Volume 187 — Missouri Reports

Transferred from Kansas City Court of Appeals. (1) Appellant’s position is that plaintiff cannot recover in this case on the instrument sued on, even though it was proper to amend it as it was amended in the justice’s court, and also for plaintiff’s counsel to add for the year 1902, upon the trial of the case. The law governing institution of suit will he found in section 9439, and section 3852, Revised Statutes 1899.

Quo Warranto. (1) A consideration of the constitutionality of the act of 1901, creating the Thirty-first Judicial Circuit, requires a… Held: as is, or may he provided hy law.” Reading these different sections of the Constitution together, in view of the apparent limitations upon the power of the General Assembly under the Constitution of 1865, as construed by this court (in 55 Mo. 215), there was a manifest object in these different new sections of the Constitution of…

— Hon. John A. Hochaday, Judge. (1) The first question to be determined by the court is, was Bailey at any time acting as attorney for… Held: nominally, that as to matters passing between said witness and bis client, W. B. Tucker, after witness bad been employed and retained as an attorney by said Tucker, be, Bailey, was incompetent to testify, under section 4659, yet, as a matter of fact, as disclosed by tbe abstract, said witness was permitted to give evidence concerning…

— How. D. H. Eby, Judge. (1) The information is bad in that it fails to state that James P. Boyd, prosecuting attorney, upon his oath charges the defendant with murder. This court has repeatedly held that an indictment returned by a grand jury charging a defendant with murder must, in the charging clause, include the words, “upon their oaths,” etc. State v. Furgerson, 152 Mo. 92; State v. Sanders, 158 Mo. 610; State v. Cook and Frogge, 170 Mo. 211.

— Hon. Wm. A. Davidson, Judge. (1) As one of the principles of the Federal Constitution which was guaranteed to the inhabitants of the Louisiana Territory, was that no person should be held to answer for a capital or otherwise infamous crime, except by presentment or indictment of a' grand jury, the amendment to the Constitution of Missouri giving the prosecuting attorney power to issue informations in felony cases, is in conflict with the fifth amendment to the Constitution…

Louis City Circuit Court. — Row. Jesse A. McDonald, Judge. (1) The motion to require the State to elect upon which instance of alleged embezzlement it would stand was properly interposed and improperly overruled. Whatever may be said of the motion when first made —at the opening of the ease — its propriety at the close of the case can hardly be gainsaid.

— Hon. L. B. Woodside, Judge. (1) The defendants’ demurrer to plaintiff’s evidence should have been sustained and plaintiff’s bill dismissed because the plaintiff did not show any substantial testimony of possession. On the contrary, the evidence showed that he was not in possession of the property to which he claimed title and from which he was seeking to remove an alleged cloud.

— Ron. James T. Neville, Judge. A motion for a new trial will not be sustained on grounds not alleged in the motion. Albert v. Seiler, 31 Mo. App. 254; Putnam v. Railroad, 22 Mo. App. 589; Alexander v. Railroad, 54 Mr. App. 70; Bollinger v. Carrier, 79 Mo. 318. Whether under the statutes or common law, equity requires that merits in the case and diligence of a party claiming relief be shown before it will interfere; neither is shown by the respondents in this case.

— Hon. W. B. Teasdale, Judge. (1) The court erred in excluding evidence as to the expense necessarily imposed on appellant by reason of this proceeding. 8 Am. & Eng. Ency. Law (2 Ed.), 380; 26 Am. & Eng. Ency. Law (2 Ed.), 646; 1 Rorer on Railroads, 554; 1 Redfield on Railways (6 Ed.), 420; 2 Lewis on Em.

— Row. James T. Neville, Judge. (1) Plaintiff’s petition states a cause of áction. Morgan v. Railroad, 159 Mo. 262. (2) The motion for judgment should have been sustained. One motion to make answer more specific and one motion to strike out parts of amended answer were sustained, and no other answer was filed, leaving defendant in default. R. S. 1899, secs. 621, 622. (3) That portion of the road where plaintiff was injured was publicly travelled and had been for many years.

