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the act does not create a trust, although a, clusive control over the funds. The provisacred obligation is imposed on the public sion of the Constitution just referred to is faith of the state. The decision expressly mandatory in its nature, and would prevent recognized that there is no limitation upon the Legislature from using the proceeds from the power of the Legislature to prescribe how these school lands for any other purpose than the expenditures shall be made for the pur- the support of the common schools. The poses stated.

language of the Constitution however, does A similar construction has been placed up not limit the funds to the use of the particuon the act of Congress granting to the state lar district in which the sixteenth section of Arkansas certain swamp and overflowed lands are situated. The only restriction in lands to construct necessary levees and the Constitution is that the money shall drains to reclaim such lands. Branch v. never be used for any other than school purMitchell, 24 Ark. 431; Hagar v. Reclamation poses. This was the dominant purpose guidDistrict No. 108, 111 U. S. 701, 4 S. St. 663, ing the court in the decision of Special 28 L. Ed. 569; and United States v. Louisi- School District No. 5 v. State, 139 Ark, 263, ana, 127 U. S. 182, 8 S. Ct. 1047, 32 L. Ed. 213 S. W. 961. 66. See, also, Board of Supervisors of White While that decision does state that the side County, State of Illinois, v. Burchell, 31 state is under a sacred obligation to carry · Ill. 68; Dunklin County ex rel. v. District out the purposes of the grant, expressed in County Court of Dunklin County, 23 Mo. the act of Congress, yet it clearly recognizes 449; and Gaston v. Stott, 5 Or. 48.

that the trust is a personal one, and that the The necessary result of all these decisions manner of its execution is exclusively within arising in various ways is to hold that the the power of the Legislature. In short it nature of the trust raised by the compact recognizes that the manner of the execution between the United States and the states, of the trust is a matter of public policy of the in cases of this sort, is a mere personal trust, state, which can only be exercised by the and that its execution is a matter exclusively Legislature, and which is a question that within the control of the Legislature. They does not at all address itself to the courts. hold that the trust is not fastened to the The result of our views is that the grant land and does not run with it.

of the sixteenth section lands, submitted to Of course, while the power of the Legis- the state by the act of Congress, and accepted lature to deal with the land is not affected by the state, was of the fee to the lands by the compact, it would be affected by any without limitation upon the power of the constitutional limitations of the state. Ar state. It is true that the grant imposed a ticle 14 of our Constitution provides for the trust which was accepted by the state; but establishment and maintenance of common the trust was of a personal nature, and to schools in this state and their support by be exercised by the state as a sovereign, and taxation. The supervision of public schools, was not a trust fixed upon the land itself and the execution of the laws regulating the and running with it. same, is vested in and confided to such offi Reliance is placed by counsel for appellees cers as may be provided by the General As- upon the case of the State of Indiana v. sembly.

Springfield township in Franklin County, 6 Section 2 provides that no money or prop-Ind. 83, but we think the trend of that de erty belonging to the public school fund, or cision is contrary to the reasoning of our to this state for the benefit of schools or own cases and those of the Supreme Court universities, shall ever be used for any oth of the United States cited above, and its er than for the respective purposes to which reasoning does not appeal to our minds. it belongs.

It follows that the decree of the chancelAs we have already seen, this court and lor will be reversed, and the cause will be the Supreme Court of the United States have remanded, with directions to dismiss the uniformly held that the title to these sis complaint for want of equity. teenth section lands is vested absolutely in the states, and that the Legislature has ex SMITH, J., dissents.

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(273 S.W.)

19. Death Om99(3)—$10,000 for death of child DAVOREN et al. v. KANSAS CITY,

held excessive. (No. 23996.)

$10,000 damages for death of boy of 6

years and 7 months held excessive to the extent (Supreme Court of Missouri, in Banc. April 13, of $5,000. 1925. Rehearing Denied May 23, 1925.)

