Ferguson v. Graves

12 Kan. 39 | Kan. | 1873

The opinion of the court was delivered by

Valentine, J.:

In 1867 a county road running from Leavenworth city, south, to the town of De Soto on the Kansas river, was laid out and established; or at least it was attempted to be laid out and'established. A portion of the road was located on a section line on the east side of the plaintiff's land. Immediately after this roa^l was laid out, it was opened for the public travel. There was some evidence tending to show that the plaintiff signed the original petition for the location of the road: and without question he recognized the existence of the road after it was laid out, and opened, in various ways. At one time he remonstrated against a change of the location of the road for the following among other reasons, to-wit: “That it [the road] has been laid out on the best ground, and in every instance on section lines where it was possible; that where it crosses any land it was so located before any of the lands were sold by the railroad owner, and was appraised and sold to the petitioner [for the change] at a lower price on account of the location of the road over them; that the road works no hardships on the owners, as they purchased with knowledge of the road at small prices; that the change will require thousands of dollars to be expended to bridge and open the same; that the road will be lengthened, and the road more hilly," etc. The plaintiff has enjoyed the benefits of this road for several years. Pie repeatedly promised the road overseer to remove out of the road a portion of his fence which was in the same, but always failed to do so. And when the road overseer, in July 1871, gave notice, and moved the fence himself, the plaintiff commenced this action against the road overseer, Graves, and those who assisted him in moving the fence, claiming that they had committed trespass. And the ground upon which he claims that the removal of the fence was a trespass is, that there were some irregularities in laying out and establishing said road, and therefore that the road was not and never has been a legal and valid road. The judgment below was for the defendants, and against- the plaintiff for costs, and he now seeks to reverse that judgment by this petition in error. The assignments of error are as follows:

“ lst.-The district court erred in admitting the record of the road proceedings offered in evidence by defendants to go to the jury.

“ 2d.-Said court erred in permitting the remonstrance to go to the jury.

“ 3d.-The court erred in refusing the instructions asked by plaintiff.

“4th.-The court erred in the instructions given by it to the jury.

“ 5th.-The court erred in overruling plaintiff’s motion for a new trial.”

The first and second assignments are not well taken. We perceive no error in permitting said evidenoe to go to the jury; and we perceive no good reason for asking for its exclusion. If there was any such reason, the reason is not obvious, and the plaintiff took no trouble to make it obvious to the court below. The objections to the evidence and the exceptions to the rulings of the court thereon are stated in the record as follows:

“To the reading of which record plaintiff objected, which objection was by the court overruled, to which ruling of the court the plaintiff at the time excepted, and now excepts, and said record was read. The defendants then offered in evidence the following five papers, purporting to be the original papers in the foregoing road case, to the reading of which papers the plaintiff objected, and the court overruled said objection, to which ruling of the court plaintiff excepted and excepts, and said papers were read to the jury.”

These were the only objections and exceptions to said evidence and to said rulings, and they were not sufficient. The evidence would seem to be admissible, at least under the discretion of the court. (Leavenworth v. Laing, 6 Kas., 284, 285.) And that where evidence is apparently admissible for any purpose, or under any circumstances, the court does not err in admitting the same, unless the reasons for its exclusion are given by the party objecting, has been repeatedly decided by this court.

The record does not purport to contain all the instructions given, and hence we cannot consider those refused. This has also been decided frequently in this court. A question might also be raised as to the sufficiency of the exception to the refusal of the court to give the instructions. (Sumner v. Blair,

9 Kas., 521, 530.) Tbe exception was general to a large number of different instructions refused.

The charge of the court to the jury was very lengthy, containing more than 3500 words, and embraced many different subjects. The plaintiff excepted to the giving of said charge, in the following manner: “To the giving of which charge by the court the plaintiff at the time excepted, and now excepts.” This was the only exception- to the charge, or to any portion thereof, and it was certainly insufficient. Sumner v. Blair, supra; Atchison v. King, 9 Kas., 550, 560. A general exception to a whole charge is not available unless the whole charge is erroneous, or unless the charge in its general scope or meaning is erroneous. The charge in the present case is not subject to any such objections.

■The motion for a new trial is not contained in the record, and therefore we cannot tell whether the court below erred in overruling it or not.

The judgment of the court below is affirmed.

All the Justices concurring.