unaccepted conduct of the alleged agent. In numerous cases it has been held that the fact of agency cannot be established by the declarations of the alleged agent, and testimony of his acts or conduct is of no greater value for that purpose. It has been said that the rule of law bearing on this question is that neither the declarations of a man nor his acts can be given in evidence to prove that he is the agent of another. Streeter v. Poor, 4 Kan. 412; French v. Wade, 35 Kan. 391, 11 Pac. 138; Railway Co. v. Kinman, 49 Kan. 627, 31 Pac. 126. For this error the judgment must be reversed, and the cause remanded for another trial. All the justices concurring.

(52 Kan. 406)

WINTERBURG v. WINTERBURG. (Supreme Court of Kansas. Dec. 9, 1893.) DIVORCE-CRUELTY-PLEADINGS AND PROOFS

VARIANCE.

1. In an action for divorce upon the grounds of extreme cruelty, the acts relied on to constitute such cruelty should be alleged in the petition with reasonable particularity.

2. Where they are so alleged, the admission in evidence of an entirely new state of facts from those disclosed in the petition, over the objection of the opposing party and without amendment, and the granting of a divorce for such new causes, is reversible error.

(Syllabus by the Court.)

found against the latter charge, and held that be was guilty of extreme cruelty. The charge of cruelty alleged in the petition was substantially that he requested her to keep house in the manner which his mother did, and found fault with her if she did not. He insisted on bringing his mother to the house to instruct her in housekeeping, and, when she came, she insisted on moving the furniture from where it was placed, to other parts of the house; and, further, that the mother was disagreeable, and scolded the plaintiff below, charging her with being extravagant and wasteful. She insisted that the plaintiff below must have her dresses made after a pattern selected by the mother, and scolded her if she refused. It was further alleged that Edward and his mother locked her up in a room because she would not live in the manner they desired; and, finally, that Edward drew a revolver upon her, and threatened to shoot her. Some of the facts relied on were trivial, and insufficient to constitute legal cruelty. At the trial, testimony of the plaintiff below was admitted tending to prove that the mother requested her to prostitute herself. There was also proof admitted in her behalf that the husband abused his wife's person by an excess of sexual intercourse. The overindulgence was against her desire, but was not enforced, and there was no testimony tending to show that her health was thereby injured. This testimony was admitted over the specific objection of the defendant below, upon the ground that the petition contained no allegations justifying such testimony. The court found that the husband was guilty of extreme cruelty, not because of what was charged in the petition, but "because of excess of cohabitation, and of his mother's request for her to prostitute herself." Upon this finding the judgment of the court rests.

There was no intimation in the petition of either of the offenses for which the divorce was granted. There was a general allegation that the husband was guilty of extreme cruelty. But a general allegation will not alone suffice. The material facts relied on

Plain

Action by Frances M. Winterburg against Edward F. Winterburg for a divorce. tiff had judgment, and defendant brings error. Reversed.

Sturges & Swartz, for plaintiff in error. G. W. Nimocks & Bro., for defendant in er

reasonable particularity. The proof should have corresponded with the allegations. The introduction of new grounds of divorce, and of evidence to sustain the same, over the objection of the defendant, may have been prejudicial, and was certainly error. It was unjust to the defendant below to require him to meet charges of cruelty not mentioned in the petition, of which he had no notice, and for which he may have been entirely unprepared. Our Code liberally provides for amendments to pleadings where the necessity of the case requires them; but, where this is done, the opposite party, who may be taken by surprise, and therefore unprepared, would, upon application, be entltled to a continuance. No application to amend was made, and, as we have seen, the

(52 Kan. 404)

TEEDRICK v. CITY OF KANSAS CITY et al.

(Supreme Court of Kansas. Dec. 9, 1893.) DEDICATION OF STREETS-CONCLUSIVENESS OF

FINDINGS.

1. The case of Brooks v. City of Topeka, 8 Pac. 392, 34 Kan, 277, followed.

2. Where issues of fact are heard before a trial judge without a jury, and a general finding is made by him, and judgment entered thereon, such finding is conclusive between the parties in the case if there is evidence to support the same.

(Syllabus by the Court.)

Error from district court, Wyandotte county; O. L. Miller, Judge.

