saying it would be easy to do, and they could take her in partnership. Hinkle declined, and appellant then said he was going to get the cow, maybe put a diamond B brand on her, and take her up to old man Moon's, and she would make a good milk cow. Hinkle further stated that on the day preceding the trial he had talked with appellant in regard to what his testimony in the case would be, and appellant told him to keep still about the previous conversation, and say nothing about it. After leaving the county attorney's office, he saw appellant, and related his conversation with the state's attorneys. Appellant told him it made no difference what he said in the county attorney's office, and that he should say when on the witness stand that he knew nothing about the original conversation. In the course of the forenoon, as he had done the previous day, the witness drank "malt" at McCoy's and "Bob's," the effects of which he still felt when placed on the witness stand in the afternoon. He was a young laboring man, but 20 years old, without a home, without relatives in the community, and had never before been a witness in court. When examined concerning appellant's proposition to him to steal the cow, he denied that it had ever been made, and denied having any conversation with the defendant relating to the cow. Likewise he denied having a conversation with appellant on the day before in reference to what his testimony should be. The jury was temporarily excused while the county attorney made a statement of the facts to the court, and upon their return the court, over appellant's objection, permitted a rigid cross-examination of the witness by the state, which included all that occurred at the county attorney's office in the morning. The witness gave an explanatory version of that transaction, and remained firm in his denials. After he was excused he was arrested for perjury and placed in jail. In the evening, after the evidence in the case had been closed, he sent for the attorneys for the state, and, without inducement or promise on their part, offered to go upon the witness stand and tell the truth as he had told it to them before. Over the objection of appellant, the case was reopened, and the witness made a full and sweeping disclosure of all the shameful facts. The conduct of the county attorney and the district court in these proceedings is denounced in very vigorous terms in the brief for appellant. In an effort to make it appear that the law was quite impotent in this matter, and that all efforts to investigate so brazen an attempt to burlesque a criminal trial should have been smothered at once, it is said, flat, that the county attorney was not surprised. Conceding to that officer perfect imperturbability in the presence of Hinkle's conduct, it is still quite plain that he was entrapped, that he had the right to anticipate different testimony, and that the witness had become decidedly hostile; and these cir

cumstances are sufficient to bring the case within the rule relating to the cross-examination of its own witnesses by the state heretofore announced by this court. In the case of State v. Sorter, 52 Kan. 531, 34 Pac. 1036, the following language was used: "The permission granted counsel for the state to crossexamine one of their own witnesses is a matter of complaint. As a general

rule, a party cannot impeach his own witness, nor interrogate him with a view to affect his credibility merely. Neither can he introduce other evidence for that purpose. But while he may not impeach him, he is not conclusively bound by the statements which he may make. And where a party has been entrapped or deceived by an artful or hostile witness, he may examine the witness as to contrary declarations, and may, in the discretion of the court, be allowed to show what such contrary declarations were. In Johnson v. Leggett, 28 Kan. 605, it was held that 'the matter is left largely within the discretion of the trial court; that that court may, when it thinks the interests of justice require, permit a party to show that he is unexpectedly mistaken in the testimony of any witness, that he had good reason to expect other testimony, and what such other testimony would be.'” See, also, Selover v. Bryant, 54 Minn. 434, 56 N. W. 58, 21 L. R. A. 418, 40 Am. St. Rep. 349, and note, where numerous authorities sustaining this rule are collated. The rule relating to the right of the district court, in furtherance of justice, to open a case for additional testimony, is elementary in the law, and requires no fortification by authority. In cases of this character, as in all others. the judge of the district court sits as an impartial arbiter between the state and the accused. The conduct of the witness is displayed in his presence. He can best determine whether it savors of mendacity and treachery, and warrants searching cross-examination, and he can best estimate the necessities of the situation with reference to a subsequent reopening of the case. The law trusts him to do this, and nothing but a clear overstepping of the limits of judicial propriety could induce this court to interfere with his management of a proceeding of such delicacy and gravity. Reverence for the majesty and supremacy of the law, the obligation of the individual to organized society, and the sense of responsibility and accountability to the Supreme Power of the universe, all impregnate the oath of a witness in court. Oaths are primary and fundamental safeguards in the quest for truth in courts of justice, and should be attended by all their ancient sanctity. Perjury is the gangrene of judicial proceedings. It is believed by observant and thoughtful lawyers to be increasing at an alarming rate (Address of J. J. McCarty, as president of the Iowa State Bar Association. 35 Am. Law Rev. 684), and prompt and dili gent efforts should always be made to cleanse the administration of the law of its perni

