The Wichita daily eagle. [volume] (Wichita, Kan.) 1890-1906, 1895-10-24


the Kansas Court of Appeals-Judg
johnson and Cole Also Hand Down Inn
portant Decisions in Cases which wer
Submitted Here Week Before Last
Some of the Questions Involved are o
Great Moment
The following opinions in cases sub
nitted the earlier part of this month
were handed down yesterday by th'
Kansas court of appeals in session II
this city:
One of the most interesting cases de-
cided was the case of J. C. o. Morse, VS.
Mary P. Patterson, where the ques-
ton turned on the ownership Of several
colts. Mrs Patterson owned an old
mare named Daize, Fer husband took
care of this old mare, bred her and paid
the taxes on her. The old mare had
four colts, and these were also taken
in charge by Mrs. Patterson's husband.
Having an attachment against the nus
band, Sheriff Morse of Summer county
1ook the colts. His wife replevinisd
them. obtained judgment below. and
L0t dAppS1ltu i At oAACA XII - at
torneys argued that the husband, hav-
ing taken care of the mare and colts
had avn interest in them. The opinion
of the court just handed down, is writ
ten by Judge DenniSon. He says the
husband had no wnership in the colts
and that the owner of the mother is
the owner of the offspring born during
such ownership until something is
10 izyac. 6.ay of tha title -
SETTLED AT LAST
Another interesting case was that of
the St Louis and San Francisco Railway
company against the Bryan Fruit COM
pany This case is five years old. Bry-
an shipped a carload of oranges and
bananas from New Orleans TO Wichita
The car was caught in a snow blockade
and the oranges became overheated
and spoiled. Bryan got judgment in
the district court. The railroad COM
pany appealed claiming that they Were
prevented from delivering the fruit
by the act of God. The court held that
the railroad company did not take
proper precautions to protect the fruit
and the Judgment of the lower court
was affirmed. About $3.50 was involved.
The opinion is by Judge Dennison.
MISSOURI PACIFIC WINS.
AIOUIcT CdcSSS Was tlIlt3 dCillC
Railway company VS.. William L. Haynes
appealed from Kingman county.
Haynes had an orchard burned, and
got Judgment below. The railroad
company appealed claiming that the
court had erred in admitting certain
evidence and in i11tstructing the jury.
The court of appeals reversed the case.
The opinion is by Judge Johnson.
Judge Johnson says: There were
several objections to the evidence Of
fened and given on the trial of this case
5n relation 10 the measure of damages
that the plaintiff below sustained by
reason Of the fire alleged to have been
set out by the railway company's en-
CINE, which burned and injure the or
chard of the plaintiff below. The evil
dence of witnesses as to the number of
bushels Of apples an eight year old
tree in q thrifty condition would pro-
duce in a seasonable year, and the mar
ket value of fruit in the community
where the farm is situated, for some
time past and at the present time, were
not competent and were not the true
rule for the measure of the damages of
the plaintiff below on account Of his or
chard being injured by fire communi-
Gated by the engine of the railway COM
pany. This class of evidence is too I'M
certain as there is no method by which
to determine how often seasonable
years will occur or whether the trees
would be I'M a healthy, thrifty condition
for any considerable time in the future
nor to determine what the market value
of the fruit would be in the future; it is
not such matters as a witness can de-
terInine. The burning and injury to
the orchard was an INJURY to the real
estate OF the party and the rule OF dam
ages in such case would be the damage
done to the farm itself and not what
the orchard might or might not have
produced or what the fruit produced an
nually would he worth this is mere
speculation fanciful and not real.
Where the injury is TO the real estate
the damages are TO be measured by the
difference in the market value of the
land Immediately before and after the
injury"
The court below instructed the Jury
TO wit: Now the presumption arises in
this case that the defendant set out the
fire that burned the plaintiffs orchard,
from the fact that the country burned
oV7efr was adjacent to or near the right
of-way of the defendant" This instruc-
ton was held to be erroneous and mis-
beading. About seventeen hundred
dollars YVES involved.
JUDGE COLE REVERSES.
Another case was that of the Chicago.
Kansas and Western Railroad company
against T. B. Totten, on error from
Reno county. Ii was reversed The
opinion was by Judge Cole. Tolten had
some horses, which he claimed were
killed by the railroad which was then |
building. The railroad attorneys claim |
ed that the road was not lin operation" !
aus the time the construction train which |
IL was alleged did the damage was run |
ming along the track
Judge Cole held on This that where a
railroad company is constructing a line 1
NJ road and has completed the same |
for a considerable distance and is rum !
ming its engines and cars over the por-
ton which is completed for the purpose
OF carrying material for the further
construction of the road such cornpany
IS operating its road within the mean !,
ing OF chapter 81. laws of 1874, and held |
that operating means acting, exerting
some agency or power
The railroad company claimed that
Tolten did not exercise ordinary care.
but fer which the accident would not
have occurred and in this they were
sustained by the higher court.
CASES HANDED DOWN.
The opinions handed down were as
follows: