(203 P.) hold that as applied to the facts of the case they fairly submit the issue of negligence to the jury and involve no prejudicial error. The defendant relies upon the Massachusetts case already cited, and upon Whilt v. Public Service Corporation of New Jersey, 74 N. J. Law, 141, 64 Atl. 972, holding as a matter of law, in situations somewhat similar to that here presented, that a street car company is not negligent in allowing the rear fender to be down, contrary to custom. Whether or not we should follow these cases, if they were directly in point, we think there is suffi cient difference between a rear fender and a The judgment is affirmed. (110 Kan. 608) IOLA OIL & GAS CO. et al. v. STRAUSS. * (No. 23380.) MARSHALL, J. The defendant appeals from a judgment against him canceling the assignment of a one-tenth interest in an oil and gas lease, which assignment is alleged to have been procured by fraud practiced by (Supreme Court of Kansas. Jan. 7, 1922.) the defendant on the plaintiffs. (Syllabus by the Court.) 1. Cancellation of instruments 37(6)-Petition held to state cause of action for cancellation of assignment of interest in oil lease; facts held sufficient to constitute ground for cancellation of assignment of interest in oil lease. In this action, one to cancel, on the ground of fraud, the assignment of a one-tenth interest in an oil and gas lease, the petition stated a cause of action, objection to the introduction of evidence under the petition was properly overruled, and the evidence proved facts sufficient to constitute a cause of action. 2. Mines and minerals 74-Findings in suit The action was tried without a jury, and extensive findings of fact were made. The essential facts found were that plaintiff C. T. Kirk and the 14 other personal plaintiffs named with him were partners "associated * * * together for the purpose of leasing lands, causing geological survey thereof to be made, and, if favorably reported, then to drill for oil and gas, under the firm name and style of the Iola Oil & Gas Company"; that the defendant, at the time of the transactions described in the petition and at the a practical time of the trial, “was geologist * engaged in the business of making geological surveys of lands, as touching the presence of oil or gas within or under such lands, and locating test well or wells when leases were obtained by those employing him for such purposes, such services being rendered by the defendant, Irvin 3. Trial 401-Additional findings of fact. Strauss, and his son, G. R. Strauss, his properly refused, where request practically a cross-examination of court. It is not error to overrule a request for additional findings of fact, where the request comes in the form of questions practically constituting a cross-examination of the court on findings that have been made. 4. New trial 157-Trial 401-Motion for new trial and for additional findings of fact held not illegally prejudged. assistant, at an agreed price per diem and actual expenses incurred by defendant in ren dering such services"; that the defendant was employed by the plaintiff partnership to make a survey upon lands on which they obtained an oil and gas lease; that the plaintiff partnership entered into an oral contract with the owner of certain property for a lease thereon; that the defendant went to the property to make a survey thereof, and was instructed by the plaintiff partnership to draw the lease at the same time and obtain the signatures of the owners of the It is not error for a trial court to take a motion for new trial and a motion for additional findings of fact, to examine them in connection with the pleadings and the evidence, property thereto; that the lease was signed to come to a tentative conclusion concerning by the landowner and named C. T. Kirk, them, and to reduce that conclusion to writing, trustee, as lessee; that the defendant rewhere he afterward gives all parties an opportunity to be heard, and his mind remains open for conviction by reason and argument. turned to Iola, reported to the plaintiff part- For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes he afterward mailed the lease to plaintiff C. T. Kirk, and with it inclosed a contract assigning one-tenth interest in the lease to the defendant and a letter stating that the contract should be signed by C. T. Kirk as trustee in accordance with the contract that the letter stated had been made with the partnership by the defendant; that C. T. Kirk signed the assignment and returned it to the defendant; that the defendant was paid for his services; that there was no consideration for the assignment; and that no agreement had been made by any member of the partnership with the defendant giving or consenting to give to him one-tenth interest in the lease. The court found, as a conclusion of law, that the assignment from C. T. Kirk to the defendant had been procured by fraud. These findings were supported by evidence and responded to the allegations of the petition. "The