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during the entire statutory period is essential to gain title.19 It is not, however, necessary that during the whole time the disseizor be in actual occupancy of the land, or have his residence on it.20 To make out the full term of statutory prescription, the possession of successive occupants must be connected and continuous; but such connection and continuity may be affected by any conveyance, agreement or understanding that has for its object a transfer of the possession, and is accompanied by a tranfer in fact.21 And, so, if a person enter upon land, and die in the adverse possession of it, leaving a widow and children, one of whom continues in possession and conveys the land to a third person, who goes into immediate possession and continues it to the end of the full statutory period, the several possessions may be tacked, so as to make a good title under the statute of limitations.2

An entry upon land by a stranger, under claim of right, is held to be an actual disseizen of the owner, which puts into operation the statute of limitations against him, and is, therefore, a hostile possession.23 In the case of Ballard v. Hansen the learned court said: "The word 'hostile,' when applied to the possession of an occupant of real estate holding adversely, is not to be construed as showing ill will, or that he is an enemy of the person holding the legal title, but means an occupant who holds and is in possession as owner, and therefore against all other claimants of the land."'24 Some courts have expressed a doubt as to the application of the rule as to notice of adverse holding where the grantor continues to hold possession after the delivery of the deed, or where a tenant continues to hold possession

19 Stonestreet v. Doyle, 75 Va. 356, 40 Am. St. Rep. 731; Bliss v. Johnson, 94 N. Y. 235; Wickliff v. Ensor, 48 Ky. 253; Harrison v. Cachelin, 20 Mo. 117; Claney

Handlette 39 Me. 451.

after the expiration of his tenancy, but in our view there is no reason for a distinction. The question in every case is, by what right is he in possession ?25 The statute is one of repose, and it is safe to assume that any person who claims a title or interest in the land in opposition to the party in possession will assert it within the time fixed by the statute. The doctrine of title by adverse possession, continued for the statutory period, is not founded on any probability of actual grant, but is a positive rule established for quieting titles.27 "The operation of the statute," says Mr. Washburn, "takes away the title of the real owner, and transfers it, not in form, indeed, but in legal effect, to the adverse occupant."'28

Where adverse possession exists, and the statute of limitations is depended upon as a bar to an action, the statute must be pleaded,29 and such plea should state that the cause of action did not accrue within the prescribed period next before the commencement of the suit.80 The plea bringing the statute of limitations into operation as a bar should show all of the essential elements of adverse possession. It has, however, been held by some of the courts that adverse possession may be maintained under a general denial and allegation of ownership. The plea should set forth all of the facts constituting the adverse possession, 32 namely: actual, open, notorious, exclusive and continuous, hostile possession under claim of right of ownership, or color of title.33

81

The party alleging the adverse possession must prove the facts necessary to sustain such

25 Hansen v. Berthelsen, 19 Neb. 433; Kahre v. Run. dle, 38 Neb. 320; Smith v. Meyers, 76 N. W. Rep. 1084. 26 Tourtelotte v. Pearce, 27 Neb. 62; Campau v. Dubois, 39 Mich. 281; Faught v. Holway, 50 Me. 24; Ellicott v. Pearl, 10 Pet. 412.

27 Cannon v. Phillips, 34 Tenn. 211; Melvin v. Wad dell, 75 N. Car. 361.

28 Washburn on Real Propertv. 164.

plea.34 Adverse possession, to be available, must be clearly proved and not left to mere conjecture. 35

What constitutes an adverse possession is a question of law for the court;36 but the facts, necessary to establish that possession, are to be determined by the jury.37

A. L. TIDD.

34 Durham v. Holeman, 30 Ga. 619; Smith v. Pow. ers, 23 Tex. 29; Bolden v. Sherman, 101 Ill. 483; Wilkerson v. Thompson, 82 Mo. 317; Doherty v. Matsell, 119 N. Y. 646; Rowland v. Williams, 23 Oreg. 515; McDermott v. Hoffman, 70 Pa. St. 31.

