(31 Idaho, 710) STEVENS v. EVENING COURIER et al. (ANTHES et al., Interveners). (Supreme Court of Idaho. Nov. 1, 1918.) RECEIVERS 155-INDEBTEDNESS LIEN POWER OF COURT OF EQUITY. A court of equity has not the power to authorize a receiver to incur indebtedness in carrying on a private business, and to make the same a first and paramount lien upon the corpus of the property, superior to that of prior lienholders, without their consent. Appeal from District Court, Bingham County; F. J. Cowen, Judge. Action by J. M. Stevens against the Evening Courier, a copartnership, and others, for the dissolution of the partnership and for a receiver, in which Josephine Anthes intervened to foreclose a chattel mortgage, and in which the First National Bank intervened to have an amount due it declared a prior lien. Judgment for foreclosure of mortgage declaring the mortgage lien inferior to the bank's lien claim, and Josephine Anthes, intervener, appeals. Reversed. Terrell & Terrell, of Pocatello, for intervener Anthes. Hansbrough & Gagon, of Blackfoot, for intervener First Nat. Bank. C. R. Clute, of Salmon, Holden & Holden, of Idaho Falls, and Jas. B. Bacon, of Pocatello, for respondent Stevens. John W. Jones, of Blackfoot, for respondents Edgar A. Cooke and Richard Dungan. C. S. Beebe, of Blackfoot, for respondent Richard Dungan. RICE, J. This action was commenced for the dissolution of a partnership and the appointment of a receiver to continue the publication of the Evening Courier, a news paper published at Blackfoot. A receiver was appointed by order of the district judge, with authority to receive and take possession of all stock in trade, books, and property of every nature belonging to the partnership, and also to continue the business of the said firm in publishing the newspaper and to transact all business necessary and incident thereto. Subsequently, upon petition, the receiver was authorized and empowered by the district judge to borrow the sum of $500 for the purpose of carrying on the business, with a provision in the order that the loan when so made should be declared to be a preferred claim against the estate and business and the property thereof. The property was incumbered by a chattel mortgage, duly filed and recorded. The mortgagee was not a party to the proceeding resulting in the appointment of the receiver. She intervened in the action and sought to foreclose her mortgage. The banking corporation from whom the loan was obtained by the receiver, under the order above mentioned, also intervened and asked to have the amount due it declared a prior lien upon the assets of the firm. of the mortgage, and declaring that the lien of the mortgage was inferior and subordinate to the claim of the banking corporation. From this judgment, the mortgagee appealed. In the case of International Trust Co. v. United Coal Co., 27 Colo. 246, 60 Pac. 621, 83 Am. St. Rep. 59, it is said: "After a careful consideration of all the authorities cited, we are of opinion that, in administering the affairs of an ordinary insolvent private business corporation, for which a receiver has been appointed, e court of equity incur indebtedness for carrying on the business has not the power to authorize the receiver to and to make the same a first and paramount lien upon the corpus of the property, superior to that of prior lienholders, without their conThis court has announced the same doctrine. Dalliba v. Winschell, 11 Idaho, 364, 82 Pac. 107, 114 Am. St. Rep. 267; Cronan V. Dist. Court, 15 Idaho, 184, 96 Pac. 768. See, also, International Trust Co. v. Decker Bros., 152 Fed. 78, 81 C. C. A. 302, 11 L. R. A. (N. S.) 152. sent." The judgment is reversed. Costs awarded to appellant. MORGAN, J., concurs. BUDGE, C. J., being disqualified, took no part in the opinion. (31 Idaho. 712) BOWER et ux. v. KOLLMEYER et al. (Supreme Court of Idaho. Nov. 2, 1918.) 1. ADVERSE POSSESSION 85(1) — OccUPATION BY ANOTHER-PRESUMPTION. One who establishes his legal title to real the property within the time required by law, estate is presumed to have been possessed of and its occupation by another is deemed to have been in subordination to the legal title, unless it appears that it has been held and possessed adversely thereto for five years. 2. ADVERSE POSSESSION 68-OCCUPATION UNDER CLAIM OF TITLE. For such property to be deemed to have been held adversely, otherwise than by virtue of has been actual continued occupation of the a written instrument, it must appear that there land under claim of title. 3. ADVERSE POSSESSION -CLAIM OF TITLE. 