Commissioners' decision. Error from court of common pleas, Sedgwick county; JACOB M. BALDERSTON, Judge. Action by Kate Griesser and Peter Getto, guardian of the minor heirs of Severin Griesser, deceased, against the Chicago, Kansas & Nebraska Railway Company, to recover for damages by defendant in constructing its road through the land of such heirs. Verdict and judgment for plaintiffs. Defendant brings error. Reversed. M. A. Low and W. F. Evans, for plaintiff in error. Sankey & Campbell, for defendants in error. It the Chicago, Kansas & Nebraska Railway Company, plaintiff in error, appointed three commissioners, having the qualifications required by law, to lay off and condemn a route and line for the railway of said company through said county of Sedgwick; that said commissioners, after duly qualifying, as required by law, and after giving the notice prescribed by the statute, located and condemned a route and line for said railway over the real estate in question, in the manner and form provided for by the statute, all of which was embodied by them in a written report, and filed in the office of the county clerk of said county on the 2d day of March, 1887; that the county clerk of said county forthwith prepared and filed in the office of the treasurer of said county a copy of said report, properly certified; that said railway company, on said date last aforesaid, caused to be paid to said treasurer the full amount of the appraisement of the commissioners aforesaid, and as shown by said report, for the route and line over the real estate in question; and that said copy, so filed in said treasurer's office, was, on said 2d day of March, 1887, duly filed and recorded in the office of the register of deeds of the said county of Sedgwick, after the fact of said payment had been duly certified thereon by said treasurer. SIMPSON, C. This action was commenced in the district court of Sedgwick county on the 27th day of February, 1888, to recover for damages done to the land of the minor heirs of Severin Griesser by the construction of a line of railway through said land by the Chicago, Kansas & Nebraska Railway Company. was tried in the court of common pleas, having been duly transferred thereto, and resulted in a general verdict for the defendants for $1,200. The railway company brings the case here for review, and the principal contention clusters about the regularity of certain condemnation proceedings, by which it is claimed by the railway company that the land had been duly taken and appropriated before the commencement of this action. From these proceedings no appeal was ever tak. en. It is claimed that they are so irregu-ber 20, 1886, asking for the appointment of lar that they could be entirely disregard ed, and an independent action, like this, instituted for damages. If these condemnation proceedings were not utterly void, but only technically informal, this actioning the commissioners to lay off along the will not lie; the only remedy being by appeal from the award. The court below withdrew these proceedings from the jury, and told them not to consider them. The reason for this ruling is not plainly stated in the record, but, as a matter of fair inference from what the trial court said, it seems to us that the trial court did not consider the general notice of condemnation sufficient to bind minor heirs. But, he that as it may, this is the controlling question in the case, and we will proceed to determine it. As we understand the contention of the counsel for defendauts in error, they insist that these condemnation proceedings are not sufficient for three reasons, and these are that there is no evidence tending to show that the persons appointed by the district court to condemn the right of way and assess the damages were qualified to act as such commissioners; there is no showing that the map and profile of the intended route were made, certified, and filed with the county clerk before the road was constructed; no written notice was given to the occupant of the land; no proper assessment of damages was ever made; and, finally, that neither the notice nor the proof of the publication thereof was sufficient. The proceedings withdrawn from the jury substantially show that on or about the 17th day of January, 1887, the judge of the district court of Sedgwick county, state of Kansas, on the written application of 1. We find that the petition of the railroad company presented to the district court of Sedgwick county, of date Decem commissioners, recites that a map and profile of the line of the railroad through Sedgwick county had been filed in the office of the county clerk. The order appoint line of the railroad the necessary land, and appraise and assess the same, as required by law, recites that "the said lands so desired by said company for the purposes aforesaid being particularly shown by the map and profile of said road on file in the office of the county clerk of Sedgwick county. With these recitations in the record, it is fair to conclude that the map and profile were filed before the land was condemned, and this disposes of that contention. 