exercised due diligence in its management. Aside from the unwarranted assumptions of fact, the testimony related to a matter which was not the subject of expert testimony. The question whether the parties were negligent was the principal point in controversy, and should have been determined from facts, and not from opinions. Monroe v. Lattin, 25 Kan. 352; Railroad Co. v. Peavey, 29 Kan. 177; Dow v. Julien, 32 Kan. 578, 4 Pac. 1000; Railroad Co. v. Jones, 34 Kan. 463, 8 Pac. 730. The judgment of the district court against Insley and Gaw will be reversed, and the cause remanded for further proceedings in accordance with the views herein expressed. All the justices concurring.

(55 Kan. 36)

RITCHIE et al. v. KANSAS, N. & D. RY. CO. et al.

(Supreme Court of Kansas. March 9, 1895.) REVIEW ON APPEAL-ISSUE OF LAW-NEED OF MoTION FOR NEW TRIAL - DEED ON CONDITION SUBSEQUENT-EJECTMENT ON BREACH- DEDICA TION OF LAND-RIGHTS OF RAILROAD COMPANY. 1. In order to review the decision of a district court in determining an issue of law, a motion for a new trial is not necessary. Section 306 of the Code of Civil Procedure defines a "new trial" as a re-examination of an issue of fact.

2. An issue of law may arise either on the pleadings, an agreed statement of facts, the report of a referee, special verdict of a jury, or findings of fact by the court; and where no issue of fact is raised, or where all issues of fact have been tried and determined, issues of law alone remain, and the decision of the trial court thereon can be reviewed here without a motion for a new trial having been filed below.

3. A deed of general warranty in the usual form, conveying lands for the expressed consideration of the sum of one dollar and other good and valuable considerations, and a written contract executed at the same time, by which the grantee, in consideration of the deed, agrees to do certain acts, and provides that, in case of failure to perform such contract, the deed shall become void, and the lands conveyed revert to the grantor, both instruments being acknowledged and recorded at the same time, are to be treated as one, and construed together.

4. R. and wife conveyed certain lands adjoining the city of Topeka to the K., N. & D. Ry. Co., and in consideration thereof the railway company covenanted by a separate instrument, duly executed and acknowledged, to construct its line of railway through the lands granted, and erect and forever maintain on said tract a passenger depot and a freight depot, of a size and character suitable and sufficient for the transaction of its business and the accommodation of the public at said point, and to cause all passenger and freight trains to stop at such depots, respectively, so as to transact and perform all business that may be there offered; and it was provided therein that, "If said company shall fail to construct its line of railroad through said tract of land, and erect thereon said passenger and freight depots, within one year from this date, or shall fail to keep and maintain said depots, and use the same as herein provided, then the conveyance of said real estate to said company shall be void, and said real estate shall revert to said R. and his heirs." Both instruments were filed for record at the same time, and afterwards recorded. The railway company constructed its railroad and buildings suitable for freight and passenger depots, and stopped all its trains thereat, but failed to use the building designed for a passenger depot as such. Up to the

time of the commencement of this action, a period of more than a year and ten months after the date of the contract, it used another building, about a mile away, as its Topeka passenger depot. Held, that these instruments together constitute a conveyance on conditions subsequent; that the facts found by the trial court show a substantial breach of the conditions; and that the title reverts to the plaintiffs, who are heirs of the grantor.

5. Under the facts stated, the plaintiffs, alleging in their petition that they are the legal and equitable owners of the real property, entitled to the immediate possession thereof, and that the defendants unlawfully keep the plaintiffs out of possession, may maintain an action in the nature of ejectment, without first making a formal entry on the lands.

6. The filing of plats by the grantor and his heirs, after breach of the conditions of the conveyance, but before claiming a forfeiture on account thereof, showing the location of the defendant's railway, side tracks, and buildings, and designating a part of the lands conveyed as "K., N. & D. Depot Grounds," but which do not indicate the boundaries of the lands occupied by the railroad company, nor contain any words expressive of an intent to make any dedication to railroad uses, and where the railroad grounds are not surrounded, nor included within the platted portion, does not amount to a dedication of such lands to railroad uses, nor constitute a waiver or estoppel barring the plaintiffs' recovery for any breach of conditions occurring subsequent to the filing of such plats.

