but the income during said time, except what ↑ each block, out of said parcel of land, and is necessary to keep up repairs and prevent waste, shall go to the owner or defendant in execution, or the owner of its legal title." The only authority of the court to continue the receiver in possession of the real estate sold by him and purchased by plaintiff in error, during the period of redemption, in this case, was by virtue of this statutory provision. In the face of this statutory provision, there is no room left for the application of the general principles of equity. The income of the property in the hands of the receiver, except so much thereof as was necessary to properly care for the property in order to prevent waste, belonged to the mortgagor: and, being the property of the mortgagor, it had the right to assign the same to the interpleaders, free and discharged of any equitable lien in favor of the plaintiff in error. It follows, the order of the district court must be affirmed. All the justices concurring. RENO et al. v. CITY OF IOLA. (Supreme Court of Kansas. July 6, 1901.) STREETS-DEDICATION-EVIDENCE. An owner of land adjacent to a city platted it, and left the plat in the office of the register of deeds, but the plat was subsequently lost, and there was no evidence as to whether it was properly acknowledged and filed, but it was treated for several years as a plat of a regular addition. A strip of land 30 feet wide on the east of the addition was used as a street, and lots were sold abutting it, to which no other means of access existed. The street was afterwards closed, and an application was made to the city to open the same. The original owner had stated that he had intended the strip as a street, and supposed it had been duly laid out and dedicated as such; but a copy of the plat, made by a land agent for his own use, did not show that the strip was designated as a street. Held, that such facts justified a finding that the strip had been dedicated as a street. Error from district court, Allen county; L. Stillwell, Judge. Action by the city of Iola against Joseph T. Reno and others. From a judgment in favor of plaintiff, defendants bring error. Affirmed. Oscar Foust & Son and Baxter D. McClain, for plaintiffs in error. Travis Morse, for defendant in error. PER CURIAM. The question in this case is whether a strip of land 30 feet wide, lying on the east side of what is known as "Jones' Addition to the City of Iola," is a street. Under an agreement of the parties, no question arises as to the form of action adopted herein. About the year 1872, W. C. Jones was the owner of a tract of land lying adjacent to the then city of Iola, the dimensions of which were 1,280 feet east and west and 1,090 feet north and south, and at that time he prepared a plat of an addition to said city, making 12 blocks, with 12 lots to laying out streets in the usual way. The blocks and lots thus laid out, together with the streets running each way through the same, comprised all the land in said tract, except a strip on the east side thereof 30 feet in width, extending past three blocks and two streets, and a strip on the north side thereof 40 feet in width, extending past four blocks and three streets, as platted. The strip in dispute is the one lying on the east side of said plat, it being conceded for the purposes of this case that the strip on the northerly side is now a street, although, so far as is shown by the plat, it was left in precisely the same situation as was the other. This plat was left in the office of the register of deeds, and afterwards lost. Whether it was properly acknowledged and filed in said office is not shown, but it does appear that it remained there for several years, and was treated by everybody as a regular plat of a regular addition to said city. For some years the strip of land in dispute was used as a street, and several lots abutting upon it were sold to purchasers who understood that such was the fact, it being true that there was no other method of ingress or egress to or from said lóts. It also appears that the plaintiffs Reno and Clark, who now severally own tracts of land lying immediately east of the strip in controversy, bought the same, as they testified, with the understanding that the property in dispute had been formerly dedicated as a street by said Jones. Afterwards, by a stranger to this action, who did not claim any right or authority from said Jones so to do, a part of said strip of land was fenced up, and used for a corral, and still another part was included in a garden or vegetable patch. Still later on, the plaintiffs in error, believing that they were entitled to such relief, applied to the mayor and council of the city to open such street, and the matter was referred to a street committee, the city attorney was consulted, and a report made to the council, but no other action was taken upon the application. The testimony as to what did actually transpire, and as to the report of the committee, is conflicting, the plaintiffs in error contending that the report showed that the strip did not constitute a street, and that, after the adjournment of the council, the mayor, in the presence of some of the councilmen, advised them to get the county commissioners to lay out the land as a street, or purchase the same from Jones; while defendant in error offered proof to show that such committee reported that the strip was a street, and the chairman of that committee testified that in conversations had with Jones the latter told him that he had always intended it for a street, and supposed it had been duly laid out, and dedicated to public use. The contention of plaintiffs in error is: (1) That there never was a