land, and does not negative a redemption by a mortgagee or other lienholder. We think it fairly implies that, after the property was bid in for the county, no redemption was attempted at any time. The statute (Gen. St. 1901, § 7662) provides that any "owner, his agent or attorney," may redeem from a tax sale at any time before a deed issues. An "owner," in this sense, is "any one who has a substantial interest in the premises." 2 Cooley on Taxation, 1045; Black on Tax Titles, § 365; 2 Blackwell on Tax Titles, § 705; Dubois v. Hepburn, 35 U. S. 1, 22, 23, 9 L. Ed. 325. Since the word means this in the statute, it should be given the same effect in the deed, which adopts the statutory phrase.

A further objection is that the order authorizing the assignment of a certificate for $25 was made November 23d, and that, as the certificate was not taken out until December 20th, the purchaser should have paid interest on the amount. The deed does not show that the order required the payment of interest if it was not acted upon at once, and there is no presumption to that effect.

Again it is objected that the deed shows the county to have been a competitive bidder at the tax sale within the rule announced in Larkin v. Wilson, 28 Kan. 513. There, however, the recitals were held to show that the county treasurer made the first bid, and the argument was that his offer might have prevented others from bidding. Here the deed departed from the statutory form so far as relates to this matter in only two respects.

For the recital, "said property could not be
sold for the amount of tax," it substituted,
"no person bid the amount of tax," which
amounted to the same thing, and it added to
the statement that the land was bid off
for the county, the words, "for
which was the least quantity bid for," which
were meaningless in that connection and

therefore harmless.

giving him a lien. We do not consider this a just interpretation of the language used. The force of the stipulation was that the plaintiff should have a lien for taxes if the defendant prevailed-that is, obtained a decision on the merits in her favor-after a final submission. Although the parties had agreed to submit the case upon an agreed statement of facts, the plaintiff still had the right to have it dismissed without prejudice. Pugsley v. Railway Co., 69 Kan. 599, 77 Pac. 579. The judgment complained of was not founded upon any consent of the plaintiff, but upon the conclusion of the court that the tax deed was void on its face. The plaintiff has not waived his right to review this decision.

The judgment is reversed, and the cause remanded, with direction to enter judgment denying the defendant relief. All the Justices concur.

GUNN v. BROWER. (Supreme Court of Kansas. Dec. 11, 1909.) 1. TAXATION (8 764*)-TAX DEED-DESCRIP

TION.

of a congressional township a quarter section Where by reason of the deficient acreage thereof is divided by the government survey, in accordance with the usual practice, into an 80-acre tract and two numbered lots, each containing somewhat less than 40 acres, one of such lots is sufficiently described in a tax deed as a quarter of the quarter section.

[Ed. Note. For other cases, see Taxation, Cent. Dig. §§ 1519-1522; Dec. Dig. § 764.*] (Syllabus by the Court.)

2. TAXATION (8 776*)-TAX DEEDS-DESCRIPTION OF LAND CONVEYED - "SOUTHWEST QUARTER."

The phrase "the southwest quarter" of a named section, used in a tax deed describing the *lands conveyed, means the tract indicated on the official plat most nearly responding to that call, notwithstanding it does not contain 160 acres, nor one-fourth of the area of the entire.

section.

[Ed. Note.-For other cases, see Taxation,. Dec. Dig. § 776.*]

3. DEEDS (§ 113*)-CONSTRUCTION-DESCRIPTION OF PROPERTY CONVEYED-"HALF."

Where there is nothing to suggest the contrary, the word "half" in connection with the conveyance of a part of a tract of land is interpreted as meaning half in quantity. Dig. § 113.* [Ed. Note.-For other cases, see Deeds, Dec.

For other definitions, see Words and Phrases, vol. 4, pp. 3207, 3208; vol. 8, p. 7676.]

Appeal from District Court, Kiowa County; Gordon L. Finley, Judge.

Action by W. C. Gunn against D. M. Brower. Judgment for defendant, and plaintiff appeals. Affirmed.

