Action by Emma M. Taft against M. F. Tarpey to restrain defendant from entering upon plaintiff's land for the purpose of opening a road over the same. From a judgment in favor of plaintiff, and an order denying a motion for a new trial, defendant appeals. Affirmed.

A. C. Williams and Frank C. Cleary, for appellant. H. H. Welsh, for respondent.

CHIPMAN, C. Injunction. Plaintiff seeks to restrain defendant from entering upon her land for the purpose of opening a road over the same. Defendant claims that the strip of land in question was dedicated to the public for a road by plaintiff's predecessors in estate, and was also reserved for road purposes from the deed by which she claims title. The court found the following facts: That on April 21, 1884, one George H. Eggers was the owner in fee of the W. 1⁄2 of the S. E. 1/4 section 20, township 13 S., range 21 E., situated in Fresno county, and on that day conveyed the same to George W. Taft (plaintiff's husband) by deed which contained a clause following the description of the land, to wit: "Reserving from this grant the right of way over a strip of land thirty feet wide on the westerly line of said tract of land for canal or road purposes, both or either." Said Taft entered into possession and occupied the premises until July 15, 1895, when he conveyed the land to plaintiff, who has ever since occupied, and now occupies, the same. In 1883 said Eggers conveyed the E. 1⁄2 of S. W. 1/4 of the same section (lying directly west of plaintiff's land) by deed in which, following the description, is the following clause: "Saving and excepting therefrom a strip of land thirty feet wide off the east side of said tract of land, and a strip of land thirty feet wide off the west side of the northwest quarter of said section 20; * * * said excepted strips of land being reserved for road and ditch purposes." In January, 1884, said Eggers conveyed to defendant the N. E. 4 of said section, "reserving therefrom a road and ditch way on the easterly side thereof." In 1890 plaintiff's grantor constructed a ditch for purposes of irrigation along the eastern side of the strip of land so reserved from his deed for a distance of one-quarter of a mile. This ditch and its banks occupied a strip of land 15 feet wide for its entire length. Taft planted fig trees and grapevines along the western bank of said ditch, and in a straight line to the south boundary of his land. The ditch occupied no more land than was necessary for its purposes, and there is not now, and never has been, any highway or traveled road upon said 30-foot strip east of said line of fig trees and vines, since the same were planted there. In 1889 defendant entered upon the strip of land reserved as aforesaid, between the lands of plaintiff and the said lands directly west of plaintiff's lands, and graded and built a wagon road along the cen

son.

ter of these two strips about 30 feet wide, occupying 15 feet of the strip reserved from plaintiff's land, and plaintiff's said ditch and trees and vines "do not in any way interfere with or obstruct the free use of said road and roadway by defendant or any other perThis road is the most convenient means by which defendant can have egress from his said lands in the direction of the city of Fresno." The court found, and the defendant admits, that he intends to enter upon the remaining portion of said strip of land, and dig up and destroy plaintiff's said ditch and trees and vines. The board of supervisors of Fresno county never accepted said strip of land as a highway, nor did they ever declare the same to be a highway. As conclusions of law, the court found the plaintiff entitled to judgment restraining defendant from "interfering with or digging up the portion of said premises upon which is now constructed plaintiff's ditch, and on which is planted plaintiff's said fig trees and vines, or from in any way entering upon said thirty-foot strip of land east of the line of fig trees and vines and ditch of plaintiff, and from * constructing * * 22 a wagon road thereon." Judgment was entered accordingly, from which, and from an order denying defendant's motion for a new trial, this appeal is prosecuted.

1. The principal question discussed by counsel arises out of the reservation in Eggers' deed to Taft in 1884. Appellant claims that this clause in the deed operated as a dedication to the public for a highway, and that the interest of the public extended and attached to the donation in its entirety, upon no part of which had plaintiff a right to encroach and plant trees or dig ditches. We cannot regard the language of the deed as showing an intention to dedicate the land for a public use in any such way as to conclude the owner, and, unless by the terms of the instrument such intention can be reasonably affirmed, there was no dedication effected by the deed itself. The condition or reservation, so far as the language discloses, was for the benefit of the grantor alone. In such case, or where the way is for the benefit of both parties to the deed, no presumption of any intention to dedicate such way to the public arises. The reservation was not only for road purposes, but also for ditches; and the public were equally entitled, if at all, to the way for both purposes. But it cannot be said that a use by the public for ditches was contemplated, for the public had no occasion for ditches, while the grantor might have. We must look elsewhere than to this deed for any right in the public. There is no evidence that Eggers ever made known his intention as to this strip of land prior to the purchases made by plaintiff and defendant. Defendant purchased his land in January, 1884, and plaintiff's grantor purchased in the following April. Defendant testified: "Inasmuch as I was buying the land, and the