statutory dedication of the land for a street; (2) that the evidence fails to show a common-law dedication; and (3) that, in any event, the city is estopped from now asserting that a street actually was laid out and did exist because the mayor, with the sanction of two or three members of the council, advised that the land be purchased of Jones, and that plaintiffs in error, acting upon such advice, did actually make such purchase, and pay $50 to Jones therefor, taking from him quitclaim deeds of the tracts severally owned by them. The case was tried in the court below without a jury. No special findings were made. The court found generally in favor of the city, and entered judgment enjoining plaintiffs in error from interfering with, obstructing, or preventing the use of such street. As to the first claim of plaintiffs in error, it may be said that it does not appear that this strip of land was not formally dedicated as a street by Jones in 1872. It is true that a reliable witness made for his own use what he thinks was a copy of the original plat, and such copy, which is in evidence, does not show that the strip upon the north or the one upon the east was designated as a street; still he does not testify that such paper is an exact copy of the original plat in those respects, and, as he made it for his own use as a land agent, it is hardly probable that he would have gone to the trouble of copying the plat outside of the lots and blocks had streets been shown upon the original. Neither was it shown that such plat was not duly acknowledged or filed in said office, and, inasmuch as it was with other plats in the office and was treated as they were, the court may well have believed from the evidence that it was in fact duly acknowledged and filed, but that the register of deeds had failed to make a record thereof. Upon this proposition, as well as the second one raised by plaintiffs in error, it should also be noted that this strip of land did not lie adjacent to any other land owned by Jones, was 1,090 feet long and only 30 feet wide, and would probably not have been reserved by the owner for any other purpose; and the fact that lots facing it were sold to be used for residence purposes, taken in connection with the subsequent statement of the owner that he intended the land for a street, and believed it to have been regularly dedicated for that purpose, would seem to justify the conclusion reached by the trial court. As to all other contentions of plaintiffs in error it is sufficient to say that they were dependent upon the facts, and, the testimony being conflicting, we are concluded by the general finding of the court below, and to sustain its judgment must presume that upon each essential matter of variance the court below found the facts in favor of the city. Therefore we are not called upon to determine whether the city could be estopped through the acts of its mayor and certain councilmen, under the circumstances al leged by plaintiffs in error, and we express no opinion in regard thereto. As bearing upon the other two propositions, reference is made to Giffin v. City of Olathe, 44 Kan. 342, 24 Pac. 470, and Hitchcock v. City of Oberlin, 46 Kan. 91, 26 Pac. 466. The judgment of the court below is affirmed. (63 Kan. 377) CAMPBELL et al. v. BOARD OF COM'RS OF LABETTE COUNTY. (Supreme Court of Kansas. July 6, 1901.) SPECIAL LEGISLATION-COMPENSATION OF PROBATE JUDGE. 1. The legislature may prescribe by special law the amount of fees a probate judge in any county may receive as his compensation for the performance of the duties of his office. Such special legislation is not in violation of section 17, art. 2, of the constitution. 2. The provision in section 8, art. 3, Const., that probate judges "shall receive for compensation such fees as may be prescribed by law,' construed, and held to mean such fees for the performance of the duties of the office as the legislature may deem proper compensation for the performance of such services, and not all the fees collected by the probate judge for the performance of the duties of his office as the law may allow him to collect from litigants and others transacting business with him in his official capacity. (Syllabus by the Court.) Error from district court, Labette county: A. H. Skidmore, Judge. Action by the board of county commissioners of Labette county against George Campbell and others. Judgment for plaintiff. Defendants bring error. Affirmed. Geo. Campbell, for plaintiffs in error. F. M. Brady, for defendant in error. POLLOCK, J. Action brought by the board of county commissioners of Labette county to recover from George Campbell, probate judge of said county for two years beginning January, 1893, and his bondsmen, . certain sums of money collected by Campbell as probate judge in excess of the amount of compensation allowed by section 4, c. 140, Laws 1889. The case was heard upon an agreed statement of facts found in the record. By this statement of facts it is shown: That during the two years he was in office Campbell collected fees from all sources aggregating $4,901.22. He also received at one time from the county the sum of $337.60, and at another the sum of $162.57. He also received by mistake the sum of $12.25. That he paid into the county treasury the sum of $831.34. That, after deducting from the amount Campbell had received the sum of $1,250 per year, and the amount by him paid into the county treasury, and dividing the remainder of the fees one-half to the county and one-half to Campbell, as provided in said section, he was indebted to the county in the sum of $881.69. Of this amount, as shown by the statement of facts, $16 was received for examining the accounts in the office of the