Action by G. B. Teedrick against the city of Kansas City and others for an injunction. Defendants had judgment, and plaintiff brings error. Affirmed.

D. B. Hadley, for plaintiff in error. K. P. Snyder and J. M. Rees, for defendants in

error.

HORTON, C. J. It is claimed by the plaintiff that he is the owner of lot 1, in block 1, in Connelly's addition to Wyandotte City, now Kansas City, in this state; that the city has obtained possession of the lot, placed a sidewalk on it, and should be enjoined. If a part of the evidence be considered only, Fifth street is 67.82 feet wide, and the city has improperly graded and widened the street over the lot in dispute. It appears, however, that in 1857 the Wyandotte Town Company made and published a plat showing Fifth street to be 80 feet wide, and that it extended, south the full width. On August 7, 1869, Mathias Splitlog made to Cornelia D. Connelly a conveyance of land recognizing this town company plat. He conveyed first by metes and bounds, and then, by way of further description, added: "Meaning hereby to convey lots 28, 29, 30, 31, and 32, and fractional lots 33 and 34, in block 153, with the extension of the alley in said block according to the plat of said city drawn by John H. Miller, C. E., and published by the Wyandotte City Company, March 18, 1857." This conveyance also referred to the "east line of Fifth street extended in the city;" thereby recognizing it as being the east boundary of lot 28 of block 153, the old numbering of which was changed in the plat of Connelly's addition. The south part of this block in Connelly's addition is block 1, and the lots number from 1 east to lot

In August, 1873, Splitlog made a conveyance to Peter Connelly, and on the 6th of December, 1873, Peter Connelly and Cornelia Connelly, his wife, platted their land. Fifth street being, as before stated, 67.82 feet wide. The city has graded 80 feet in Fifth street. The different plats have caused complications. The deed of August 7, 1869, to Mrs. Connelly, is a full recognition of Fifth street as 80 feet wide, and as being the east boundary of lot 28, block 153. Fifth street, as shown on the town company map of 1857, was by Splitlog's deed of 1869 dedicated by him as an 80-foot street, and no subsequent act by him or his grantee, after that time, could revoke that dedication. Brooks v. City of Topeka, 34 Kan. 277, 8 Pac. 392; Elliott, Roads & S. 111, 129, 130. William Miller, a witness called by the plaintiff, among other things testified: "Q. From your statement that you just made here, as I understand it, the legal effect of what you have stated is that according to this map [referring to plat of Connelly's addition] it is twenty feet further east than it ought to be? A. That I know it ought to be from my own knowledge. Q. As I understand, Mr. Miller, as a matter of fact, talking outside of this plat Mr. Connelly has made, this line the whole of it-ought to go twenty feet further than it actually does with this map, [referring to Miller's map,] but according to this map [plat of Connelly's addition] the street is right where the city claims it to be? A. That is what I say, sir. Q. By Mr. Hadley: That the street is right where it ought to be? A. What I say is, the plat does not represent the facts on the ground. Q. By the Court: By the measurement of the old town company's lands? A. By the measurement of the old town company's lands. Q. By Mr. Hadley: On the ground there, is there room for Connelly's dedication of 67 feet out of what he obtained in 1873 of Splitlog and also room for this lot one? A. If you take the wording of Connelly's deeds, there is ample room there for everything; if you take this map, there is not. You take the records of the town company's land as they are here, it is impossible to put Connelly's addition in the shape in which that part represents it." There was much other evidence introduced tending to show a difference in the maps or plats. The evidence of A. W. Boeke, the city engineer, also flatly contradicted the claim of the plaintiff. This case was tried before the court below without a jury, upon the various plats and deeds offered in evl dence, and the oral testimony of several witnesses. A general finding, only, was made, in favor of defendant and against the plaintiff. There was evidence to sustain the finding against the plaintiff. The judgment, therefore, must be affirmed. All the justices concurring.

(52 Kan. 375) WEBB v. BOARD OF COM'RS OF BUTLER COUNTY et al.

(Supreme Court of Kansas. Dec. 9, 1893.)

HIGHWAYS-OBSTRUCTION-NONUSER.

1. The statutory provision concerning the vacation of public roads on account of nonuser was adopted from an Ohio statute after it had been judicially construed in that state, and that construction must be held to have been adopted here.

