Leavenworth county.

Afterwards, the plain-, tiffs became the owners of lots 17 and 18 by conveyance from the insurance company, and were the owners thereof at and before the commencement of this action. In 1887 James L. Byers and Elizabeth Mayo, the present owners of lots 19 and 20, obtained title of these lots by sheriff's deed under a decree of foreclosure. Lewis Mayo is the tenant of the premises under James L. Byers and Elizabeth Mayo. After the insurance company became the owner of lots 17 and 18 under its sheriff's deed of the 19th of December, 1873, M. S. Grant had no further title, right or interest in the east wall on lot 18. He was barred of all title, right, and interest after the sheriff's sale of the premises, and the execution of the deed. The decree of foreclosure under which James L. Byers and Elizabeth Mayo obtained title in 1887, was upon a foreclosure of a mortgage given in 1874, after the execution of the sheriff's deed to lots 17 and 18, of the 19th of December, 1873, to the insurance company. Therefore, James L. Byers and Elizabeth Mayo purchased lots 19 and 20 with notice of the title of the insurance company to lots 17 and 18, and that the sheriff's deed to lots 19 and 20 gave them no title, right, or interest to any part of lot 18, or the building or improvements thereon. The stone foundation and the brick wall erected on lot 18 by M. S. Grant, together with so much of the joists as were put up by him in the east wall on lot 18, became the property of the insurance company, the defendants not being the owners thereof by their purchase at the sheriff's sale of lots 19 and 20. This the defendants seem to have admitted upon the trial, because they offered to quitclaim to the plaintiffs all their interest, if any, in lots 17 and 18, and in the wall of the east line of lot 18, and also offered to pay all the costs up to the time of making the offer. It also appears from the record that the sheriff's sale of lots 17 and 18 to the Insurance company took place on the 6th of December, 1873,-more than 14 years and 10 months before the commencement of this action. If the plaintiffs had delayed a few days longer in the bringing of their action, it would have been barred by the 15-years statute of limitation. In view of all the facts, the trial court committed no error in refusing to render further judgment enjoining or restraining the defendants. Rankin v. Charless, 19 Mo. 490; Abrahams v. Krautler, 24 Mo. 69. The defendants, having no interest in the holes or joists in the east wall of lot 18, nor any interest in so much of the joists as are within the east wall, cannot be required to fill up the holes, or take the joists out. All of the wall belongs to the plaintiffs, not to the defendants. Therefore, the judgment goes further than necessary. Of course, in the enforcement of the judgment of the trial court, neither the plaintiffs, nor their agents or servants, have any right to enter upon lots 19 or 20, or to negligently, recklessly, or wan

tonly injure the building on those lots. Under the sale of lots 17 and 18 upon the decree of foreclosure, and the judgment in this case, the plaintiffs are entitled to their "pound of flesh," but "no jot of blood." The judgment declares the plaintiffs "are the owners of lots 17 and 18, with all the walls, buildings, and improvements thereon, up to the east line of lot 18, and that they are entitled to the possession thereof." This includes the holes in the east wall of the brick building on lot 18, and all of the joists in the wall.

If there shall be any trouble between the plaintiffs and defendants about the severance or cutting of the joists between the buildings on lots 18 and 19, a court of equity, upon application therefor, will give such relief in the premises as the plaintiffs are entitled to. If the plaintiffs, being the owners thereof, desire to take down or repair the east wall on lot 18, or any part thereof, so as to affect in any way the building on lot 19, under the circumstances disclosed in the record, sufficient notice ought to be given to the defendants.

The general principle is that every owner has absolute dominion over his own property, and therefore the plaintiffs, as owners of lots 17 and 18, and the building and improvements thereon, have the natural right to the use of the same in their own way; but the right of an owner to use his own land in any way he desires, or to take down or change any foundation or wall or other improvement, without being answerable for the consequent injury to his neighbor's house, is subject to the qualification that he must exercise due care and skill-and that he will be liable in damages if the injury to his neighbor is occasioned by the negligent and unskillful manner in which the work is performed. Moody v. McClelland, 39 Ala. 45.