county treasurer, and $16.80 for services performed in various miscellaneous matters. These two amounts, aggregating $32.80, were, by the trial court, deducted from the entire amount, and judgment was entered against Campbell and his bondsmen in the sum of $848.89. From this judgment defendants below bring error. The sole contention of counsel for plaintiffs in error is that section 4, c. 140, Laws 1889, establishing the compensation of the probate judge of Labette county, is unconstitutional and void. This section reads as follows: "The probate judge of Labette county shall receive in full compensation for his services the fees prescribed and allowed by law, and shall keep an accurate account of the same, but shall not be entitled to receive any salary from the county: provided, however, that if the fees of said officer shall not in any one year aggregate the sum of twelve hundred and fifty dollars, that such officer shall receive from the treasurer of said county, upon order of the board of county commissioners, a sum sufficient to make the compensation for the services of said office for such year reach the sum of twelve hundred and fifty dollars; and if such fees aggregate more than twelve hundred and fifty dollars, one-half in excess thereof shall be turned by him over to the treasurer of said county, taking duplicate receipts therefor, one of which he shall file with the county clerk, and it shall become a part of the general fund of the county." Counsel for plaintiffs in error predicate their argument to establish the unconstitutionality of this act upon two grounds: (1) As section 8, art. 3, of the constitution creates the probate court a court of record, and confers thereon "such probate jurisdiction and care of estates of deceased persons, minors, and persons of unsound minds, as may be prescribed by law, and shall have jurisdiction in cases of habeas corpus," and prescribes that the probate judge shall "receive for compensation such fees as may be prescribed by law," that for the performance of such constitutional duties the probate judge is entitled, by virtue of his office, to retain all fees by him received, properly charged and collected under the law, for the performance of these constitutional duties; and that the provision of the above act requiring payment out of the county treasury, in case the fees collected in any one year by the probate judge do not equal $1,250, an amount sufficient to raise the compensation to $1,250, and the provision requiring the payment by the probate judge into the treasury of the county, in case the fees collected exceed $1,250, one-half of the excess above such sum, renders the act unconstitutional and void. (2) That, as the legislature may impose upon the person occupying the office of probate judge duties other than those over which the probate court is specifically given jurisdiction, it may prescribe the amount of compensation to be paid and received for the performance of such legislative duties, either in fees or salary, but that the amount so fixed must be uniform throughout the state; and, as the section under consideration is expressly limited to Labette county, it is in violation of section 17, art. 2, of the constitution, which provides, "In all cases where a general law can be made applicable, no special law shall be enacted." As to the latter contention, it has been expressly decided by this court that the legislature has the power, by special law, to prescribe the fees that may be retained or salary to be paid to the county officers in the different counties of the state (Com'rs v. Shoemaker, 27 Kan. 77), and that in such matters of local concern it is the province of the legislature to determine and declare whether the object to be attained can or cannot be accomplished by the passage of a general law (State v. Hitchcock, 1 Kan. 178, 81 Am. Dec. 503; Elevator Co. v. Stewart, 50 Kan. 378, 32 Pac. 33; State v. Lewelling, 51 Kan. 562, 33 Pac. 425; Eichholtz v. Martin, 53 Kan. 486, 36 Pac. 1064). As to the first proposition, in our opinion, counsel for plaintiffs in error misconceive the proper construction to be placed upon that clause of section 8, art. 3, of the constitution which provides that "the probate judge shall receive for compensation such fees as may be prescribed by law." It was not the intent of the framers of the constitution that the judges of probate courts should receive as compensation for the perform. ance of the duties imposed by the constitu tion all of the fees which the legislature might provide should be paid by the parties litigant to the probate judge, but, on the contrary, having created a court of record, and made provisions for a judge thereof, by the expression used it was the intent that the incumbent of such office should receive for compensation fees, and not a salary, and that the fees should be such as the legislature might provide by law. It is not only competent for the legislature to fix the fees which shall be paid by litigants to the probate judge, in the transaction of the business over which this provision of the constitution expressly extends the jurisdiction of the probate court, by a general law applicable throughout the state; but the legislature may also, by special law, determine what amount of such fees collected by the probate judge of any one county may be by him retained for his yearly compensation, and require the payment of the remainder into the treasury of the county. As in the present case the legislature has, by this special act under consideration, provided that the probate judge of Labette county shall collect all of the fees by law prescribed to be paid by litigants in the probate court in the performance of those duties