he received a consideration to the extent of, within his control at any time after his attain$651.86, that he had never ratified the trans- ing his majority." Gen. St. 1915, § 6358. action after he became of age, and that he had disaffirmed it by refusing to renew the note in the fall of 1911. Their finding is that the payment of the Decker note and mortgage formed no part of the consideration for the execution of the mortgage to plaintiff; that neither Ambrose nor Peter, his father, authorized Jacob to make an agreement with Madden to pay him a commission of $400, nor to pay the expense of examining the title and the notary's fees. The agreement to pay Madden the comanission of 10 per cent. was in writing and signed by Jacob alone, who receipted for the small balance remaining after the other disbursements of the proceeds.

The Legislature saw fit to declare that a minor shall be bound by all his contracts, whether for necessaries or otherwise, unless, within a reasonable time after he arrives at majority, he shall disaffirm them, and that where there still remains in his control, after he has reached his majority, money or property paid to him by virtue of his contract, he must restore that to the other party. The evidence and the findings show that Ambrose Staab received a valuable consideration for executing the note and mortgage, and it appears, also, from the evidence, that part of the proceeds of the loan went to pay liens against his interest in the real estate. The statute recognizes the common-law rule that, The court made findings of its own to the where the money or property paid to him uneffect that Ambrose Staab had signed the der the contract has been dissipated, restoranote and mortgage before he was of age, and tion is not required of him. Eureka Co. v. disaffirmed his action within a reasonable Edwards, 71 Ala. 248, 46 Am. Rep. 314; time after he had attained his majority. Reynolds v. McCurry, 100 Ill. 356. The law The plaintiff was given a joint judgment is well settled, however, that if liens or against Peter and Jacob Staab for $3,581.12, and against Peter individually for $2,502.18, the two judgments to be a first lien upon their interests in the lands. Judgment for $1,173.49 of the aggregate amount was found to be due plaintiff from Ambrose Staab, which was declared a first lien upon his interest in the real estate. Instead of holding the Decker mortgage to be a first lien on the property described therein, it was lumped together with the subsequent mortgage, which included other lands. The court ordered the interest of Ambrose sold separately to satisfy the separate judgment against him, the interest of Jacob sold separately to satisfy the judgment against him, and a separate sale of Peter's interest sold to satisfy the entire judgment. Aside from the principal errors complained of, it is claimed the court erred in making these orders respecting the sale; that the uncertainty as to the extent of title which a purchaser would obtain will deter bidders. It is further contended that the amount due on the Decker mortgage should have been declared a first lien on the land described therein and that the order should have directed the land to be first sold to satisfy that lien.

In our view, the whole case turns upon the defense raised by Ambrose Staab. The court proceeded upon the theory that the evidence justified a finding that he had disaffirmed the contract after he came of age. If the trial court erred in this respect, the complications and difficulties presented by the order directing the manner of sale disappear. [2] Our statute with relation to the c tract of an infant is different from those in many states. It declares that

"A minor is bound, not only by contracts for necessaries, but also by his other contracts, unless he disaffirms them within a reasonable time after he attains his majority, and restores to the other party all money or property received by him by virtue of the contract and remaining

charges against property belonging to him have been satisfied by the money or property received, and he retains the property, he is considered as having within his control the money or property that went to satisfy the liens. Whether under our statute a restoration of the consideration, or an offer to restore it, is a condition precedent to a disaffirmance by an infant of his contract, need not be determined. On the general question, see note to the case of Craig v. Van Bebber, 18 Am. St. Rep. 588, 594. The statute declares that he is bound unless he disaffirm within a reasonable time after he attains majority. Much learning has been expended by the courts in determining what, in a given case, will constitute a reasonable time in which to disaffirm. It is said to depend generally upon the circumstances of each case, and sometimes becomes a mixed question of fact and law, and sometimes a mere question of law. It has been held that the question of what constitutes a reasonable time is a question of fact for the determination of the court or jury, dependent upon the nature of the action. Wiley v. Wilson, 77 Ind. 596, and Scott v. Buchanan, 11 Humph. (Tenn.) 468. The general rule is that a reasonable time does not in any case extend beyond the period of the statute of limitations (Nathans v. Arkwright, 66 Ga. 179; 22 Cyc. 553), and the weight of authority seems to be that it is always safe for a court of equity to follow by analogy the statute of limitations.

[1] The court was in error in holding that the act of Ambrose Staab in refusing to resign the note after he had arrived at majority constituted a disaffirmance of his contract. While it is said not to be necessary that the disaffirmance shall be by an act or instrument of equal solemnity with the one sought to be avoided, or even that the disaffirmance be in writing, "it is for an infant desiring to avoid his deed, mortgage, etc., to

Kan.)