— Hon. James H. Slover, Judge. (1) Plaintiffs’ amended petition does not state a cause of action; under the will of Cornelius Arn his widow took the fee. Allen v. Claybrook, 58 Mo. 124; Small v. Field, 102 Mo. 104; Holder v. Holder, 59 N. Y. Supp. 204, 40 App. Div., 255; Clark v. Leupp, 88 N. Y. 228; Brown v. Perry, 64 N. Y. Supp. 402; In re Cressler’s Estate, 161 Pa. St. 427; Talbot v. Hammil, 151 Mo. 292; Balliet v. Veal, 140 Mo. 187.

— Hon. Frank R. Dearing, Judge. Skelton v. Sackett, 91 Mo. 379, seemingly holds that an order of publication against Q. R. Noland was not sufficient where the defendant’s name was Quinces R. Noland. This case, however, does not appear to have followed in any of the subsequent cases, and is in terms overruled in the case of Mosely v. Reily, 126 Mo. 127.

— Hon. Henry C. Riley, Judge. (1) The administrator’s deed shows upon its face that it was made from, and attempted to follow, the bond for deed, which formed the basis of the purchase by R. G. Franklin, and hence, under the law, the bond for deed thereby became incorporated in said deed and became a part thereof, and if there is any difference in the two instruments, the provisions of the bond must govern.

— Hon. Nat. M. Shelton, Judge. . (1) The court erred in giving the peremptory instruction to the jury to find for the defendant. In passing on a demurrer to this evidence, every reasonable deduction to be drawn therefrom' which tends to sustain the cause of action set forth in the petition should he considered as absolutely true. Pauck v. Dressed Beef & Provision Co., 159 Mo. 467.

— Hon. W. N. Evans, Judge. (1) Since there is no evidence showing or tending to show that the conditions of the boxings or of the rolls caused, or contributed to cause, the accident, and since the evidence of John Weaver and plaintiff show how the accident was caused, the verdict and judgment should be reversed.

Louis City Circuit Court. — Hon. Warwick Hough, Judge. Both in the Constitution and the statute words of broadest import are used. The word “schools” is used without any restriction or qualification.

Louis City Circuit Court.— Hon. Warwick Rough, Judge. (1) The demand of the St. Lonis Crushed Granite Company against the Schneider Granite Company for breach of contract was an asset of the St. Louis Crushed Granite Company which passed to its directors a§ trustees when the charter of the company expired; and John C. Finch, Jr., Philip F. Stifel and Gottlieb Eyermann, Jr., being at that time the directors of that company, they became entitled to this demand and were…

Louis City Circuit Court. — Hon. D. D. Fisher, Judge. (1) The failure of appellant to prove by positive evidence who it was started the elevator and continued it in operation up to the time it injured appellant, was not fatal to appellant’s prima facie case.

— Hon. H. C. Timmonds, Judge. (1) The plaintiff was not a competent witness to prove the execution of the will, its contents, or its delivery to he recorded; and the court erred in permitting her to so testify over the objection of the defendant, and also in refusing to strike out her testimony on motion of defendant, and also erred in refusing the instruction asked by the defendant that said testimony be excluded.

— Hon. J. W. Alexander, Judge. (1) The trial court committed error in permitting the report of the commissioners to he put in evidence and read to the jury. The only question for the determination of the jury was as to the amount of damages that defendant had sustained hy reason of the appropriation of the 8.3 acres of land in question; and the admission of the report of the commissioners was in violation of the fundamental principals of the law of evidence.

— Hon. J. W. Alexander, Judge. (1) The patent from the United States to the State of Missouri, from the State of Missouri to Chariton county, and from Chariton county to plaintiff, vested in plaintiff the legal title to the land described in plaintiff’s petition. Kennedy v. Daniels, 20 Mo. 104; Snow v. Cunningham, 82 Mo. 587; Romain v. Lewis, 39 Mich. 235; Carpenter v. Ingersol, 43 Mich. 433; United States v. Stone, 2 Wall.