2. It is contended that there is no evidence tending to show that the commissioners appointed were freeholders. The order appointing them recites that they are. Even if they were not, the case of Huling v. Improvement Co., 130 U. S. 559, 9 Sup. Ct. Rep. 603, is conclusive authority that such an objection cannot be raised in a collateral attack on the condemnation proceedings. 3. It is said that the failure of the railway company to serve written notice on a tenant of the owners, who was in actual possession of the land, invalidates the proceedings, it being admitted that no such notice was ever served. In the first place, the section that requires such notice to be served is no part of the condemnation proceedings. Hunt v. Smith, 9 Kan. 137; Railroad Co. v. Shepard, Id. 647; Railroad Co. v. Grovier, 41 Kan. 685, 21 Pac. Rep. 779; Railroad Co. v. Abbott, 44 Kan. 170, 24 Pac. Rep. 52. Admitting ror. Geo. R. Peck, A. A. Hurd, and Robert Dunlap, for plaintiffs in error. that it is absolutely required to be given | public crossings of their roads. On judgbefore the construction is commenced, ments for defendants, plaintiffs bring erthen it would only affect the questions of Reversed. damages occasioned by their failure to do so. It is said in the case of Railroad Co. v. | Shepard that the object of such a notice "is to inform the occupant that the company is about to commence work, so that he may prepare his fences, so as to confine his stock and preserve his crops. "It is perfectly evident that this question does not affect in any manner the validity of the condemnation proceedings. Such a notice is required under the general road law of the state, but it has been held that the want of it is not a jurisdictional defect. 4. The next contention is that no proper appraisement of the land taken or assessment of damages to the land not taken was made. Two reasons are advanced in support thereof. The first is that it was done in the name of a dead man, and the second is that as this land belonged one half to the widow of the deceased and the other half to the two minor children, the interest of each should have been determined and appraised. Both these objections are fairly met by the case of Railroad Co. v. Grovier, 41 Kan. 685, 21 Pac. Rep. 779. 5. Finally, it is said that the jurisdictional notice is not sufficiently definite, and that by reason of its numerous omissions the proceedings are void. In the cases herein before cited of Railroad Co. v. Shepard, 9 Kan. 647, and Huling v. Improvement Co., 130 U. S. 559, 9 Sup. Ct. Rep. 603, the objections made here are fully met, and determined adversely to the view of counsel for defendants in error. It follows that the trial court erred in ruling out the condemnation proceedings, and withdrawing them from the jury, and for this reason the judgment must be reversed, and the cause remanded for a new trial. PER CURIAM. It is so ordered; all the justices concurring. (48 Kan. 576) ATCHISON, T. & S. F. R. Co. v. Board of CHICAGO, K. & W. R. Co. v. SAME. Where a highway is established across a railroad company's right of way, it is entitled to compensation for all necessary expenditures in constructing cattle guards, and such other things as it is required by statute to construct on account of the highway. Kansas Cent. R. Co. v. Commissioners of Jackson Co., 26 Pac. Rep. 394, 45 Kan. 716, and Commissioners of Greenwood Co. v. Kansas City, E. & S. K. Ry. Co., 26 Pac. Rep. 897, 46 Kan. 104, followed. Error from district court, Osage coun ty; R. B. SPILMAN, Judge. Action by the Atchison, Topeka & Santa Fe Railroad Company against the board of commissioners of Osage county, and an action by the Chicago, Kansas & Western Railroad Company against same defendants, each for the recovery of compensation for constructing cattle guards at PER CURIAM. The judgments of the court below in these two cases will be reversed upon the authority of the following cases: Kansas Cent. R. Co. v. Commissioners of Jackson Co., 45 Kan. 716, 26 Pac. Rep. 394; Commissioners of Greenwood Co. v. Kansas City, E. & S. K Ry. Co., 46 Kan. 104, 26 Pac. Rep. 397. (48 Kan. 620) TOWNSHIP OF QUINCY V. SHEEHAN. (Supreme Court of Kansas. May 7, 1892.) TOWNS-FAILURE TO ERECT WATERMARKS BILITIES. - LIA A township is not liable under chapter 237 of the Laws of 1887 for losses arising from the failure of a road overseer to erect and maintain watermarks at the fords of streams that in high water become impassable, to indicate the depth of the water at such fords. (Syllabus by the Court.) Error from district court, Green wood county; C. A. LELAND, Judge. Action by James Sheehan against