HARTMAN v. BALDWIN

signify his desire, not only by refraining | disbursements made by Madden, he should
from any act of affirmance, but by perform- have complained, at least in August, 1910,
ing some positive act of disaffirmance, which when a payment of $950 was made on the
is of such a character as to clearly show note.
his intention not to be bound by his act."
22 Cyc. 554.

The failure of all three to object to the manner in which the consideration was paid until more than six years after the transaction must be held to constitute a ratification and consent to the payments.

We think the various errors in the judgment and the orders of sale crept into the case because of the mistaken theory that Ambrose was released from full liability. Being equally liable on the note, and owning the lands as tenants in common, no reason is seen why the three might not pledge the estate as an entirety by their joint mortEach received ingage. 27 Cyc. 1044; and see, also, Hubbard

His mere refusal to comply with a request that he sign the note and mortgage after reaching his majority, was not a disaffirmance of the original contract, which the statute declares was already binding upon him; the statute says nothing about a reaffirmance of the contract. He was already bound by it, unless he announced his election not to be bound. Of course, after reaching his majority, he could, without any statutory provision, have made a new contract by reexecuting the instruments; but merely refus- v. Ogden, 22 Kan. 363. ing a request to do an unnecessary thing individually part of the consideration, and each no wise impeached the validity of the orig- became surety for the others, and it is inal transaction. It is well settled that in clear that the court should have ordered the determining what constitutes a reasonable real estate sold in its entirety. It is clear, time in which a person, who has executed an too, that the mortgage executed by Amelia instrument during infancy, shall disaffirm it, Staab in her lifetime is a first lien on the depends upon the particular circumstances of land described in the mortgage, and that each case, but the authorities agree that the land should have been ordered sold first to statute of limitations furnishes a safe rule satisfy the $1,000 mortgage and interest. in all cases, although under the circumstanc- The plaintiff is entitled, of course, to recover es of a particular case it may be that the taxes paid by him. right should be exercised within a shorter period.

After the disability was removed, Ambrose Staab had one year in which to bring an Civ. action to set aside the instruments. Code, 18; Gen. Stat. 1915, § 6908. He attained his majority on November 5, 1910. His first act toward disaffirming the contract was when he filed his answer on February 1, 1916. He did not elect to disaffirm until more than five years after a cause of action accrued to him, and this cannot be held a reasonable time.

The evidence shows without dispute that the proceeds of the loan was paid out on claims, some of which were against the father and Jacob, some against all three of the Staabs, and others against Ambrose alone. The written agreement with Madden It read: was signed by Jacob Staab alone.

"Hays City, Kansas, Nov. 12, 1909. "We hereby authorize W. J. Madden to procure a loan for us, sufficient to pay all judgments against us and all expenses, and to pay to Ellis county and state of Kansas judgments, and agree to pay W. J. Madden a commission of 10 per cent. for procuring the said loan for us, and authorize the said W. J. Madden and request him to pay the said judgments for us."

The finding that the father and Ambrose had never authorized Jacob to sign the agreement to pay the commission for procuring the loan established no defense; it was not necessary for them to sign it. If one agreed to pay the commission and paid it, the others must be held to have ratified his action, just If eias they ratified the other payments. ther of the three was not satisfied with the

The judgment will be reversed, and the cause remanded, with directions to enter judgment for the plaintiff for the full amount of the notes, with interest, less the partial payment, and for foreclosure of the mortgages and orders of sale as herein suggested. All the Justices concurring.

Nov. 9, 1918.) HARTMAN v. BALDWIN et al. (No. 21240.) (Supreme Court of Kansas.

(Syllabus by the Court.) 1. HIGHWAYS 102-CUTTING OF HEDGE,RIGHT OF ROAD OVERSEER.

ADOPTION OF HEDGE

Under the hedge law (section 4826, Gen. St. hedge after having given the owner only 29 1915) the road overseer has no right to cut a days' notice to cut it. 2. HIGHWAYS 102 LAW-EVIDENCE. The evidence examined, and held sufficient to warrant the finding that the hedge law was adopted by the electors of Douglas county. 3. NEW TRIAL 9-ORDER-STATUTE.

Under section 307 of Code Civ. Proc. (Gen. St. 1915, § 7209), the trial court did not err in on two of the issues only, and ordering that the setting aside the verdict, granting a new trial lished facts in the case. other facts found by the jury stand as the estabAppeal from County.

District Court, Douglas

Action by F. M. Hartman against John Verdict for plaintiff, Baldwin and others. motion for new trial sustained, and plaintiff and defendants appeal. Affirmed.