— Hon. John A. Hockaday, Judge. (1) Plaintiffs obtained their title to the real estate in controversy from Josephine Hurt through the liens of a judgment and of a deed of trust and garnishment proceedings. While said liens were in force and of public record and said garnishment proceedings were pending, the defendants purchased the property from said Josephine who delivered them possession.

— Hon. J. L. Fort, Judge. (1) The instruction given on the measure of damages is fatally had. (a) It ignores entirely the injuries set out in the petition, and authorizes the jury to give her damages for any injuries received, whether pleaded or not, and whether the result of the negligence or not. It is a roving commission to the jury and is in that particular error of the most pronounced kind.

Louis City Circuit Court. — Hon. Franklin Ferriss, Judge. (1) The charge exacted by the respondent city, and paid by appellant, for the nse of all water at the meter rates, is a matter of contract between the parties, and not of taxation or license.

Louis City Circuit Court. — Hon. Wm. Zachritz, Judge. (1) The court bad no jurisdiction in this cáse for the reason that when Gilpin filed his affidavit and bond as surviving partner,.and the probate court approved said bond, there was necessarily a finding and judgment by the probate court that Charles S. Gilpin was the surviving partner of the Union Station Cigar Company, and this judgment can not be collaterally attacked.

Louis City Circuit Court. — Hon. Franklin Ferriss, Judge. (1) There is no duty under the common law upon any one to equip a building with fire-escapes. Pauley v. Gauge & Lantern Co., 131 N. Y. 90; Jones v. Granite Mills, 126 Mass. 84; Keith v. Granite Mills, 126 Mass. 90; Schmalzreid v. White, 97 Tenn. 36; 13 Am. and Eng. Ency. of Law (2 Ed.), 82. (2) Section 9036, Revised Statutes 1899, has no application to this case, and was repealed by the act of 1901.

<p>1 QUO WARRANTO: School District: Character. A statutory quo loarrwnto proceeding begun by a prosecuting attorney at the instance of a taxpayer to test the legality of the organization of a school district, is not a common law quo warranto which may be filed ex officio by the prosecuting attorney without leave of court, but is such a proceeding as the court may entertain or refuse to entertain according to a wise judicial discretion.</p> <p>2. -: -: Against Whom Brought. A quo warranto proceeding to test the legality of the organization of a school district should be brought against its individual directors.</p> <p>3. NEW SCHOOL DISTRICT: Who May Appeal. Where the existing school districts, from which parts are to be severed to make up a new district, do not agree upon the proposition to form a new district, the appeal provided by the statute to the county commissioner may be taken by the ten qualified voters of the district to be established who set the legal machinery in motion for its creation.</p> <p>4. -: -: Arbitration Board. The ten legal voters of the new school district who originated the proceedings for its formation, have the right, if the districts to be affected disagree, to a second hearing before the county commissioner and the arbitration board provided for by the statute whose decision is the final one. In such case the arbitration board acts as a sort of appellate tribunal.</p> <p>5. -: -: Oath of Arbitrators and Witnesses. The statute does not require the arbitrators provided for by the statute to finally determine whether a new district shall be created by severing parts of other districts, to be sworn. Nor does it require the witnesses which appear before it to be sworn. It only requires them to be disinterested taxpayers of the county. The general statute in reference to arbitrators does not apply to such proceeding.</p> <p>6. -: Qualified Voters: Showing. Before a new school district formed by severing parts of existing districts can be shown to have resulted from the votes of persons not qualified to vote, it must be shown how they voted on the proposition. If their votes determined the matter one way or the other, that fact must be shown. A simple showing that they were not legal voters is not sufficient.</p>

— Hon. W. N. Evans, Judge. (1) The court erred in excluding from the evidence the sheriff’s tax deed to John C. Brown, comprising one link in plaintiff’s chain of title, thus forcing plaintiff to take a nonsuit. Secs. 570, 580, 629, R. S. 1899; Cochran v. Thomas, 131 Mo. 258; Green v. Reserve Assn., 79 Mo. App. 179; McGrew v. Railroad, 87 Mo. App. 250; Draper v. Bryson, 17 Mo. 71; Land v. Shippie, 57 Mo. 523; Atwood v. Atwood, 55 Mo. App. 370; Nevault v. School, 79 Mo.