the township of Quincy, Green wood county, to recover for the loss of a team, harness, and wagon, resulting from a defective highway. On a judgment for plaintiff, defendant brings error. Reversed and remanded, with directions to enter judgment for defendant. The other facts fully appear in the following statement by JOHNSTON, J.: Action by James Sheehan against the township of Quincy, Greenwood county, Kansas, to recover damages for the loss of property resulting from the alleged negligence of the township in maintaining a highway. He alleged that Quincy township was a subdivision of Greenwood county, and that "a certain stream of water, commonly known as the 'Walnut,' runs through and across said Quincy township; that a certain public road, the same being a county road, crosses said stream. Said ford or crossing was known to said defendant to at times be unfordable by reason of high water. Plaintiff, for his cause of action against said defendant, says that on the 29th day of May, 1889, he, in the regular course of his business, was traveling over and upon said county road, and while so traveling came to the ford or crossing above referred to; that he was unacquainted with said crossing; that he referred to a watermark then and there being, and that said watermark showed as the bottom or lower figure '7;' that about four and one-half feet of said watermark was visible below the said figure '7,' and that he believed the water to be about two and one-half feet deep, as was indicated by said watermark; that the plaintiff, without fault or carelessness on his part, for the purpose of crossing said stream as aforesaid, drove into said stream at such regular crossing, and following the regular trend of said road; that said stream was then and there more than six feet deep; that, without fault or carelessness on his part, one of his, plaintiff's, horses was then and there drowned; that in order to extricate the other horse he was compelled to cut to pieces and destroy a set of double harness; that by reason of the said high water his spring wagon was broken and partially destroyed; that in trying to save the lives of his horses the plaintiff suffered great bodily harm and exposure; that all of said loss was occasioned and caused by the defendant's carelessness and neglect to put up, or cause the same to be put up, good and plainly marked watermarks, as is required by law to be so put up and maintained at the crossing of the streams in this state; that prior to the commencement of this action the plaintiff demanded from the defendant the sum of $300; that said sum was his reasonable damages so as aforesaid sustained; that the defendant refused to pay the same, or any part thereof; that an itemized account of plaintiff's claim is filed herewith, made part hereof, and marked Exhibit A.'" The items in the exhibit amount to $300. The township filed a demurrer, alleging that the facts stated by the plaintiff did not constitute a cause of action against the township in his favor, which demurrer was overruled. The township then filed an answer, and a trial was had with a jury, which resulted in a verdict against the township in the amount of $150. Exceptions were taken to the ruling of the court upon the demurrer, and to other rulings made in the course of the trial, and the township brings the case here for review. W. S. Marlin, for plaintiff in error. Jones & Schultz, for defendant in error. JOHNSTON, J., (after stating the facts.) In a statute enacted in 1887 it was provided that "any person who shall, without contributing negligence on his part, sustain damage by reason of any defective bridge, culvert, or highway may recover such damage from the county or township wherein such defective bridge, culvert, or highway is located, as hereinafter provided; that is to say, such recovery may be from the county when such damage was caused by a defective bridge constructed wholly or partially by such county, and when the chairman of the board of county commissioners of such county shall have had notice of such defects for at least five days prior to the time when such damage was sustained; and in other cases such recovery may be from the township, where the trustee of such township shall have had like notice of such defect." Laws 1887. c. 237. An earlier provision of statute provides "that each road overseer, within his district, shall erect and keep up, at the expense of the township, posts or boards at the fords of every river or creek that in high water becomes impassable, which posts shall be set at or near low-water mark, on which shall be inscribed in legible letters or plain figures the depth of water at low water, together with a scale of feet showing the scale of feet above low-water mark to the height which said stream is known to have ever risen." Gen. St. 1889, par. 5514. The plaintiff seeks to establish a liability