cious and polluting presence. Therefore, under the facts disclosed, the county attorney is to be commended for his quick arrest and incarceration of the witness Hinkle. Hinkle was taken into custody without any expectation of using him as a witness again, and the case was closed without doing so. Without proof, the law will not tolerate an inference that he returned to the witness stand through any improper inducement or official misconduct on the part of the state's attorneys, and there is no hint of any such proof in the record. Doubtless detention in jail materially helped to clarify his benighted mental and moral vision, but it did not destroy his competency as a witness. It, only affected his credibility, and all the rueful facts of his degradation were confessed to the jury. Facts were disclosed tending to show that, besides being sinful, he was probably sinned against by persons interested in the defense. His weakness and ignorance were probably imposed upon, and, despite his false swearing, the jury had the right to believe from his evidence that the defendant had proposed to steal the property in question, had announced his intention to consummate the crime, and had on two occasions attempted to frame perjured testimony in order to thwart conviction. The conduct of the court in opening the case is fully approved.

Certain instructions complained of were applicable to the evidence, and correctly stated the law. The oral request of the appellant that the court should "instruct the jury as to the law of identity" was of no legal effect as a request for an instruction. The instructions given fulfilled all the requirements of the statute.

The judgment of the district court is affirmed. All the Justices concurring.

(71 Kan. 324)

HARRISON v. NEWMAN, County Clerk, et al. (Supreme Court of Kansas. April 8, 1905.)

MUNICIPAL CORPORATIONS-OPENING ALLEYSNOTICE TO LANDOWNERS-ASSESSMENT.

1. The notice required by section 160 of the act relating to cities of the first class (chapter 122, p. 223, Laws 1903) to be given by the appraisers appointed to assess damages and benefits incident to the opening of an alley is a substitute for the notice required by section 161a of the same act to be given by the appraisers appointed to assess damages in condemnation proceedings generally.

2. A requirement that at least three days' notice in the official city paper shall be given of the meeting of the appraisers in condemnation proceedings is satisfied by the publication of a notice in one issue of such paper nine days before the time set.

(Syllabus by the Court.)

Error from District Court, Shawnee County; Z. T. Hazen, Judge.

Action by T. W. Harrison against A. Newman, county clerk of Shawnee county, and others. Judgment for defendants, and plaintiff brings error. Affirmed.

T. W. Harrison, for plaintiff in error. Chas. F. Spencer, for defendants in error.

MASON, J. This proceeding originated in an action challenging the validity of proceedings taken by the city of Topeka to condemn land for use as an alley. The landowner sought to enjoin such proceedings, but was denied relief, and now prosecutes error.

The principal controversy turns upon the construction to be given to sections 160, 161, 161a, and 162 of the act relating to cities of the first class (chapter 122, pp. 223–225, Laws 1903). Section 161 merely confers the right upon cities to condemn private property for public uses, including that here involved. Section 161a provides for the appointment of appraisers in condemnation proceedings, and for the assessment of damages by them. after the giving of notice of the time and place of their meeting to owners of property affected; personal notice being required in the case of residents. Section 162 relates to the manner of payment of the amounts awarded, and gives a right of appeal. Section 160 provides that when a city appropriates private property for certain stated purposes (including the opening of an alley) the appraisers appointed shall ascertain the value of the land taken and the damages to other property, and apportion the total in accordance with their judgment, charging against the city the amount of benefit to the public, and against each piece of property within a benefit district fixed by ordinance a due share based upon the extent to which it is peculiarly advantaged; and that they shall give at least three days' notice in the official city paper of the time and place of their meeting for the assessment of damages and benefits. The vital question is whether the notice provided by section 160 is a substitute for that prescribed in section 161a, or is required to be given in addition to it. The plaintiff insists upon the latter construction. If the statute were an original enactment, this contention would derive some plausibility from the order in which these sections ocEach of the four sections cited, however, is but a re-enactment of a prior section without any very significant change. Sections 161, 161a, and 162 are substantially the same, respectively, as sections 30, 31, and 32 of chapter 37, pp. 93, 94, of the Laws of 1881, appearing as sections 578, 579, and 580 of the General Statutes of 1889, and as sections 754, 755, and 756 of the General Statutes of 1901. The prototype of section 160 was section 1 of chapter 40,- p. 81, of the Laws of 1891, which, as amended by section 1 of chapter 108 of the Laws of 1901, is printed as section 908 of the General Statutes of 1901. When this section was first adopted the sections corresponding to sections 161, 161a, and 162 had been long embodied in the statute. It was obviously to be construed in connection with them. It assumed the existence of a general procedure for the condemnation of

cur.