35 Weaver v. Wilson, 48 Ill. 125; Ambrose v. Raley, 58 Ill. 506.

36 Macklot v. Dubrenil, 9 Mo. 447, 48 Am. Dec. 550; Paxson v. Bailey, 17 Ga. 600; Harper v. Morse, 114 Mo. 317.

37 Anderson v. Boek, 56 U. S. 323; Gardener v. Gooch, 48 Me. 487; Eaton v. Jacobs, 52 Me. 445; Trufant v. Hudson, 99 Ala. 526; Webb v. Richardson, 42 Vt. 592.

COMMON NUISANCE-ABATEMENT-CHANGE OF VENUE-MISDEMEANOR.

STATE v. STARK.

Supreme Court of Kansas, Division No. 1, October 5, 1901. 1. All places where intoxicating liquors are sold or kept for sale, or places where persons are permitted to resort for the purpose of drinking the same, are declared by statute to be common nuisances. This fact, however, does not justify their abatement by any person or persons without process of law. They can be abated only by a prosecution instituted in behalf of the public by the proper officer. The destruction or injury to property used in aid of the maintenance of such nuisances, except in the manner provided by the statute, is a trespass.

2. A change of venue in a criminal prosecution is a wrong to the public unless the necessities of justice to the accused require it. Prejudice on the part of a judge must clearly appear. A prima facie showing of predjudice is insufficient. The case of City of Emporia v. Volmer, 12 Kan. 622, followed.

3. In the commission of a misdemeanor there are no accessories. All persons aiding or counseling are principals.

Balfe H. Stark was convicted of malicious trespass, and he appeals. Affirmed.

The appellant, with Carrie Nation and six others, was charged by information with maliious trespass, under section 2053 of the General Statutes of 1899. The offense alleged was that defendants did, on or about the 17th day of February, 1901, willfully, unlawfully, and maliciously break, destroy, and injure the door and windows of a building at No. 111 East Sixth street, in the city of Topeka, used as a cigar store and billiard hall by F. H. Murphy. Having obtained a separate trial, the appellant moved the court for a change of venue on the ground of the prejudice of the presiding judge against him. This application was based on language used by

the judge towards Carrie Nation and three others, who were brought before him upon proceedings wherein they were held to give bond to keep the peace, the charges being substantially the same as those contained in the information against the appellant, to-wit, the destruction of property. The latter, however, was not a party to that prosecution. In addressing Mrs. Nation and the three others, the judge stated that the action of the parties was wholly unwarranted by any construction to be placed on the law, and further said: "I want to say to you people who appear charged with having aided and abetted her that this is a court of law, and not one of sentiment. Having broken the law, you have no more rights in this court than the jointist. Your contempt of the law is as great as his. Mrs. Nation and her followers made an atttack Sunday upon a perfectly legitimate business in which $100,000 is invested. They have repeatedly broken the law, and destroyed property, and gone unhindred and unpunished. The time has come in this community when people are demanding that something be done. I want to say to you that this unwarranted destruction of property must stop. Have people no rights that a crazy woman and her deluded followers are bound to respect? There is not a lawyer in this room who will not tell you that you have no right under the law to do these things. You have no right to attempt to abate a nuisance except through the regular channels. Reputable men in this community have given sanction to a movement that has led to riot, and may lead to bloodshed. I want to say to you people who have been placed under bond that if you go out on any more raids your bondsmen will be compelled to forfeit the amount to the last penny. I want to make this proposition clear to you. Property must and will be defended." The information was filed February 17th, and the case called for hearing February 20th, and thereon passed until February 25th. A motion was then made by appellant for a postponement on account of the sickness of Mr. Stone, one of his counsel, and for the reason that Mr. Martin, his other attorney, had been unable to prepare for trial. The application was made by Mr. Troutman and Mr. Bain, who appeared on behalf of the appellant, and showed that they had made no preparation for the trial. The application was overruled, a jury impaneled, and a verdict of guilty returned, followed by a fine imposed on the defendant of $25, with the costs of the prosecution.

