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exercised due diligence in its management. time of the commencement of this action, a periAside from the unwarranted assumptions of

od of more than a year and ten months after the fact, the testimony related to a matter which

date of the contract, it used another building,

about a mile away, as its Topeka passenger dewas not the subject of expert testimony. pot. Held, that these instruments together conThe question whether the parties were negli- stitute a conveyance on conditions subsequent; gent was the principal point in controversy,

that the facts found by the trial court show a

substantial breach of the conditions; and that and should have been determined from facts,

the title reverts to the plaintiffs, who are heirs and not from opinions. Monroe v. Lattin, of the grantor. 25 Kan. 352; Railroad Co. v. Peavey, 29

5. Under the facts stated, the plaintiffs, alKan. 177; Dow v. Julien, 32 Kan. 578, 4 Pac.

leging in their petition that they are the legal

and equitable owners of the real property, en: 1000; Railroad Co. v. Jones, 34 Kan. 463, 8 titled to the immediate possession thereof, and Pac. 730. The judgment of the district court that the defendants unlawfully keep the plainagainst Insley and Gaw will be reversed, and

tiffs out of possession, may maintain an action

in the nature of ejectment, without tirst making the cause remanded for further proceedings a formal entry on the lands. in accordance with the views herein express- 6. The filing of plats by the grantor and his ed. All the justices concurring.

heirs, after breach of the conditions of the conveyance, but before claiming a forfeiture on ac

count thereof, showing the location of the de(55 Kan. 36)

fendant's railway, side tracks, and buildings, RITCHIE et al. v. KANSAS, N. & D. RY.

and desiynating a part of the lands conveyed as CO. et al.

“K., N. & D. Depot Grounds," but which do not

indicate the boundaries of the lands occupied by (Supreme Court of Kansas. March 9, 1895.)

the railroad company, nor contain any words exReview ON APPEAL-ISSUE OF LAW-NEED OF MO- pressive of an intent to make any dedication to

TION FOR New TRIAL DEED ON Condition railroad uses, and where the railroad grounds are SUBSEQUENT-- EJECTMENT ON BREACH -- DEDICA- not surrounded, nor included within the platted TiOx or LAND-Rigits or RAILROAD COMPANY. portion, does not amount to a dedication of such

1. In order to review the decision of a dis.lands to railroad uses, nor constitute a waiver trict court in determining an issue of law, a mo

or estoppel barring the plaintiffs' recovery for tion for a new trial is not necessary. Section any breach of conditions occurring subsequent 306 of the Code of Civil Procedure defines a

to the filing of such plats. "new trial” as a re-examination of an issue of

7. Conditions subsequent, working a forfeifact.

ture of an estate, are to be strictly construed. 2. An issue of law may arise either on the

8. After the execution of the deed and conpleadings, an agreed statement of facts, the re

tract the railway company took possession of port of a referee, special verdict of a jury, or

the land conveyed, constructed a line of railroad findings of fact by the court; and where no is

across it, built side tracks, depot buildings, sue of fact is raised, or where all issues of fact

roundhouse, stock yards, water tank, and other have been tried and determined, issues of law

structures and conveniences for its accommodaalone remain, and the decision of the trial court

tion thereon. Held that, if the defendants elect thereon can be reviewed here without a motion

to retain the land and improvements, they should for a new trial having been filed below.

be permitted to do so on payment of the Falue 3. A deed of general warranty in the usual

of the land, exclusive of improvements placed form, conveying lands for the expressed consid

thereon by the defendants, measured as of the eration of the sum of one dollar and other good

date of the cominencement of this action, with and valuable considerations, and a written con

interest from that date. tract executed at the same time, by which the 9. As the findings of fact in this case fail grantee, in consideration of the deed, agrees to

to show either the value of the improvements do certain acts, and provides that, in case of fail

made by the defendants or the value of the lanıl. ure to perform such contract, the deed shall be

this court cannot direct what judgment should come void, and the lands conveyed revert to the be entered by the trial court, and must order a grantor, both instruments being acknowledged new trial. and recorded at the same time, are to be treated (Syllabus by the Court.) as one, and construed together. 4. R. and wife conveyed certain lands ad

