30 Kan. 359 | Kan. | 1883
The opinion of the court was delivered by
The petition of the plaintiff contains three ■counts. The first alleges, inter alia, that the railway company, by its agents and employés, changed and altered the ■course and channel of the stream fed by surface-water, known as “Salt creek,” running through plaintiff’s lands, and made
As the jury found for the company upon this count on the facts submitted, and as no complaint is made thereof, the matters therein alleged are not before this court for consideration. The jury found a general verdict for the plaintiff on the first and second counts in the petition, and assessed his damage at $60 on each count, being a total of $120. The jury returned with their general verdict fifty-nine special findings of fact. The defendant filed a motion for judgment on the special findings, which motion was sustained, and judgment rendered against plaintiff for all costs.
The question submitted to this court is, whether the district court erred in rendering judgment on the special findings, for the railway company and against the plaintiff. It would be superfluous to recite the special findings, and all that we deem it necessary to say of them is, that the special findings are inconsistent with each other, and some of them with the general verdict. It appears that the general verdict and some of . the special findings are in favor of the plaintiff; but other of the special findings are in favor of the railway company. Therefore it may said that the jury found upon the first two counts both ways. Under these circumstances, we think the court erred in rendering judgment for the railway company. We cannot say, upon the record before us, that the plaintiff is entitled to judgment. Therefore, as in the condition of the