7. Conditions subsequent, working a forfei ture of an estate, are to be strictly construed.

8. After the execution of the deed and contract the railway company took possession of the land conveyed, constructed a line of railroad across it, built side tracks, depot buildings, roundhouse, stock yards, water tank, and other structures and conveniences for its accommodation thereon. Held that, if the defendants elect to retain the land and improvements, they should be permitted to do so on payment of the value of the land, exclusive of improvements placed thereon by the defendants, measured as of the date of the commencement of this action, with interest from that date.

9. As the findings of fact in this case fail to show either the value of the improvements made by the defendants or the value of the land, this court cannot direct what judgment should be entered by the trial court, and must order a new trial.

(Syllabus by the Court.)

Error from district court, Shawnee county; John Guthrie, Judge.

Action by Hannah Ritchie and others against the Kansas, Nebraska & Dakota Railway Company and others. Judgment for defendants, and plaintiffs bring error. Reversed.

This action was brought by Hannah Ritchie, Hale Ritchie, and John Ritchie, as heirs at law of John Ritchie, deceased, against the Kansas, Nebraska & Dakota Railway Company and the Missouri Pacific Railway Company to recover a part of section 6, town 12, range 16, in Shawnee county. The answer was a general denial. A jury was waived, and the case was tried by the court. At the request of the parties, the conclusions of fact and of law were separately stated, and are very voluminous. It appears that a deed, dated April 7, 1886, and acknowledged on the 15th day of the same month, was executed by John Ritchie and Hannah Ritchie, his wife, conveying the

lands in controversy to the first-named railway company. The instrument is in form an ordinary warranty deed, and recites as the consideration therefor the payment of the sum of one dollar and other good and valuable considerations. At the same time, as a part of the same transaction, a contract in writing was duly executed and acknowleged by the railway company. The deed and contract were filed for record simultaneously. The following is a copy of the railway company's agreement: "This agreement, made this 7th day of April, 1886, between the Kansas, Nebraska and Dakota Railway Company, a corporation organized under the laws of the state of Kansas, of the first part, and John Ritchie, of the second part, witnesseth: That in consideration of the sale and conveyance by said Johr Ritchie and wife to the party of the first part of a certain tract of land in the northeast quarter section six (6), in township twelve (12), of range sixteen (16), in Shawnee county, Kansas, and the right of way through part of said quarter section, the receipt of which conveyance is hereby acknowledged, the said party of the first part, for itself, its successors and assigns, hereby agrees that it will construct its line of railroad through said tract of land so granted, and that it will erect, and forever maintain, upon said tract of land, a passenger depot and a freight depot of a size and character suitable and sufficient for the transaction of its business and the accommodation of the public at said point, and shall cause all passenger and freight trains to stop at such depots, respectively, so as to transact business and perform all business that may be there offered; and said party of the first part further agrees that it will not sell, let, lease, or give away said tract of land, or any part thereof, to any person or persons or corporation, for the purpose of transacting thereon any business whatsoever, but shall use the same for its railroad business exclusively; and if said company shall fail to construct its line of railroad through said tract of land, and erect thereon said passenger and freight depots, within one year from this date, or shall fail to keep and maintain said depots and use the same as herein provided, then the conveyance of said real estate to said company shall be void, and said real estate shall revert to said John Ritchie and his heirs; and, as a further consideration for the conveyance of said real estate to said company, it is hereby promised and agreed that said John Ritchie and his wife shall have the right to ride free of charge upon all regular passenger trains of said company during their respective lives. In witness whereof the party of the first part has caused these presents to be executed by its president, and attested by its secretary, with the seal of the corporation annexed, on the day and year first above written."