Error from district court, Shawnee coun. joining the city of Topeka to the K., N. & D. Ry. ty; John Guthrie, Judge. Co., and in consideration thereof the railway

Action by Hannah Ritchie and others company covenanted by a separate instrument, duly executed and acknowledged, to construct

against the Kansas, Nebraska & Dakota its line of railway through the lands granted, Railway Company and others. Judgment and erect and forever maintain on said tract a for defendants, and plaintiffs bring error. passenger depot and a freight depot, of a size

Reversed. and character suitable and sufficient for the transaction of its business and the accommoda

This action was brought by Hannah tion of the public at said point, and to cause all Ritchie, Hale Ritchie, and John Ritchie, as passenger and freight trains to stop at sich de- heirs at law of John Ritchie, deceased, pots, respectively, so as to transact and perform all business that may be there offered; and it

against the Kansas, Nebraska & Dakota was provided therein that, "If said company Railway Company and the Missouri Pacific shall fail to construct its line of railroad through Railway Company to recover a part of secsaid tract of land, and erect thereon said pas

tion 6, town 12, range 16, in Shawnee counsenger and freight depots, within one year from this date, or shall fail to keep and maintain said ty. The answer was a general denial. A depots, and use the same as herein provided, jury was waived, and the case was tried by then the conveyance of said real estate to said

the court. At the request of the parties, the company shall be void, and said real estate shall revert to said R. and his heirs." Both instru

conclusions of fact and of law were sepaments were filed for record at the same time, rately stated, and are very voluminous. It and afterwards recorded. The railway company appears that a deed, dated April 7, 1886, and constructed its railroad and buildings suitable for

acknowledged on the 15th day of the same freight and passenger depots, and stopped all its trains thereat, but failed to use the building de- month, was executed by John Ritchie and signed for a passenger depot as such. Up to the Hannah Ritchie, his wife, conveying the lands in controversy to the first-named rail- the land under this deed, and constructed its way company. The instrument is in form railway across it. It also constructed buildan ordinary warranty deed, and recites as ings for freight and passenger depots, side the consideration therefor the payment of tracks, and roundhouse, stock yards, and the sum of one dollar and other good and other structures for the accommodation of valuable considerations. At the same time, its business. The railroad and depot buildas a part of the same transaction, a contract ings were so constructed within one year in writing was duly executed and acknowl- from the date of the deed and contract. The eged by the railway company. The deed building designed for a passenger depot is and contract were filed for record simulta- situated west from the main track, and is neously. The following is a copy of the surrounded by a platform, the east edge of railway company's agreement: “This agree- which is 42 feet from the west rail of the ment, made this 7th day of April, 1886, be- main track. A platform 95 feet in length tween the Kansas, Nebraska and Dakota and 8 feet wide extends along the west side Railway Company, a corporation organized of the track, and is connected with the depot under the laws of the state of Kansas, of platform by a walk. 16 feet wide. The buildthe first part, and John Ritchie, of the sec- ing designed for a freight depot is located 32 ond part, witnesseth: That in consideration feet west from the passenger depot. On of the sale and conveyance by said Johr the 10th of May, 1887, John Ritchie and Ritchie and wife to the party of the first wife caused a plat of a part of the quarter part of a certain tract of land in the north- section of land in which the tract in controeast quarter section six (6), in township versy was located, belonging to them, to be twelve (12), of range sixteen (16), in Shawnee filed, in the office of the register of deeds of county, Kansas, and the right of way Shawnee county, as Ritchie's addition to through part of said quarter section, the the city of Topeka. John Ritchie died Aureceipt of which conveyance is hereby ac- gust 31, 1887. On December 22, 1887, Hale knowledged, the said party of the first part, Ritchie and John Ritchie and their wives for itself, its successors and assigns, hereby executed and acknowledged another plat of agrees that it will construct its line of rail- the same lands for the purpose of making road through said tract of land so granted, some changes in the former plat. This plat and that it will erect, and forever maintain, was approved by the mayor and council of upon said tract of land, a passenger depot the city of Topeka, within which said terri. and a freight depot of a size and character tory had become included, and was filed for suitable and sufficient for the transaction of record on January 5, 1888. Both of these its business and the accommodation of the plats showed the location of the defendant's public at said point, and shall cause all pas- railway and side tracks, and on part of the senger and freight trains to stop at such tract of land conveyed was marked “K., N. depots, respectively, so as to transact busi- & D. Depot Grounds." The plat also showed ness and perform all business that may be the location of the passenger and freight there offered; and said party of the first depots, the spur track, roundhouse, and turnpart further agrees that it will not sell, let, table. The Kansas, Nebraska & Dakota lease, or give away said tract of land, or any Railway Company occupied said lands for part thereof, to any person or persons or railroad purposes, and continued to operate corporation, for the purpose of transacting its line of railroad from Ft. Scott to Topeka, thereon any business whatsoever, but shall till February 23, 1887, when the Missouri use the same for its railroad business ex- Pacific Railway Company took possession clusively; and if said company shall fail to and control of its entire line, together with construct its line of railroad through said the property in controversy, and all other tract of land, and erect thereon said passen- real and personal property before that time ger and freight depots, within one year from owned and used by the Kansas, Nebraska & this date, or shall fail to keep and maintain Dakota Railway Company.