The defendant makes a further contention upon another feature of the case. She claims that the judgment was rendered by consent and therefore is not reviewable. The stipulation already referred to contained a provision that, if the defendant "prevailed," the plaintiff should be given a lien for the taxes he had paid. The defendant insists that, as he afterwards dismissed his cause of action, he thereby voluntarily permitted her to "prevail," and authorized the court MASON, J. A tax deed, not challenged under the stipulation to render judgment except as to the sufficiency of the description,

Keene & Gates and J. W. Davis, for appellant. L. M. Day, for appellee.

purported to convey "the south half of the a part of a tract of land is interpreted as southwest quarter of section 7" in a designated township and range. The district court sustained the holder's claim of title to land properly described under the government survey as "lot 4 and the south half of the east half of the southwest quarter" of that section. The only question presented is, Was this error? The township in which the land is situated is slightly deficient in acreage. Under the federal statute (Rev. St. U. S. §§ 2395, 2397 [U. S. Comp. St. 1901, pp. 1471-1473]) the deficiency was distributed among the sections of the northern and west ern tiers. The northwest and southwest quarters of section 7 therefore were irregular in shape, or, as the term is sometimes used, "fractional." The east 80 acres of each of these quarters formed a tract known as the east half thereof. Each quarter was further subdivided by a line running east and west equidistant from its northern and southern boundaries, dividing the east half into two equal parts, and the remainder of the quarter section into two parts not necessarily of exactly equal area. The tract corresponding to what would have been the exact southwest quarter of the southwest quarter of section 7, if it had been of full size, was designated on the official plat as lot 4, containing 36.55 acres. The tract north of it, designated as lot 3, contained 36.60 acres. This arrangement was not arbitrary or accidental, but resulted from the established practice of the government surveyors, under the regulations of the Commissioner of the General Land Office. I Lester's Land Laws, Regulations and Decisions, pp. 706, 722, 723. As already stated, the technically correct description of the land claimed by the holder of the tax deed would be "lot 4 and the south half of the east half of the southwest quarter" of section 7. The question to be determined is whether the formula actually used "the south half of the southwest quarter"-amounts to the same thing.

There is no difficulty in saying that the phrase "the southwest quarter" of section 7 means the tract indicated on the official plat most nearly responding to that call, notwithstanding it does not contain 160 acres, nor one-fourth of the area of the entire section. Brown v. Hardin, 21 Ark. 324, 327; William K. Lente v. Brente L. Clarke, Adm'x, 22 Fla. 515, 525, 1 South. 149. But the language of the deed where it speaks of "the south half" of this quarter section is open to two possible constructions. It may refer to the exact south half according to the actual acreage, or it may refer to one of the two substantially equal parts into which the quarter section is divided by the east and west line of the government survey. If it is impossible to tell which is intended, the deed may be void for indefiniteness. Where there is nothing to suggest the contrary, the word

meaning half in quantity. Owen v. Henderson, 16 Wash. 39, 47 Pac. 215, 58 Am. St. Rep. 17; Cogan v. Cook, 22 Minn. 137, 142; Hartford Mining Co. v. Cambria Mining Co., 80 Mich. 491, 45 N. W. 351; Jones v. Pashby, 62 Mich. 614, 29 N. W. 374. But where a tract has previously been in some manner divided into two parts of approximately equal size, the usual presumption is that one of these parts is referred to. "The words 'east half' and 'west half' in a deed, while naturally importing an equal division, may lose that effect when it appears that at the time some fixed line or known boundary or monument divides the premises somewhere near the center, so that the expression more properly refers to one of such parts than to a mathematical division which never has been made. The expression in the deed is controlled by the situation existing upon the premises themselves, and the manner of their use, and the monuments and boundaries existing." People v. Hall, 43 Misc. Rep. 117, 122, 88 N. Y. Supp. 276, 279. See, also, Grandy v. Casey, 93 Mo. 595, 6 S. W. 376; Schmitz v. Schmitz, 19 Wis. 207, 88 Am. Dec. 681. This principle is applied where one of the lines of the government survey effects such a division. Prentiss v. Brewer, 17 Wis. 635, 86 Am. Dec. 730. See, also, Edinger v. Woodke, 127 Mich. 41, 86 N. W. 397; Kinsey et al. v. Satterthwaite, 88 Ind. 342; Turner v. Union Pacific Ry. Co., 112 Mo. 542, 545, 20 S. W. 673. It is not carried so far, however, as to involve an assumption that one who conveys the half of one of the smallest governmental subdivisions—a lot or a "forty”— intends anything else than a division into equal parts. He is not presumed to have in mind a further partition of this surveyor's unit-the smallest "legal subdivision" (Hooper v. Nation, 78 Kan. 198, 96 Pac. 77)-by an extension of the method by which it was created (Cogan v. Cook, 22 Minn. 137, 142; Jones v. Pashby, 62 Mich. 614, 29 N. W. 374). Possibly the rule referred to ought not to apply to tracts that are "fractional" in the sense that they are irregular in shape because of the existence of a body of water or some other like obstacle, so that they can conform to no general rule. Goltermann v. Schiermeyer, 111 Mo. 404, 416, 19 S. W. 484, 20 S. W. 161. But it is rightly invoked in such a case as this, where the only irregularity is that common to practically all tracts along the northern and western boundaries of a township. Lot 4 of section 7 is commonly and intelligibly described as "the southwest quarter of the southwest quarter," just as the "southwest quarter" itself is designated by that term, notwithstanding its area is less than 160 acres. We hold that the deed to "the south half of the southwest quarter" passed title to lot 4 and the south half of the east half of the southwest quar