2. A public highway, legally established, ordered to be opened, and one-half of which at least was unobstructed, and used to some extent for public travel, is not an unopened road, within the meaning of paragraph 5516 of the General Statutes of 1889.

3. The fact that an adjoining landowner, over whose land one-half of the road was laid, encroached upon the highway with a fence or by cultivation and use, will not lessen the right of the public to use the entire width of the highway when the increased travel and the exigencies of the public make it necessary.

(Syllabus by the Court.)

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

Action by Cyrus Webb against the board of county commissioners of Butler county and others for an injunction. Defendants had judgment on demurrer to plaintiff's evidence, and plaintiff brings error. Affirmed.

Redden & Schumacher, for plaintiff in error. Shinn & Knowles, for defendants in er

ror.

JOHNSTON, J. This was an action brought by Cyrus Webb against the defendants as public officers to enjoin them from removing fences and obstructions, and from opening up a supposed highway over the plaintiff's land. His petition sets forth the authorization and establishment of a highway 40 feet wide on the western line of his premises in 1872, onehalf of which was laid upon the plaintiff's land. He alleged and contends that the road was never actually opened over his land, but that a hedge had been planted along the west line, which had been used as a fence for several years, and that the land had been plowed and cultivated up to the fence for more than 10 years. The evidence offered by plaintiff tended to show that for 17 years there had been no travel over the land in question except where parties passing along the west line had driven upon the cultivated land to escape the mud in the road; that he had cultivated his land up to the west line for several years, and had maintained the fence on a portion of the line most of the time since he had purchased it. It was further shown, however, that there was a traveled road along his west line, which was considerably used by the public. At the close of plaintiff's testimony a demurrer was sustained to the evidence, and upon this ruling error is assigned. We think the plaintiff has no cause to complain. His own allegations show that a road was established and ordered to be opened. In his petition it is averred that "in the year 1872 proceedings were had relative to

laying out a public road on the lands described, as follows, [here follows description of road,] which ran past and included the west line of plaintiff's land above described; and the said board of county commissioners pretended to appoint viewers of said road, and adopted a favorable report made by said viewers, and in the month of July, 1872, ordered said road to be opened." Although plaintiff speaks of it as a "pretended road," nothing is alleged to show irregularity in their action nor invalidity in the order which was made. No proof was offered which tended to show that the road was not legally authorized and established. It is contended, however, that the road is established, has be come vacant by reason of nonuser, under the provision of paragraph 5516 of the General Statutes of 1889, which reads as follows: "That any county road or part thereof, which has heretofore or may hereafter be authorized, which shall remain unopened for public use for the space of seven years at any one time after the order made or the authority granted for opening the same, shall be and the same is hereby vacated, and the authority granted for erecting the same is barred by lapse of time." This provision was adopted from an Ohio statute, and an early construction given to it by the supreme court of that state must be held to have been adopted here. That court decided in 1850 that the statute applied only to roads authorized, but which have never been opened or used. Peck v. Clark, 19 Ohio, 367; City of Topeka v. Russam, 30 Kan. 550, 2 Pac. 669. The road in question cannot be regarded as unopened or unused. When it was authorized and established, the country through which it lay was open and unobstructed. In Topeka v. Russam, supra, it is said that "whenever a road is located and established, and everything else is done which either the law or necessity requires to be done in order to render the road open for public use, the road is not then an 'unopened' road, within the meaning of chapter 150 of the Laws of 1879." In the same case, in speaking of the opening of the road, it is said: "It was located and established in full compliance with the law, and there was nothing to prevent the public from traveling over it. It was not closed or inclosed. It was not shut up. It was not obstructed. And if the road was not closed or inclosed or shut up or obstructed, it must have been opened; and a road that is open cannot well be an unopened road." In Wilson v. Janes, 29 Kan. 234, the same subject was under consideration, and it was said that "a public highway might be opened, without anything being done by the road overseers for that purpose. The people themselves along the line of the road might open it, or the public travel might at once take possession of the road and use it; and whenever a public road is traveled it is in fact opened, although nothing may have ever been done by the road overseers for the purpose of opening it. No

formal opening is ever acquired. It is true, it may be formally opened by the several road overseers along the line of the road, but it may also be informally opened by themselves or by others; or it may be opened in fact by the public travel taking possession of it and using it. *** A road may be opened without either notice or work. Travel alone upon such a road would be a sufficient opening of the same." Here the road was not only opened, within the meaning of these authorities, at the time it was established, but it has been actually used and traveled since that time, and was in use by the public when the present action was brought.