<p>Appeal from Pike Circuit Court. — Hon. D. H. Eby, Judge.</p>

<p>Appeal from Callaway Circuit Court. — Hon. John A. Hockaday, Judge.</p> <p>(1) This case was prematurely brought. R. S. 1899, secs. 4375, 4386, 4622, 4624; Hughes v. Burriss, 85 Mo. 660; Lamb v. Helm, 56 Mo. 432; Tapley v. McPike, 50 Mo. 589; Stowe v. Stowe, 140 Mo. 594. (2) It is alleged in plaintiff’s petition that the Louisiana & Missouri River Railroad Company has a right-of-way over 160 acres of the lands involved, and by the agreed statement of facts it is admitted that Joel. K. Hitt has a contingent undivided one-tenth interest in said lands. These two persons should have been made parties defendant m this proceeding, and it was error in the court to hear this cause and enter a judgment in partition without first having them made parties to this case and brought into court by due process of law. R. S. 1899, secs. 4375, 43.76, 4377, 4378, 4386; Lilly v. Menke, 126 Mo. 190; Hiles v. Rule, 121 Mo. 248; Estes v. Nell, 108 Mo. 172; Dameron v. .Jameson, 71 Mo. 97; Barney v. Baltimore, 6 Wall. 284.</p> <p>(1) Partition was not prematurely ■ brought. Whilst the statutes allow a certain time in which the probate of a will may be contested, yet the rights of the beneficiaries under the will to the possession and enjoyment of their bequests and devises are not relegated or denied to them until the passing of that time. Legatees and devises enter upon the enjoyment of their benefactions upon the establishing of the will in the usual form in the probatee court.. They assunling the hazard and liability of a subsequent setting aside of the probate of the will in contest proceedings. Otherwise intolerable hardships would result. Where property, real or personal, is held in common, partition is one of the incidents necessary to the full ownership and enjoyment of the same by. the individual owner. The right of partition is an absolute right which yields to no consideration of hardship or inconvenience. Haeussler v. Iron Co., 110 Mo. 194. The fact that there maybe a contingent interest in real estate will not defeat the right of partition. Partition of real estate will not be refused because there is a contingent estate in the land which may hereafter become vested. R. S. 1899, sees. 4377 and 4378; Reinders v. Koppelman, 68 Mo. 501; Sikemeir v. Galvin, 124 Mo. 367; Preston v. Brant, 96 Mo. 552. (2) There was no deficiency of parties. Joel K. Hitt is not a necessary party for the reason that he has no interest in said real estate that can be adjudicated by this proceeding. He has none under the will and presents none. He has his five years ’ limitation after his majority to institute his suit to contest the will, and the circuit court has no power to adjudicate his claim or title in said lands, until he has first established such claims by proper' proceedings within the limitations allowed him; and this especially can not be determined in a partition proceeding. Partition proceedings are not for the purpose of determining title to real estate, but to adjudicate and separate the interest of joint owners or tenants in common. Suits to determine title, as by ejectment, can not be joined with partition proceedings. Gott v. Powell, 41 Mo. 416; Reinders v. Koppelman, 68 Mo. 501; Sikemeir v. Galvin, 124 Mo. 367; Preston v. Braut, 96 Mo. 552; Cochran v. Thomas, 131 Mo. 271; Hinds v. Stevens, 45 Mo. 209; Estes v. Nell, 140 Mo. 639.</p>

— Hon. T. J. Delaney, Special Judge. (1) A petition in equity to set aside a release of part of the property included in a deed of trust, released by mistake, which fails to show that the remaining property is insufficient to secure the balance still due on the note,, is fatally defective. Haseltine v. Smith, 154 Mo. 413. (2) To bave a deed of release set aside the party giving tbe deed must show that he has suffered an injury.