ROAD TRACK-PLAN OF-DETERMINATION OF
RAILROAD COMMISSIONERS

NESS.

CONCLUSIVE

Unless the board acts arbitrarily or capriciously in such matter its determinations are conclusive.

[Ed. Note.-For other cases, see Street Railroads, Dec. Dig. § 41.*]

5. MANDAMUS (§ 151*)-PARTIES.

The situation here is obviously different | 4. STREET RAILROADS (§ 41*)-CROSSING RAILfrom that presented in Kruse v. Fairchild, 73 Kan. 308, 85 Pac. 303. Here the subdivision of the section is normal, the numbered lots correspond to the usual 40-acre tracts of a full section, and there is no room for doubt as to what is meant by the "southwest quarter." There the section (one of the north tier) contained six lots. That numbered 1 lay north of numbers 3 and 4, and that numbered 2 lay north of numbers 5 and 6. The deed did not describe with technical accuracy the property intended to be conveyed. And, regarding its language as employed colloquially, the phrases "the northeast quarter" and "the northwest quarter" were ambiguous. Whether they were intended to include lots 1 and 2 could not be told with certainty, and the description was therefore

held insufficient.

In a mandamus brought by the state to require a street railway company to construct a subway beneath the tracks of a railroad the city is not a necessary party.

Dec. Dig. § 151.*]
[Ed. Note.-For other cases, see Mandamus,

6. STREET RAILROADS (8 41*)-SUBWAY BE-
NEATH RAILROAD TRACKS LIABILITY TO
CONSTRUCT.

Where a street railway company is operating a continuous line across a city except for a break caused by a number of railroad tracks over which its passengers are transferred the Board of Railroad Commissioners may require

The judgment is affirmed. All the Justices it to construct a crossing below grade. concurring.

[Ed. Note. For other cases, see Street Railroads, Dec. Dig. § 41.*]

(Syllabus by the Court.)

Original application for mandamus by the

STATE ex rel. DAWSON v. PARSONS ST. State, on relation of John S. Dawson, attor

RY. & ELECTRICAL CO. et al.

(Supreme Court of Kansas. Dec. 11, 1909.) 1. STREET RAILROADS (§ 34*) - INJURY TO ABUTTING PROPERTY-NATURE OF REMEDY. If the public officers who are charged with the control of such matters authorize a subway for a car line in a public street, an owner of abutting property, the value of which is thereby diminished, cannot interfere to prevent its construction, however seriously he may be inconvenienced by it. In such case his only remedy, if any, is by an action for the consequential damages.

[Ed. Note.-For other cases, see Street Railroads, Cent. Dig. §§ 87-90; Dec. Dig. § 34.*] 2. STREET RAILROADS (§ 23*) ENLARGING POWER IN STREETS-RIGHT OF LEGISLATURE. The Legislature having paramount authority over public streets may authorize a street car company, which has by ordinance been granted a right to operate only a surface road, to construct a subway beneath the tracks of a railroad. And it may devolve the power to permit and to require this upon the Board of Railroad Commissioners.