There is no claim that the west half of the road as established was ever obstructed or closed. It was open the full length of the west line of plaintiff's premises, and he has shown that there was considerable travel over the same. Having been legally authorized, laid out, and used, it is, in legal contemplation, a public highway. The fact that the public may not use or travel over the full width of such a highway will not operate to narrow it. It is frequently the case that the full width of country roads is not improved or used, for the reason that the necessities of the public for the time being do not require it; but such limited use will not lessen the right of the public to use the entire width of the highway when the increased travel and the exigencies of the public make it necessary. It has been held that where an easement is obtained by adverse use alone, the extent of the easement must be measured by the actual use; but this rule has no application to a road of a certain width, authorized and established in pursuance of statute. It is clear that the vacation statute invoked was never intended to vacate a part of the width of a road not actually used where there is travel over the entire length of such road. The encroachments by the plaintiff upon this highway gave him no rights as against the public. In Driggs v. Phillips, 103 N. Y. 77, 8 N. E. 514, it was held that "the occu

pation of a portion of a highway by an individual is a mere obstruction and nuisance, for which no lapse of time will enable him to prescribe; and no acquiescence on the part of the highway officials of the town will deprive the public of the right to use the whole highway, or in any degree lessen the duty of such officials to remove the obstruction when that removal is necessary." In Humphreys v. Mayor, 48 N. J. Law, 595, 7 Atl. 301, it is said that "a road may be opened, used, and worked throughout its entire length, and yet not used and worked on every foot of its entire breadth; and if the locus in quo, being within the lines of the road, was not actually passed over by the wheels of vehicles, it would not therefore be vacated. It has been settled in this state that encroachments on a highway cannot be legalized by lapse of time." The supreme court of Maine,

in considering the same question, held it to be sound law and good sense "that the public is entitled to a way three rods wide, as originally laid out, notwithstanding the wrought part of it, and the part actually used by travelers, may have been very much less than that; and that the traveled part may, from time to time, be widened or otherwise improved, as the growing wants of the public may require, provided such improvements are kept within the limits of the way as originally laid out." Pillsbury v. Brown, 82 Me. 450, 19 Atl. 858. See, also, Commonwealth v. McNaugher, 131 Pa. St. 55, 18 Atl. 934, and Town of Sumner v. Peebles, (Wash.) 32 Pac. 221; Elliott, Roads & S. 668. We think the testimony of plaintiff did not sustain his right to an injunction, and that the court ruled correctly in sustaining the demurrer to the evidence. Judgment affirmed. All the justices concurring.

1. Where statements claiming liens on a church building were filed by subcontractors within 60 days after the completion of the building, held, that such statements were filed in time, and that an understanding between the contractor and the majority of the trustees of the church that it should be accepted as completed at a date before it was so in fact is not conclusive on the question of the time of completion, as against the subcontractors.

2. A party paying money to his creditor may direct its appropriation. If he fails to do so, the creditor may apply it on such part of the payor's mature indebtedness to him as he sees fit.

3. Where materials are furnished by a subcontractor to the head of a firm having the contract for the erection of a building, and in his statement for a lien such subcontractor names only the individual member with whom he dealt as the contractor, and where there is nothing to indicate that the owner was misled or injured by the failure of the subcontractor to correctly state the firm name of the contractors, such subcontractor's lien will not be declared invalid because of such error.

4. Held, that the finding of the trial court as to the amount due S. & Co. for stone furnished is supported by the evidence.

(Syllabus by the Court.)

Error from district court, Reno county; L. Houk, Judge.

Action by the Hutchinson Hardware Company against the First Presbyterian Church of Hutchinson and others to enforce a me chanic's lien. From the judgment rendered, defendant church brings error. Affirmed. Whiteside & Gleason, for plaintiff in error. W. H. Crawford, Vandeveer & Martin, Swigart & Wisler, and F. F. Prigg, for defendants in error.