A cross petition has been filed by the defendants, making complaint of the rulings and judgment of the trial court. It appears that the judgment was rendered on the 10th of May, 1890. The plaintiffs filed their petition in error in this court on December 16, 1890,-about seven months after the judgment. The cross petition was not filed in this court until April 24, 1894,-nearly four years after the motion for a new trial was overruled, and the judgment rendered. Errors complained of by a defendant in error will not be considered in this court when he fails to file a cross petition in error. Hanna v. Barrett, 39 Kan. 446, 18 Pac. 497. The filing of a cross petition is the commencement of a proceeding in this court, at the instance of the party filing the same, to reverse or modify an order or judgment of the trial court. Such a proceeding must be commenced within one year after the rendition of the judgment or the making of the order complained of, unless the party is under disability. The proceeding to reverse or modify the judgment upon the cross petition has been commenced in this case more than a year after the rendition of

the judgment complained of, and therefore such cross petition has been filed too late. As the plaintiffs have no cause of complaint against the judgment rendered, it will not be changed or reversed at their instance. The prayer of the petition in error of plaintiffs will therefore be refused. All the justices concurring.

(54 Kan. 259)

WICHITA & W. R. CO. et al. v. THAYER

et al.

(Supreme Court of Kansas.

Nov. 10, 1894.) CONDEMNATION PROCEEDINGS-EFFECT ON MORTGAGEE'S INTEREST.

Condemnation proceedings for a right of way for a railroad, which are regular and legal, and in which the award made is deposited as the statute requires, vest a complete easement in the railroad company as against the owner and any mortgagees who may have liens upon the land from which the right of way is appropriated. Railroad Co. v. Sheldon, 35 Pac. 1105, 53 Kan. 169.

(Syllabus by the Court.)

Error from district court, Kingman county; S. W. Leslie, Judge.

Action by W. F. Thayer to foreclose a mortgage upon certain lands, in which the Wichita & Western Railroad Company was made defendant because of its having previously obtained a right of way over the lands by condemnation proceedings. On judgment for plaintiff, the defendant railroad company brings error. Reversed.

A. A. Hurd and Robert Dunlap, for plaintiff in error. Cook & Gossett, for defendants in error.

JOHNSTON, J. W. F. Thayer, who was the owner of a mortgage upon land, brought an action to foreclose the same. Two railroad companies that had by condemnation proceedings obtained a right of way over the land after the mortgage was executed were made parties. It appeared that the condemnation proceedings were regular and legal. An award was made for right of way in favor of the owner of the land, which was paid to the county treasurer, who in turn paid it to the landowner that had executed the mortgage. No award was made to the mortgagees, nor have they received any portion of the award which was made to the mortgagor. Under these facts and the decisions that have been made, the mortgagee was not an owner of the land, nor of an estate therein, and the railroad companies by the condemnation proceedings obtained a complete easement free from the lien of the mortgage. Goodrich v. Commissioners, 47 Kan. 355, 27 Pac. 1006; Rand v. Railway Co., 50 Kan. 114, 31 Pac. 683; Railroad Co. v. Sheldon, 53 Kan. 169, 35 Pac. 1105; Clement v. Railway Co., 54 Kan. - 37 Pac. 133. It follows that the judgment of the district court must be reversed, and the cause remanded with instructions to enter judgment up

on the agreed statement of facts in favor of the plaintiffs in error. All the justices concurring.

(54 Kan. 202)

CHICAGO, R. I. & P. RY. CO. v. HUBBELL. (Supreme Court of Kansas. Nov. 10, 1894.) CARRIERS-DISCRIMINATION IN FREIGHTS-MISTAKE OF AGENT.

1. A contract for the transportation of freight from a point in Missouri to a point in Kansas for a rate less than that demanded and collected from other persons for a like service at the same time, where the usual rate is not unreasonable nor excessive, violates the provisions of the interstate commerce act, and is utterly void.