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county road was a half mile away, I wanted to know whether I was going to have access to my land. I asked him [Eggers] about what reservations there were for roads in order to get to the county road, and he pointed out this reservation, and said it was his purpose, with any purchaser of land, as between his northern land and the county road, to leave a road where they could pass, and the public could travel to do their business." Defendant says he examined the record, “and found that he had done so in all cases as he had stated, and accepted it as such." But plaintiff's grantor's deed was not then in existence, and defendant could not have referred to the reservation now in question. former owner of the land directly west of plaintiff's land, on which was also a reserved strip, testified that in 1889 he heard Eggers say "that he had dedicated to the public thirty feet off the west side of the land owned by Mr. Taft for road and ditch purposes, for the use of the public who bought his land." But this was five years after Taft had bought the land, and, besides, the declaration was not that the whole strip was for road purposes. Plaintiff's grantor, Taft, testified: "At the time I accepted the deed I did not know anything about the reservation. I supposed there was thirty feet there, but didn't know whether it was thirty feet off me, or thirty feet off both parties. I have talked with Mr. Eggers with reference to the matter. He has told me frequently that he reserved a road there

for road and ditch purposes, and he was surprised that Mr. Tarpey was trying to take the whole shooting match." In this there was no declaration that the entire strip was for road purposes. The evidence tended to show that before plaintiff's ditch was dug there was no defined road in use along the west line of her land. Plaintiff testified: "After the fig trees were planted, there was no travel east of them.

* * There was never any defined roadway west of the place at any time before this present road was placed there [the road opened by defendant], other than a mere trail leading up and down there. And the wagon tracks east of the line of fig trees ran diagonally through. In fact, they seemed to go where they wanted to over the place,-all over the land,-prior to the time the fence was built across the front. The fence was built in 1889." Defendant did not use this means of access to his land until in 1889.five years after his purchase.-when he graded the road 30 feet wide, taking 15 feet from each of the reserved strips, and since that time this graded road has been in use by the public, with the knowledge and consent of plaintiff and her grantor. There is no evidence of the use by the public of the entire 60 feet embraced in the two strips at any time. The only defined road shown to have been in use since Eggers sold to plaintiff's grantor and defendant is a road 30 feet wide, which plaintiff concedes is a public highway,

and which the court found, upon sufficient evidence, is of ample width for all public purposes without encroaching upon plaintiff's land any further than as now located. This road has its origin as a public road not by force of the deed of Eggers to Taft, but by subsequent dedication to, and user by, the public. It was probably the intention of Eggers that there should be roads for public use along all the reservations mentioned in the deeds made by him, but this intention was not expressed in the deeds, and was not carried out otherwise by him. The public acquired the right in the instance before us by the acquiescence and other acts of dedication by plaintiff and her grantor, and by the declarations of Eggers made after he sold the land. The declarations of Eggers show that it was not his intention that the entire width of 60 feet should be dedicated to the public for road purposes, for he included a way for ditches as well, and he expressed surprise that defendant should assume that the whole width was for a road. Besides, both defendant and plaintiff, by herself and her grantor, acted upon this view of the reservation; and defendant opened and graded a road 30 feet wide, leaving 15 feet for a ditch, which plaintiff's grantor occupied for ditch purposes about the same time. Defendant built the road in the spring of 1889, and Taft built the ditch and planted his trees and vines in February, 1890. This action was brought March 31, 1896. For six years defendant and the Tafts acted on the assumption that they were keeping within their rights; and as it was only by this actual user, and not by the terms of the deed, that they and the public acquired any rights, we do not see that defendant can now be heard to complain.

2. It is claimed as error that evidence was admitted to show the width of the land occupied by the ditch and trees and vines, the objection being that the deed dedicated the entire strip for road purposes, and it was immaterial where the ditch and trees were, as the public had a right to the whole 30 feet. There would be merit in the objection, if we could adopt defendant's construction of the deed. Upon the view of it we have taken, the evidence was relevant.

3. It is assigned as error that defendant was precluded from proving that Eggers had made a reservation similar to that in plaintiff's deed in the sale of land to witness, and that Eggers told witness "that it was his rule, when he sold his land out there, he reserved thirty feet right of way all around these places." This was not error. Witness bought his land in 1883. The evidence had no necessary connection with the purchase by Taft in 1884. Plaintiff admitted that the deed of witness contained a reservation similar to that in question. It was not competent to prove a custom or rule of Eggers in making deeds to land, and this is as far as the evidence proposed to go. We cannot see

ant.