Annual passes, said depots and use the same as herein pro- issued in the usual form, were given to John vided, then the conveyance of said real es- Ritchie during his lifetime, and have been tate to said company shall be void, and said also given to Hannab Ritchie John Ritchie real estate shall revert to said John Ritchie used his pass once, on a trip to Ft. Scott. and his heirs; and, as a further considera- Hannah Ritchie never used her pass at all, tion for the conveyance of said real estate and returned the passes for 1887, 1888, and to said company, it is hereby promised and 1889. The depot buildings are of a size and agreed that said John Ritchie and his wife character suitable and sufficient for the busishall have the right to ride free of charge ness of the railroad at that point. upon all regular passenger trains of said At the time of the construction of the railroad company during their respective lives. In the company purchased a brick building at witness whereof the party of the first part the corner of Fifth avenue and Adams street, has caused these presents to be executed by | in Topeka, about one mile from the land in its president, and attested by its secretary, | controversy, to which its line of road was with the seal of the corporation annexed, on constructed, and this building has been used the day and year first above written."

as a passenger depot ever since. As to the The railroad company took possession of maintenance and use of the depots, the court

The

made the following findings: "From the time a stove in the middle or office room, no fire of the completion of said line of railroad up was kept in it except occasionally, and durto the commencement of this action, and to ing part of the time the stovepipe was down. the time of the trial, the defendants have Temporary plank seats were left in the waitcaused all passenger and freight trains to ing room on completion of the building, but stop at said depots, respectively, so as to they were removed at some time, which does transact business and perform all business not distinctly appear. Passengers awaiting there offered, the station being designated as trains stood or sat upon the depot platforms, 'South Topeka.' But neither of said defend- the projecting roof at the sides and ends afant railway companies, prior to December 1, fording some shelter from sun and rain, but 1889, sold any passenger tickets with the sometimes they would go into the office room words 'South Topeka' printed thereon to pas- of the freight depot, where a fire was kept sengers to ride on or over said road, at any when the weather required it, and the freight station or other place south of said South To- | depot room was always unlocked, except peka, but has since said railway went into when employés were absent at meals, or temoperation sold such passenger tickets with the porarily on business, and no passengers were nane of the station where from and where to excluded from said room, although there was printed thereon to and from every other sta- no sign or notice posted to show that it was, tion on said road except flag or signal sta- intended for the accommodation of passentions. Nor did either of said railway compa- gers, and the only seating arrangements were nies, prior to December 1, 1889, ever sell any two or three chairs. No passenger or freight passenger tickets marked or stamped as from traffic was ever refused at South Topeka.” said South Topeka station to any place on This action was commenced on the 13th said railway. Said companies have also kept day of February, 1888. About the middle of on sale at the several regular ticket offices May, 1888, the telegraph office was removed tickets with the name of the station where into the South Topeka passenger depot, which sold printed thereon, but with the station of has been kept open ever since that time, but the destination left blank, the said blank be- no tickets were kept on sale until about 10 ing filled by the ticket agent with pen and days before the commencement of the trial ink at the time of the sale. Passengers go- of this action,-on the 25th day of November, ing from South Topeka to any other station 1889. The taxes on this property for the on said line of railroad where tickets were years 1887, 1888, and 1889 were paid by the sold might have obtained these tickets if they | Missouri Pacific Railway Company. desired to do so. During all the time prior court also made the following findings: "(21) to the commencement of this action a tele- That said John Ritchie, the grantor in said graph office was kept in said freight depot, deed, was never known to express any disand another one at the Fifth street passenger satisfaction with the manner of the occupadepot, and, whenever a passenger applied to tion of said conveyed tract by the defendants; the agent, operator, or clerk at South To- but on or about May 9, 1887, he appeared bepeka for a ticket, the telegraph operator fore the city council of Topeka with the map would wire the agent or person in charge of or plat referred to in conclusion of fact No. the Fifth street depot to bring or send by 3, and, some objection being made that the the conductor on the train a ticket for such streets were not laid out or projected across passenger, and the business would be so done the railroad track, he stated that he had conexcept in case the order was sent too late, as veyed that tract to the railroad company, and the agent or person in charge of the Fifth that any arrangement for opening the street street passenger depot generally went to across it ivould have to be made with the South Topeka on the train. That in all in- railroad company; and neither he nor the stances when such a thing occurred such plaintiffs, nor any of them, ever made an enticket on its face showed or read from To

