The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1895-03-15
-TOm Sn8Wno6 COu.
REVERSED.
SYLLABUS.
ALLEN, J


/. In order to review the decision of dis
tr1ct court in determining an issue of law a
motion for a new trial is not necessary, Sec
ton 306 of the code of civil procedure defines
new trial as q denomination of an issue Of
fact
2 An issue of law may arise either on the
plead1ngs, an agreed statement of facts, the
report of 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
law alone remain, and the decision of the trial
court thereon can be reviewed here without
motion for new trial having been fled
below.
8. deed of general warranty in the usual
FORM conveying lands for the expressed con-
good and valuable considerations, and q
written contract, executed at the same time,
deed agrees to do certain acts and provides
that in case Of failure to perform such con-
lands conveyed revert to the grantor, both in
stTuments being acknowledged and recorded
at the same time, are to be treated as one and
construed together.
4. R. and wife conveyed certain lands ad
joining the city of Topeka, to the K n. & D.
Ry Co. and in consideration thereof the Ry.
Co. covenanted by q 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 freight depot, of q
size and character suitable and sufficient for
the transaction of its business, and the ac-
cOmmodation OF the public, at said point, and
to cause all passenger and freight trains to
act and perform all business that may be
there offered, and it was provided therein
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. thenTthe convey
ance 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
its rallro and buildings suitable for freight
and passenger depots, and stopped all its trains
thereat, but failed to use the building de-
signed for passenger depot as such, up to
the time Of the commencement of this action.
period OF more than year and ten months
after the date of the contract, 1t used another
building about q mile away as its Topeka pas
senger depot. Held, That these Instruments
lions subsequent; that the facts found by the
trial court show 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, al
leging in their petition that they are the
legal and equitable owners of the real prop.
erty 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 eject
ment without first making formal entry on
6. The fling of plats by the grantor and his
heirs after breach OF the conditions of the
conveyance, but before claiming q forfeiture
on account thereof, showing the location of
the defendants railway, side tracks and build
ings, and signaling part OF the lands con-
veyed as K. n. & d. depot grounds, but which
do not indicate the boundaries of the lands
occupied by the railroad company, nor con-
tain any words expressive of an intent to
make any dedication to railroad uses, and
where the railroad grounds not sur
ton, does not amount to a dedication of such
lands to railroad uses, nor constitute waiver,
or estoppel barring the plaintiffs recovery for
| quent to the fling Of such plats,
z. Conditions subsequent, working for
fixture OF an estate, are to be strictly con-
strued.
g. After the execution of the deed and con-
tract the railway company took possession OF
| the land conveyed, constructed q line of rail-
road across It. built sidetracks, depot build
| ings, round house, stock yards, water tank
and other strutures and cOnven1ences for its
| accommo dation thereon; Held, that II the
| defendants elect to retain the land and i'm
| provements, they should be permitted to dc
| SO on payment OF the value of the land, exclu-
| sfve of Improvements placed the eon by the
| defendants, measured as of the date of the
| commencement of this action. with interest
| from that date
g. AS the findings of fact in this case fail
! to show. either the value of the improvem en- Is
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 new trial
All the justices concurr1ng.
true copy.
Attest: G. J. BROWN,
lsEAL Clerk Supreme Court.