Graves, C. J., and Atwood and David E. Blair,

JJ., dissenting.
1. Negligence O39—City officers chargeable
with knowledge ponds are attractive to chil-

Appeal from Circuit Court, Jackson Coun. dren.

ty; James H. Austen, Judge. Officers of city and its agents should be

Action by Albert J. Davoren and another reasonably charged with knowledge that ponds of water in thickly populated cities are attrac- against the City of Kansas City. Judgment

Af.

for plaintiff, and defendant appeals. tive to children for bathing and skating.

firmed on condition of remittitur. 2. Evidence on 14 - Common knowledge that ponds of water, wherever located, are highly Gilmore, all of Kansas City, for appellant.

John B. Pew, Ilus M. Lee, and Solon T. attractive to children, It is common knowledge that ponds of wa

Hogsett & Boyle, of Kansas City, for re. ter, wherever located, are highly attractive to spondents. children, both for skating and bathing purposes.

Statement. 3. Negligence O28Care required of keepers

WOODSON, J. This was a suit instituted of pleasure resorts.

in the circuit court of Jackson county by the The duty is imposed on keepers of pleasure plaintiffs, husband and wife, against Kansas resorts to make them reasonably safe for those City, the defendant, for the alleged negliwho use them.

gence in drowning their minor son, 6 years

and 7 months old. The case was tried before 4. Negligence em 28—Reasonable care required the court and jury, which resulted in a verof property owner.

dict and judgment for the plaintiffs for $10,All reasonably prudent persons must so 000, and, after moving unsuccessfully for a use their property as not to unreasonably in

new trial, the defendant duly appealed the jure others, and, if that duty is not exercised,

case to this court. then they are liable for its violation,

The pleadings are unassailed, and there5. Negligence 41-Person creating danger. \fore it would be useless to notice them.

ous condition must use reasonable precaution The facts of the case are simple and practo prevent injury.

tically undisputed. The name of the dead Legal obligation rests on all who create or child, for whose life the parents sued, was allow dangerous conditions, such as pond cre Karl Davoren, who had a twin brother ated by city in constructing street across ra named Kenneth, who was also drowned at vine, to use reasonable precautions to see that the same time and place that Karl lost his no unnecessary injury shall flow therefrom to others, and, if that duty is violated and injury life. They came to their death by drowning results, guilty party will be held liable.

in a pond, which was created by the city

constructing a high fill or dam across a ra6. Negligence 39—Child attracted to pond vine, for street purposes, on top of which a

not guilty of trespass barring recovery for street was duly constructed. The city negdeath.

lected to provide a culvert or other outlet Boys of 6 years and 7 months, attracted to

sufficient to allow the surface water to espond created by city in constructing fill across ravine for street purposes, held not trespassers cape therefrom that accumulated above said so as to bar parents' right to recover for their fill. Said pond of water was entirely upon death.

private property, and was not so closely lo

cated to a public street as to endanger the 7. Municipal corporations Cm736--City not relieved of liability for drowning of boys be lives of the deceased children by falling into

it while passing along the street. cause pond was on private property.

The pond was located on the south side of Where, in constructing street across ravine, Twenty-First street, between Bales avenue city made fill within limits of street, which and Askew street, in Kansas City. Bales created pond on private property, it was its duty to abate the nuisance, and it was not re

avenue and Askew street run north and lieved of liability for death of boys drowned south, and Twenty-First street runs east and in pond, on ground that it had no power to west, and crosses Bales and Askew. In the abate the nuisance, as it could have constructed space between Bales and Askew the natural a culvert.

topography of the land is in the form of a 8. Negligence Cw39—Instruction to find pond ravine or draw several blocks long, running was attractive to children held without error.

in a northerly and southerly direction. The In action for death of boy from drowning natural drainage of surface, water through in pond, created by city when constructing fill this ravine or draw was toward the north. for street, instruction telling jury to find that The ravine began at Twenty-Fifth or Twentypond was attractive for children held not error. Sixth street, which is 4 or 5 blocks south of