ALLEN J. The Hutchinson Hardware Company brought suit against the First Pres

byterian Church to foreclose a mechanic's lien, making other persons, who also claimed liens, parties defendant. Thompson, Hanna & Co. erected a church building as contractors for plaintiff in error. The Hutchinson Hardware Company furnished hardware to Thompson, Hanna & Co. under a subcontract. Santy & Co. furnished stone. Swife, Mankoff & Congdon furnished galvanized iron cornice. The case was tried by the court without a jury, and judgment rendered in favor of each of the subcontractors before named.

The principal complaint made by the plaintiff in error is that the statements were not filed by the subcontractors within 60 days after the completion of the church. It is strenuously contended that the trustees of the church inspected it, in company with the original contractor, on the 20th day of February, and accepted the work as completed; that the date of completion is fixed by that action of the parties; that the record shows that the work was taken off the hands of the contractors on the 21st day of February, 1888; that inasmuch as the statements were not filed within 60 days from that time they were too late, and the subcontractors' liens were lost. There was evidence showing an inspection of the building by a majority of the trustees at the date named, and that the trustees present expressed their willingness to accept the church as it then was, though it was then claimed by the trustees that there were some little things not just as they should have been. On the other hand, there was evidence showing that work was done by various parties on the building thereafter. The last work performed under the original contract shown by the testimony was a little painting by the witness Barnes, who was employed by Rice & Morehouse, subcontract-ors for the painting. Barnes testified that the last work was done on or about the 4th of April. Some work had been done, fixing doors and the ironwork on the ridge roll, between the time when it is claimed the church was accepted as completed and the 4th of April. The trial court found that the building was completed after the 1st and before the 7th day of April, 1888. All the statements were filed within 60 days after the 1st of April, and were held to have been filed in time. The question as to the time of the -completion of the church building is a question of fact. The trial court has found in favor of the parties claiming liens. This finding is supported by competent evidence, and is therefore conclusive of the question.

In the statement filed by the Hutchinson Hardware Company the trustees are named as the owners of the building, and George E. Thompson, one of the contractors, alone is named as the contractor. It is urged that this is insufficient; that the church corporation should have been named as the owner, and the firm name of Thompson, Hanna & Co. should have been given as the contractors. Section 3, art. 12, of the con

stitution reads: "The title to all property of religious corporations shall vest in trustees, whose election shall be by the members of such corporation." In the statement five persons are named as trustees of the First Presbyterian Church of Hutchinson. As the legal title to the property, under the constitutional provision, is vested in the trustees, and as they were named, not as individuals, but as trustees of the church corporation, the statement is clearly sufficient in that respect. George Thompson, one of the firm of Thompson, Hanna & Co., is alone named as the contractor. It appears that the materials furnished by the hardware company were in fact sold and charged to Thompson, but were so sold to be used in the erection of the church building, and the items charged were entered on the daybook as for the church. Thompson, alone, was not the contractor, but he was the head of the firm who were the contractors. He in fact bought all of the hardware from the company for the purpose of using it in the erection of the building; it was so used; the plaintiffs in error had the full benefit of it; and, unless the plaintiffs have failed to comply substantially with the law, they should be protected in their lien. The object of naming the contractor would seem to be to apprise the owner and other persons by what authority, and under whom, the subcontractor claims a right to his lien. Now, it might happen,-doubtless, often does,-that subcontractors are not informed as to the names of all persons interested in the original contract, and the firm name in which the contract is taken. It would not be just, nor does the spirit of the statute require, that subcontractors should be defeated of their liens if they make a mistake by incorrectly naming the original contractors, where the name is given of the contractor with whom they dealt, and who was, in fact, in charge of the work of erecting the building as a contractor. Tibbetts v. Moore, 23 Col. 208; Davis v. Livingston, 29 Cal. 283; Putnam v. Ross, 46 Mo. 337; Brown v. Welch, 12 Hun, 582.

It appears in the evidence that the trustees paid Thompson money on his work, and out of this he paid the hardware company $200, which was more than the total amount of the materials furnished by them for the church building. Nothing was said by Thompson when the payment was made as to where the money came from, nor was any direction given by the trustees or by Thompson as to its application. The hardware company gave credit to Thompson on their general account against him, and it is contended that it should be held to be a payment of this particular bill. The facts disclosed merely show that the trustees made Thompson a payment on his contract, which, for anything that appears, he was free to use as he pleased,-to pay to the hardware