68 P. 55 | Kan. | 1902
The opinion of the court was delivered by
This was aii action brought by Arthur and Agnes Sullivan, husband and wife, against the City of Wichita for damages for erecting a water dam on the plaintiff’s homestead and flooding a por
In November, 1873, one E. L. Wheeler and one L. G. Scheetz became possessed of an instrument of writing signed by the plaintiff, Arthur Sullivan, and purporting to be signed by his wife, Agnes Sullivan. It was in the form of a deed, with the following granting clause:
“Have granted, bargained, and conveyed, and by these presents do hereby grant, release, and convey, unto the said parties of the second part and to their heirs and assigns forever the right to build and maintain a dam across the stream known as the Little Arkansas river, at a point at or about eight rods up said stream from the point where said stream crosses the west line of the southeast quarter of the southwest quarter of section twenty-nine (29), in township twenty-six (26) south, of range No. one (1) east, in Sedgwick county, Kansas, and also the right to dig, excavate and. maintain an aqueduct or mill-race not more than sixty feet wide running from said above-*541 described point of location of said dam in a southeasterly direction to the section line running east and west between said section twenty-nine and said section thirty-two of said township, so that said race shall strike said section line not farther east than the quarter-section line corner between said sections, and running thence east on said section line to the stream known as Chisholm creek, in said county; together with the right to enter upon said premises to erect, construct, operate or repair said dam and mill-race. To have and to hold the right and easement hereby granted unto the parties of the second part, their heirs, legal representatives, and assigns.”
Mrs. Sullivan testified on the trial of the case that she never signed or anywise consented to the above instrument of writing, and, despite one or two circumstances indicating to the contrary of her testimony, it is probable that she did not; therefore' the writing, viewed as a conveyance of the easement in question, will be laid out of consideration. However, in January, 1874, about two months after the purported execution of the above-quoted deed, both the Sullivans entered into an arbitration agreement in writing with the before-mentioned Wheeler and Scheetz concerning the easement as a subject of controversy between them. In that agreement arbitrators were chosen for the following purpose, quoting its language,
“to hear all the proofs and allegations of the parties of and concerning the amount of injury and damages accruing to the said parties of the first part and to a certain tract of land of the parties of the first part accruing or about to accrue and suffer (and which is hereinafter described) by virtue of a grant by the parties of the first part to the parties of the second part of a franchise, easement, privilege and right to the parties of the second part to build, erect and forever maintain a dam across the stream known as the Little Arkansas river, at or about eight rods up said stream*542 from the point where said stream crosses the west line of the southeast quarter of the southwest quarter of section number twenty-nine (29), in township twenty-six (26) south, of range number one (1) east, in Sedgwick county, Kansas, and also the right to dig, excavate and maintain an aqueduct or milL-race not more than sixty (60) feet wide, running from said above-described point of location of said dam in a southeasterly dii'ection to the section line running east and west between said section twenty-nine (29) and section thirty-two (32) of said township, so that said race shall strike said section line not further east than the quarter-section corner between said sections, and running thence, east on said section line to the stream known as Chisholm creek, in said county, together with the right to enter upon said premises to erect, construct, operate or repair said dam, aqueduct, or mill-race.”
An arbitration was had pursuant to the foregoing agreement, and an award was made in favor of the Sullivans, ,and paid. It will be observed that the agreement stated the subject of the arbitration to be the damages accruing to the Sullivans by virtue of a grant made by thfem to Wheeler and Scheetz to erect and maintain a dam and to excavate and maintain an aqueduct on certain land, the description of which is identical in words with those used in the purported deed before quoted. Wheeler and Scheetz soon thereafter entered on the land and, with the knowledge and consent of the Sullivans, built the dam and dug the waterway. The r Sullivans boarded some of the laborers engaged in doing the work, and Sullivan himself performed part of it. The easement was never abandoned, but has been maintained to the present time by the original owners and several successive grantees from them, and has now passed to the city of Wichita. The city purchased it to use the water for flushing sewers and other purposes.
One of the main contentions of the plaintiffs in error is that, inasmuch as the deed to Wheeler and Scheetz before quoted was not signed by Mrs. Sullivan, there was not that joint consent of husband and wife which the constitution requires in order to the alienation of homestead interests. That is true. That paper did not evidence the joint consent of Sullivan and wife, but the abitration agreement, the acceptance of the award, the entry into possession of Wheeler and Scheetz, the building of the dam, the digging of the -aqueduct, the maintenance of possession, and the use of the easement, all with the knowledge and consent of both Sullivan and wife, did constitute a joint consent by them. The cost of the work done by Wheeler and Sheetz is probably stated in the evidence, but we have not searched through the voluminous record to find it and ascertain the amount. The award of damages paid by them was $350, and we are entitled to assume as a matter of common knowledge that the cost of the work done to make the grant of the easement available was considerable.
It has been held in this state that the joint consent of husband and wife to the alienation of the homestead is not of necessity to be given in writing. It may be given orally and evidenced by acts in pais, and if so given and evidenced the homestead claimants will not be heard to deny it. That was distinctly so ruled in Perrine v. Mayberry, 37 Kan. 258, 15 Pac.
“Again, neither the statutes nor the constitution requires that the alienation of a homestead with the joint consent of the husband and wife must be in writing. Of course, the joint consent must exist before any voluntary alienation of the homestead. In this' case, there was the express joint consent of the husband and wife. (Const, art. 15, §9; Comp. Laws of 1879, ch. 88, §1.) Upon that joint consent, the purchase-money was paid, possession was taken, lasting and valuable improvements were made. Mayberry cannot now be robbed of the fruit of his toil and outlays by the refusal of Mrs. Perrine to sign the deed.”
The present case is a stronger one against the homestead claim than the one from which the above quotations are made. In this case there was that which approached very nearly to a written joint consent. The arbitration agreement recited “a grant by the parties of the first part to the parties of the second part,” and it stated the subject of the arbitration to be a claim of damages accruing by virtue of such grant. The difference in legal effect between a consent to the arbitration of the amount of consideration
A multitude of claims of error are made. Most of them are subsidiary and incidental to the one above discussed, and some others are of a minor and unsubstantial character. The court struck out certain paragraphs of the plaintiffs’ reply. The court did right. Portions of the reply stricken out tendered issues of law instead of fact. Other portions plead a contract between the city and Arthur Sullivan, and a stipulation entered into during the progress of the case relative to a change of the pleadings and the form of the action. They were urged as estoppels, but they were not. Still another claim of error was that the easement in question was personal in its nature, was a mere license to the first grantee, and did not pass by the subsequent conveyances. This is clearly untenable. It would subserve no useful purpose to explain the facts underlying these and other claims of error and set forth the law pertaining to them. The one matter above discussed involves the principal question .in the case.
The judgment of the court below is affirmed.