— Hon. Jno. A. Hockaday, Judge. (1) No bill of exceptions is necessary to present for the consideration of this court the error relied upon by the appellants for a reversal of the decree rendered by the court below. Bagby v. Emerson, 79 Mo. 140; State ex'rel. v. White, 61 Mo. 441; Land Co. v. Bretz, 125 Mo. 422; Ryan v. Growney, 125 Mo. 482; Brown v. Appleman, 83 Mo. App. 83.

— Hon. J. H. Slover, Judge. (1) When one’s name appears on the back of a promissory note of which he is neither payee nor indorsee the presumption, in the absence of extrinsic evidence, -is that he is a maker, but this presumption may be rebutted by evidence showing just what the relation of the parties was. It is always open to him to show that he was not a maker, but that his contract was that either of accommodation indorser, surety or guarantor.

Mandamus. (1) After the time had expired within which plaintiffs were given to file their bills of exceptions, respondent’s act in signing the bills of exceptions was a nullity, unless he did so in pursuance of an order of this court; hence, it is no defense to this action that respondent signed the bills of exception during the month of December, 1904. “Counsel cannot confer jurisdiction.” Bank v. Barker, 145 Mo. 367; State ex rel. v. Gates, 143 Mo. 63; State v. Schuchmann,…

<p>1. SHERIFF’S FEES: Holding Prisoner After Arrest. A prisoner was arrested by virtue of a capias issued by the circuit clerk, upon the filing of an information charging him with a felony, and from the date of his arrest until he was ordered by the circuit court to be committed to the custody of the sheriff until the date of his 'trial he was in the custody of the sheriff by virtue of his arrest in pursuance to the command of the capias. Held, that the sheriff is not entitled to $1.25 a day for keeping the prisoner, for the prisoner was not, within the meaning of the statute, “undergoing an examination preparatory to his commitment,” but was simply being held for trial in the circuit court upon the information filed by the prosecuting attorney.</p> <p>2. -: Creatures of Statutes: Duty of Courts. Costs and fees are purely the creatures of the statutes. The courts can only construe the statutory law as it is written. It is not for them to say what fees are a just and fair compensation to the sheriff for holding for trial a prisoner after arrest. They can award the payment of only such fees as the statutes specifically fix.</p>

— Hon. Wm. L. Jarrott, Judge. (1) Under the well-established law of this State, the plaintiff is not entitled to recover, even under the humanitarian rule, unless the evidence shows thalt the engineer and fireman actually saw deceased in peril before he was struck, and in time to have avoided the injury. Barker v. Railroad, 98 Mo. 50; Coatney v. Railroad, 151 Mo. 35; Davies v. Railroad, 159 Mo. 1; Tanner v. Railroad, 161 Mo. 497; Carrier v. Railroad, 175 Mo. 470.

Louis County Circuit Court. — Hon. Jno. W. McElhinney, Judge. (1) The court erred in admitting in evidence the 'ordinance of the city of St. Louis requiring a train to be manned with experienced brakemen at their posts. There was no evidence that the ordinance was violated, and nothing from which it conld he inferred that if it was violated its violation contributed to cause the accident. Hence, it formed no basis for recovery against defendant.

Prohibition. (1) The indictment charges petitioner with the commission of a misdemeanor and the circuit court of the city of St. Louis has no jurisdiction. 2 R. S. 1899, art. 18, p. 2149; 2 R. S. 1879, sec. 1, ch. 2, p. 1507; Laws 1895, p. 130; 2 R. S. 1899, sec. 27, art. 17, p. 2538.