The railroad company took possession of

the land under this deed, and constructed its railway across it. It also constructed buildings for freight and passenger depots, side tracks, and roundhouse, stock yards, and other structures for the accommodation of its business. The railroad and depot buildings were so constructed within one year from the date of the deed and contract. The building designed for a passenger depot is situated west from the main track, and is surrounded by a platform, the east edge of which is 42 feet from the west rail of the main track. A platform 95 feet in length and 8 feet wide extends along the west side of the track, and is connected with the depot platform by a walk 16 feet wide. The building designed for a freight depot is located 32 feet west from the passenger depot. On the 10th of May, 1887, John Ritchie and wife caused a plat of a part of the quarter section of land in which the tract in controversy was located, belonging to them, to be filed, in the office of the register of deeds of Shawnee county, as Ritchie's addition to the city of Topeka. John Ritchie died August 31, 1887. On December 22, 1887, Hale Ritchie and John Ritchie and their wives executed and acknowledged another plat of the same lands for the purpose of making some changes in the former plat. This plat was approved by the mayor and council of the city of Topeka, within which said territory had become included, and was filed for record on January 5, 1888. Both of these plats showed the location of the defendant's railway and side tracks, and on part of the tract of land conveyed was marked "K., N. & D. Depot Grounds." The plat also showed the location of the passenger and freight depots, the spur track, roundhouse, and turntable. The Kansas, Nebraska & Dakota Railway Company occupied said lands for railroad purposes, and continued to operate its line of railroad from Ft. Scott to Topeka, till February 23, 1887, when the Missouri Pacific Railway Company took possession and control of its entire line, together with the property in controversy, and all other real and personal property before that time owned and used by the Kansas, Nebraska & Dakota Railway Company. Annual passes, issued in the usual form, were given to John Ritchie during his lifetime, and have been also given to Hannah Ritchie. John Ritchie used his pass once, on a trip to Ft. Scott. Hannah Ritchie never used her pass at all, and returned the passes for 1887, 1888, and 1889. The depot buildings are of a size and character suitable and sufficient for the business of the railroad at that point.

At the time of the construction of the railroad the company purchased a brick building at the corner of Fifth avenue and Adams street, in Topeka, about one mile from the land in controversy, to which its line of road was constructed, and this building has been used as a passenger depot ever since. As to the maintenance and use of the depots, the court

made the following findings: "From the time of the completion of said line of railroad up to the commencement of this action, and to the time of the trial, the defendants have caused all passenger and freight trains to stop at said depots, respectively, so as to transact business and perform all business there offered, the station being designated as 'South Topeka.' But neither of said defendant railway companies, prior to December 1, 1889, sold any passenger tickets with the words 'South Topeka' printed thereon to passengers to ride on or over said road, at any station or other place south of said South Topeka, but has since said railway went into operation sold such passenger tickets with the name of the station where from and where to printed thereon to and from every other station on said road except flag or signal stations. Nor did either of said railway companies, prior to December 1, 1889, ever sell any passenger tickets marked or stamped as from said South Topeka station to any place on said railway. Said companies have also kept on sale at the several regular ticket offices tickets with the name of the station where sold printed thereon, but with the station of the destination left blank, the said blank being filled by the ticket agent with pen and ink at the time of the sale. Passengers going from South Topeka to any other station on said line of railroad where tickets were sold might have obtained these tickets if they desired to do so. During all the time prior to the commencement of this action a telegraph office was kept in said freight depot, and another one at the Fifth street passenger depot, and, whenever a passenger applied to the agent, operator, or clerk at South Topeka for a ticket, the telegraph operator would wire the agent or person in charge of the Fifth street depot to bring or send by the conductor on the train a ticket for such passenger, and the business would be so done except in case the order was sent too late, as the agent or person in charge of the Fifth street passenger depot generally went to South Topeka on the train. That in all instances when such a thing occurred such ticket on its face showed or read from Topeka, and not from South Topeka, and the rate of fare was paid therefor from Topeka, and not from South Topeka. The passenger business at South Topeka was very light, and nearly all the passengers got on without tickets, and were charged ticket fare only. Some passengers, not knowing this fact, however, would go to the Fifth street depot or by some other railroad. All baggage offered at South Topeka was received there, but no checks were given except on the train. All baggage destined for South Topeka was put off there, and delivered to the owner on surrender of the check. From the time of the completion of said passenger depot up to the commencement of this action it was not kept open for the accommodation of passengers, and, although there was