try upon said tract, and the plaintiffs never peka, and not from South Topeka, and the made any demand upon the defendants for rate of fare was paid therefor from To- the possession thereof, except by the compeka, and not from South Topeka. The mencement of this action, and they never passenger business at South Topeka was

gave notice to the defendants that they would very light, and nearly all the passengers claim a forfeiture of the estate, and they nev. got on without tickets, and were charged er did any act, with the knowledge of the de. ticket fare only. Some passengers, not know- fendants, indicating a purpose to obtain the ing this fact, however, would go to the Fifth title or the possession of the tract in controstreet depot or by some other railroad. All

versy, except by the commencement of this baggage offered at South Topeka was re- action; but one of the plaintiffs, on one or ceived there, but no checks were given ex- two occasions, when walking over the foregocept on the train. All baggage destined for ing granted premises, before the commenceSouth Topeka was put off there, and deliv- ment of this action, stated to a friend that he ered to the owner on surrender of the check. claimed the land for the heirs of John Ritchie, From the time of the completion of said pas- but the defendants or their agents or sery. senger depot up to the commencement of this | ants had no knowledge or information of such action it was not kept open for the accommo- claim until after this action was commenced." dation of passengers, and, although there was "(32) That the Missouri Pacific Railway Com

pany, by and through its agents thereunto a “trial" as "a judicial examination of the islawfully authorized, in the spring of 1887 ap- sues, whether of law or fact, in an action." plied to the Ritchies to get them to consent The succeeding section provides for the trial to release the agreement of April 7, 1886, men- of issues of law by the court, unless referred, tioned in conclusion of fact No. 2; whereup- and of issues of fact by a jury, the court, on said Ritchie expressly refused so to do in or referee. In order to obtain a new trial of any respect, but, on the contrary thereof, then an issue of fact, a motion or petition must and there advised and notified the said Mis- be filed in accordance with the provisions souri Pacific Railway Company that they of sections 308, 309, or 310 of the Civil Code. would in all things insist upon the faithful When an issue of law has been tried and deperformance of said contract or agreement. termined by the court, a motion for a new and, if said company declined to live up to trial is not required as a condition precedent said contract, it must convey or deed back to the right of the party to have the decision the land to them." The court also made very of the court reviewed on petition in error. full findings with reference to the surround- | This is conceded as to decisions of the isings of this land. At the time of the execu- sues of law arising on the pleadings by detion of the deed and contract it was included murrer or otherwise. Nor is it contended within the city of South Topeka, which was that the rule would be different if all of the consolidated with and became a part of the facts had been agreed to by the parties. It city of Topeka in 1887. The findings show its is contended, however, that, as the facts location with reference to the dwellings of found by the trial court were excepted to by the inhabitants of Topeka and the more im- bow parties, they cannot be regarded as the portant public buildings. As conclusions of conceded facts of the case, and the decision jaw the court found: First, that the plaintiits of the court of the issues of law, based on are not entitled to recover in this action; sec- such findings, can only be reviewed after a ond, that the defendants are entitled to a motion for a new trial has been duly filed judgment against the plaintiffs for costs in and overruled. this action. Both the plaintiffs and defend- Whether this court could proceed to direct ants reserved exceptions to the findings of judgment on findings which were excepted fact, and the plaintiffs excepted to the conclu- to by the successful party, under section 559 sions of law.