defendants submitted special questions of fact to be answered by the court, which the court refused to answer, but made findings of fact and conclusions of law separately. This is urged as error. The submission of special questions may be fairly construed as a request of law as provided by section 297 of the Civil to make special findings of fact and conclusions Code, but the court is not required to answer special questions. It is the duty of the court, on request, to make separate findings of fact and conclusions of law as was done in this case." The practice of submitting special questions to be answered by the court was criticized in Vickers v. Buck, 70 Kan. 584, 586, 79 Pac. 160, 161, where this court said: "Plaintiffs in error complain of an alleged failure, or refusal, of the court to state its find ** ings of fact and conclusions of law separately. This request was made in a particular manner by the defendants below, and 14 special questions were submitted. It is not necessary, or customary, for a party to a suit to submit questions of fact when the trial is to the court without a jury, as it is especially required where the trial is to a jury, and special findings of fact are desired. It is the usual and proper practice simply to make the request of the conclusions of law upon all material points incourt to make such separate findings of fact and volved in the case, which request should be granted." [1] 1. It is contended that the court committed error in overruling the defendant's demurrer to the plaintiffs' petition, in overruling the defendant's objection to the introduction of evidence under the petition, and in overruling the defendant's demurrer to the plaintiffs' evidence. The allegations of the petition and the facts which plaintiffs' evidence tended to prove have been briefly stated. An examination of what has been stated reveals that these contentions of the defendant are without foundation. A case of fraud was alleged and proved, and, in This, however, is not the most serious obaddition to that, the assignment of the one-jection to the questions submitted. They tenth interest in the lease to the defendant constituted a cross-examination of the court was entirely without consideration. on the findings made. Not one of them, [2] 2. The defendant argues that the find- except the one that has been quoted, asked ings of the court were not supported by evi- the court to find upon any ultimate fact upon dence. It is unnecessary to set out in detail which judgment could be based, and each of the findings of fact made by the court and the other questions submitted asked the court the evidence to support them. The ultimate to detail some part of the evidence that had facts upon which the correctness of the judg-been introduced. The judgment of the court ment rested have been summarized. Those must have been that the acts of the plaintiffs facts were established by evidence, and it did not constitute ratification, acquiescence, is unnecessary to discuss the detailed criti- or estoppel. The court could very properly cism advanced by the defendant concerning the findings of fact made by the court. [3] 3. It is insisted that the court committed error in overruling the defendant's motion for additional findings of fact and conclusions of law. The request for the additional findings of fact and conclusions of law was in the form of questions submitted to the court. Most of them might have been answered by Yes or No; the others in a very few words. Neither suggested findings nor conclusions of law were presented to the court. Under the heading "Additional Conclusions of Law," this question was asked: "(7) Did the acts of the plaintiff corporation and plaintiff partnership, subsequent to the execution and delivery of the contract that was returned to Strauss, constitute ratification, acquiescence, or estoppel?" have found on the matter of ratification, but it was not error to refuse to answer the question submitted. The court was not compelled to submit to a cross-examination under the guise of a request for additional findings of fact. [4] 4. After the motion for a new trial and the motion for additional findings of fact were filed, but before they were heard, the court took copies of the motions, considered them together with the pleadings and evidence, came to a conclusion concerning what should be done on the motions, and reduced that conclusion to writing. The motions were afterward heard, and the court rendered judgment in accordance with that conclusion. The defendant argues that by so doing the court prejudged the defendant's case, denied the defendant his day in court, and denied In Lumber Co. v. Russell, 93 Kan. 521, 525, him due process of law; all in violation of 144 Pac. 819, 821, this court said: the Fourteenth Amendment to the Constitu (203 P.) tion of the United States and of section 18 of the Bill of Rights of the Constitution of the state of Kansas. The judgment rendered on those motions recites that