shipped over the railroad. If there had been no such express recognition of the lease, but the structures had been placed or maintained on the right of way with the consent of the company, and from them the fire was communicated to the other property, it would not constitute contributory negligence on the part of the lessees, nor deprive them of the remedy given by law for losses to property not on the right of way, the proximate cause of which was the negligence of the railway company. Sherman v. Railroad Co., 36 Me. 422, 30 Atl. 69; Railroad Co. v. Richardson, 91 U. S. 454, 23 L. Ed. 356; 13 A. & E. Ency. of L. (2d Ed.) 487.

It is contended that the evidence of negligence of the railroad company in setting out the fire was insufficient, and that some of that received was incompetent. It was mainly circumstantial, but we deem it to be sufficient to support the verdict. A heavy freight train passed the buildings destroyed shortly before the fire was discovered. It was running rapidly, working steam, and leaving a trail of smoke behind it. Within a few minutes after it passed persons in the neighborhood saw a patch of fire on the roof of the elevator. No fire was kept in the elevator at the time, as it had been locked up for two weeks before the fire occurred. The wind was blowing from the railroad track toward the elevator. As far as the testimony goes, no one saw sparks proceeding from the engine and lighting on the building, but there was nothing in the testimony to show that the fire could have arisen from any other source, and the facts recited, in the absence of proof of any other cause, tend to show that the fire was caused by the sparks from the engine, and whether the fire so originated was a proper question for the jury. The effect of circumstantial evidence of this character was before the court in the recent case of Railroad Co. v. Perry, 65 Kan. 792, 70 Pac. 876. After a full consideration and a review of the authorities it was there held that: "The fact that soon after the passing of an engine a fire starts near a railway track in an inclosed field covered at the time with a growth of highly inflammable vegetation, and travels before a high wind in a direction away from the track, is sufficient to warrant a jury in finding that the fire was caused by the operation of the railroad, without its appearing that the engine emitted sparks or live cinders, or was put to special exertion, and without further proof excluding other possible origins." A witness, who had been a locomotive engineer for 16 years, was introduced to prove the character and operation of spark arresters. After describing them, he stated, in answer to an inquiry, that an engine equipped with a spark arrester in first-class condition would prevent the escape from the engine of sparks or fire that would ignite property on the right of way. There was no objection to this testimony on the ground that the witness was not qualified to testify on

the subject, but it is that the testimony was upon an ultimate fact which it was the duty of the jury to determine. The witness was qualified, and the testimony related to a matter which is the subject of expert testimony, and one which inexperienced persons are not likely to understand. The operation of a spark arrester and its effect in arresting sparks and cinders passing through it, as well as the length of time that they would continue to burn, could be intelligently told by witnesses who had had special advantages and opportunities for observing the operations of engines and the effect of sparks issuing from engines equipped with the different kinds of spark arresters. The opinion, based as it was on experience and observation, was not an ultimate issue in the case, but was an important consideration in the determination of an ultimate issue, and was properly admitted.

The case appears to have been fairly submitted to the jury, and, although some of the rulings on the instructions are criticised, we find nothing in them which warrants special comment. What has already been said answers most of the objections which were made to the rulings of the court in charging the jury, and we see nothing in them or in other rulings which would warrant us in disturbing the verdict of the jury.

The judgment of the district court will therefore be affirmed. All the Justices concurring.

(68 Kan. 207)

MCALPINE et al. v. CHICAGO GREAT
WESTERN RY. CO. et al.
(Supreme Court of Kansas. Jan. 9, 1904.)
DEDICATION-EXTENT-ABANDONMENT-
REVERSION.

1. A strip of land lying along the margin of a navigable stream was included in the plat of a city and dedicated to the public by the use of the word "Levee" written thereon. Several streets opened upon this tract, and many lots had no other means of ingress and egress, except over and along it. Held, that its dedication included its use as a street, as well as a landing place for boats.

2. Such strip of land is not abandoned by the public, so as to cause a reverter to the original dedicators or their representatives, because railroads have been permitted to lay their tracks and build depots upon it; nor because its use has been permitted for other unauthorized purposes; nor because river commerce has ceased, and boats do not land upon it; nor because approach to the river margin has become difficult.

3. Land dedicated to a public use does not revert to the dedicators because of misuse or nonuse, unless its use for the dedicated purpose has become impossible, or so highly improbable as to be practically impossible.

(Syllabus by the Court.)

Error from Court of Common Pleas, Wyandotte County; Wm. G. Holt, Judge.

Action by N. McAlpine and others against the Chicago Great Western Railway Com

3. See Dedication, vol. 15, Cent. Dig. §§ 103, 104, 105, 107.

pany and others. Judgment for defendants, and plaintiffs bring error. Affirmed.