imposed upon the probate court by the constitution, and also all of the fees as provided by the legis lature in the performance of those acts devolving upon the probate judge over which the constitution does not extend the jurisdiction of the probate court, and permits the probate judge to retain out of the amounts so collected, as his yearly compensation for all services performed, all of such fees, until the same equal in amount the sum of $1,250, and provides for the covering into the treasury of the county one-half of the excess above such yearly compensation, in order that in no year shall the probate judge receive more or less than the stated amount of $1,250, and as such act is within the power of the legislature, and is not prohibited by any constitutional provision, it is therefore valid. It follows that the judgment of the district court must be affirmed. All the justices concurring. (63 Kan. 394) STATE ex rel. DIFFENBACHER v. LAKE KOEN NAVIGATION, RESERVOIR & IRRIGATION CO. (Supreme Court of Kansas. July 6, 1901.) MANDAMUS-IRRIGATION COMPANIES BRIDGES OVER HIGHWAYS. 1. A proceeding in mandamus may be maintained by the state to compel an irrigation company to construct bridges over highways which it obstructs by its ditches. 2. A corporation organized for irrigation purposes dug a canal or ditch which crossed public highways at different points along its course. Held, that it was the duty of the corporation to restore the highways intersected to a condition of usefulness and safety existing before the construction of the ditch, and it will be required to build all necessary bridges, as a means to that end. Such duty is imposed by the common law, independent of statute. (Syllabus by the Court.) Error from district court, Barton county; A. R. Clark, Judge. Application by the state, on the relation of C. F. Diffenbacher, county attorney of Barton county, for writ of mandamus against the Lake Koen Navigation, Reservoir & Irrigation Company. Judgment for defendant, and plaintiff brings error. Reversed. C. F. Diffenbacher and D. A. Banta, for plaintiff in error. Osmond & Cole, John A. Eaton, and Trimble & Braley, for defendant in error. SMITH, J. This is a proceeding in error brought to review the action of the district court in refusing an application for a peremptory writ of mandamus. The application was made by the state of Kansas, on the relation of the county attorney of Barton county, against the Lake Koen Navigation, Reservoir & Irrigation Company, a corporation. The allegations in the motion for the writ are, in substance, as follows: The defendant is a corporation organized under the laws of this state for the purpose of constructing a canal or ditch from the Arkansas river to the Cheyenne bottoms, in Barton county, and conducting the waters of said river to where there is in process of construction an artificial lake or reservoir for the storage of waters, and for the further purpose of maintaining said canal, ditch, and reservoir ostensibly for navigation, reservoir, irrigation, and other purposes incidental thereto; that, to carry out the ultimate designs of the defendant, it obtained the right of way to a strip of land 100 feet wide, and extending over the lands situate between the point of inception of said canal or ditch and said bottoms, except that part of said lands which were then occupied and used as public highways. The beginning of the canal or ditch is at the Arkansas river, and the ditch company has caused water to flow through the same from the river to the Cheyenne bottoms, across certain lands (describing them) and the intervening highways. Safe and adequate bridges have not been made, and the same are necessary by reason of the construction of said canal where it intersects the public highways or roads at 14 different points. Travel over the roads has been impeded and obstructed, to the great inconvenience and damage of the public, by reason of the failure of said navigation company to construct bridges across its ditch at the places mentioned. The prayer is as follows: "Wherefore plaintiff prays for a writ of peremptory mandamus to be issued to the defendant, the Lake Koen Navigation, Reservoir & Irrigation Company, commanding it that it forthwith proceed to the construction of safe and adequate bridges at each of the said points on the lines of said ditch or canal where any of the aforesaid highways or public roads are crossed by the same, and where the same has in any manner impeded public travel, and for all such other proper relief," etc. The irrigation company interposed two objections to the allowance of the writ: (1) That the proceedings were not prosecuted in the name of the real party in interest; (2) that the plaintiff was seeking by the writ prayed for the performance by defendant of an act which the law nowhere specially enjoins, and that there was no legal obligation on the part of the defendant to do the things sought to be enforced, and that the judge had no legal authority to grant the writ. After a hearing the court below overruled the first objection, but denied to the plaintiff any relief on the second ground, and refused the application. We agree with the court below in its conclusion that the plaintiff has the legal capacity to maintain the action. The failure on the part of the ditch company to construct bridges after it had cut through the public roads would amount to the destruction of the highway. It would be creating a purpresture,-a public nuisance. While the board of county commissioners is given authority by statute to build and repair bridges and to care for the same, and while it might compel by mandamus the duties imposed by law on the ditch company, yet the state has a paramount