counsel for the defendant was present and was heard; that the motions were considered by the court; and that they were then overruled. This court is of the opinion that it was not improper for the trial court to take the papers and consider them and the evidence, for the purpose of informing himself concerning any matter that might come before him for adjudication. The conclusion reached on such ex been reached that no reversible error was (110 Kan. 298) GILBERT v. DAVIDSON CONST. CO. (No. 23454.) (Supreme Court of Kansas. Jan. 7, 1922.) sance. (Syllabus by the Court.) amination did not deprive any of the parties 1. Nuisance 3(5)-Rock crusher held a nuiof any right, if the mind of the court remained open for conviction by reason and argument and a final conclusion was reached only after all parties had been fully heard on the subject. The defendant cites a number of cases in which the aggrieved party was denied his right to be heard and judgment was rendered against him without a hearing. That would be error. [5] 5. The most serious questión in this case is, Did the plaintiffs, after the discovery of the fraud of the defendant, ratify the assignment to him? This question was not specifically covered by the findings of the court. By the general finding in favor of the plaintiffs, the court in effect found that there had been no ratification. There was much correspondence between the defendant and plaintiff C. T. Kirk, and some correspondence with others of the plaintiffs. In some of the letters written to the defendant language was used which, if the writer had known of the fraud of the defendant, would have apparently amounted to a ratification of the assignment so far as the writer was concerned. C. T. Kirk did most of the writing for the plaintiffs. He believed and had confidence in the defendant, and had that belief and confidence at all the times at which he wrote the letters on which the defendant relies. When C. T. Kirk learned positively that a fraud had been practiced, he repudiated the assignment. None of the other partners, when they wrote the defendant, had any knowledge of the fraud that had been prac ticed. It can hardly be said that a partner, writing to one who had defrauded the partnership, could ratify the contract secured by that fraud when that partner did not know of the fraud. Such a partner could not ratify for himself under such circumstances, and it follows that he could not ratify for the partnership under the same circumstances. The setting up and operating of a rock crusher in the street within 43 feet of plaintiff's residence and the consequent throwing of large quantities of dust upon and into the residence, injuring and destroying furniture, clothing and food, was a nuisance. 2. Pleading 395-Trial 145-Where a case was determined on negligent placing of rock crusher, it was unnecessary to submit theory of other negligence. The case having been tried and determined on the theory that it was a nuisance, and not that the machine was defective or unskillfully operated, there was no necessity to offer evidence or submit the case on the theory that negligence was essential to a recovery other than in the location and operation of the crusher in such close proximity to plaintiff's home. 3. Appeal and error 1064 (1)-Instructions relating to duties and liabilities of parties held proper. Instructions relating to the duties and liabilities of the parties in the matter are held to be without prejudicial error, and the evidence is deemed to be sufficient to sustain the recovery. Appeal from District Court, Wyandotte County. Action by Bush Gilbert against the Davidson Construction Company. Judgment for plaintiff, and defendant appeals. Affirmed. Louis R. Gates, of Rosedale, for appellant. JOHNSTON, C. J. The plaintiff asked and recovered damages from the defendant for negligently injuring personal property through the operation of a rock crusher in a street 43 feet from his home, and on the ground that the dust from it covered his home and penetrated into it to such an extent as to injure and destroy household goods, clothing, and food. Twelve assignments of error are presented, and some of those are divided into a number Defendant complains that there was insufof heads. The abstract does not comply with ficient evidence to show that the crusher was the rules of the court; the appeal might well operated in a negligent manner, or that modbe dismissed for that reason. However, ern methods were not employed in its operaevery proposition advanced by the defendant tion, or that there was a lack of appropriate has been considered, and the conclusion has appliances to operate it in a lawful way. It For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes "Every man has a right to use his own property as he pleases so long as he does not interfere with the rights of another man to enjoy his property." insists that the crushing of rock is a useful ↑ The language quoted followed a statement and necessary business, and that