2. The fact that a special rate was offered the plaintiff by mistake of the agent of one of two connecting lines of railroad cannot give any added force to the contract. A contract made by mistake can have no greater validity than one intentionally entered into.

3. A joint tariff rate of $2.70 per ton on shipments of coal between Richmond, Mo., and Mankato, Kan., had been agreed on, and was in force and in use, by the St. Joseph, St. Louis & Santa Fe Railroad Company, which operated a line from Richmond, Mo, to St. Joseph, Mo., and the Chicago, Rock Island & Pacific Railway Company, which operated a connecting line from St. Joseph, Mo., to Mankato, Kan. The agent of the first-named company by mistake quoted the plaintiff a rate of $1.70 per ton on car-load shipments of coal from Richmond to Mankato. The plaintiff thereupon shipped 10 car loads. Held, that the Rock Island Company is in no manner affected by such mistake, but is entitled to collect the full customary rate, there being no pretense that such rate is excessive or unreasonable.

(Syllabus by the Court.)

Error from district court, Jewell county; Cyrus Heren, Judge.

Action by John W. Hubbell against the Chicago, Rock Island & Pacific Railway Company to recover possession of coal held for freight charges. From a judgment in favor of plaintiff, defendant brings error. Modified.

The defendant in error, John W. Hubbell, who was plaintiff below, is a dealer in soft coal at Richmond, Mo. About the 1st of August, 1889, he applied to the agent of the St. Joseph, St. Louis & Santa Fé Railroad Company at Richmond for special rates on coal to Mankato, Kan. Being informed by the agent that he had no special rate, Hubbell wrote to the general agent, asking for a rate. He received in answer a letter quoting a rate of $1.70 per ton. He thereupon, on the 12th of August, shipped 10 car loads, containing in all 250 tons, consigned to himself at Mankato. The regular rate on coal between Richmond and Mankato was $2.70 per ton, and the quotation was made through a mistake of the stenographer in writing the letter to the plaintiff. The waybills were made out showing the rate $2.70 per ton. Under a joint tariff agreement in force between the St. Joseph, St. Louis & Santa Fé Company and the plaintiff in error, 75 cents per ton was the share to which the Santa Fe was entitled, and the balance belonged to the

Rock Island. The Rock Island paid the Santa Fé Company its proportion of the charges. When the coal reached its destination, the plaintiff tendered the amount of freight, computed at the rate of $1.70 per ton. This tender being refused, he brought this action to recover possession of the coal. The case was tried to a jury, who by their general verdict found that the defendant had a special ownership in the property of $487.50. They also returned answers to special questions as follows: "First. Over what lines of railway did the coal in controversy pass in transit from Richmond, Missouri, to Mankato, Kansas? Ans. Over the St. Joseph, St. Louis & Santa Fé Railroad from Richmond, Missouri, to St. Joseph, Missouri, and over the Chicago, Rock Island & Pacific Railway from St. Joseph, Missouri, to Mankato, Kansas. Second. What was the date of shipment of said coal, and when did it arrive in Mankato, Kansas? Ans. It was shipped on the 12th day of August, A. D. 1889, and part of it arrived in Mankato, Kansas, on the 13th, part on the 14th, and the remainder on the 15th of August, 1889. Third. At the time of the shipment of said coal was there in force a joint tariff of rates for the transportation of coal from Richmond, Missouri, to Mankato, Kansas, established by the St. Joseph, . St. Louis & Santa Fé Railroad Company and the Chicago, Rock Island & Pacific Railway Company? Ans. Yes. Fourth. If you answer the last question in the affirmative, then what was the tariff rate on coal from Richmond, Missouri, to Mankato, Kansas, as shown by such joint tariff? Ans. Two dollars and seventy cents. Fifth. If there was a joint tariff in force at the time of the shipment of the coal in controversy, fixing the tariff on coal from Richmond, Missouri, to Mankato, Kansas, did the plaintiff know of the existence of such joint tariff at the time he shipped the coal in question from Richmond, Missouri, to Mankato, Kansas? Ans. No. Sixth. At the time the defendant, the Chicago, Rock Island & Pacific Railway Company, received the coal in controversy from the St. Joseph, St. Louis & Santa Fé Railroad Company, and transported it to Mankato, Kansas, did defendant have any knowledge of any special contract or agreement made by the plain. tiff and the St. Joseph, St. Louis & Santa Fé Railroad Company to transport the coal in controversy from Richmond, Missouri, to Mankato, Kansas, for less than the tariff rate of $2.70 per ton? Ans. No. Seventh. If the defendant had any such knowledge, when and how did it obtain the same? Ans. When the demand was made for the coal. Eighth. What portion of the joint tariff rate of $2.70 per ton was to go to the defendant, the Chicago, Rock Island & Pacific Rail.way Company, and what portion to the St. Joseph, St. Louis & Santa Fé Railroad Company? Ans. $1.95 to the Chicago, Rock Island & Pacific Railway; $0.75 to the St. Jo