W. S. Martin, of Overbrook, and Riling & Riling and S. D. Bishop, all of Lawrence, for plaintiff.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

J. S. Amick, Hugh Means, and Raymond F. I for $67, multiplied by 3, $201. The defendRice, all of Lawrence, for defendants.

whether the trees described in the pleadings Walter E. Bliss, of Greeley, and Charles constituted a hedge fence within the meaning F. Tew, of Denver, for plaintiff in error.

of the law and as to the measure of plaintiff's recovery, if any, on which two points alone the new trial was to be had. Section 307 of the Civil Code (Gen. St. 1915, § 7209) provides that:

"A new trial shall not be granted as to any issues in a case unless on the pleadings and evidence offered at the trial and on

the motion for a new trial the court shall be of the opinion that the verdict or decision is wrong in whole or in some material part, and the new trial shall be only of the issues as to which the verdict or decision appears to be wrong, when such issues are separable."

There was considerable evidence on these two issues, and the trial court having considered it, and being dissatisfied with the action of the jury thereon, properly directed that these two matters be submitted to another jury, and thereby followed the plan marked out by the Code.

The defendants contend that the evidence was such that it was the duty of the court to direct judgment for them upon the special findings, but their argument is substantially directed to the sufficiency of the evidence, which, as already appears, was not satisfactory to the trial court.

Robert M. Work and George C. Twombly, both of Ft. Morgan, for defendants in error.

TELLER, J. The plaintiff in error seeks to reverse a decree, entered in a proceeding to adjudicate water rights, upon the ground that the court erred in awarding to it two priorities, with an interval of five years between them, instead of one for the total of the two, and all as of the earlier date.

The first decree is for 700,000,000 cubic feet, with priority as of April 1, 1902, and the second is for 1,805,000,000 cubic feet, of date of August 1, 1907.

Defendant in error the Bijou irrigation district is the principal owner of the Empire reservoir, to which was awarded 1,642,629,890 cubic feet, with priority of date May 18, 1905.

[1] Defendant in error Painter is the owner of the Grand View seepage ditch, which was given 4 cubic feet of water as of date of May 15, 1907. The error assigned as to that part of the decree is not argued, and therefore will not be considered.

The principal attack on the decree is on the ground that it is not supported by the

No substantial error appearing, the ruling evidence. It is contended that the Riverside

is affirmed.

All the Justices concurring.

RIVERSIDE RESERVOIR & LAND CO. v.
BIJOU IRR. DIST. et al.
(No. 8711.)

(Supreme Court of Colorado. May 6, 1918.
Rehearing Denied Dec. 2, 1918.)

reservoir, with capacity to the aggregate of both the priorities awarded to it, was one single project, carried on with diligence from its inception to its completion, and not at one time a completed work, with a subsequent enlargement.

The record contains a mass of evidence as to the manner and the time of doing the work on the reservoir, the inlet and the outlet, as well as evidence by way of contracts con

1. APPEAL AND ERROR 1078(1)-REVIEW-cerning the water rights contemplated, and WAIVER OF ERROR-FAILURE TO ARGUE.

An error assigned, but not argued, will not be considered on appeal.

2. WATERS AND WATER COURSES 152(8) APPROPRIATION-SUFFICIENCY OF EVIDENCE. In proceeding to adjudicate water rights, where decree awarded owners of reservoir two priorities, with an interval of five years between them, instead of one for the total of the two, and all as of the earlier date, evidence held to justify conclusion that original intent of owners was to construct system of irrigation by the storage of water to the extent decreed it as the first appropriation, and that the subsequent work done was by way of enlargement.

statements of the promoters of the project. This included evidence, both written and oral, of admissions by those who were promoting the project and managing the work that the Riverside Company's priority was to antedate that of the Empire reservoir only to the extent of the former's capacity at that time, which was 700,000,000 cubic feet.

[2] From all this it might reasonably be concluded that the original intent was to construct a system of irrigation by the storage of water to the extent later decreed to it as the first appropriation, and that the 3. APPEAL AND ERROR 1011(1)-REVIEW- subsequent work done on it was by way of FINDINGS.

Where there is a clear conflict in the evidence, the Supreme Court will not reject findings of lower court.

Scott and Garrigues, JJ., dissenting.

Error to District Court, Weld County; Robert G. Strong, Judge.

Proceeding to adjudicate water rights between the Riverside Reservoir & Land Company and the Bijou Irrigation District and another. From the decree rendered, the former brings error. Affirmed.

enlargement.

This conclusion is fortified by the fact that the owners, between the dates of the two aptheir propriations, transferred activities wholly to the south side of the river, and built there the Empire reservoir, receiving irrigation district bonds therefor.