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the appellant was not connected. Had the language coming from the bench been directed to Stark, he might have had reason to complain. His case was not, however, before the court at that time. It has been held that a change of venue is a wrong to the public unless the interests of justice to the defendant require it, and that prejudice on the part of a judge towards a defendant must clearly appear. It is not sufficient that a prima facie case only be shown. City of Emporia v. Volmer, 12 Kan. 622, 627. record shows that the district judge tried the case with fairness, and the punishment imposed was exceedingly moderate, considering that the maximum for such offenses is imprisonment in the county jail not exceeding one year, and by fine not exceeding $500, or by both such fine and imprisonment.

The

The granting a continuance was largely a matter within the discretion of the court. The offense charged was a misdemeanor. We do not think any of the rights of the defendant were prejudically affected by the absence of attorneys who had prepared for the trial. He was represented by counsel of high standing and ability, and we find nothing in the record to indicate that any point favorable to him was overlooked.

There was some confusion in the answers made by the juror Hale Ritchie touching his opinion of the guilt or innocence of the defendant, but his whole examination, taken together, does not show him to have been disqualified.

Complaint is made that several of defendant's witnesses on cross-examination were subjected to rigid inquiries as to the existence of a certain organization formed for the purpose of destroying property. Nothing was extracted by the state from such witnesses than the defendant himself confessed concerning such organization. He admitted that he was a member of a company which assembled on the state house steps, and from there moved to the place where the property in question was injured, and that he took an ax along because he thought he might be called on to use it.

There was no error in the instruction that if the defendant was present, advising, counseling or encouraging the breaking of the doors and windows, he was equally as guilty with those actually committing the offense, although he may not in person have injured said property. In misdemeanors all concerned, if guilty at all, all are principals. State v. Gurnee, 14 Kan. 111; Sharpe v. Williams, 41 Kan. 56, 20 Pac. Rep. 497.

The appellant offered to prove that the prosecuting witness, at the time the trespass was committed and his property injured and destroyed, was the keeper of a place where intoxicating liquors were sold as a beverage in violation of law, and that the property in question was unlawfully used as an accessory thereto. This offer was rejected by the court, and the testimony excluded. Upon this ruling the question arises whether, the owner of the property having em

ployed it as an aid to the maintenance of a common nuisance, the appellant was justified in being a party to its destruction without process of law. Under our statutes all places where intoxicating liquors are sold, or where persons are permitted to resort for the purpose of drinking intoxicating liquors as a beverage, or where such IIquors are kept for sale, barter or delivery in violation of the prohibitory liquor law, are declared to be common nuisances; and upon the judgment of a court having jurisdiction that such places are nuisances the sheriff or constable or marshal of any city where the same are located shall be directed to shut up and abate such places by taking possession thereof, and of all intoxicating liquor found therein, together with all signs, screens, bars, bottles, glasses and other property used in keeping and maintaining said nuisances, and the same shall be forthwith publicly destroyed by such officer. It is further provided that the attorney general, county attorney, or any citizen of the county where such a nuisance exists may maintain an action in the name of the state to abate and perpetually enjoin it.、 Here is a complete legal remedy, easy to obtain, which was open to the appellant or any of his associates. Indeed, we believe it to be more drastic and summary in its application to the subject than the law of any other state in the Union. The existence of such common or public nuisance as appellant offered to show was kept by the prosecuting witness, in violation of law, injuriously affected all other persons in the city of Topeka equally with himself. It is not claimed that he was specially injured, or peculiarly or individually hurt, in any other manner or degree than in common with all others in the community. He could not have maintained an action in his own name to abate the nuisance. Jones v. City of Chanute, 62 Kan., 65 Pac. Rep. 243. In case of Brown v. Perkins, 12 Gray, 89, the Supreme Court of Massachusetts had before it a similar question. In an action of tort for breaking and entering the plaintiff's shop and carrying away and destroying a barrel of vinegar and other goods, the answer of the defendant alleged that the building was kept for the sale of intoxicating liquors, and was a public nuisance; that a large number of persons assembled to abate the same, and destroyed or injured no article of merchandise, but only spirituous liquor, unlawfully kept for sale, and did no other act and used no more force than was necessary to abate such nuisance. By statute in force in Massachusetts at that time all intoxicating liquors kept for sale, and the vessels and implements actually used in selling and keeping the same, were declared to be common nuisances, and were to be regarded and treated as such. By another statute all buildings or tenements used for the illegal keeping or sale of intoxicating liquors were declared to be common nuisances. The trial court instructed the jury that intoxicating liquors kept for sale, with the vessels con

