the pipe by driving a threshing outfit over it, [ed the ditch to ascertain whether the maand sustains injury and loss from the escaping chine could be taken across it. He then oil.

CONTRIBU

2. HIGHWAYS 153-INJURY
TORY NEGLIGENCE.
In taking their threshing outfit into a field
adjoining the highway in order to thresh a crop,
the plaintiffs were entitled to use not only the
worn part of the highway but also the whole
width of the same so far as it was necessary.

started his engine across the ditch and over the pipe without putting anything down to protect it, and the wheel of the engine punched a hole in the pipe, and the oil gushing out was ignited from the fire box. Although one witness said that plaintiff's at3. HIGHWAYS 213(2, 4)-INJURY QUES- tention was called to the pipe, the latter CONTRIBU-testified that he did not see or know that the pipe was there and that no one told him about it.

TION FOR JURY-NEGLIGENCE

TORY NEGLIGENCE.

In an action to recover damages resulting from the breaking of an exposed oil pipe, a demurrer to plaintiff's evidence was sustained. and upon an examination of the evidence it is held to have been sufficient to take the case to the jury as to the negligence of the defendant and also as to the plaintiffs' contributory negligence.

Appeal from District Court, Montgomery County.

Reversed and

Action by J. A. Thompson and F. D. Thompson, partners, etc., against the Union Traction Company. Judgment for defendant, and plaintiffs appeal. cause remanded for a new trial. Sullivan Lomax, of Cherryvale, for appellants. J. J. Jones, of Chanute, and Chester Stevens, of Independence, for appellee.

JOHNSTON, C. J. This was an action to recover damages for the alleged negligent burning of plaintiffs' threshing outfit. There have been two trials of the case, at the first of which a demurrer to the evidence was sus tained and the plaintiffs were given leave to amend their petition. At the second trial the court again sustained a demurrer to plaintiffs' evidence and from that decision they appeal.

[1, 2] It was alleged in the amended peti

tion that the defendant owns and maintains

a 2-inch pipe line upon the surface of and along the south side of a public road for the purpose of conveying fuel oil; that plaintiffs came along the highway with their threshing outfit with the intention of entering a field

on the south side of the road to do some

threshing; that the only entrance to the field was a passageway through a gap in the fence on the south side of the highway; that the pipe line was entirely concealed from view by a rank growth of weeds, and that plaintiff's did not know of its presence or the character of its contents; and that when their engine crossed the pipe the oil gushed out, caught fire, and destroyed the engine and threshing machine.

From the testimony introduced it appears that the pipe line is at the extreme south edge of the highway, near to the fence and about 25 feet from the center of the road; that there is a ditch between it and the roadway; and that at the place where the pipe crossed the passageway into the field the pipe was partially visible through the dirt. Before attempting to enter the field one of the plaintiffs went ahead and inspect

Plaintiffs insist that there was sufficient evidence presented to take the case to the jury, and that is the only question presented on this appeal. As against this contention it is argued that the evidence failed to show that the defendant owned or was in control of the pipe line. The line was used to convey oil from the defendant's station to the Coffeyville brick plant. In his testimony the foreman of that plant stated that the pipe line "belonged to the Union Traction Company, and it was the same line that was broken when the threshing outfit was burned." Another witness in effect stated that the oil was pumped to the Coffeyville brick plant; that the pump was located on the switch of the Union Traction Company; and that the oil was taken to the defendant's pump station in tank cars which were operated by the defendant. Still another witness testified that after the fire the company put in a joint of pipe where it was broken and buried it. The evidence warrants the inference that the defendant owned or at least controlled the pipe line.

[3] There is a contention that the evidence failed to show negligence on the part of the defendant. It is true, as defendant contends, that a pipe line for the transportation and distribution of oil for fuel and other purPoses may lawfully be laid along a public highway. However, it must be so laid that it will not obstruct or endanger the use of the highway for public travel. State v. Natural Gas Co., 71 Kan. 508, 80 Pac. 962, 114 Am. St. Rep. 507. Plaintiffs were likewise entitled to take their threshing outfit over the highway, and in order to enter the gap or gateway into the field where the threshing was to be done had the right to use not only the worn part of the highway but the As oil is of an inflamwhole width of it. mable nature, great care should be exercised in transporting it along a highway. should be such care as is commensurate with the dangerous nature of the material and the consequences that should have been ap prehended from the means employed in carrying it over the highway. Hashman v. Gas Co., 83 Kan. 328, 111 Pac. 468; Luengene v. Power Co., 86 Kan. 866, 122 Pac. 1032. Pipes carrying such material are usually and easily buried in the ground, and the right to lay such pipes on the surface of a highway is