[3] The referee found that the last work done on the Riverside system was an enlargement, and not the completion of an incompleted system, and the court approved and confirmed such finding. There being a clear

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

conflict of evidence on that point, we are not at liberty to reject the findings of the court. The judgment is therefore affirmed. HILL, C. J., not participating.

SCOTT, J. (dissenting). I cannot agree with the conclusion of the majority of the court. I am unable to find any material conflict in the evidence, and find that the issue in the case is not one of fact, but of

law. The court did not find, and could not have found, the facts differing in any material degree from what appears in the following statement:

The question to be determined is whether or not, under the conceded state of facts, the Riverside Reservoir & Land Company proceeded with such reasonable diligence in the prosecution of its enterprise, and application of water to a beneficial use, as will entitle it to a single priority dating from the time the trial court fixed its first priority

in the decree now under consideration.

The proceeding is to review an adjudication of priority of water rights for storage as between the Riverside Reservoir & Land Company and the Bijou irrigation district. In the briefs and for convenience here these appropriators will be designated as plaintiff and defendant, respectively. Both divert water from the South Platte river at or near the same point on the stream. The headgate of the Riverside reservoir is located on the north bank, and the Bijou headgate on the south bank, of the river.

The claim of priority of the Riverside is that it has an inlet with capacity of 1,000 cubic feet per second of time leading to the reservoir, a distance of about 12 miles; that the reservoir has a total storage capacity, which may be drawn off through the outlet, of 2,860,000 cubic feet, with three outlet tubes of a total capacity of 1,500 cubic feet per second; that the lands irrigable by means of the several outlets are approximately 150,000 acres. The date of appropriation is claimed as of October 1, 1895. Priority is claimed for 1,000 cubic feet of water per second of time to the extent of an annual storage of 2,505,000,000 cubic feet.

The Bijou irrigation district claims a priority for the Empire reservoir, as of date of November 1, 1901, to the extent of 1,642,629,890 cubic feet. The trial court awarded priorities to these contending systems as follows: (1) Riverside reservoir April 1, 1902, 700,000,000 cubic feet; (2) Empire reservoir, May 1, 1905, 1,642,629,890 cubic feet; (3) Riverside reservoir, August 1, 1907, 1,805,000,000 cubic feet.

as of an intervening date between the first and second awards to Riverside.

There is no question raised as to the date of the priority or capacity awarded to the Empire reservoir, owned by the Bijou district. The contention of Riverside is that its entire award should have been made as of priority at least as early as April, 1902, and that it is entitled to the one total and indivisible award, antedating the priority of the Empire reservoir, for the reason claimed that it prosecuted its construction with due diligence to final completion, with its claimed capacity of 2,505,000,000 cubic feet, with the beneficial use to the lands supplied by

means thereof.

The Riverside Company, at the time of the filing of its statement of claim, had constructed and was maintaining its system as therein claimed, with an inlet of at least 11 miles in length and a capacity of from 750 to 800 cubic feet per second of time, with a reservoir well constructed with a capacity of at least 2,505,000,000 cubic feet, the water rights thereof disposed of, with one outlet supply ditch of about 100 miles in length, in addition to other outlet supply ditches and that the cost of the system was approximately $1,000,000.

The only question is: Was the system from its inception constructed with such diligence and continuity of acts and purpose as to entitle it to a single priority, and as an entirety, antedating that awarded to the Empire reservoir? That the conception and purpose of the promoters from the beginning was to construct such an irrigation system. and in substantial conformity with that now completed and in operation, very clearly ap

pears.

Mr. D. A. Camfield in every step was the directing and controlling force, whether acting as an individual or as the president and manager of succeeding corporations, from the commencement to the end. He seems to have conceived the undertaking, to have financed it, and to have directed the construction to the point of completion.

On January 27, 1896, in conjunction with George H. West, he filed map and statement pertaining to the Sanborn, now Riverside, and other reservoirs, in which it was claimed that work commenced by survey on one of these, Pawnee Pass reservoir, May 11, 1895, and that the statement was made as amendatory and supplemental to a former survey.

On July 1, 1896, these same persons, in connection with one Walker, filed another map and statement of the Pawnee Pass reservoir systems, showing extension of the sysIt will be seen that both were awarded tem and Sanborn or Riverside reservoir, in the entire capacity claimed, but that the prior- substantial conformity with its present locaity of the Riverside, under its first decreed tion, together with other ditches, and wherepriority April 1, 1902, was limited to 700,- in it was recited that the statement and 000,000 cubic feet, and that the Empire reser- survey was supplemental to that filed on