[Ed. Note. For other cases, see Street Railroads, Cent. Dig. § 66; Dec. Dig. § 23.*] 3. STREET RAILROADS (8 41*)-SUBWAY UNDER RAILROAD TRACKS-AUTHORIZATION BY RAILROAD COMMISSIONERS.

Under the statute (Laws 1907, p. 426, c. 267, § 1; Gen. St. 1901, § 5974) giving the Board of Railroad Commissioners power to determine whether there is a necessity for the crossing of a railroad track by a street car line, "and, if so, the plan thereof, whether it shall be over or under the existing railroad, or at grade, and in other respects the manner of such crossing," the board can authorize the street railway company to construct a subway in the street of a city beneath the tracks of a railroad company, in accordance with whatever regulations it may see fit to impose, so that they have relation to the safe operation of both roads and are not unreasonable.

[Ed. Note.-For other cases, see Street Railroads, Dec. Dig. § 41.*]

ney for the Board of Railroad Commissioners, to require the Parsons Street Railway & Electrical Company and others to comply with an order that it construct a subway under the tracks of a railroad company. Peremptory writ awarded.

John S. Dawson, for plaintiff. W. D. Atkinson, C. E. Pile, and Albert Emanuel, for defendants.

MASON, J. The Parsons Street Railway & Electrical Company operates a street railway in the city of Parsons. It desired to Cross the tracks of the Missouri, Kansas & Texas Railway Company in a street of that city. It applied to the State Board of Railroad Commissioners, which body, on October 9, 1909, upon due hearing, ordered it to construct for that purpose a subway under the tracks of the railroad, in accordance with certain plans covering all the details of the work, including the approaches. On October 15th a proceeding by mandamus was brought in this court in the name of the state on the relation of the attorney for the Board of Railroad Commissioners to require the street railway company to comply with the order. The defendant answered expressing its willingness to do so if it has the necessary authority, but stating that the city ordinance under which it operates provides that its tracks shall be laid at the grade of the streets. Several owners of property abutting on the site of the approaches shown in the plan have intervened and urge various reasons why a peremptory writ should not be allowed. The cause is submitted upon the pleadings.

The power of the state over the public streets, whether exercised directly by the

.

Kan.)

STATE v. PARSONS ST. RY. & ELECTRICAL CO.

705

Legislature, or through the city council or | sity, place, manner, and time of such crosssome other body, is absolute. La Harpe v. ing or connection; and upon such hearing Gas Co., 69 Kan. 97, 76 Pac. 448; Prince v. either party, or the board, may call and exCrocker, 166 Mass. 347, 44 N. E. 446, 32 L. amine witnesses in regard to the matter; and R. A. 610; 28 Cyc. 287; 15 Cyc. 626. If the the board shall, after such hearing and a public officers who are charged by the stat- personal examination of the locality where a ute with control of the matter have author- crossing or connection is desired, determine ized the subway in question, the owners of whether there is a necessity for such crossthe abutting property have no standing to ob- ing or not, and, if so, the place thereof, ject to its construction on their own account, whether it shall be over or under the existhowever much inconvenience and injury they ing railroad, or at grade, and in other remay suffer from it. None of their property spects the manner of such crossing and the is actually taken, and the only remedy, if terms upon which the same shall be made and any, which the law affords them for merely maintained." Gen. St. 1901, § 5974. By the consequential damages, is by an action for terms of the statute the Board of Railroad compensation. O., O. C. & C. G. Rld. Co. v. Commissioners had power to determine that Larson, 40 Kan. 301, 19 Pac. 661, 2 L. R. A. the crossing should be made at the place in59; City of Leavenworth v. Douglass, 59 Kan. dicated, by means of a subway beneath the 416, 53 Pac. 123; 15 Cyc. 781. The rights of railroad tracks. The rights of railroad tracks. But in addition to this it abutters under somewhat similar conditions also had power to determine the "manner” of are discussed in 1 Lewis on Eminent Domain crossing, and we think this fairly implies the (3d Ed.) §§ 138, 174, 178, 191. Notwithstand- right to make any reasonable requirement ing no relief can be given them in this pro- having relation to the safe operation of both ceeding it is appropriate that the individu- roads, that being a matter committed to its als whose interests are injuriously affected control. 33 Cyc. 296. For instance, the kind should be heard as friends of the court, es- of support to be provided for the surface railpecially as no objection to the work is urged road, and the grade and consequent length of from any other quarter. The city has not the approaches to the subway, are details been made a party, and a majority of the clearly subject to regulation by the board. council approve the proposed plans and pre- Consequently a proper function of the board fer that it shall not intervene. Although the is to decide upon a plan of the work, as has franchise granted by the city to the street car been done in this case, and its decision in the company only authorizes it to lay its tracks absence of exceptional circumstances must be at grade, the Legislature, as the paramount final. Of course if its action had been arbiauthority, can enlarge its power in this re- trary or capricious the courts could afford gard, and this may be done directly or relief. And doubtless the city could insist upthrough some other body. 27 A. & E. Encycl. on compliance with any conditions it might of L. 168, 178; 28 Cyc. 848; Wulf v. Kansas see fit to impose consistent with the requireCity, 77 Kan. 358, 373-375, 94 Pac. 207. ments of the board, for the purpose of minimizing any resulting damage and inconvenience.