of the Civil Code, we shall not now stop to E. E. Chesney and Valentine, Godard & consider. All it is necessary to determine in Valentine, for plaintiffs in error. Waggener, this connection is whether the court may reMartin & Orr, for defendants in error.

view the conclusions of law, and judgment

based on the conclusions of fact, found by ALLEN, J. (after stating the facts). The the trial court. The conclusions of fact record in this case fails to show that the mo- stand as the result and final determination tion for a new trial was filed within three of the issues of fact in the case, and where days after the rendition of the judgment. no new trial is asked by either party, where The recital in the record is as follows: "Aft- no motion is made to set aside such findings erwards, to wit, on the day of

of fact, or any of them, they stand as the 1890, said plaintiffs filed herein their motion

facts in the case. They supersede the averfor a new trial of this cause, which motion ments of the pleadings, at least so far as is in the words and figures following, to wit.” they are consistent with the issues properly We therefore are not at liberty to examine triable. They eliminate whatever false averthe record for the purpose of determining ments and claims have been made by either such question as could only be raised on a party, and present to the trial court the basis motion for a new trial. Deford v. Orvis, 52 of fact on which arise the issues of law. Kan. 432, 34 Pac. 1014; City of Eskridge v. They stand as a statement of facts similar, Lewis, 51 Kan. 376, 32 Pac. 1104.

if not in fact in all respects identical, with Counsel for defendants in error contend the statements of a petition challenged by that this ends the inquiry; that every ques- demurrer, or an agreed statement of facts, tion that could be raised on the record, ex- or a special verdict of a jury, as to the legal cept whether the pleadings uphold the judg- effects and consequences of which issues of ment, would properly arise only on a motion law arise, are argued, and determined by the for a new trial, and has been waived by the court. It may be contended that, on a trial plaintiffs' failure to file their motion in due before court or jury, questions of law arise time. The position of the learned counsel is which must be passed on by the court; that not sound. Section 306, Civil Code, defines in the admission of evidence in instructing the a "new trial" as follows: "A new trial is a jury, and in various other rulings, as the trial re-examination in the same court of an issue progresses, the court decides issues of law; of fact after a verdict by a jury, report of a and that the correctness of these rulings can referee, or a decision by the court." The only be determined where a motion for a section then prescribes the grounds on which new trial is duly presented. One of the a new trial may be granted. It requires on- grounds for a new trial is that the verdict ly a careful reading of this section to show is contrary to law. This, it may be said, that it applies only to the trial of issues of presents the whole of the issues of law in fact. Section 265 of the Civil Code defines the case. The answer to this contention,