seph, St. Louis & Santa Fé Railway. Ninth. What was the usual and ordinary charge for transporting coal from St. Joseph, Mo., to Mankato, Kansas, over the line of the Chicago, Rock Island & Pacific Railway, without regard to the joint tariff offered in evidence? Ans. $2.00. Tenth. Was the rate of $1.70 per ton quoted by the agent of the St. Joseph, St. Louis & Santa Fé Railroad Company to the plaintiff quoted by mistake, or was it intentionally so quoted? Ans. Yes; by mistake." On motion of the defendant the court set aside the answer to the fifth question, but refused to allow the defendant the full amount of freight charges claimed, and entered judgment in accordance with the general verdict. The railroad company brings the case here for review.

M. A. Low and W. F. Evans, for plaintiff in error. T. S. Kirkpatrick, for defendant in error.

ALLEN, J. (after stating the facts). Section 2 of chapter 104 of the Acts of the Second Session of the 49th Congress, entitled "An act to regulate commerce" (24 Stat. p. 379), reads as follows: "Section 2. That if any common carrier subject to the provisions of this act, shall directly or indirectly, by any special rate, rebate, drawback, or other device, charge, demand, collect or receive from any person, or persons, a greater or less compensation for any service rendered, or to be rendered in the transportation of passengers, or property, subject to the provisions of this act than it charges, demands, collects, or receives from any other person, or persons, for doing for him or them a like and contemporaneous service in the transportation of a like kind of traffic, under substantially similar circumstances and conditions, such common carrier shall be deemed guilty of unjust discrimination, which is hereby prohibited and declared to be unlawful." By section 10 of the act, a fine for a violation of its provisions of not exceeding $5,000 is provided.

The sole question to be considered in this case is whether the plaintiff, having obtained, through a mistake of a clerk of the St. Joseph, St. Louis & Santa Fé Company, a rate on shipments of coal one dollar per ton below the customary rate, can enforce a contract giving him such special rate against the plaintiff in error, who received and transported the coal, and paid to the connecting company its charges, without notice of any special agreement. We are clearly of the opinion that the interstate commerce act applies as well to different companies transporting freight over connecting lines of road under a general agreement as to single carriers operating a line extending into different states. But, in any event, the Rock Island Company, which received the coal in Missouri and transported it into Kansas, is unquestionably within the terms of the act. No question is presented in the record, nor