The force of the order of the Board of Railroad Commissioners depends wholly upon the statute. In 1907 the jurisdiction of the board was extended to electric lines, which previously had not been under its control. Railroad Co. v. Railroad Commissioners, 73 Kan. 168, 84 Pac. 755. The amended statute concludes with this provision: "This act shall not be construed to apply to electric street or street railway lines operating exclusively within any county, except as to the crossings of any railroad over any other railroad, as provided in section 5974, General Statutes of 1901." Laws 1907, p. 426, c. 267, § 1. The section of the General Statutes referred to, so far as here important, reads as follows: "Any railroad company authorized to operate a railroad in this state desiring to cross or unite its track with any other railroad upon the grounds of such other railway corporation shall make application in writing to the Board of Railroad Commissioners, stating the place of crossing or intersection; whereupon the Board of Railroad Commissioners shall fix a day for the hearing of such application, and notify the railway corporations interested, at which time, unless further time be granted by the board, the corporations interested shall be heard in regard to the neces

The interveners complain of public and private inconvenience that will result from the carrying out of the present plans. The situation presents however merely a problem in engineering. The wisdom of a particular method of construction is for the determination of the railroad board. There is nothing in the record to suggest remotely any abuse of discretion. The court cannot presume to pass judgment upon the fitness of the plans adopted. The interveners also contend that the city should have been made a party to this proceeding and that in its absence there is a defect of parties. Technically in mandamus the only necessary parties are the plaintiff, who asserts the right to have an act done, and the defendant, upon whom the public duty rests to perform it. The practice is common and commendable to bring in other persons who are likely to be injuriously affected by the judgment, in order that theymay have an opportunity to be heard in their own behalf, and in a proper case the court will suspend proceedings until this is done. Livingston v. McCarthy, 41 Kan. 20, 20 Pac. 478. But such procedure is for the protection of the persons so affected. Here no one

authorized to speak for the city asks for a hearing in its behalf, a majority of the officers who by acting together could represent it, disclaim any desire for it to be heard, and it is not apparent that any injury will result to it by the decision. Under these circumstances there is neither a technical nor a practical defect of parties.

MOORE, C. J. This is a motion to affirm a decree. The defendants perfected an appeal in this cause and should have filed a brief in this court not later than October 1, 1909. The plaintiffs' counsel 40 days thereafter interposed this motion, a copy of which was served on defendants' counsel, who have made no showing to excuse their failure to comply with the rules of the court herein, thereby evidencing an intention to abandon the appeal.

The decree should therefore be affirmed; and it is so ordered.