a stove in the middle or office room, no fire was kept in it except occasionally, and during part of the time the stovepipe was down. Temporary plank seats were left in the waiting room on completion of the building, but they were removed at some time, which does not distinctly appear. Passengers awaiting trains stood or sat upon the depot platforms, the projecting roof at the sides and ends affording some shelter from sun and rain, but sometimes they would go into the office room of the freight depot, where a fire was kept when the weather required it, and the freight depot room was always unlocked, except when employés were absent at meals, or temporarily on business, and no passengers were excluded from said room, although there was no sign or notice posted to show that it was intended for the accommodation of passengers, and the only seating arrangements were two or three chairs. No passenger or freight traffic was ever refused at South Topeka."

This action was commenced on the 13th day of February, 1888. About the middle of May, 1888, the telegraph office was removed into the South Topeka passenger depot, which has been kept open ever since that time, but no tickets were kept on sale until about 10 days before the commencement of the trial of this action,-on the 25th day of November, 1889. The taxes on this property for the years 1887, 1888, and 1889 were paid by the Missouri Pacific Railway Company. The court also made the following findings: “(21) That said John Ritchie, the grantor in said deed, was never known to express any dissatisfaction with the manner of the occupation of said conveyed tract by the defendants; but on or about May 9, 1887, he appeared before the city council of Topeka with the map or plat referred to in conclusion of fact No. 3, and, some objection being made that the streets were not laid out or projected across the railroad track, he stated that he had conveyed that tract to the railroad company, and that any arrangement for opening the street across it would have to be made with the railroad company; and neither he nor the plaintiffs, nor any of them, ever made an entry upon said tract, and the plaintiffs never made any demand upon the defendants for the possession thereof, except by the commencement of this action, and they never gave notice to the defendants that they would claim a forfeiture of the estate, and they never did any act, with the knowledge of the defendants, indicating a purpose to obtain the title or the possession of the tract in controversy, except by the commencement of this action; but one of the plaintiffs, on one or two occasions, when walking over the foregoing granted premises, before the commencement of this action, stated to a friend that he claimed the land for the heirs of John Ritchie, but the defendants or their agents or servants had no knowledge or information of such claim until after this action was commenced." "(32) That the Missouri Pacific Railway Com

pany, by and through its agents thereunto lawfully authorized, in the spring of 1887 applied to the Ritchies to get them to consent to release the agreement of April 7, 1886, mentioned in conclusion of fact No. 2; whereupon said Ritchie expressly refused so to do in any respect, but, on the contrary thereof, then and there advised and notified the said Missouri Pacific Railway Company that they would in all things insist upon the faithful performance of said contract or agreement. and, if said company declined to live up to said contract, it must convey or deed back the land to them." The court also made very full findings with reference to the surroundings of this land. At the time of the execution of the deed and contract it was included within the city of South Topeka, which was consolidated with and became a part of the city of Topeka in 1887. The findings show its location with reference to the dwellings of the inhabitants of Topeka and the more important public buildings. As conclusions of aw the court found: First, that the plaintins are not entitled to recover in this action; second, that the defendants are entitled to a judgment against the plaintiffs for costs in this action. Both the plaintiffs and defendants reserved exceptions to the findings of fact, and the plaintiffs excepted to the conclusions of law.

E. E. Chesney and Valentine, Godard & Valentine, for plaintiffs in error. Waggener, Martin & Orr, for defendants in error.