Sutton & Sutton, for plaintiffs in error. Miller, Buchan & Morris, Arthur F. Smith, M. J. Reitz, J. W. Dana, Frank Hagerman, N. H. Loomis, R. W. Blair, and H. A. Scandrett, for defendants in error.

CUNNINGHAM, J. This action was one in ejectment for the recovery of a threefourths interest in a tract of land lying between the platted portion of what is now Kansas City, Kan., on the west, and the Missouri river, on the east. The plaintiffs are the heirs of the proprietors of the original plat of Wyandotte, now Kansas City, Kan. This tract in dispute is of irregular form, and, as originally delimited upon the plat, was from 700 to 900 feet wide, and perhaps a mile long. Upon the plat it was designated and dedicated as "Levee." By reliction and alluvion, accretions have been added to the river margin, until now the tract is more than twice the size in width it was at the time of the dedication. The defendants are the city of Kansas City; several railroad companies who have received permission from the city to build upon this tract of land their tracks, depots, etc., and who are now using the same for such purposes; some private parties, who have erected and are now maintaining manufacturing plants of various kinds; and numerous persons who have squatted and built upon the same more or less temporary habitations, and who are now residing there, as it would appear, without permission from any one, and as trespassers.

The evidence for the plaintiffs, in brief, shows that the Wyandotte City Town Company was a partnership; that the plat of the city was filed for record in 1859; that there were indicated thereon, by name, various streets and alleys as dedicated to public use, besides the tract in controversy which was named "Levee"; that several of these streets, running at right angles with the river, opened at their eastern ends upon this levee; that quite a large number of lots have no other approach to them, save that afforded by this levee tract; that at the time of this platting the Missouri river was navigated quite extensively by both freight and passenger boats, and continued to be so navigated up to the year 1866, during which time the current of the river swept well up to the eastern line of the levee, and afforded ample natural landing place for such boats and the commerce brought by them; that after that time navigation fell off by reason of the fact that railroads were built to and from the town, affording easier and swifter communication, and also that the river became less navigable, and the landing less feasible, by reason of the fact that the current was diverted to the eastern or Missouri shore, the western shore receiving the accretions above noted, and

leaving a wide, marshy, and comparatively untraversable alluvion between the river and the levee, as originally platted. It appeared, however, that occasionally pleasure and other craft had landed there at differing stages of water, up to five or six years ago, and that, with some improvements in the way of wharfs and roadways, easy and adequate communication could now be had to the point where navigable water might be reached.

At the conclusion of plaintiffs' evidence, the court sustained a demurrer thereto, and they are now here asking a reversal of this action. Their claim is stated most fairly and frankly in their brief, and perhaps no better basis of the discussion here involved can be found than a repetition of the statement. It is: "This suit proceeds upon the theory that this tract of land was dedicated to the public for a levee; that a levee is a landing place for boats and for commerce carried on by river; that this levee was never improved for such purpose by the city or other person or corporation; that no boats have landed at it for twelve years, and, in all human probability, will never again use it for a landing; that it has been permanently abandoned by the city authorities and the public as a levee, because (1) the decreased flow of water in the Missouri river makes the navigation of that river impossible; (2) the permanent change in the channel of the Missouri river from the Kansas to the Missouri bank would make impossible an approach by steamboats to the levee, if any should by chance appear upon the Missouri river; (3) the complete substitution of railroad carriage of freight and passengers for river transportation." Upon this premise the plaintiff's deduce the conclusion that abandonment of the use for which this tract of land was dedicated by the original proprietors has been shown, and that therefore the title thereto, and with it the right of possession, has reverted to the plaintiffs, as the representatives of such proprietors. We are therefore called upon to examine the soundness of their premise, and the correctness of the conclusions deduced.

What, then, we first inquire, was the purpose, as indicated by the word "levee," for which this tract was dedicated? Are we confined to the rather narrow definition which the plaintiff's would have us give to this word, and hold that it simply meant a landing place for boats and commerce carried on by river? Necessarily must be added to this the right to pass over, across, and along this tract for the hauling of such goods and passengers as should be there delivered by reason of such commerce. This implies its use as a highway or street, at least to some extent. Would that use be limited to vehicles used for the loading and unloading of river traffic, or does it not, as well, include the right of the general public to use the same as a street for all purposes? It is true, perhaps, that in the popular sense the more