private property for public use, under which appraisers were appointed to assess damages only, after giving notice in a particular way of the time and place of their meeting. It provided that in certain cases-as in the opening of an alley--the appraisers should assess both damages and benefits after giving notice in a different way. The fair con'struction seems to be that it was not intended that two kinds of notice should be given, but that in cases to which the later statute applied the notice therein described should be sufficient for all purposes. There is nothing in the act of 1903 that suggests a design to change the effect of the old law in this regard. Indeed, one additional clause inserted in the new act has a decided tendency to the contrary. The original section to which section 161a corresponds' by its terms applied to all cases of the condemnation by the city of private property for public use, and at the time of its enactment it did have such a general application. Afterwards a different procedure was authorized where an alley was to be opened, as now set out in section 160. Accordingly this restriction of the application of the provisions of section 161a is recognized by inserting in it the words "except as herein otherwise provided." We conclude that the only notice required to be given in the present case was that provided in section 160.

The only notice in fact given was by a publication made in one issue of a daily paper nine days before the meeting of the appraisers. Plaintiff claims that this was not a compliance with the requirement of section 160, and argues that "three days' notice in the official city paper means three publications on three separate days in that paper." We do not think this a correct interpretation. A three-days notice of a meeting is a notice given three days before the meeting is to be held. One publication in a daily paper is a notice, and if it is made three days in advance of the time set it is a three-days notice. Philadelphia, W. & B. R. Co. v. Shipley (Md.) 19 Atl. 1. Similar phrases are of frequent occurrence in the statutes in such connection as to admit of no other construction. Where a continuous publication is intended this is indicated by the requirement that it shall be made "for" a stated time, or by some equivalent expression. See Whitaker v. Beach, 12 Kan, 492.

Various other assignments of error have been argued and considered, but are not thought to require discussion.

The judgment is affirmed. All the Justices concurring.

against surface waters to protect his own property, thereby causing such waters to remain on or flow over the lands of another to his damage.

[Ed. Note. For cases in point, see vol. 48, Cent. Dig. Waters and Water Courses, § 128.] (Syllabus by the Court.)

Error from District Court, Cherokee County; W. B. Glasse, Judge.

Action by Carrie Merritt against W. G. Bryant. Judgment for plaintiff, and defendant brings error. Reversed.

E. M. Tracewell and S. C. Westcott, for plaintiff in error. C. A. McNeill and E. E. Sapp, for defendant in error.

GREENE, J. Carrie Merritt was the owner of a small tract of land in the city of Galena, upon which she erected a building, and placed therein an engine, boiler, and pipes, for the purpose of operating a greenhouse. In 1889 the defendant purchased the adjoining lots, and erected and put in operation a foundry and machine shop thereon. The present action was brought by Carrie Merritt to recover damages alleged to have been sustained (1) to her real estate by the defendant having filled up his lots so that the surface water flowed by defendant's premises and onto that of plaintiff; (2) for the total destruction of her property as a greenhouse by steam, hot air, gas, and cinders being emitted from said foundry and cast into and upon her building, thereby rendering it wholly useless for growing bulbs and plants; (3) for loss of certain plants and bulbs which she had in stock, and which were killed by the hot air, gas, steam, and cinders being cast upon them by the defendant in the operation of his foundry and machine shop. Plaintiff recovered judgment, and defendant prosecutes error.