authority over the subject of highways. It is of interest to the general public that roads which lead from one county to another, and into and through every township and county in the state, should be kept free from impediments to travel, so that communication may be open and convenient from one end of the state to the other. See Branson v. City of Philadelphia, 47 Pa. 329; Elliott, Roads & S. (2d Ed.) § 21. Section 31 of chapter 133 of the Laws of 1891 (being section 3569 of the General Statutes of 1899) reads: "It shall be the duty of the proprietors of any canal, ditch or other conduit constructed for the conveyance of water for beneficial uses, to provide and construct all necessary bridges and viaducts for the use of the public in crossing the same. Every such bridge or viaduct shall be so constructed as to be safe and adequate for the purposes for which constructed, and the construction thereof shall in all cases be completed by the time when water shall be caused or permitted to flow in such ditch or other conduit at the place where any such bridge or viaduct shall be required. All such bridges and viaducts, when constructed, shall be and become a part of the public highway, and shall be maintained and kept in repair by the authorities having charge of such highways." We are relieved from a consideration of the question whether the section of the act above quoted has general application to the whole state, from the fact that the scope of the statute as contended for by plaintiff in error is conceded by counsel for the ditch company. The latter say in their brief: "We are prepared to concede that the provisions of the act are general, and that section 31 specially enjoins the duty of constructing bridges at the crossings of public highways; and, if the action were prosecuted by the board of county commissioners after taking the proper steps to determine the necessity for such bridges, the remedy by mandamus might be invoked." Independently, however, of statutory provisions, we think it is clear that at the common law a duty rests on the ditch company to restore the highways which it intersects, as near as may be, to their former condition. In Elliott, Roads & S. § 41, it is said: "When franchises are granted to a private corporation to construct canals and railroads, and such a corporation in constructing a canal or railroad makes a bridge necessary at the crossing of a highway, it becomes the duty of the corporation to erect the bridge so made necessary for the public use and convenience." In the absence of a statute requiring railroad companies crossing a highway and laying their tracks thereon to restore it, as far as may be, to its former condition of usefulness and safety, it is held that this duty nevertheless rests on it. See Elliott, Roads & S. (2d Ed.) § 809, and note. The ditch company must restore the highways, as near as practicable, to their former condition. The building of bridges is a means to that end. It has destroyed the roads. It must do what is necessary to repair them. The traveling public must not be inconvenienced. Counsel for defendant in error insist that mandamus will not lie to compel the performance of any act not specially enjoined as a duty under the language of section 4992 of the General Statutes of 1899. Having admitted that there is an express statutory requirement resting on their client to build the bridges in question, it would seem that this contention is at variance with their position as to the scope and operation of section 31 of the General Statutes of 1891. However, we do not give section 4992 the narrow meaning for which counsel contend. We think, if the performance of a duty is enjoined by law,-either by express statutory enactment or by the rules of the common law, that its performance may be compelled by mandamus. The only restriction on the right to invoke such remedy is that there is a plain and adequate remedy in the ordinary course of law. Section 4993, Gen. St. 1899. We are clear that it is the legal duty of the defendant in error to restore the highways which its ditch intersects with suitable bridges adequate to accommodate all public travel. The judgment of the court below will be reversed, with directions to proceed further in accordance with the views expressed in this opinion. All the justices concurring. (63 Kan. 382) STATE v. GILL. (Supreme Court of Kansas. July 6, 1901.) INFORMATION-VERIFICATION-EVIDENCEPRESUMPTIONS-TRIAL. 1. The fact that an information charging an offense was verified positively by a private person, and by information and belief by the county attorney, does not weaken the charge, nor operate to the prejudiec of the defendant; neither does it make the information subject to a motion to quash for indefiniteness. 2. The state is not required to prove that an offense was committed on the particular day named in the information, but may show that it was committed at any time within two years next preceding the time of the filing of the information. 3. In the absence of a showing to the contrary, it will be presumed that the prosecuting witness or county attorney has knowledge of the offenses charged, established by the evidence, or relied upon for conviction. 4. After the jury had been instructed and the argument had been concluded, the court gave to the jury an additional instruction over the objection of the defendant, who admits that the instruction stated the law correctly, but complains that there was no opportunity to make an argument as to the application of the same to the evidence. Held that, as there was no request to make additional argument, the defendant is in no position to complain that such opportunity was not given. (Syllabus by the Court.) |