restricted meaning obtains, probably because of the fact that such tracts are most largely used in connection with water commerce, rather than because of an analytical examination of the question. It is equally true that it would greatly surprise the general public of cities where boats tie up at wellimproved levees that no one other than those who came and went with goods in promoting "commerce carried on by river" were permitted to traverse the same. It is clear that we may not here give to this word the restricted meaning which plaintiffs' definition contemplates, for, besides the suggestions already made, such a restriction would make each of the streets whose eastern terminus is upon this tract a mere cul-de-sac. Neither would the proprietors of lots abutting the levee have any method of ingress or egress thereto. Primarily the word "levee" has no such restricted meaning. The lexicographers tell us that it is derived from the same root as the word "lever," and means a rise of ground-specifically, "an embankment to prevent inundation, or the steep bank of a river"; and, used as a transitive verb, it is "to keep within a channel by means of levees." The law dictionaries but re-echo this definition, and say: "Levees are embankments to prevent the overflow of rivers." Discussing these various definitions, see City of St. Paul v. Chicago, etc., Ry. Co., 63 Minn. 351, 63 N. W. 267, 65 N. W. 649, 68 N. W. 458, 34 L. R. A. 184; Barney v. Keokuk, 94 U. S. 324, 24 L. Ed. 224; Coffin v. Portland (C. C.) 27 Fed. 412-416; New Orleans v. Morris, 3 Woods, 115, Fed. Cas. No. 10,183; Dillon's Municipal Corporations (4th Ed.) § 649; Napa v. Howland, 87 Cal. 88, 25 Pac. 247.

It may well be argued, in the light of recent disastrous experience, that portions of the land in dispute may be needed and used in pursuance of the primary meaning of the term, and that the city, to guard itself from floods, will need to raise embankments thereon. We therefore certainly question the soundness of the plaintiffs' major premise that a levee is only a landing place for boats. While a levee is a place for the landing of boats and commerce, it is much more than that; and, were we to grant the abandonment of the disputed tract for that purpose, we would not thereby grant that it was abandoned for all other purposes so as to revert.

Giving to the word "levee" the narrow construction contended for by plaintiffs, we pass to inquire if the conclusion that there has been an abandonment and consequent reverter is warranted by their facts. By their brief the rule as stated, and, we think, correctly, is: “Land dedicated to a particular purpose will revert to the dedicator when there has been a full and lawful abandonment of the use for which the dedication has been made, or when the dedication has spent its force by the use becoming impossible."

That is, abandonment, to cause a reverter, is something more than a mere cessation of use. The fact that the use has become inconvenient or undesirable, to the extent that it has ceased entirely, will not constitute an abandonment on the part of the public, so as to cause a reverter; and this even though such nonuser has extended through a long series of years. In Wilgus v. The Commissioners of Miami County, 54 Kan. 605, 38 Pac. 787, a plot of land dedicated as "Seminary Square" was held not to have been abandoned through a nonuse of 25 years. A like rule is announced in Commissioners of Wyandotte County v. The Presbyterian Church, 30 Kan. 620, 1 Pac. 109, concerning a lot dedicated by the same plat that contains the land here in controversy, where nonuse had continued for an equal or greater period of time. In Forbes v. The Board of Education of Ft. Scott, 7 Kan. App. 452, 53 Pac. 533, a block dedicated to the public use as "University Square" was held not to be vacated after 26 years of nonuser. In City of Ashland v. Chicago & Northwestern Railway Company, 105 Wis. 398, 80 N. W. 1101, it is held: "Mere nonuse of a street for any period of time will not operate as an abandonment of the rights conferred by a proper dedication, and, until the time arrives when the street is needed for actual use, all persons in possession hold subject to such rights." In Coffin v. Portland (C. C.) 27 Fed. 412, 416, 417, 420, it is held: "And when, as in this case, the dedication is unconditionally made to a public use, as a levee or landing place, no formal acceptance of the same is necessary, nor does the existence or continuance of the easement depend on the extent of the use or improvement of the premises, or that they are used or improved at all; and it is even doubtful if the same can be lost by the adverse occupation of the premises by private parties for any length of time. 2 Dill. Mun. Corp. (3d Ed.) § 675. * * Where the fact of dedication of a street or landing is in dispute, nonuser is evidence, more or less cogent, according to circumstances, against a dedication. But where, as in this case, the dedication is admitted, the evidence of nonuser is immaterial. The right to the use, once admitted, is not affected by it. Barclay v. Howell, 6 Pet. 505 [8 L. Ed. 477]. Property dedicated to public use does not revert to the donor, unless, it may be, where the execution of the use becomes impossible, as, if such property is appropriated to an unauthorized use, a court of equity will compel a specific execution of the trust, by restraining the parties engaged in the unlawful use, or by causing the removal of obstructions or hindrances to the lawful one. Barclay v. Howell, 6 Pet. 507 [8 L. Ed. 477]. See, also, 2 Dill. Mun, Corp. (3d Ed.) § 653.” In Archer v. Salinas City, 93 Cal. 43, 28 Pac. 839, 16 L. R. A. 145, the rule is stated: "Whenever a dedication is complete, the

*

(68 Kan. 258)

HIER V. MILLER.