4. It is objected that the evidence does not support the fourth, fifth, and seventh findings. They are to the effect that the ditch occupies no more land than is necessary to its reasonable use; that the roadway is of sufficient width for all purposes of a highway, and as now used is not obstructed in any way by said ditch; that defendant threatens to enter upon said land and dig up and remove said ditch. Defendant's answer declares his purpose to be as found by the court, and justifies the finding, and we think there is sufficient evidence to support the other findings. Discovering no reversible error, it is advised that the judgment and order be affirmed.

We concur: HAYNES, C.; GRAY. C.

PER CURIAM. For the reasons given in the foregoing opinion, the judgment and order are affirmed.

MERCER v. WALKER et al. (Court of Appeals of Kansas, Northern Department, E. D. July 18, 1899.) ACCIDENT AT RAILROAD CROSSING-CONFLICTING FINDINGS.

A finding. in an action for injuries to a team at a railroad crossing, that defendants were negligent in not signaling at the crossing; that, if plaintiff had stopped entirely as he approached the track, he could have avoided the injury; and that, if he had stopped the team 20 feet from the crossing, he would have avoided the injury; and that, if he had looked when he got within 15 feet of the crossing, he would have seen the train; and that at the distance of 25 feet he could have seen 100 feet of the track,-where there is no finding that plaintiff was not upon his guard, and that he did not look and listen, did not render a verdict for plaintiff in conflict with such special findings.

Wells, J., dissenting.

Error from court of common pleas, Wyandotte county; W. G. Holt, Judge.

Action by Fred Mercer against Aldace F. Walker and others, receivers of the Atchison, Topeka & Santa Fé Railway Company. From an order setting aside a judgment for plaintiff, he brings error. Reversed.

Dail & Bird, for plaintiff in error. A. A. Hurd, O. J. Wood, and W. Littlefield, for defendants in error.

MAHAN, P. J. Plaintiff in error sued defendants in error to recover the value of a team of horses, wagon, and harness destroyed by a collision with a train on the railroad operated by the defendants in error, as receivers. The case was tried to a jury, and resulted in a general verdict for the plaintiff for the sum of $200, upon which judgment was entered. On motion of defendants this judgment was subsequently set aside, and a judgment for the defendants entered upon the special findings of fact. There were 48

and answered by them. It is contended by the plaintiff that these special findings, as an entirety, did not sustain this action of the court. It is contended upon the part of the defendants that the special findings disclose conclusively that the plaintiff was guilty of contributory negligence to bar his recovery, and this is the pivotal question in the case. The jury found as a fact that the defendants were guilty of negligence in not giving signals of the approach of the train to the highway crossing where the injury occurred. It also appears from the findings that the view of the defendants' track to the east, from whence the train was approaching, is obstructed by trees and buildings of the defendants. They say that the trees were necessary to be grown where they were for shade. The jury finds that there were points of observation from which the plaintiff might have seen the defendants' depot, and might have seen the train had it been at the depot at the time the plaintiff passed these points of observation. The jury further finds that, if the plaintiff had stopped entirely as he approached the track, he might have avoided the injury. Defendants rely, to sustain the action of the court, upon the second finding, as follows: "Q. How far could plaintiff's son see an approaching train, looking east, just before he drove on the railroad track? A. To the depot; i. e. 980 feet,-and upon the finding that, had plaintiff's son stopped the team 20 feet from the crossing, he would have avoided the accident; upon the thirtysecond finding, that he could have seen the approaching train when he got within 10 feet of the crossing if he had looked; and upon the forty-sixth finding, that, if he had looked east when he got within 15 feet of the crossing, he could have seen the approaching train. In another finding they say that

at the distance of 20 feet from the track the view was entirely obscured by the limbs of trees; and by another, at the distance of 15 feet from the track he could have seen 100 feet of the track east of the highway crossing. In another finding they say that he attempted to stop his team, but could not. We presume it might be safely said in all such cases that, if the injured party would stop, before reaching the track, 20 or more feet, he would be safe. What the circumstances were at the time he reached a point 10 feet from the track we are not advised further than that the train struck the team and killed it, and destroyed the wagon and harness. There was nothing in the findings from which the trial court could say that it was his duty as a matter of law to stop 20 feet, or within any other distance, of the track. That was a question for the jury, and the jury alone. Counsel for the defendants contend that the special findings bring this case within the rule laid down in Young v. Railway Co., 57 Kan. 144, 45 Pac. 583, and Railroad Co. v. Holland (Kan. Sup.) 56 Pac. 6. This