defendant that: had a right to make a reasonable use of the crusher, and the fact that it may have caused some slight inconvenience and discomfort to another does not create a liability against the company. It is contended that whether a reasonable use was made of the crusher The language complained of was followeu and whether the injuries were substantial by the advice that the complaint was the was a fact which plaintiff should have prov-improper location of the crusher, the placing en and the claim is tuat this was not shown by any evidence. [1-3] On the other hand, the plaintiff insisted that the setting up of a crusher so close to his house that it necessarily injured him made it a nuisance regardless of the manner of its operation, and that the proof showed that the injuries were serious and substantial. It was shown that the crusher was located in a street only 43 feet from his house, and that great quantities of dust were thrown upon it and into it. No evidence was introduced of negligence in operation, and defendant offered evidence tending to show that it was an ordinary rock crusher, operated in the ordinary way, and with the appliances usually employed. In this appeal the principal complaint is of the instructions given by the court. It is claimed that they were inconsistent with the bill of particulars and with the evidence in the case, and, further, that they amounted to peremptory instructions to find for the plaintiff. of it so close to plaintiff's home that it threw dust on it, injuring his furniture, carpets, clothing, and food, thereby interfering with its use and enjoyment of his property. There was nothing misleading in these instructions. The case was submitted to the jury, not on the theory that it was an unlawful business, or that the machine was defective, or that there was any lack of skill in those operating it, but it was that the placing and operating of the crusher in the street within 43 feet of plaintiff's dwelling was an illegal invasion of plaintiff's rights. Under the circumstances it plainly constituted a nuisance which might have been enjoined, and which made the defendant liable for any substantial damages resulting from the wrong. The fact that the business itself is lawful, and the machine skillfully operated, did not give the defendant a right to put and use it in front of a residence where is necessarily would cause injury and loss. In Helms v. Oil Co., 102 Kan. 164, 169 Pac. 208, L. R. A. 1918C, 227, it was insisted that, as the Complaint is made of an instruction in business of refining oil was a lawful one, which the court said that: "A rock crusher as ordinarily used is a lawful institution or piece of machinery. In this case the plaintiff's complaint is not that the crusher was operated negligently, but that it was so placed and so operated that it invaded his right of private property." Defendant says that plaintiff did allege negligence in the operation of a crusher, and there is some language in the pleading which might imply negligence in the use of the machine, but there was no attempt to prove that the crusher was not modern or unsuitable for the business, and the case was tried throughout as one for nuisance rather than for negligence. The wrong charged against the defendant was the placing of the machine in close proximity to plaintiff's home, so that the operation of it threw dust upon it and into his house, to his discomfort and loss. We think the defendant has no ground to complain that negligence was taken out of the case. Nor do we find any good reason for the objection to an instruction in which the court remarked that: "Whenever a man so uses his property as to work injury or hurt to another man, then it becomes what is termed unlawful." Defendant contends that this was in effect a peremptory direction to find for plaintiff. there could be no liability to the plaintiff as a result of the operation of the refinery in the absence of negligence of the defendant, but in the opinion it was said: "Plaintiff's action as pleaded must be regarded as one for nuisance rather than negligence. An owner of property, although conducting a lawful business thereon, is subject to reasonable limitations. He must use his property so as not to unreasonably interfere with the health or comfort of his neighbors, or with their right to the enjoyment of their property." This was followed by a quotation from Fogarty v. Pressed Brick Co., 50 Kan. 478, 31 rac. 1052, 18 L. R. A. 756, that: "If he makes an unreasonable or unlawful use of it, so as to produce material injury or great annoyance to his neighbor, he will be guilty of a nuisance to his neighbor, and the law will hold him responsible for the consequent damage." If defendant had placed his machine farther away from plaintiff's home, and where it would not have substantially interfered with the rights of others, the business and use would both have been lawful. In Blomen v. N. Barstow Co., 35 R. I. 198, 85 Atl. 924, it was said: "A use of