(Supreme Court of Kansas. Jan. 9, 1904.) BANKS-AUTHORITY OF CASHIER-UNAUTHORIZED CREDITS-RIGHTS OF BANK-NOTICE. 1. The cashier of a bank organized under the laws of this state has no implied authority to pay his individual debts by entering the amount of them as a credit upon the passbook of his creditor, who keeps an account with the bank, and permitting the creditor to exhaust such account by checks which are paid, the bank having received nothing of value in the transaction.

2. If the cashier of a bank, without actual authority so to do, should undertake to pay his individual debts in the manner stated, the bank may recover of his creditor the amount of money it may pay out upon checks drawn upon the faith of the unauthorized passbook entries.

3. The fact that the cashier is personally interested in a transaction of the character described is sufficient to put his creditor upon inquiry as to the actual extent of the cashier's power.

(Syllabus by the Court.)

Error from District Court, Doniphan County; Wm. I. Stuart, Judge.

Action by Jacob Miller against Martha A. Hier. Judgment for plaintiff. Defendant brings error. Affirmed.

Johnson, Rusk & Stringfellow and Ryan & Reeder, for plaintiff in error. A. L. Perry and S. M. Brewster, for defendant in error.

BURCH, J. Briefly summarized, the essential facts of this controversy are as follows: The cashier of a bank organized under the laws of this state was allowed the sole charge and conduct of its affairs by its board of directors. He was indebted individually to a depositor of the bank, and upon different occasions pretended to make payments upon such indebtedness by giving the depositor credit upon her passbook. Such credits were not shown upon any other memoranda of the bank's business, and were not entered upon its books. The last transaction of this character occurred upon November 30, 1900. A final settlement was then had between the depositor and the cashier, resulting in the surrender to him of his last unpaid note, and an entry upon her passbook as before. She then demanded her balance in the bank. The cashier balanced her passbook, she drew a check for the amount shown by the passbook to be due her, and he gave her therefor a cashier's draft upon a bank in St. Joseph, Mo., which was afterwards duly paid and returned. No officer of the bank had actual knowledge of the true character of these transactions except the cashier. The depositor herself acted in good faith. On January 16, 1901, the death of the cashier occurred. The bank was then found to be insolvent, was immediately taken in charge by the bank commissioner, and in due time a receiver for it was appointed. Because the books of the bank did not disclose the personal transactions of the cashier with the depositor, her account appeared to be overdrawn when the receiver assumed con

trol. The amount of the overdraft following the affair of November 30, 1900, was somewhat reduced by deposits subsequently made by third parties to the depositor's credit, and the receiver sued for the balance appearing to be due when he took charge. From the facts found the district court concluded that the cashier had no authority to pay his individual debts to the depositor by giving her credit in the bank and permitting her to draw checks upon it without its having received anything of value therefor; that the entries of credit upon the depositor's passbook were acts beyond the scope of the cashler's power; and that, because nothing appeared upon the books of the bank to give notice of the facts, the bank was not bound. Judgment was rendered for the receiver, and the depositor asks for a review of these conclusions of law.

The defendant received no money in payment of her debtor's notes, and made no deposit in the bank of anything derived from them. Her debtor made no deposit for her, and procured no transfer of funds to her account as an equivalent. Therefore the books of the bank spoke true, and any obligation of the bank to pay the defendant's checks arose from the entries upon her passbook made by the bank's cashier. Those entries were made in payment of the cashier's private debt, and, if of any effect at all, amounted to an appropriation of the money of the bank to the discharge of his personal obligations. The cashier had a right to dispose of the funds of the bank for purposes contemplated by its charter. For this his office is a warrant of authority. But he could not absorb the funds of the bank in the satisfaction of his private debts without an express and especial authorization. The office of cashier does not import such power. Whether or not such authority actually did exist the defendant was bound to inquire. It has been well understood from of old that no man can serve two masters. He will hold either to one or to the other. For a like reason the cashier could not serve both himself and the bank in a single transaction, and because he was attempting such a perilous thing the defendant was put upon guard as to the extent of his power. "It is against the general law of reason that an agent should be intrusted with power to act for his principal and for himself at the same time." Bank of N. Y. N. B. Ass'n v. A. D. & T. Co., 143 N. Y. 559, 564, 38 N. E. 713, 714. "It is not pretended that Collins had any express authority to apply the funds of the bank to the payment of his own note. He had no implied authority to do so. There are no presumptions in his favor of such a delegation of power. He who assumes to rely upon the authority of an agent to bind his principal to the discharge of the agent's own obligation must prove actual authority if contest arises. No principle of law of agency is better settled than that no person can act as the