case occupies an entirely different attitude to that of those cases relied upon. There is no finding that the plaintiff's son was not upon his guard; that he did not look and listen for the approaching train. The fact that he might have seen up the track 100 feet when he had reached a point 15 feet from the crossing, and yet did not see the train, cannot be said to disclose, as a matter of law, that he was guilty of contributory negligence; or the fact that when he reached a point 10 feet from the track, under all the circumstances attending him, that he did not escape the train then upon him, cannot be held to disclose contributory negligence, as a matter of law, upon his part. Nor can contributory negligence be predicated upon the fact that he might have avoided the injury by stopping. The special findings of fact were not in conflict with the general verdict, and it was error for the court to set aside the judgment thereon, and to award the defendants judgment upon the special findings of fact, notwithstanding the general verdict, and that order and judgment are reversed.

MCELROY, J., concurs.

WELLS, J. I dissent from the foregoing opinion, and believe the judgment of the lower court should be affirmed on account of contributory negligence as found by the jury. The train was on time, and going at its usual rate of speed. The plaintiff's son, who drove the team which was killed, was familiar with the time the train was due, the location of the crossing, section house, and trees, and by the exercise of ordinary prudence could have avoided the accident. This he was bound to exercise, and did not. The railroad company is not responsible for the resulting damage.

(26 Colo. 284) COLORADO MILLING & ELEVATOR CO. V. MITCHELL.

(Supreme Court of Colorado. June 19, 1899.)

STATUTES-WORDS AND PHRASES-EMPLOYERS' LIABILITY ACT-NOTICE AS PREREQUISITE TO SUIT-DEATH-REPEAL OF STATUTE.

1. The word "damages" in the title to "An act concerning damages sustained by agents, servants and employés" (Laws 1893, p. 129) is synonymous with "injuries."

2. Employers' Liability Act (Laws 1893, p. 129), providing for the recovery of damages sustained by agents, servants, and employés from negligence, being but an enactment of principles laid down by the courts on the subject, and which requires notice of intention to sue, does not repeal Act 1877, authorizing certain relatives of deceased employé, whose death resulted from his employer's negligence, to recover therefor, and requiring no notice, the intent of such act being to abolish certain defenses in the cases therein specified, and not to prejudice common-law rights of employés; hence notice is not a prerequisite to an action brought under Act 1877.

3. A statute providing a remedy for an existing right is not to be construed as taking away such right, unless the statute is clear and explicit to that effect.

Appeal from court of appeals.

Action by Anna M. Mitchell against the Colorado Milling & Elevator Company. From a judgment in favor of defendant sustaining a demurrer to complaint, plaintiff prosecuted error to the court of appeals, and the case was reversed. 55 Pac. 736. Defendant then appealed to the supreme court. Affirmed.

This action was brought by the appellee in the district court of Larimer county against appellant to recover damages for the death of her unmarried son, William M. Mitchell. For cause of action she, in substance, averred that on the 7th day of August, 1896, he was employed by appellant to assist in raising a smokestack at its mills, which it was then engaged in rebuilding, at the city of Ft. Collins, which work was under the immediate supervision, direction, and control of one Benjamin F. Hottel, its general manager and representative; that said Hottel, acting for and representing appellant, provided a derrick for lifting said smokestack into position, which was insufficient for that purpose; that by reason of such insufficiency, and the grossly negligent manner and method in which the same was caused to be used by said Hottel, the stack fell, striking said Mitchell, and causing his death. A demurrer was interposed to the complaint on the ground that it did not state facts sufficient to constitute a cause of action, the particular objection being that it failed to allege the giving of any notice of the time, place, or cause of the injury, in compliance with section 2 of the act of 1893, generally known as the "Employers' Liability Act" (Laws 1893, p. 129; 3 Mills' Ann. St. p. 423, § 1511b). The demurrer was sustained, and judgment entered dismissing the action. On error to the court of appeals this judgment was reversed. Mitchell v. Elevator Co., 55 Pac. 736. The company brings the case here on appeal.

T. J. O'Donnell, Milton Smith, Platt Rogers, and Robinson & Love, for appellant. Frank J. Annis, Garbutt & Garbutt, J. Warner Mills, Clinton Reed, and Patton & Esteb, for appellee.