<p>1. DEED OF TRUST: Foreclosure: Advertisement for Less Number of Days. A trustee’s deed, made in pursuance to a foreclosure and sale under a deed of trust, passes the legal title, although the land be advertised for sale for a shorter length of time, and in fact sold within a less number of days after the advertisement was begun, than is provided for by the deed of trust. When the trustee conveys the land by deed it passes the legal title, notwithstanding the same may be made in violation of the provisions of the deed of trust.</p> <p>2. -: -: irregular: Reinstating Mortgage. Where the sale by the trustee is at most irregular, not void, it can be taken advantage of only by the mortgagor or those claiming under him, by an action to redeem the land, accompanied by an offer to pay the indebtedness secured by the deed of trust; it furnishes no ground for reinstating the deed of trust.</p> <p>3. -: -: Fraud; Surrender of Note: Innocent Purchaser: Insufficient Advertisement: Request of Legal Holder. Where the beneficiary of a deed of trust has been defrauded by the false representations of the mortgagor into surrendering to him the note secured by the deed of trust, and thereafter the mortgagor and the purchaser at the foreclosure sale enter into a conspiracy to have the deed of trust foreclosed and the property sold, and that is done, after the maturing of the note, and the title subsequently passes to an innocent purchaser from a vendor in possession, the beneficiary cannot have the sale set aside and the deed of trust reinstated, for as against such beneficiary the title of a purchaser without notice of the fraud is good. And this is the law, although the sale was made at the request of one who was not the legal holder of the note, and although it was made after an advertisement of twenty days when the deed of trust called for thirty days.</p> <p>4. -: -: Trustee’s Refusal to Act. Although the trustee named in the deed of trust did not refuse to act, and knew nothing of the sale, a sale before the debt is paid, by the sheriff as acting trustee, does not vitiate a subsequent deed to innocent purchasers from a vendor in possession under the sheriff’s deed in foreclosure.</p> <p>5. TAX TITLE: Justice’s Court. A judgment for taxes rendered by the court of a justice of the peace is void for want of jurisdiction in the justice to render it, but where there is a sale under such judgment and the sheriff’s deed is recorded it may be color of title in one who claims by limitation.</p> <p>6. LIMITATIONS: Establishing Title By. A person claiming land under the Statute of Limitations cannot suffer another who is connected with the record title to go' into possession and thereafter sell the land to an innocent purchaser, and then come into court and establish title by limitation as against such purchaser. Such claimant should proceed under section 653, Revised Statutes 1899.</p>

— Hon. Frank A. Dearing, Judge. (1) Without an express averment or covenant as to quantity of land in a deed, it will always be regarded as part of the description merely, and will be rejected if inconsistent with, the actual area of the premises, if the same is indicated and ascertained by known monuments and boundaries.

— Hon. Argus Cox, Judge. (1) Points determined by the decision and opinion on the first appeal are not open questions now, but are res judicata; and the order of the Newton Circuit Court is in full force, though it never has been complied with; and the Polk Circuit Court was without authority to disregard that order or put appellant under any apparent necessity of waiving objection to the petition or for substituting its own view as to what is a sufficient pleading.

— Hon. W. W. Graves, Judge. (1) Inasmuch as appellant.cannot, in a case like this, have the judgment set aside, or the enforcement of it restrained, by a bill in equity, the right to insist upon either the trial court or this court exercising the right to prevent the accomplishment of a fraud by perjury, is manifest. Wonderly v. Lafayette Co., 150 Mo. 639; Hamilton v. McLean, 139 Mo. 688; Pears v. Riley, 148 Mo. 61.