was any claim made at the trial, that the rate fixed in the joint tariff in use by these two railroad companies was unreasonable or excessive, and therefore obnoxious to the provisions of the first section of the act above referred to. The claim of the plaintiff below rested solely on his special contract, and he now urges that he will be subjected to a financial loss by this operation, if his special contract is not enforced. He also urges that having been induced to make the shipment by the agent of the railroad company, if the rate quoted him was a mistake, the company, rather than he, should suffer from it. There is no pretense in this case that the Rock Island Company in any manner authorized any variation from the established rate of $2.70 per ton. Whatever cause of action the plaintiff might possibly have against the Santa Fé Company for misleading him as to the rate, the rights of the parties in this action must be determined, under the provisions of the interstate commerce law, in accordance with the usual and established rate of charges for transporting coal between the two points named. While it may be that if the rate agreed upon by the two railroad companies were shown to be excessive and extortionate the companies would not be allowed to enforce it as against the plaintiff, even though they were in the habit of demanding such excessive rate from other parties, yet, where no question of that kind is raised, nothing can be clearer than that the railroad company is prohibited, by the section of the act of congress just quoted, from demanding or receiving from the plaintiff a less sum than it demanded and collected from others for a like service at that time. The only point on which there was any substantial conflict in the evidence is that covered by the fifth question and answer. This finding the court set aside. We think the question as to whether or not the plaintiff knew of the existence of the joint tariff at the time he shipped the coal is wholly unimportant. There was an established rate governing all shipments. The plaintiff in his postal card asked for a good rate. He says the agent of the railroad company at Richmond told him he had no special rate. The agent of the company testifies that the plaintiff was informed what the regular rate was. The plaintiff is presumed to have known the law, and that under it a contract granting to him an especial favor would subject the railroad company or its agent to punishment. Under the act of congress, all contracts discriminating either against or in favor of any shipper are unlawful, and the persons making such contracts on behalf of the corporation are liable to punishment. It was the plaintiff who was seeking to enforce the unlawful contract. There was no pretense that the defendant was a party to that contract. The contract, being in violation of the express provisions of the law, was utterly void between the immediate parties to it. Hawley v. Coal Co., 48 Kan. 593, 30 Pac. 14.

It would be absurd to hold that a contract made between the plaintiff and the Santa Fé Company which is void, because expressly prohibited by law, may yet be enforced by one of those parties against the Rock Island Company. The officers of the plaintiff in error would be liable to punishment under the provisions of section 10 of this act if they were to demand, collect, or receive from the plaintiff below a less sum than they demanded, collected, or received from any other person shipping coal under like circumstances between the same points. Under the undisputed facts of this case, the rate quoted the plaintiff by mistake was unlawful. Had it been intentional on the part of the general agent of the Santa Fé Company, it still could not have been enforced against the Rock Island Company. It would have been an unlawful discrimination, which the interstate commerce act was designed especially to prohibit. The facts having been specially found by the jury, it remains only for this court to direct the entry of the proper judgment. It is ordered that the judgment of the trial court be so moaned as to show that the special interest of the defendant in the property in controversy at the time of the commencement of the action was $675. All the justices concurring.

(54 Kan. 270)

MORAN v. MORAN. (Supreme Court of Kansas. Nov. 10, 1894.) UNLAWFUL DETAINER-SUIT BY LANDLORD AGAINST TENANT-WHEN BARRED.

Where a tenant leases a dwelling house from his landlord without any definite time being fixed for the expiration of the lease, and agrees to pay a specified sum per month, to be paid monthly, and the tenant continues in possession of the premises for over two years, with the consent of his landlord, but fails to pay any rent, although frequently requested so to do, and his landlord then finally decides that he wants the possession of the premises, and gives the tenant formal notice to quit, held, that the action of unlawful detainer is not barred because of such possession by the tenant, with the consent of the landlord, for over two years. (Syllabus by the Court.)

Error from district court, Wyandotte county; John B. Scroggs, Judge pro tem.

Action of unlawful detainer by Patrick Moran against Charles Moran for the possession of a dwelling house. Judgment for plaintiff, and defendant brings error. Affirmed.

Jones W. S. Carroll, for plaintiff in error. & Jones and Hale, Fife & Craig, for defendants in error.

HORTON, C. J. This was an action of unlawful detainer commenced by Patrick Moran against his brother, Charles Moran, to obtain restitution of a dwelling house in the city of Wyandotte, now Kansas City. It appeared upon the trial that Patrick