ALLEN, J. (after stating the facts). The record in this case fails to show that the motion for a new trial was filed within three days after the rendition of the judgment. The recital in the record is as follows: "Afterwards, to wit, on the day of

1890, said plaintiffs filed herein their motion for a new trial of this cause, which motion is in the words and figures following, to wit." We therefore are not at liberty to examine the record for the purpose of determining such question as could only be raised on a motion for a new trial. Deford v. Orvis, 52 Kan. 432, 34 Pac. 1044; City of Eskridge v. Lewis, 51 Kan. 376, 32 Pac. 1104.

Counsel for defendants in error contend that this ends the inquiry; that every question that could be raised on the record, except whether the pleadings uphold the judgment, would properly arise only on a motion for a new trial, and has been waived by the plaintiffs' failure to file their motion in due time. The position of the learned counsel is not sound. Section 306, Civil Code, defines a "new trial" as follows: "A new trial is a re-examination in the same court of an issue of fact after a verdict by a jury, report of a referee, or a decision by the court." The section then prescribes the grounds on which a new trial may be granted. It requires only a careful reading of this section to show that it applies only to the trial of issues of fact. Section 265 of the Civil Code defines v.39p.no.6-46

a "trial" as "a judicial examination of the issues, whether of law or fact, in an action." The succeeding section provides for the trial of issues of law by the court, unless referred, and of issues of fact by a jury, the court, or referee. In order to obtain a new trial of an issue of fact, a motion or petition must be filed in accordance with the provisions of sections 308, 309, or 310 of the Civil Code. When an issue of law has been tried and determined by the court, a motion for a new trial is not required as a condition precedent to the right of the party to have the decision of the court reviewed on petition in error. This is conceded as to decisions of the issues of law arising on the pleadings by demurrer or otherwise. Nor is it contended that the rule would be different if all of the facts had been agreed to by the parties. It is contended, however, that, as the facts found by the trial court were excepted to by boun parties, they cannot be regarded as the conceded facts of the case, and the decision of the court of the issues of law, based on such findings, can only be reviewed after a motion for a new trial has been duly filed and overruled.

Whether this court could proceed to direct judgment on findings which were excepted to by the successful party, under section 559 of the Civil Code, we shall not now stop to consider. All it is necessary to determine in this connection is whether the court may review the conclusions of law, and judgment based on the conclusions of fact, found by the trial court. The conclusions of fact stand as the result and final determination of the issues of fact in the case, and where no new trial is asked by either party, where no motion is made to set aside such findings of fact, or any of them, they stand as the facts in the case. They supersede the averments of the pleadings, at least so far as they are consistent with the issues properly triable. They eliminate whatever false averments and claims have been made by either party, and present to the trial court the basis of fact on which arise the issues of law. They stand as a statement of facts similar, if not in fact in all respects identical, with the statements of a petition challenged by demurrer, or an agreed statement of facts, or a special verdict of a jury, as to the legal effects and consequences of which issues of law arise, are argued, and determined by the court. It may be contended that, on a trial before court or jury, questions of law arise which must be passed on by the court; that in the admission of evidence in instructing the jury, and in various other rulings, as the trial progresses, the court decides issues of law; and that the correctness of these rulings can only be determined where a motion for a new trial is duly presented. One of the grounds for a new trial is that the verdict is contrary to law. This, it may be said, presents the whole of the issues of law in the case. The answer to this contention,