<p>1. SWAMP LANDS: State Board of Education: Power to Employ Attorney. The General Assembly had the power under the provisions of the Constitution (sec. 4, art. 11) to create a State Board of Education with power to employ an attorney in each Congressional district, as provided by the statutes (secs. 9814 and. 9817, R. S. 1899), to look after the swamp and overflowed lands in any county, the titles to which are vested in the county for use of the public school fund. And the employment of an attorney to assist in the defense of an action brought by private parties against the county to have a decree previously rendered in favor of the county set aside, and to quiet the title of the land embraced in the suit, is within the scope of the powers so conferred on the State board by the statute. The statute was intended for the public good, and should be liberally construed with a view to carrying out that intention.</p> <p>2. COUNTY COURT: Swamp Lands: Power to Employ Attorney: Ratification. An order of the county court authorizing an attorney to assist the county attorney in the defense of suits brought by, private parties to have set aside a decree vesting the title of swamp lands in the county for use of the school funds, is invalid. Nor can the court by an order of record, made after the services have been performed, ratify such an order, for the order being void it cannot be made valid by a subsequent order ratifying it. Nor does the fact that the attorney so employed assisted the county attorney, by and with the knowledge and consent of the county court, amount to a ratification of the supposed contract of employment. Nor does the fact that the court, during the time such services were being rendered, directed a warrant to issue payable to him for expenses incurred by him on behalf of the county in defending such suit, amount to a ratification of the original void order.</p> <p>3. -: -: -: -: Act of 1895: Prospective. The act of 1895 (Laws 1895, p. 44), giving to the county court power to employ an attorney to represent the county in the recovery of swamp lands belonging to. the schools, of the county, and to quiet the title of the county to such lands, is not a retrospective law. It does not mention suits then pending, nor the suits for which the attorney rendered services in this case, and there being nothing on its face to. indicate that it was intended to be retrospective in its operation, it must be held ib be prospective only. And, hence, it cannot he held that that act authorized the county court to ratify a contract of employment of an attorney • theretofore entered into and under which the attorney had rendered the services for which he seeks compensation, for that contract being void this act was no authority for rendering it valid.</p> <p>4. -: -: -: Estoppel. Estoppel does not apply to counties. So that a county, when sued for legal services rendered on behalf of the county, is not estopped to deny that the county court had no authority to make the contract employing the attorney who rendered them.</p> <p>5. -: -: -: Limit of Recovery. An attorney employed by the State Board of Education to assist in the defense of certain suits then pending by which it was sought to divest out of the county the title to certain lands, is entitled to compensation for services rendered in the recovery of only such lands as were alleged by the petition in that suit to have been owned and claimed by the county, and such other lands belonging to the county as were actually involved in the litigation and in respect to which the attorney rendered legal services.</p>

<p>1. NEGLIGENCE: Reservoir: Duty of City: Drowning: Burden of Proof. Where a city has turned a part of the block on which is located its water reservoir into a park, and on a level with the coping of the reservoir wall built a walk or parkway, and on the outer edge of the coping built a wire fence, the burden is on the plaintiffs, who sue for the drowning of their eleven-year-old son in the reservoir, to show that the city was negligent in performing its legal duty to exercise reasonable care and precaution in the erection of safeguards to protect from injury children and other persons who had the right to seek the park for rest and pleasure.</p> <p>2. -: -: — : -: Care. In such case the care required of the city is the care that prudent persons would use under the samé or similar circumstances. It was not required to build a fence around the reservoir that would be impossible for boys to climb over, but only such a fence as would prevent children who had a reasonable respect for the wishes of the owners of the property from trespassing upon it.</p> <p>3. -: -: -: Trespasser: Matter For Jury. A reservoir, indispensably necessary for the operation by the city of its waterworks, was inclosed with a wall, on the outer edge of the coping of which was a woven wire fence four and a half feet high, and on a level with that was a walk for the accommodation of persons who might wish to visit the park which constituted the rest of the block. Plaintiffs’ son, eleven years old, although he had before been chased from the inside of the fence by watchmen and he and other boys had been notified that they were not permitted to go inside the fence, climbed the fence, and in trying to fish out a frog which other boys had wounded, slipped, fell in, and was drowned. There was no other way to enter the reservoir inclosure except to climb the fence. Held; that the boy was a trespasser, -and the court should have instructed the jury that the fence was a reasonable exercise of the city’s duty to safeguard the reservoir, -and erred in submitting it to the jury to say whether or not the city had exercised such reasonable care and precaution as the law imposes on it.</p>