The further objection is made that the plan involves the exclusive use by the railway company not only of the subway itself, but of that portion of the street taken up by the approaches. The most suitable arrangement to be made in this regard is a fair matter for the determination of the railroad board. The statute (Laws 1903, p. 189, c. 122, § 58), giving the mayor and councilmen of cities of the VUILLEUMIER v. OREGON WATER POWfirst class authority to regulate public grounds, contains a prohibition of any exclusive privilege for a railway in a street, but the restriction applies only to acts of the city officials, as it is a limitation of the. power

granted to them.

The final objection that is thought to require specific mention is that the writ ought not to issue because, granting that the street railway company must construct the kind of crossing prescribed by the board or none at all, it is under no public duty to construct any, and therefore is not subject to mandamus in that regard. The allegations of the alternative writ show that the company is now operating a continuous line from one side of the city to the other, save for the break caused by the railroad tracks. This arrangement may be regarded as in effect an operation of the street railway across the railroad by means of a transfer, and it is competent for the Railroad Commissioners to order this method to be changed.

A peremptory writ will be awarded.

SMITH et al. v. SMITH et al.
(Supreme Court of Oregon. Dec. 21, 1909.)
APPEAL AND ERROR (§ 773*)—ABANDONMENT
OF APPEAL-FAILURE TO FILE BRIEF.

Where appellant failed to file a brief on time, and 40 days thereafter appellee moves for affirmance, and appellant makes no showing to excuse his failure, the decree will be affirmed.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3104, 3108-3110; Dec. Dig. § 773.*]

ER & RY. CO.

(Supreme Court of Oregon. Dec. 21, 1909.) 1. DAMAGES (§ 203*)-ASSESSMENT OF DAMAGES INQUEST ON DEFAULT-EVIDENCE.

Defendant, in an action for injury to a passenger on its car having defaulted, may not, on assessment of the damages by the court under B. & C. Comp. § 185, subd. 2, where it may only offer proof in mitigation of damages, lision of the car; the extent of the injury to show that the glass was not broken by the colthe car being immaterial, defendant's carelessness and plaintiff's injury being admitted, and the only question being as to the amount of damages plaintiff sustained.

[Ed. Note. For other cases, see Damages, Cent. Dig. § 526; Dec. Dig. § 203.*] 2. DAMAGES (§ 203*)-ASSESSMENT OF DAMAGES INQUEST ON DEFAULT EVIDENCE.

Nor is it material that one going through the car immediately after the accident saw no one who appeared to be injured, plaintiff in her testimony not claiming to have received any injury that might be visible to the casual observer, and saying that she made no complaint at the time; so that such fact would not tend to contradict plaintiff as to the manner in which she was thrown against the seat in front of her, and as to the extent of her injury.

[Ed. Note.-For other cases, see Damages, Cent. Dig. § 526; Dec. Dig. § 203.*]

-

3. EVIDENCE (§ 128*) -RES GESTE — COMPLAINT OF PERSON INJURED.

Statement of plaintiff, in answer to a question of her physician, some time after the accident, that she was still suffering the pains, is competent.

[Ed. Note. For other cases, see Evidence, Cent. Dig. §§ 383-385; Dec. Dig. § 128.*] 4. TRIAL (§ 46*)-OFFER OF EVIDENCE-SHOWING MATERIALITY.

Plaintiff having admitted consulting C. for treatment, it was not error to sustain objection to the question whether she said anything to witness about having been with C. for treatment, as it cannot be presumed, and the ques

Appeal from Circuit Court, Multnomah tion does not indicate, that the answer would County; W. N. Gatens, Judge.

Action by William C. Smith and others against Benjamin F. Smith and others. Judgment for plaintiffs, and defendants ap- peal. Affirmed.

See, also, 51 Or. 31, 93 Pac. 449.

H. H. Riddell and Jay H. Upton, for appellants. J. T. Lawler and E. T. Taggart, for respondents.

have been material.

[Ed. Note. For other cases, see Trial, Cent. Dig. § 116; Dec. Dig. § 46.*]

5. DAMAGES (§ 199*)-ASSESSMENT
ON DEFAULT-FINDINGS.

INQUEST

On an assessment of the damages by the court under B. & C. Comp. § 185, subd. 2, on default of defendant in an action for personal much plaintiff is damaged, special findings as to injuries, the only question for trial being how the items of damages are not required; section 158 providing that, on the trial of an is