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For other cases seo same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 273 S.W.--26

Twenty-First street, and extended north to , height of the fill was about 12 to 14 feet Eighteenth street, making the ravine about above the surface of the water at the time 8 blocks in length. The ravine drained all of the drowning. The length of the fill was of that territory lying between Twenty-Sixth about 150 feet from east to west. Previous street on the south, Bales avenue on the to the construction of this fill there was no west, Askew street on the east, and Eight- pond on the private property south of eenth street on the north-a territory com- Twenty-First street. Immediately after the prising 8 square city blocks; 4 or 5 of these city constructed this fill or dam, however, square blocks lay south of Twenty-First the surface water from the land to the south street.

began damming up on account of the fill, In 1901 the defendant, city, constructed a and accumulating upon the private property high fill along and upon Twenty-First street, south of the fill. The result was that a deep directly across this ravine, like a dam. The pond formed thereon, extending about 250

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(273 S.W.) feet across at its widest point, measuring other one was running after him, possibly 8 east and west, and about 200 feet north and or 10 feet behind. The first little fellow south. The contour and appearance of the went through the ice about midway of the pond are shown by the diagram and by the pond, and the other one was running so close photographs in evidence. The pond was to him he could not stop, and ran in after right up against the embankment of the fill; | him. The second little boy clung with his that is, the embankment formed the north fingers to the edge of the broken ice for a shore of the pond.

short space. In the meantime Cook immediThe defendant, city, apparently recognized | ately ran down the bank and ran in upon its duty not to dam up surface water on the the ice, in the effort to rescue the boys. He abutting property, for when it constructed got possibly half way from the bank to the fill it put a pipe through the fill to drain where the second little boy was clinging, off the surface water. But the pipe was too when the ice broke and allowed Cook to go small, and was wholly inadequate to drain through. Both boys were drowned under his away the water that accumulated. When very eyes, but he was helpless to rescue the pond once formed it remained there as a them. The bodies of the boys were rescued permanent thing for the 19 years preceding from the water by the fire department by the drowning of plaintiffs' two boys. The means of hooks and ropes. pond remained there from 1901, when the fill The next day after the drowning, and two was constructed, until March, 1920. Nothing months before plaintiffs served any notice was done by the defendant, city, to remedy on the city of their intention to bring this the situation prior to the death of the boys. suit, the city's claim department began takThe pond was 15 feet deep in the middle. ing numerous photographs of the pond. At

The surrounding neighborhood was a the trial, however, the city made no attempt thickly populated residence district of the to excuse itself from the charge of neglicity. During all these years, it was a com- gence in creating this dangerous nuisance, mon practice for children in the neighbor- and stood mute, offering no evidence whathood to play upon and about the pond, swim- ever. ing in the pond in summer, and playing on At the close of all the evidence the appelthe ice in winter.

lant asked a demurrer to the respondents' This dangerous condition was specifically evidence, which the court refused, and counreported to the city engineer's office at the sel for the former duly excepted. city hall by one of the neighbors 15 or 16

Opinion. years before the drowning of plaintiffs' sons. The engineer's office promised that the mat I. Counsel for appellant insist that the ter would be attended to. It was impressed trial court erred in refusing its demurrer, upon the engineer's office that it was an ab- offered to respondents' evidence at the close solute necessity to have the pond drained on of their case, for the reason stated, that the account of the danger to children and on ac- pond was located wholly upon private propcount of the foul smell. In addition, one of erty, and that the accident did not result the neighbors notified a city policeman about from any use of a street, and under all the the matter. Nothing was ever done, how- facts there was no duty owing the deceased, ever, by the city authorities, to rectify the and hence no liability rested upon the appel. dangerous condition prior to the drowning lant. here in question.