property in one locality and under some circumstances may be lawful and rea (203 P.) sonable, which, under other circumstances, 5. Taxation 25-Per capita tax law held a would be unlawful, unreasonable, and a nui- revenue measure and invalid as beyond legislative power. sance. To constitute a nuisance, the use must be such as to produce a tangible and appreciable injury to neighboring property, or such as to render its enjoyment specially uncomfortable or inconvenient." There being nothing in the title of the act or in the body thereof indicating legislative intent to classify the per capita tax law (Laws 1921, c. 261, amending Rev. Codes, § 2692), as an exercise of the police power, and the act itself denominating the assessment as a tax, it is a revenue measure, and not an exercise of police power, and is within Const. art. 12, § 4, declaring that the Legislative Assembly shall not levy taxes on the inhabitants of a county or municipality for county or municipal purposes, but it may vest in the corporate authorities power to assess and collect taxes. Holloway, J., dissenting. The evidence all showed a liability on the part of the defendant, and further, that the damage resulting from the wrong was substantial. Where the business conducted is a lawful one, and the inconvenience and discomfort resulting from the operation are only slight, and are only the natural consequences of the carrying on of such lawful business, there is ordinarily no liability. Phillips v. Brick Co., 72 Kan. 643, 82 Pac. 787, 2 L. R. A. (N. S.) 92. This case, however, does not fall within that rule, as the location and operation of the defendant constituted a nui-County; Chas. W. Pomeroy, Judge. sance, and the inconvenience and injury inflicted were substantial. We find no ground for defendant's complaint of the amount of damages awarded. Judgment affirmed. All the Justices concurring. (62 Mont. 119) STATE ex rel. PIERCE et al. v. GOWDY, (Supreme Court of Montana. Jan. 11, 1922.) 1. Taxation 55-Poll tax imposed by county for poor fund not contrary to Const. art. 10, § 5. A poll tax such as that provided for by Laws 1921, c. 261, known as the Bachelor's Tax Law, and requiring that such exactions shall be paid to the county treasurer and credited to the poor fund of the county, if imposed by a county, would not contravene Const. art. 10, § 5, providing that the several counties shall provide for aged and infirm inhabitants who need aid, but is a proper method of carrying out its provisions. Appeal from District Court, Flathead Action by the State of Montana, on the relation of H. S. Pierce and another, against Nellie B. Gowdy, Flathead County Treasurer. From an order refusing an injunction, plaintiffs appeal. Reversed and remanded, with directions to issue writ. Jess H. Stevens and B. J. McIntire, both of Kalispell, for appellants. Dean King and J. E. Erickson, both of Kalispell, and L. A. Foot, Asst. Atty. Gen., for respondent. GALEN, J. This appeal is from an order of the district court of Flathead county, refusing a writ of injunction. Appellants sought to enjoin the county treasurer of Flathead county from collecting, or attempting to collect, poll taxes from either of them under the provisions of chapter 261 of the Laws of 1921, commonly referred to as the "Bachelor's Tax Law." If the act is valid, the appellant Howard K. Pierce, who is the head of a family, is subject to the payment of an annual poll tax of $2, and appellant Leonard E. Riebe, being unmarried and without dependents, must pay $5 poll tax. It is required that such exactions shall be paid to the county treasurer, and credited to the poor fund of the county. By section 1 of the act attempt is made to amend section 2692 of the Revised Codes to 3. Taxation -"Tax" enforced contribution read as follows: of money or other property. Tax is an enforced contribution of money or other property, assessed in accordance with some rule of apportionment by authority of a sovereign state on persons or property within its jurisdiction for the purpose of defraying public expense. "Sec. 2692. Every male inhabitant of this state over 21 and under 60 years of age except paupers, insane persons and Indians not taxed, must annually pay a poll tax of two dollars ($2.00). In addition to the foregoing poll tax of two dollars ($2.00), every such male inhabitant of this state who is not the head of a family, as [Ed. Note. For other definitions, see Words and Phrases, First and Second Series, Tax-hereinafter defined, must annually pay an adTaxation.] 4. Constitutional law 48-Legislative act presumed constitutional. A legislative enactment is presumed constitutional, unless the contrary appears beyond & reasonable doubt. ditional poll tax of three dollars, ($3.00). "The words 'head of a family' shall, for the purpose of this act, be construed to mean any person having wholly dependent upon him for support, a wife, minor child, father, mother, brother, or sister and any such male person ao tually living with his wife." |