however, is that it is only those rulings of the trial court which serve as aids or directions to the jury, or which show the process by which the court or referee has reached its determination of the issues of fact,-only those rulings which are included in and summed up with the decision of issues of fact,-which must be challenged by motion for a new trial. Where an action is tried to a jury, and a general verdict only is rendered, all the rulings of the court and all the instructions are but aids to the jury in arriving at a general result, which sums up and covers all the facts and all the law applicable to the case. From the nature of such a trial, the questions of law and of fact are answered finally by the jury in one general verdict, in favor of one party or the other. If an erroneous verdict has been reached, it may be due either to a misdirection of the court as to the law, or a failure to follow the testimony as to the facts. The legislature, therefore, has wisely provided that, whenever a retrial of an issue of fact is sought, an application for that purpose must first be made to the trial court, which has seen the witness, heard the testimony, and is fully informed as to all that has occurred at the trial. When, however, all questions as to the facts have been eliminated, this court is in as good a position to determine issues of law upon a written statement of facts as any trial court can be, and no necessity exists for the trial court to again pass on the identical questions of law arising in the case. This view of the law has been steadily adhered to by this court in very numerous decisions: Osborne v. Young, 28 Kan. 769; Horn v. Bank, 32 Kan. 518, 4 Pac. 1022; Lender v. Caldwell, 4 Kan. 339; Coburn v. Weed, 12 Kan. 182; Holcomb v. Dowell, 15 Kan. 379; Railway Co. v. Shoemaker, 38 Kan. 733, 17 Pac. 584; Stettauer v. Carney, 20 Kan. 474; Stapleton v. Orr, 43 Kan. 170, 23 Pac. 109; Wind Mill Co. v. Buchanan, 46 Kan. 314, 26 Pac. 708; Commissioners v. Arnold, 49 Kan. 279, 30 Pac. 486. This conclusion in no manner conflicts with the cases of Nesbitt v. Hines, 17 Kan. 316; City of Atchison v. Byrnes, 22 Kan. 65; or Lucas v. Sturr, 21 Kan. 480. We still adhere to the rule that, in order to review any errors of law occurring at the trial of an issue of fact, a motion for a new trial must be duly filed and considered by the trial court.

The findings of the trial court show that the deed from John Ritchie and wife to the Kansas, Nebraska & Dakota Railway Com pany, and the written contract executed on behalf of the railroad company to Ritchie, were executed at the same time, each as an inducement and consideration for the oth

of this action, became included within the corporate limits of the city of Topeka. The only considerations for the conveyance were -First, a nominal money consideration of one dollar; second, the construction and operation of the Kansas, Nebraska & Dakota railroad over the land to Ft. Scott; third, the erection, maintenance, and use of a passenger depot and a freight depot for the accommodation of the public; fourth, free transportation for the grantors during their lives over the railroad to be constructed by the grantee.

The tract of land conveyed included about 10 acres in a quarter section, most of which was owned by the grantors. The main object in making the grant was to enhance the value of the remaining property of the grantors by the construction of the railroad and depots. Ritchie platted a portion of the remaining lands into city lots, expecting that the sale thereof at good prices would be stimulated by the construction of the new railroad, and the establishment and use of the depots on the land conveyed. The mere construction of a railroad across a piece of land is ordinarily regarded as a disadvantage to the remaining portions, rather than an advantage; but the erection and maintenance of depot buildings in or near a populous city, to which great numbers of people will find it necessary to resort for the transaction of business, and is traveling to and from the city, usually tends to materially enhance the value of neighboring property. The negotiations between the railway officials and Ritchie, with reference to a right of way and ground for depots, switches, and other purposes, resulted in the execution of the deed and contract copied in the findings. The railway company procured the land without the expenditure of any but a nominal sum of money. It paid therefor by its written agreement, which Ritchie accepted as an equivalent for the value of the land. The substantial requirements of that contract were that the railroad company should construct its line of railroad through the land; that it should erect and forever maintain upon said land a passenger depot and a freight depot of a size and character suitable and sufficient for the transaction of its business and the accommodation of the public at said point, and should cause all passenger and freight trains to stop at such depots, respectively, so as to transact business, and perform all business that might be offered. The contract further provides: "And if said company shall fail to construct its line of railroad through said tract of land, and erect thereon said passenger and freight depots, within one year from this date, or shall fail to keep and maintain said depots, and use the same as herein provided, then the conveyance of said real estate to said company shall be void, and said real estate shall revert to said John Ritchie and his heirs.”

It appears from the evidence that the rail