The serious question raised by plaintiff in error grows out of his contention that plaintiff was permitted to recover damages to her real estate occasioned by surface water which flowed over her premises after the defendant had filled up his lots. To meet this contention, the defendant in error urges that damage for such injury was not submitted to the jury on the trial of the cause, and was not an ingredient or element considered by them in determining the damage to plaintiff's real estate. The question really is, was such element of damage before the jury? Pertinent to this inquiry, the following allegations are found in plaintiff's petition: "That by reason of said erection of said foundry and its adjacent buildings, all by and adjacent to the property of this plaintiff, and the throwing up of a large amount of dirt in and about the same, the water that would have naturally passed away from plaintiff's premises without injury to same, and into the sewer, was diverted from its regular course, and, each and every time a rain of any magnitude would fall, would cause the water to back up and run over said

premises, and said water, together with said smoke, fire, heat, cinders, and gas and steam, descended upon plaintiff's premises to that extent and degree that the same became a nuisance, and that it had been carried on in said manner for a period of about fifteen months." At the trial the plaintiff testified as follows: "Q. You spoke awhile ago of them throwing up some dirt or some embankment. Where was that? A. Up next to the railroad track. Q. What effect, if any, did that have upon your property? (Question objected to on the ground that it is incompetent, irrelevant, and immaterial, which objection was by the court overruled, to which ruling of the court the defendant then and there excepted.) A. It stopped the chance to drain off the water that came down through there. There was an open sewer south side of the track that carried off all the water, and I was not troubled with that until after they did that, and then the walks would sink and rise halfway up the grade. Before that I was not troubled with water, and it was impossible- No matter how cold the weather was, I could not have a fire." Defendant's counsel moved to strike out this answer, which was overruled, and excepted to. Testifying further, she made answer as follows: "Q. You say it ran from the railroad track over your ground? A. Yes, sir. Q. When? A. In the same fall after the foundry was built there. Q. How many times did it do that? A. Every time we had a rain that amounted to anything. Q. Where did the water come from? A. From the east and down through the lumber yard, and it raised up there until it overflowed my place. Q. It came around the lumber yard? A. Yes, sir; it came through the lumber yard. You understand the ground is filled up farther than my place, and the water came from that way and came in." The defendant made the following application to the court: "We now ask that the court strike out and take from the jury all of the testimony which was introduced here yesterday on the question of water overflowing the land of the plaintiff, for the reason that the testimony shows that the only water which did overflow her land was mere surface water, and for that reason we say that should not be considered by the jury in determining the question of damages as to the real estate of this plaintiff." This motion was overruled. After stating the nature of plaintiff's business, and the proximity of her premises to that of defendant, and the claim made by plaintiff, the court further informed the jury as follows: "The defendant erected on his premises adjacent to hers on the south a foundry and machine shops, and, in conducting them, so raised the ground on his premises as to turn on her premises the flow of surface water, which had theretofore flown in a direction away from her premises, and then so conducted his business at such foundry and machine shops as

to create great quantities of smoke, soot, cinders, steam, and gas, which were carried and wafted over on and into her green or hot house, and destroyed more than $100 worth of her plants and flowers, and greatly injured the balance, and to the extent that her business was destroyed, and, further, that the operation of said foundry and machine shops made disagreeable noises, all which rendered her premises unfit and useless for the purposes for which she had fitted and used them, and depreciated the value of her real estate to the extent of $1,500, and she was compelled to abandon her premises and remove to another city, at great expense. The expense incident to such removal is not, however, a matter for your consideration." We think the liability of the defendant for damages to the plaintiff for injuries resulting from the surface water was before the jury, and, as the case was submitted to them, they were at liberty to find for plaintiff for any damages they thought she had sustained thereby. Under the well-settled rule in this state, no liability is incurred for turning surface water onto the premises of another, or for damming against such water. Mo. Pac. Ry. Co. v. Keys, 55 Kan. 205, 40 Pac. 275, 49 Am. St. Rep. 249; Singleton v. Railway Co., 57 Kan. 284, 72 Pac. 786. We think this question should not have been submitted to the jury, and for this error the judgment must be reversed.

(71 Kan. 276) CHEROKEE & P. COAL & MINING CO. v. BOARD OF COM'RS OF CRAWFORD COUNTY et al.

(Supreme Court of Kansas. April 8, 1905.)

TAXATION -MINERALS IN EARTH PROCEDURE. 1. Chapter 244 of the Laws of 1897 (Gen. St. 1901, § 7583), which provides for the assessment and taxation of minerals in the earth when the ownership of them is in one person, and the fee to the surface of the land is in another, should be construed as a part of the general tax law of the state, and thus be supplied with provisions for its enforcement.

2. Minerals in the earth are real estate, and, when the owner of them has not the fee to the surface of such land, they should be separately assessed and taxed.

[Ed. Note. For cases in point, see vol. 45, Cent. Dig. Taxation, § 147.]

(Syllabus by the Court.)

Error from District Court, Crawford County; Walter L. Simon, Judge.