taining them and articles used in their sale, being declared by law to be a common nuisance, it was lawful for any person to destroy them by way of abatement, and that such action would be the exercise of a common and lawful right. This instruction was held to be erroneous. The opinion was delivered by Shaw, C. J., one of the ablest of American jurists, and we extract from it such portions as are most pertinent to the question before us: "It is not lawful by the common law for any and all persons to abate a common nuisance merely because it is a common nuisance, though the doctrine may have been sometimes stated in terms so general as to give countenance to this suppositon. This right and power is never intrusted to individuals in general, without process of law, by way of vindicating the public right, but solely for the relief of a party whose right is obstructed by such nuisance." Page 101. "The true theory of abatement of nuisance is that an individual citizen may abate a private nuisance injurious to him when he could also bring an action; and also, when a common nuisance obstructs his individual right, he may remove it to enable him to enjoy that right, and he cannot be called in question for so doing. As in the case of the obstruction across a highway, and an unauthorized bridge across a navigable water course, if he has occasion to use it, he may remove it by way of abatement. But this would not justify strangers, being Inhabitants of other parts of the commonwealth, having no such occasion to use it, to do the same. Some of the earlier cases, perhaps, in laying down the general proposition that private subjects may abate a common nuisance, did not expressly mark this distinction; but we think, upon the authority of modern cases, where the distinctions are more accurately made, and upon principle, this is the true rule of law." (Pages 101, 102.) "The keeping of a building for the sale of intoxicating liquors, if a nuisance at all, is exclusively a common nuisance; and the fact that the husbands, wives, children, or servants of any person do frequent such a place, and get intoxicating liquor there, does not make it a special nuisance or injury to their private rights, so as to authorize and justify such persons in breaking into the shop or building where it is thus sold, and destroying the liquor there found, and the vessels in which it may be kept; but it can only be prosecuted as a public or common nuisance in the mode prescribed by law." (Page 102.) This enunciation of the law finds approval in all the text-books upon the subject, so far as we have examined them. Wood, Nuis. (3d Ed.) pp. 966, 968; Webb's Pol. Torts p. 515, note. See also Corthell v. Holmes, 87 Me. 24, 32 Atl. Rep. 715. In Webb's Pol. Torts, p. 517, it is stated that in England the application of the remedy of abatement by the forcible act of an individual is now in use only as to rights of common rights of way, and sometimes rights of water, "and even in those cases it ought never to be used without good advisement."

A fence across a public road is a common nuisance, which a person journeying along the highway may legally abate by removing the obstruction. This is so because his progress is impeded, and particular injury is sustained by him not shared in by the community generally. This right of abatement, however, cannot be lawfully exercised by one living at a distance from the obstructed way, with no immediate occasion to use it, who goes out for the express purpose of removing the impediment in the interest of the traveling public, for fear that he or his neighbors might receive injury from it. The appellant and his associates proceeded on the erroneous belief that, because the prosecuting witness was a violator of the law, they might right the wrongs the public was suffering by his acts, and this in a summary manner, by resort to physical force, guided only by the counsels of a mob. It was a congregation of law-breakers on one side retaliating upon an individual law-breaker on the other for lawless acts of the latter which affected not them alone, but hundreds of others (the public), whom they assumed to represent. Courts of justice cannot approve or countenance such disregard of the law. To do so would create and encourage disrespect for all governmental restraint, which is the beginning of anarchy. The judgment of the district court will be affirmed. All the justices concurring.