In support of that contention counsel for Plaintiffs' boys were drowned on March 8, appellant cite the following cases: Arnold 1920, while playing upon the ice of the pond. v. City of St. Louis et al., 152 Mo. 173, 53 S. The two boys were 6 years and 7 months old W. 900, 48 L. R. A. 291, 75 Am. St. Rep. at the time of their death. They came home 447; Overholt v. Vieths, 93 Mo. 422, 6 S. W. from school at about 3 o'clock in the after- 74, 3 Am. St. Rep. 557; Moran v. Pullman noon, and, after getting something to eat and Car Co. et al., 134 Mo. 641, 36 S. W. 659, 33 changing their clothes, went out to play; L. R. A. 755, 56 Am. St. Rep. 543; Kelly v. their mother at the time being engaged in Benas, 217 Mo. 1, 116 S. W. 557, 20 L. R. A. preparing the evening meal. About 15 or 20 (N. S.) 903; Hight v. Bakery, 168 Mo. App. minutes later a neighbor boy came and re- | 431, 151 S. W. 776; Buddy v. Terminal Ry. ported to the mother that her two little boys Co., 276 Mo. 276, 207 S. W. 821; State ex were drowned in the pond. The pond was rel. Kansas City v. Ellison, 281 Mo. 667, 220 not in sight of plaintiffs' residence, and nei. S. W. 498; Rallo v. Herman Const. Co. et ther of the plaintiffs knew of the existence al., 291 Mo. 221, 236 S. W. 632; City of of the pond.

Omaha v. Bowman, 52 Neb. 293, 72 N. W. An eyewitness, Earl Cook, testified to the 316, 40 L. R. A. 531, 66 Am. St. Rep. 506 ; drowning of the boys. This witness was Reeder v. City of Omaha, 73 Neb. 845, 103 walking east along the south sidewalk of N. W. 672; Murphy v. City of Brooklyn, 118 Twenty-First street at the time. When he | N. Y. 575, 23 N. E. 887; Von Almen's Adm'r first saw the boys they were playing on the v. City of Louisville, 180 Ky. 441, 202 S. W. ice, throwing a bottle across the ice. One 880; Peters v. Bowman, 115 Cal. 345, 47 P. of the boys was running after it, and the 113, 56 Am. St. Rep. 106; Tavis v. Kansas

City, 89 Kan. 547, 132 P. 185; Harper v. City, the city is liable in damages, the same as of Topeka, 92 Kan. 11, 139 P. 1018, 51 L. R. / any other person or landowner. A. (N. S.) 1032; Schauf's Adm'r v. City of Likewise in the case of Salmon v. Kansas Paducah, 106 Ky. 228, 50 S. W. 42, 20 Ky. City, 241 Mo. loc. cit. 53, 145 S. W. 16, 28, Law Rep. 1796, 90 Am. St. Rep. 220; Gilles- 39 L. R. A. (N. S.) 328, this court held that pie v. McGowan, 100 Pa. 144, 45 Am. Rep. the city was liable for its contracts and 265; Dehanitz v. City of St. Paul, 73 Minn. torts in the prosecution of that work, is open 385, 76 N. W. 48; Klix v. Nieman, 68 Wis. to suit in the same manner and to the same 271, 32 N. W. 223, 60 Am. St. Rep. 854. extent as a private person doing or causing

All of these cases proceed along the line to be done the same work, and cited Donahoe that the appellant was not required to fence v. Kansas City, 136 Mo. 665, 38 S. W. 571; or otherwise protect nuisances, or to secure Dolan v. Laclede Gas Light Co., 145 Mo. 550, dangerous places upon their private proper- 46 S. W. 1133; Ely v. City of St. Louis, 181 ty from trespassers or other persons who Mo. 723, 81 S. W. 168; State ex rel. Gates, might be thereon without the authority or 190 Mo. loc. cit. 550, 89 S. W. 881, 2 L. R. A. permission of the respective owner thereof. (N. S.) 152; Barree v. Cape Girardeau, 197