against the township under the first provision, claiming that he sustained damage by reason of a defective highway. The only negligence attributed to the township in his pleading is the failure to put up watermarks at the crossing of the stream where his loss occurred. Is the township liable for the damages claimed by reason of such failure? We think not. No such Jiability exists unless it is expressly imposed by statute. Eikenberry v. Township of Bazaar, 22 Kan. 556; Commissioners v. Riggs, 24 Kan. 255. Under the statute quoted the township may be required to respond in damages where the injury results from a defective bridge, culvert, or highway; but a watermark which is required to be placed at or near a ford cannot reasonably be said to be a part of a bridge, culvert, or highway; and the neglect of the overseer to place such watermark at a ford or crossing was not, we think, within the contemplation of the legislature in enacting the law of 1887. imposing liability upon counties and townships. The duty of placing watermarks at every ford is not imposed on the township trustee or the township board, but on the overseer of the district; and it will be observed that the defects for which the township may be held liable must be brought to the notice of the township trustee, and not to the road overseer. If such a neglect of the overseer rendered the township liable, it is difficult to see how far the liability might be extended. In another provision the duty is imposed on him to erect and keep up posts and guide boards at the forks of every state and county road, containing directions to such cities as are situated on the road, and naming the distances thereto. Gen. St. 1889, par. 5487. In still another statute the overseer is required to remove or cause to be removed, between the 15th day of June and the 15th day of July, from the public highways, all cockleburs, Rocky Mountain sand bors, burdocks, sunflowers, Canada thistles, and such other obnoxious weeds as may be injurious to the best interests of the farming community. Gen. St. 1889, par. 5517. The neglect of the overseer to perform these duties may create a liability against him for injuries resulting from his failure: but we do not think that it was intended to impute such negligence to the township, nor impose a liability upon the township for the failure of the road overseer to put up guideboards and watermarks, nor to cut and remove sunflowers and cockleburs in the proper season. The facts stated in the pleading of the plain. tiff below do not constitute a cause of action against the township, and the demurrer of the township should have been sustained. The judgment of the district court will be reversed, and the cause remanded, with directions to sustain the demurrer of the township, and give judg ment in its favor. All the justices concurring. (48 Kan. 601) BELL V. MORSE. (Supreme Court of Kansas. May 7, 1892.) NEW TRIAL-EXCESSIVE DAMAGES-Prejudice of JURY. Where the damages awarded by a jury are grossly excessive, and appear to have been given under the influence of passion and prejudice, the verdict should be set aside, and the cause submitted to the judgment of a jury free from bias, prejudice, or passion. Steinbuchel v. Wright, 23 Pac. Rep. 560, 43 Kan. 307; Railroad Co. v. Dwelle, 24 Pac. Rep. 500, 44 Kan. 410. (Syllabus by the Court.) Error from district court, Johnson county; J. P. HINDMAN, Judge. Action by Charles Morse against Simeon B. Bell for malicious prosecution. Verdict and judgment for plaintiff. New trial denied. Defendant brings error. Reversed. John T. Little and 1. O. Pickering, for plaintiff in error. Parker & Seaton and F. R. Ogg, for defendant in error. JOHNSTON, J. This was an action for malicious prosecution, brought by Charles Morse against Simeon B. Bell. Morse was a young man employed by Bell upon his farm, and after Morse had left his employ. ment he found some of his harnesses missing, and, suspecting that Morse had taken them, he took the advice of attorneys, and then made an affidavit charging Morse with the larceny of the property, and stating that he suspected it was concealed on the premises of Wilber Morse, who was the father of Charles. Upon this affidavit a search warrant was issued, and placed in the hands of an officer, who, in company with Bell, made a search for the property, but failed to find it. It appears that no arrest was made, and the proceeding so begun was abandoned and ended. Shortly afterwards this action was begun, and a trial was had with a jury, which resulted in a verdict awarding damages against Bell in the sum of $1,000. A motion for a new trial was made, alleging that the damages awarded by the jury were excessive, and appeared to have been given under the influence of passion and prejudice. The court ruled that a new trial would be granted, unless Morse would remit $600 of the amount awarded. The