NOTE.-Right of Individual to Abate a. Nuisance.Carrie Nation's sensational attack upon the saloons of Kansas, and her insistence upon a right to abate them as public nuisances has created widespread discussion in which a variety of opinions have been expressed. However, as the trial court expressed it in the principal case, this question is not one to be looked at from any standpoint of sentiment, but upon clear reason and sound law.

There is much in the old common-law decisions to justify the position taken by Mrs. Nation and her followers as to the right of the individual to abate a nuisance, either public or private. As to private nuisance the rule has been well settled that the individual may abate it if injurious to him, and if he also have the right to bring an action therefor. State v. Parrott, 71 N. Car. 311, 17 Am. Rep. 5; Mayhew v. Burns, 103 Ind. 328; Amoskeag Co. v. Goodale, 46 N. H. 56; Ronayne v. Loranger, 63 Mich. 373; Manhattan Mfg. Co. v. Van Kueven, 23 N. J. Eq. 251; Calef v. Thomas, 81 Ill. 478. In abating a nuisance, however, no more injury must be done to the property than is absolutely necessary to effect the object. Calef v. Thomas. 81 Ill. 478; Heath v. Williams, 25 Me. 209; State v. Moffett, 1 Greene (Iowa), 247; Wright v. Moore, 38 Ala. 593. Thus, an owner of ground in abating a private nuisance, as shocks of corn left incumbering the ground by a tenant, is bound to use reasonable care to avoid unnecessary injury; he has no right to destroy the corn, unless there is no other reasonable way of enjoying the land. Calef v. Thomas, 81 Ill. 478.

Despite the confusion which existed at the old common law on the right of the individual to abate a public nuisance, the modern rule is well settled, the individual has no such right except in cases where the nuisance obstructs his individual right or affects

his rights to an extent greater than the rest of the public. Brown v. Perkins, 12 Gray (Mass.), 89; Bowden v. Lewis, 13 R, I. 189; Gray v. Ayers, 7 Dana (Ky.), 375; Coast Co. v. Borough of Spring Lake (N. J. 1896), 36 Atl. Rep. 21; Brown v. De Groff, 50 N. J. L. 409; Graves v. Shattuck, 35 N. H. 257; Tissot v. Telegraph Co., 39 La. Ann. 996; Shaubut v. Railroad, 21 Minn. 502; School District v. Neill, 36 Kan. 617; Ruff v. Phillips, 50 Ga. 130; Finley v. Hershey, 41 Iowa, 389; Larson v. Furlong, 63 Wis. 323; Brightman v. Bristol, 65 Me. 426; Jarvis v. Santa Clara R. R., 52 Cal. 438; Turner v. Holtzman, 54 Md. 148. In Dimes v. Petley, 15Q. B. 276, Campbell, C. J., says: "It is fully settled by the recent cases that, if there be a nuisance in a public highway a private individ. ual cannot, of his own authority, abate it, unless it does him a special injury, and then only to the extent necessary to enable him to exercise his right of pass ing over the highway. And we clearly think he can not justify doing any damage to the property of individuals who have improperly placed the nuisance there, if avoiding it he could have passed on with reasonable convenience." In the very recent case of Griffith v. Holman, 23 Wash. 347, 63 Pac. Rep. 239, it was held that a public nuisance, can be abated only by a public officer, except in case of a person having some special interest in the abatement different from and greater than the interest of the community. In the case of Gray v. Ayers, 7 Dana (Ky.), 375, 32 Am. Dec. 107, the defendants set up the defense that the house thrown down by them was a place of resort for felons; but the court held the defendants liable, they not being particularly damaged, and therefore having no right to abate the nuisance. In Brown v. De Groff, 50 N. J. L. 409, the defendant, in fishing for clams, injured the plaintiff's oysters, and when sued, set up the defense that plaintiff's oyster bed was a common nuisance. The court held, however, that the defendants were liable even if their defense were absolutely true. In the recent case of Coast Co. v. Borough of Spring Lake (N. J. 1896), it was held that the power of a municipal officer to abate a public nuisance without statutory or judicial process stands upon the same footing as the power of a citizen.