Action by the Cherokee & Pittsburg Coal and Mining Company against the board of commissioners of the county of Crawford and others. Judgment for defendants, and plaintiff brings error. Affirmed.

A. A. Hurd, O. J. Wood, and G. W. Hurd, for plaintiff in error. J. M. Wayde and D. H. Woolley (W. J. True, of counsel), for defendants in error.

GREENE, J. The plaintiff is the owner of the minerals in certain lands in Crawford county, and was such owner in 1898. The fee to the surface of such lands was then and is now in others. In that year the minerals were assessed for taxation, and the taxes regularly extended on the tax rolls of Crawford county. In 1899 the county treasurer sold these minerals for the unpaid taxes of 1898, and issued tax-sale certificates therefor to the purchasers. In the spring of 1902 he published the statutory notice of final redemption and deeds to be issued on the 6th day of September, 1902. This suit was brought to restrain the treasurer from executing such deeds. The defendants filed a demurrer to the petition, which was sustained, and the plaintiff prosecutes error.

The petition, in its allegations of fact, was sufficient to cover all the contentions made by plaintiff in error, one of which is that the attempted assessment of such taxes and the extension thereof on the tax rolls by the county clerk were unauthorized. is no claim of irregularity.

There

It is contended that the minerals so assessed as the property of plaintiff were parts and parcels of the several tracts of land under the surface of which the minerals were deposited, and that each of these tracts was duly assessed as real estate for the year 1898 at its full value, and as high as other mining lands in that vicinity; that the taxes on the lands of plaintiff were fully paid for the year 1898; and that the valuation and assessment of the surface was in excess of the fair value of the land. The statute which provides for taxing this character of property reads: "That where the fee to the surface of any tract, parcel or lot of land is in any person or persons, natural or artificial, and the right or title to any minerals therein is in another or in others, the right to such minerals shall be valued and listed separately from the fee of said land, in separate entries and descriptions, and such land itself and said right to the minerals therein shall be separately taxed to the owners thereof respectively. The register of deeds shall furnish to the county clerk, who shall furnish on the first day of March each year to each assessor where such mineral reserves exist and are a matter of record, a certified description of all such reserves: provided, that when such reserves or leases are not recorded within ninety days after

execution, they shall become void if not listed for taxation." Laws 1897, c. 244; Gen. St. 1901, § 7583.

Plaintiff contends that this act is void because it provides for an unequal and inequitable valuation and assessment. Its counsel construe the act to mean that, when the fee to the surface of the land and the minerals thereunder are in one person, the minerals are not taxable; that it is only when the fee is in one person, and the ownership of the minerals in another, that they are subject to taxation. We do not so construe the act. The act in question does not repeal any of the tax laws in existence at the time of its passage, and is not intended as a substitute for any of the provisions of the general tax law. In prior laws provi sions are found for the valuation and assessment of lands at their full value for the purpose of taxation. Such valuation should include the minerals when they are owned by the person who has the fee to the surface. Such laws were not changed by the present act. Tax laws are the growth of experience and the development of property. Changes must be made from time to time by amendments, repeals, alterations, or additions as new conditions require, in order that all classes of property may be required to bear a just proportion of the public burden. The act under consideration was passed to meet a newly developed class of property or division of ownership of real estate in Kansas, by which lands came to be divided horizontally, as it were. But for this provision, it would be possible for a very large and highly valuable class of real estate to escape taxation.

It is also contended that the act contains no provision for the ascertainment of the value of this class of real estate for the purposes of taxation. This suggestion is equaliy applicable to the taxation of real estate generally, in which the ascertainment of values is left to the judgment of the assessor. The idea suggests itself that, if the value of the minerals in the earth be ascertainable for the purpose of purchase and sale, it should not be difficult to arrive at their assessable value.

Contention is made that the owner of the fee paid the taxes on these lands for the year 1898 at their full, assessed value, and that the assessment of the minerals to the plaintiff is in excess of the fair value of the land. This is a question that does not concern the plaintiff. If the owner of the fee paid taxes in excess of the fair value of the lands, he should have applied to the county board of equalization for a rebate. In the case of Wren v. County of Nemaha, 24 Kan. 301, 305, it was said: "All statutes in pari materia are to be read and construed together, as if they formed parts of the same statute and were enacted at the same time." See, also, Bland v. Jackson, 51 Kan. 496, 33 Pac. 295. The act in question having been