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

It

questioned. It has been held, however, that therefore the judgment is reversed and the if pipes are laid on the surface the party cause remanded for another trial. All the who maintains them becomes liable for all | Justices concurring. damages occasioned by placing them there, although such damages would not have been occasioned by the pipes if they had been buried in the ground. Lebanon Light, Heat

& Power Co. et al. v. Leap, 139 Ind. 443, 39 N. E. 57, 29 L. R. A. 342; Thornton on Oil & Gas (2d Ed.) § 510. In Indiana, etc., Gas Co. v. McMath, 26 Ind. App. 154, 57 N. E. 593, 59 N. E. 287, it was held that the maintenance of a gas pipe through which gas is flowing on the surface of the ground within the limits of a public highway renders the owner liable for damages to one who without his fault breaks the pipe by driving a traction engine over it and is injured by an explosion of the escaping gas.

It is further contended that the plaintiffs were guilty of contributory negligence in driving over the pipe line when it was in plain view. One witness stated that it was actu

ally brought to the attention of one of the plaintiffs. It appears that the pipe line was lying on the surface of the road and was partially visible through the dirt and was

(103 Kan. 73)

HUSTON et al. v. COX et al. (No. 21467.)

(Supreme Court of Kansas. May 11, 1918.) (Syllabus by the Court.)

1. RECEIVERS 29 (2)—APPOINTMENT — JU

RISDICTION.

18-OIL AND GAS LEASE

The evidence considered, and held, a receiver was properly appointed for an oil and gas lease, although the interested parties were merely

cotenants.

(Additional Syllabus by Editorial Staff.) 4. MINES AND MINERALS

LEASE-ESTATE CREATED
HEREDITAMENT.'
""

56-OIL AND GAS "INCORPOREAL

and to explore for oil and gas, and if it be A lease granting the right to enter on land found in paying quantities to operate and produce, is not a lease in the strict sense, and creates no estate in the lands, but merely an "incorporeal hereditament," which is a right growing out of, or concerning, or annexed to, a corporeal thing, but not the substance of the thing itself.

[Ed. Note.-For other definitions, see Words' and Phrases, First and Second Series, Incor poreal Hereditament.]

Appeal from District Court, Sedgwick County.

about the color of dirt. While a witness stated that when one of the plaintiffs got down and examined the ditch to determine whether he could take the engine across his attention was called to the pipe line, the latter testified that he heard no such remark and did not have any knowledge that the pipe was there until it was broken and the oil was thrown upon the machine. In the first petition which plaintiffs filed their attorney, it appears, inserted in it an allega tion to the effect that a portion of the pipe was visible; that plaintiffs did not know it contained oil of an inflammable nature, but supposed it was an old discarded gas pipe. The plaintiff testified that he did not know that the allegation was included in the petition, and did not in fact see the pipe or know of its existence, and that when his testimony was given on that trial his attorney asked and obtained leave to amend the petition by striking out this allegation. If this averment should be treated as a conflict in the testimony of plaintiff, it must nevertheless be held that it was within the province of the jury to decide that conflict. On the deBURCH, J. The appeal is taken from an murrer to the evidence that part of his testi-order of the district court appointing a remony which was favorable to plaintiffs must be taken as true, and, although other testimony given by him or in his behalf may contradict that which is favorable to plaintiffs, it is the function of the jury, and not of the court, to determine which is credible and controlling. Acker v. Norman, 72 Kan. 586, 84 Pac. 531.

Measuring the testimony as we are required to do on a demurrer to the evidence, it must be held that the issues in the case should have been submitted to the jury, and

Action by Edward J. Huston and others against George W. Cox and others. From an order appointing a receiver, defendants appeal. Affirmed.

David Smyth and J. W. Smyth, both of Wichita, for appellants. Wilson, Madalene & Hudson, of Wichita, for appellees.

ceiver.

[1, 4] The petition prayed for dissolution of a partnership, for an accounting, and for disposition of the partnership property. The appointment of a receiver was asked by way of provisional and auxiliary relief. The chief ground of opposition to the appointment of a receiver was that the subject of the action was real estate situated in Butler county, and consequently that the court had no jurisdiction to appoint a receiver for it.

The property involved is an oil and gas

The petition examined, and held to state a cause of action to enjoin the foreclosure sale therein mentioned; no misjoinder of causes or parties appearing.

Appeal from District Court, Wyandotte County.

Action by Ida N. Nelson and husband against Jennie Hoskinson, Benham C. Nelson, L. J. Mason and R. L. Hinch, Sheriff of Wyandotte County, Kan. Demurrer to

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 172 P.-63

amended petition sustained, and plaintiffs ap- mer arrangement, the defendant is taking peal. Modified and remanded.