Generally speaking, and as an abstract le- Mo. loc. cit. 389, 95 S. W. 330, 6 L. R A. (N. gal proposition, those cases announce a cor- S.) 1090, 114 Am. St. Rep. 763; Broadwell v. rect legal proposition, but in my opinion they City of Kansas, 75 Mo. 213, 42 Am. Rep. 406; state the rule of law too broadly when ap- Werth v. City of Springfield, 78 Mo. 107; plied to all cases, for the reason that there Wegmann' v. City of Jefferson, 61 Mo. 55; are often other facts and circumstances en- Thurston v. City of St. Joseph, 51 Mo. 510, tering into the case which qualify or limit 11 Am. Rep. 463. that harsh and unfeeling rule. For instance, II. Counsel for appellant insist that this in the case of the City of Hannibal v. Rich- case was brought and tried upon the theory ards, 82 Mo, loc. cit. 336:

of the Sioux City & P. R. Co. v. Stout, 17 “The construction of the embankment on Wall. 657, 21 L. Ed. 745. Second street by the city was subsequent to de In my opinion this is a clear misconcepfendant's purchase of the lots and that em- tion of the case. TI turntable cases turn bankment prevented the flow of the water from upon the theory that the defendants in such the lots and occasioned its accumulation upon cases construct those dangerous devices upon them, which, it is alleged injuriously affected their own premises which are so attractive to the health of the city. It has been repeatedly children, they enter the premises, and, while held by this court that the owners of the lots under such circumstances could not maintain an playing on them, they are injured thereby. action against the city for the damage to them Because of the attractions of the turntable, but that such injury is damnum absque injuria. and the absence of any special danger apNow we are asked to hold also that the city nearing to the child the injury is unexpected may create a nuisance upon the lot of an in- ly inflicted upon it, and out of this lure to dividual and then have it abated at his ex

the unsuspecting child arises the duty of the pense, if he refuse to do it when ordered. As well at once declare that no one can acquire proprietors to so guard the tables so that no any rights to town or city lots which the mu- injury can reasonably happen to them. nicipal corporation is bound to respect. The [1, 2] But that is not this case. Here the city cannot create a nuisance upon the property officers of the city and its agents should be of a citizen and compel him to apate it"-cit- reasonably charged with the knowledge of ing the case of Weeks v. City of Milwaukee, 10 such facts that all other reasonably prudent Wis. 269.

men know, and that is that ponds of water in The first case by implication held that the the thickly populated portions of large cities city owed the duty to the citizens of Hanni- are attractive to children, and that is why bal and to Richards to abate that nuisance. they congregate there in summer for bathIn the case of State ex rel. Lamm v. Sedalia ing in the waters and in winter for skating (Mo. App.) 241 S. W. 656, this court held on the ice formed thereon. It is common that a private person, specially injured by a knowledge that ponds of water, wherever lopublic nuisance, may sue to abate it and it cated, are highly attractive to children both would naturally follow that he could recov- for skating and bathing purposes, as much so er any special damages sustained, caused by as the old creek down over the hill in the such nuisance. The state may also compel a meadow, we all read so much about, both in municipal corporation to abate a nuisance. / verse and fiction. State ex rel. Lamm v. Sedalia, supra.

(3, 4) The same instinct and desire for So in the case of Roth v. St. Joseph, 180 pleasure induces the tourists of the country Mo. App. 381, 167 S. W. 1155, 171 S. W. 914, to resort to the seashore for bathing, and the Kansas City Court of Appeals held that, the more hardy to travel to the northern ice where a city, either by its own act, or by fields for skating or tobogganing. The law permitting a railroad to erect an embank- imposes the duty upon the keepers of our ment in a street which creates or suffers and own resorts, as well as upon the keepers of permits a stagnant pool to collect and be the others, to make them reasonably safe for come a nuisance near plaintiff's residence, those who use them. In other words, all

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