As the court intimated in the principal case, there are some authorities which in the expressions used, seem to vindicate the right of the defendants in this case, and which hold, generally, that the individual has the right to abate a public nuisance. In nearly all these cases this statement of this rule was pure dicta. As was stated by Shaw, C. J., in Brown v. Perkins, 12 Gray (Mass.), 89, some of the earlier cases, in laying down the general proposition that private citizens might abate a common nuisance, did not expressly mark the distinction between private and public nuisances. Thus, in Harvey v. Dewoody, 18 Ark. 255, the court said: "It seems that any person may abate a common nuisance." This same statement was made in Wetmore v. Tracey, 14 Wend. (N. Y.) 250. The case of ferocious beasts or other impending dangers seems to be held an exception by some courts. Thus, in Dunlap v. Snyder, 17 Barb. (N. Y.) 561, it was held that if a dog is so ferocious that of his own disposition he will bite men in the street, and is at large, he is a nuisance, and may be killed by any one. See also Brown v. Carpenter, 26 Vt. 638; Meeker v. Van Rensselaer, 15 Wend. (N. Y.) 397.

The general rule on this question may be stated as follows: Any one may abate a private nuisance where the injury is such as to warrant in bringing an

action thereon, and where no breach of the peace will result. In such cases, however, the abatement must be attended with no more injury than is absolutely necessary to effect the object. There is also a further limitation to this rule, that in cases of nuisances from omission rather than commission, notice of abatement must be given. This limitation, however, does not apply to cases of extreme emergency requiring immediate action. In the case of public nuisances, abatement can only be secured through legal process in the mode designated by law, except in cases where the right of the individual seeking to abate the nuisance have been injured to an extent greater than the rest of the public. In all other cases appeal should be made to the courts.

JETSAM AND FLOTSAM.

A UNIQUE DIVORCE PETITION.

A correspondent from Kansas sends us a copy of a remarkable divorce petition filed at Gas City, Kansas, n which the plaintiff is 72 and the defendant 68. Thompson and Thompson represent the plaintiff and drew up the papers which are certainly unique in text and in the matter which they set forth. Our astonishment would have been ¡greater, had such a thing come out of any other state but Kansas. That state seems to insist on being the state of surprises, and delights in doing what no one else would think of doing. Usage and custom have certainly a hard road in Kansas. The beginning chapters of the petition referred to read thus:

"Comes now the plaintiff to the altar of justice, bearing his burden of sorrow and of woe which he humbly lays down before the Ermine and the Woolsack.

"He declares with solemn truth that he has been for more than one year last passed an actual resident in good faith of the state of Kansas, whose valiant sons swam the Bag Bag; that state pointed out by all the world as being the deserted home of Carrie Nation and Mary Ellen Lease; and that he is now a resident of Allen county, same state, where the roar of natural gas wells and the whistle of great indus tries have become as familiar to its inhabitants as was the croaking of frogs to the people of Posey county, Indiana, in the days of Auld Lang Syne.

"It was back east' in the good old state of Ohio, that has given birth to statesmen and politicians. It was long years ago and in the sultry summer time, when the dog fennel blossomed in the lane and the wood pecker peeked his peck on the decaying trunk of the hollow Sycamore tree. It was at the spring 'neath the hill close by the spreading beech, a youth and maiden met and, meeting, loved and, loving, plighted their troth."

It was in the fall, the melancholy days, the saddest of the year, when they met again, but parted not in love but in anger. He married another girl and lived in Ohio. She married Mr. Walker of Texas and removed there. They were divorced. Then she married a man whose name is unknown to the doctor. He died. Then she married Mr. Baker and moved to California. He died. She had two children by her second marriage.

He early knelt at the feet of Esculapius and learned to heal. Came to Kansas in 1899 and his wife died shortly later, leaving him alone at the tender age of seventy two. He wrote to his old sweetheart in California and she replied. They met in Kansas City and she fell on his neck and stayed there. They were married September 16, 1900. At that time he had a

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