J. M. Mason, of Kansas City, for appellants. O. H. Barker and H. H. McCluer, both of Kansas City, Mo., for appellees.

advantage of the breach of her own agreement. In Hentig v. Sweet, 27 Kan. 172, an accommodation indorser who was liable upon a promissory note then in litigation made a payment after its maturity to the holder, and al hundred dollars in addition upon his promat the request of the plaintiff paid him severise to credit the amounts with the claim and take judgment for only the balance. The indorser, relying upon such promise, made no defense, but the plaintiff took judgment for

the full amount. It was held that as an un

fair and unconscionable advantage was taken

WEST, J. To the amended petition attempting to set up five causes of action for damages, for injunction, and to quiet title, a demurrer was sustained, and the plaintiffs appeal. The story in substance is that the plaintiff Ida M. Nelson was the owner of certain lots on which she gave a mortgage for $4,666 to J. M. Hoskinson, at whose direc-in depriving the indorser of his just credits tion it was executed to his wife, the defendant Jennie Hoskinson; there was a provision that the lots covered could be sold by the payment on the mortgage of a certain price for each front foot; that six months before the note fell due Hoskinson made a provision on another basis, and a new mortgage for $6,345 was executed, and a new ar rangement made about the price to be paid and credited for each front foot sold; that certain releases were to be executed and

he had a right to stay by injunction, the collection of the remainder of the judgment after paying all except that for which he was entitled to credit. On the strength of this decision and the authorities therein cited the plaintiffs have a right to enjoin the sale under the judgment of foreclosure until the alleged wrongs shall have been righted by the defendant Jennie Hoskinson.

It was proper to make the sheriff a party make the sale. No rule of code pleading was defendant, as he was the one ordered to violated by naming Benham C. Nelson as a party defendant and suggesting that he bear his portion of the cost of the litigation. Should he not see fit to defend or assert his own rights, the plaintiffs should be permitted to protect themselves from the effect of the alleged improper inclusion of his lots.

Various allegations of damages and. numerous complaints of John M. Hoskinson's conduct in many respects not already noticed have been considered, but the only result we are able to reach is that the pleading states a cause of action which if proved will authorize the trial court merely to enjoin the sale until such conditions are brought about as may render it equitable and proper to carry it out.

placed in escrow, but were not so deposited; that Hoskinson died leaving everything to the defendant Jennie Hoskinson, as his assignee, she having full knowledge of all the equities of the plaintiffs; that Hoskinson had refused to release the lots which the plaintiff had sold and failed to give credit therefor; that the defendant Jennie Hoskinson, when about to foreclose, induced the plaintiffs to believe that, if they would not defend, she would continue the arrangement substantially as it had been, but proceeded to take judgment, although one of the plaintiffs had at that time been declared a bankrupt and discharged from any liability on the note; that Jennie Hoskinson flatly refused to perform her contract. It was alleged that one Benham C. Nelson had bought certain lots which were not included in the second To this extent only the judgment is modmortgage and "had been released from all prior mortgages," but were attached and sold ified, and the cause remanded for further under a deficiency judgment against the Nel-proceedings in accordance herewith. All the Justices concurring. sons on another note from which W. S. Nelson had been discharged in bankruptcy; that certain other lots bought by Benham C. Nelson subject to the terms of the second mortgage which were to be released upon payment of a certain price for each front foot were included in the foreclosure, and Benham C. Nelson was given no opportunity to redeem without paying the entire judgment; that unless this relief be afforded Benham C. Nelson the plaintiffs might be called upon to respond under the covenants of their deeds to him. It was prayed that he be protected and allowed to redeem, and that the sale under foreclosure be enjoined, and the title of the plaintiffs to the land be quieted. If, as alleged, the failure to defend was caused by the promise to continue the for

(103 Kan. 44)

SEVERY STATE BANK v. HOYT. (No. 21266.)

(Supreme Court of Kansas. May 11, 1918.) (Syllabus by the Court.)

1. PRINCIPAL AND SURETY

109-RENEWAL

NOTE-SURETY-LIABILITY. A surety for a comaker signed a note as maker. The principal obtained a renewal by presenting to the holder a note signed by himThe surety's signature was forged. The holder self and purporting to be signed by the surety. sued the principal and the surety in separate actions on the renewal note. The actions were issue presented to the jury for its determinaconsolidated and tried together. The only tion was whether or not the signatures to the renewal note were forged. The jury found a

general verdict against the principal and in fa- | surrendered to the principal debtors, and vor of the surety. The holder then sued the surety on the original note, which had been canceled and delivered to the principal when the renewal note was given. Held, judgment was properly rendered against the surety.

Sheedy & Stryker, of Fredonia, for appellant. A. F. Sims, of Howard, and F. S. Jack-proposition was conceded by the party whose son, of Topeka, for appellee.

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