remittitur was made, and the motion was then overruled, and judg. ment given against Bell in the sum of $400. The most serious objection to the rulings of the court is the denial of the motion for a new trial. One of the statutory grounds for a new trial is the award of excessive damages appearing to have been given under the influence of passion and prejudice. The action of the court in finding that the greater part of the award made by the jury was excessive, and requiring the plaintiff below to remit the same, clearly indicates the view of the court. It is evident from this finding and the proceedings in the case that the jury were influenced by passion and prejudice in rendering the verdict which was grossly excessive, and, within the authority of the cases already decided, a new trial should have been granted. Railway Co. v. Hand, 7 Kan. 380; Railroad Co. v. Cone, 37 Kan. 567, 15 Pac. Rep. 499; Stein SO buchel v. Wright, 43 Kan. 307, 23 Par. Rep. 560; Railroad Co. v. Dwelle, 44 Kan 410, 24 Pac. Rep. 500. The judgment of the district court will be reversed, and cause remanded for a new trial. All the justices concurring. (48 Kan. 667) CITY OF DODGE CITY V. WRIGHT. (Supreme Court of Kansas. May 7, 1892.) PLEADING AND PROOF-OBJECTIONS TO EVIDENCE -REVIEW ON APPEAL. 1. Where the error assigned consists in sustaining an objection to the introduction of certain evidence, and the testimony desired does not appear in the record, nor is there any statement made as to what the evidence offered would be, this court cannot say that the trial court erred in excluding such evidence. 2. Evidence, to be competent, should be confined to the issues made by the pleadings. (Syllabus by Green, C.) Commissioners' decision. Error from district court, Ford county; J. C. STRANG, Judge. Action by R. M. Wright against the city of Dodge City to restrain it from interfering with his possession and right to a certain strip of land. On a judgment for plaintiff, defendant brings error. Affirmed. W. E. Hendricks, for plaintiff in error. J. T. Whitelaw, C. N. Sterry, and T. S. Brown, for defendant in error. GREEN, C. This was an action to restrain the city of Dodge City from interfering with and disturbing the plaintiff below in his possession and right to a certain strip of land in the city limits as a street, which he had inclosed, and which the city authorities attempted to break down. The plaintiff claimed the property under a deed from the Dodge City Town Company. The city alleged that the town site had been duly entered and patented for the use and benefit of the occupants, and was conveyed by the probate judge to the occupants, and that a portion of the same was platted into lots, blocks, streets, and alleys, and the plat had been filed in the office of the register of deeds; and that the streets and alleys, as shown by the plat, had been occupied and used as public streets, and lots and blocks abutting on said streets had been sold with reference to the streets so platted; that by reason of the filing of such plat the streets and alleys as marked thereon had been dedicated to the public use as such. The district court granted a perpetual injunction restraining the of ficers of the city from interfering with the plaintiff in his possession. The city brings the case here. The controlling question in this case is whether the land in controversy was dedicated to the public use as a street. The first error assigned is the refusal of the district court to permit the plaintiff to introduce a plat of R. M. Wright's addition to the city of Dodge City. It is claimed by the plaintiff in error that this was a plat of an addition filed in the office of the register of deeds in 1884 by the plaintiff below, and showed that an addition was platted just east of the city and adjoining the land in controversy; that the streets correspond to the streets of the original plat. This does not appear in the record. The plat is not made a part of the record, and there is no statement as to what the city proposed to prove. "Error cannot be predicated upon a ruling excluding testimony, where the evidence desired is not shown in the record, nor any statement made as to what the proposed testimony would be." State v. Barker, 43 Kan. 262, 23 Pac. Rep. 575. four hundred and eighty dollars and eighty cents. For value received. Interest at the rate of six per cent. per annum. Given this 26th day of May, 1887. TAYLOR BEELER." The petition alleged that no part of said note bas ever been paid; and, to show that the cause of action was not barred by the statute of limitations, the petition alleged that on the 14th day of December, 1885, and again on the 6th day of February, 1887, the defendant promised the plaintiff in writing to pay said note, as soon as he was able, which written promises were copied into and made a part of the petition. October 28, 1887, the