GODDARD, J. (after stating the facts). The question presented, and elaborately argued in the court of appeals, was as to whether the action comes within the provisions of the act of 1893, and therefore the service of notice as required by section 2 of the act was essential to its maintenance, or whether the facts alleged constitute a cause of action entitling plaintiff to a recovery under the act of 1877, unaffected by the later act. The court of appeals held that the complaint stated a complete cause of action, and a right to recover under the act of 1877, which was not controlled or affected by the act of 1893. It, however, based its conclusion mainly upon the fact that the title to the act of 1893 limited the right to maintain an action thereunder to the agents, servants, and employés

sustaining damages, and did not embrace within its terms any provisions affecting the cause of action, right of action, or the recov ery of damages sustained by any other person; and that, in so far as the act attempts to regulate, restrict, or in any manner affect actions by one who was in no capacity in the employ of defendant, it is obnoxious to section 21 of article 5 of the constitution, which provides that "no bill except general appropriation bills shall be passed containing more than one subject, which shall be clearly expressed in its title; but if any subject shall be embraced in any act which shall not be expressed in the title, such act shall be void only as to so much thereof as shall not be so expressed." If, in the title to the act, which is "An act concerning damages sustained by agents, servants and employés," the word "damages" is used in its technical sense to express simply compensation for injuries received, or the amount which the injured party is entitled to recover, the construction given to the title by the court of appeals is manifestly correct. If, on the other hand, we give to it the meaning with which it is frequently used, and of which it is also susceptible as a law term, as expressing "the injury for which compensation is sought,”— in other words, as synonymous with "injuries," the title sufficiently expresses the subject treated in the body of the act. We are inclined to accept the latter view, and for the purpose of this review assume the act | to be constitutional. If this view be adopted, and force be given to all the provisions of the act of 1893, it does not in any manner repeal, modify, or change any of the provisions of the statute of 1877; nor does it purport to specify all the causes from which a right of action may accrue in favor of an employé against an employer. Section 1 of the act, which is the only section that undertakes to specify the causes for which an injured employé may recover, is as follows: "Section 1. Where, after the passage of this act, personal injury is caused to an employé, who is himself in the exercise of due care and diligence at the time: (1) By reason of any defect in the condition of the ways, works or machinery connected with or used in the business of the employer, which arose from or had not been discovered or remedied owing to the negligence of the employer, or of any person in the service of the employer, and entrusted by him with the duty of seeing that the ways, works and machinery were in proper condition; or (2) by reason of the negligence of any person in the service of the employer, entrusted with exercising superintendence whose sole or principal duty is that of superintendence; (3) by reason of the negligence of any person in the service of the employer who has the charge or control of any switch, signal, locomotive engine or train upon a railroad, the employé, or in case the injury results in death the parties entitled by law to sue and recover for such damages

shall have the same right of compensation and remedy against the employer, as if the employé had not been an employé of or in the service of the employer or engaged in his or its works."

Clauses 1 and 2, which are the only provisions that can be said to have any bearing upon the case in hand, are, so far as they go, but a legislative recognition of the principles laid down in the former decisions of this court. At the time they were enacted, it was settled law in this state that the master was bound to personally see that reasonable care was used in providing reasonably safe and proper machinery and appliances for use in his business, and to use reasonable care in maintaining the same in suitable condition, and that agents to whom he delegated the duty of procuring the machinery, and the duty of inspecting and keeping the same in suitable repair, were not regarded as fellow servants with those employed in the business in which such machinery and appliances were used; and therefore the master was liable for injuries resulting, without contributory negligence on their part, to other servants, through the negligence or want of due care on the part of such agents in discharging their duties in these respects, and was also liable for the negligence of the person to whom he delegated the duty of superintendence. Wells v. Coe, 9 Colo. 159, 11 Pac. 50; Railway Co. v. O'Brien, 16 Colo. 219, 27 Pac. 701; Railroad Co. v. Discoll, 12 Colo. 520, 21 Pac. 708; Railroad Co. v. Simpson, 16 Colo. 55, 26 Pac. 339. It is obvious, therefore, that clauses 1 and 2 create no new cause of action, nor deprive the employer of any defense that existed at common law, unless it may be said that clause 1 operates to exclude the defense of implied assumption of risk on the part of the employé. Clause 3 gives a right to recover compensation for the death of or injury to an employé, caused by the act or omission of a class of persons for whose negligence the master was not answerable at common law, and therefore creates a new right of action, or, perhaps it may be more properly said, abolishes the defense that the negligence causing the injury was that of a fellow servant. It is manifest, therefore, that the intent of the act is at most to abolish certain defenses in certain specified cases, and in such cases to impose a compensatory limitation on the right to sue, but in no manner to prejudice the common-law rights of employés, or to interfere with the enforcement of any right that the statute itself does not create. This is the construction given by the supreme court of Massachusetts to their act of 1887, from which our act was copied; and our legislature presumably adopted the act with the construction that had been given it by the courts of that state. In Ryalls v. Mechanics' Mills, 150 Mass. 190, 22 N. E. 766, Holmes, J., after a thorough review of the English cases construing the English statute, of which