v.39P.no.6-46

however, is that it is only those rulings of the of this action, became included within the trial court which serve as aids or directions corporate limits of the city of Topeka. The to the jury, or wbich show the process by only considerations for the conveyance were which the court or referee has reached its de- --First, a nominal money consideration of termination of the issues of fact,-only those one dollar; second, the construction and operrulings which are included in and summed ation of the Kansas, Nebraska & Dakota up with the decision of issues of fact,-which railroad over the land to Ft. Scott; third, must be challenged by motion for a new the erection, maintenance, and use of a pastrial. Where an action is tried to a jury, senger depot and a freight depot for the acand a general verdict only is rendered, all commodation of the public; fourth, free the rulings of the court and all the instruc- transportation for the grantors during their tions are but aids to the jury in arriving at lives over the railroad to be constructed by a general result, which sums up and covers the grantee. all the facts and all the law applicable to the The tract of land conveyed included about case. From the nature of such a trial, the 10 acres in a quarter section, most of which questions of law and of fact are answered was owned by the grantors. The main obfinally by the jury in one general verdict, in ject in making the grant was to enhance the favor of one party or the other. If an er- value of the remaining property of the granroneous verdict has been reached, it may be tors by the construction of the railroad and due either to a misdirection of the court as depots. Ritchie platted a portion of the reto the law, or a failure to follow the testi- maining lands into city lots, expecting that mony as to the facts. The legislature, there- the sale thereof at good prices would be fore, has wisely provided that, whenever a stimulated by the construction of the new retrial of an issue of fact is sought, an appli. railroad, and the establishment and use of cation for that purpose must first be made to the depots on the land conveyed. The mere the trial court, which has seen the witness, construction of a railroad across a piece of heard the testimony, and is fully informed land is ordinarily regarded as a disadvantage as to all that has occurred at the trial. to the remaining portions, rather than an When, however, all questions as to the facts advantage; but the erection and maintenance have been eliminated, this court is in as good of depot buildings in or near a populous city, a position to determine issues of law upon a to which great numbers of people will find written statement of facts as any trial court it necessary to resort for the transaction of can be, and no necessity exists for the trial business, and is traveling to and from the court to again pass on the identical questions city, usually tends to materially enhance the of law arising in the case. This view of the value of neighboring property. The negolaw has been steadily adhered to by this tiations between the railway officials and court in very numerous decisions: Osborne Ritchie, with reference to a right of way and v. Young, 28° Kan. 769; Horn v. Bank, 32 ground for depots, switches, and other purKan. 518, 4 Pac. 1022; Lender v. Caldwell, poses, resulted in the execution of the deed 4 Kan. 339; Coburn v. Weed, 12 Kan. 182; and contract copied in the findings. The Holcomb v. Dowell, 15 Kan. 379; Railway railway company procured the land without Co. v. Shoemaker, 38 Kan. 733, 17 Pac. 584; the expenditure of any but a nominal sum of Stettauer v. Carney, 20 Kan. 474; Stapleton money. It paid therefor by its written agreev. Orr, 43 Kan. 170, 23 Pac. 109; Wind Mill ment, which Ritchie accepted as an equivaCo. v. Buchanan, 46 Kan. 314, 26 Pac. 708; lent for the value of the land. The substanCommissioners v. Arnold, 49 Kan. 279, 30 tial requirements of that contract were that Pac. 486. This conclusion in no manner con- the railroad company should construct its flicts with the cases of Nesbitt v. Hines, 17 line of railroad through the land; that it Kan. 316; City of Atchison v. Byrnes, 22 should erect and forever maintain upon said Kan. 65; or Lucas V. Sturr, 21 Kan. 480. land a passenger depot and a freight depot We still adhere to the rule that, in order to of a size and character suitable and suffireview any errors of law occurring at the cient for the transaction of its business and trial of an issue of fact, a motion for a new the accommodation of the public at said trial must be duly filed and considered by point, and should cause all passenger and the trial court.

freight trains to stop at such depots, reThe findings of the trial court show that spectively, so as to transact business, and the deed from John Ritchie and wife to the perform all business that might be offered. Kansas, Nebraska & Dakota Railway Com The contract further provides: "And if said pany, and the written contract executed on company shall fail to construct its line of behalf of the railroad company to Ritchie, railroad through said tract of land, and erect were executed at the same time, each as an thereon said passenger and freight depots, inducement and consideration for the oth- within one year from this date, or shall fail er. They separately evidence a part of the to keep and maintain said depots, and use agreement, the whole of which can only be the same as herein provided, then the conascertained from considering the two writ- veyance of said real estate to said company ings together. The land conveyed was val. shall be void, and said real estate shall reuable property, located within a half mile vert to said John Ritchie and his heirs." irom the state capitol, and, prior to the trial It appears from the evidence that the rail

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