defendant answered, denying generally all the matters in the petition, and denying under oath the written promises to pay set out in the petition. For a second de It is next urged that the court erred in sustaining an objection to the admission of certain evidence as to the use of the land in controversy. The defendant below expressly disclaimed any intert to prove user for the period of 15 years to establish dedication. There was only one other purpose for which evidence of the use offense he alleged that he was not able to the property could be introduced; that would be to show acceptance by the city of a dedication by the owner of the land. There was no allegation of dedication by the owner, and such user, to show acceptance, was not properly an issue in the case, and such evidence was therefore incompetent. The plat offered in evidence was not acknowledged, and there was nothing to show that it had been made by the owner of the land. It had not even been filed in the office of the register of deeds. There was nothing in the evidence to establish either a statutory or common-law dedication. It is recommended that the judgment of the district court be affirmed. PER CURIAM. It is so ordered, all the justices concurring. (48 Kan. 669) SMITH V. Beeler. (Supreme Court of Kansas. May 7, 1892.) ACTION ON NOTE-LIMITATIONS-JUDGMENT ON PLEADING SPECIAL FINDINGS. 1. When it appears upon the face of a note sued on that it is barred by the statute of limitations, and the only evidence that it is not barred consists in alleging promises in writing to pay made within the statutory period, and such alleged promises are denied under oath, the plaintiff is not entitled to a judgment on the pleadings; and the fact that the defendant added, to his said denial under oath, the plea of payment within the statutory period, will not entitle the plaintiff to a judgment on the pleadings. 2. When a special finding of the jury is not in conflict with the general verdict, it is not error for the court to enter judgment on the general verdict. (Syllabus by Strang, C.) Commissioners' decision. Error to district court, Brown county; R. C. Bassett, Judge. Action by A. F. Smith against Taylor Beeler on a note. Verdict and judgment for defendant. New trial denied. Plaintiff brings error. Affirmed. W. D. Webb and Grant W. Harrington, for plaintiff in error. James Falloon, for defendant in error. STRANG, C. October 3, 1887, the plaintiff commenced his action against the defendant on the following promissory note: "$480.80. One day after date I promise to pay to A. F. Smith or order the sum of pay when the suit was begun, and for a third defense said that on the 4th day of September, 1887, he paid the note sued on in full. The plaintiff replied, denying that the defendant on the 4th of September, 1887, or at any other time, paid said note, or any part of it. The case was called for trial by the court and a jury, whereupon the plaintiff read to the jury the pleadings in the case, and rested. Thereupon the defendant also rested. The plaintiff then moved for a judgment on the pleadings, which was overruled. He then moved the court to instruct the jury to return a verdict for the plaintiff for the amount of the note, which motion was also overruled. Thereupon the court, on its own motion, instructed the jury to return a verdict for the defendant, which was done. The jury also answered the following question submitted by the plaintiff: "What is the amount of the note in suit, with interest? Answer. Eight hundred and ten dollars and sixty-nine cents, ($819.69.)" The plaintiff then moved the court for judgment for the sum of $810.69, the amount found by the jury, and as shown by the pleadings. This motion was overruled. The plaintiff then moved for a new trial, which motion was beard and overruled. The plaintiff brings the case to this court, and says the court below erred; that he was entitled to a judgment on the pleadings for the amount of the note. Was the plaintiff entitled to a judgment on the pleadings? We think not. The petition set up a copy of the note, and alleged written promises to pay within the statute of limitations, and set them out therein. The defendant denied under oath the making of the alleged written promises to pay. No evidence was offered by the plaintiff in support of the alleged promises relied on to take the case out of the statute. The case stood then as upon a petition showing upon its face that the cause of action was barred. An objection to such a petition can be raised at any time, even in arrest of judgment. Objection was raised by the defendant moving for a judgment on the verdict of the jury, which motion was sustained, and judgment rendered for the defendant. The plaintiff insists that the plea of payment in the defendant's answer is a waiver of the plea of the statute. We do not think it is a waiver. He had denied under |