68-OCCUPATION al occupation was accompanied by a claim, or Where there is no proof showing that actuan intention, inconsistent with the title of the owner, an adverse claim based upon such occupation cannot be allowed. Appeal from District Court, Twin Falls County; Wm. A. Babcock, Judge. Suit for injunction and to quiet title by C. A. Bower and wife against B. H. Kollmeyer and others. Judgment for plaintiffs, and defendants appeal. Modified. Longley & Walters, of Twin Falls, for appellants. Guthrie & Bowen, of Twin Falls, and Ostrom & Green, of Buhl, for respondents. MORGAN, J. Respondents, the owners of certain farm lands, claiming the right to convey water thereon through the east half Judgment was entered for the foreclosure of the northeast quarter of section 33, township 9 south, range 15 east of Boise and its occupation by another is deemed meridian, belonging to appellants, brought to have been in subordination to the legal this action, among other purposes, to quiet their title to, and to enjoin appellants from interfering with, the use of a ditch constructed across the land above described. Appellants filed an answer and cross-complaint, wherein they prayed that respondents be enjoined from interfering with their said property and for other relief. title, unless it appears that it has been held and possessed adversely to such legal title for five years. Rev. Codes, § 4039. For such property to be deemed to have been held adversely, otherwise than by virtue of a written instrument, it must appear that there has been actual continued occupation of the land under a claim of title. Rev. Respondents' title to the land sought to Codes, § 4042. Where, as in this case, there be irrigated from the ditch was derived, by is no proof showing that actual occupation purchase in 1909, from one Heyl, who dug was accompanied by a claim, or an intention, the ditch in 1906, when appellants' land was inconsistent with the title of the owner, an unoccupied and unimproved. Water was adverse claim, based upon such occupation, taken through it at different times each cannot be allowed. Davis v. Devanney, 7 year until 1914, when the use thereof was Idaho, 742, 65 Pac. 500; Blake v. Shriver, interrupted by appellants. Respondents 27 Wash. 593, 68 Pac. 330; Yesler Estate claim title to the easement by adverse pos- v. Holmes, 39 Wash. 34, 80 Pac. 851; Peter session relying upon the use of the ditch by v. Stephens, 11 Mont. 115, 27 Pac. 403, 28 Heyl during the years 1907 and 1908, and by some parties who occupied a house upon their land and used the water for live stock and domestic purposes during the fall of 1909, and by their own use thereof during 1910, 1911, 1912, and 1913. Heyl testified that he never claimed any right to, or interest in, the 80 acres of land above described; that he did not have, or claim to have, an easement across. it; that, had the owner of the land come along during the time he had a crop growing in the season of 1908, and told him to stop, he would have procured legal advice, and would have held possession of the ditch to protect his crops, if he could; that he did not know whether he had a right to use it or not, and, when asked if he claimed the right to use the ditch, he answered: "Well, I used it." The record discloses that Heyl's purpose in constructing this ditch was to procure water with which to grow crops upon his land in 1907 and 1908, in order that he might make proof and procure title to it pursuant to the "Carey Act" of Congress (Act Aug. 18, 1894, c. 301, § 4, 28 Stat. 422 [U. S. Comp. St. 1916, § 4685]) which he did, and in 1909 sold it, as above stated, to respondents. It is conclusively established that Heyl neither had, nor claimed to have, a right founded upon a written instrument, or otherwise, to construct or use the ditch across appellants' land, that his occupancy was not adverse to the possession of the owners, and that he had no intention of initiating a hostile claim. [1, 2] One who establishes his legal title to real estate, as appellants did in this case, is presumed to have been possessed of the property, within the meaning of Rev. Codes, §§ 4036 and 4037, wherein is provided the time within which actions to recover real estate must be commenced, and defenses arising out of title to such property must be made, Am. St. Rep. 448; Harvey v. Tyler, 2 Wall. · 854. [3] Since the occupancy of the land by Heyl was not with the intention upon his part, nor of a character, to initiate title by prescription, and since that of respondents was of shorter duration than required to establish their claim (Rev. Codes, § 4036), or defeat the title of appellants (Rev. Codes, § 4037), there is error in those portions of the findings of fact, conclusions of law, and decree which declare respondents to be the owners, and entitled to the possession of, and quieting their title to, the ditch described therein as running across the east half of the northeast quarter of section 33, 'township 9 south, range 15 east of the Boise meridian, and enjoining appellants from interfering with the use thereof. with instructions to modify the findings of BUDGE, C. J., and RICE, J., concur. (103 Kan. 714) wagon was hit by the street car. He looked SALISBURY v. WICHITA R. & LIGHT CO. again, when he attempted to cross the track; (No. 21698.) (Supreme Court of Kansas. Nov. 9, 1918.) (Syllabus by the Court.) 1. STREET RAILROADS 99(7), 117(28) CROSSING TRACK CONTRIBUTORY NEGLIGENCE QUESTION FOR JURY. A person driving a loaded wagon has the right to cross an electric street railroad track in front of an approaching street car, if he has time to cross safely before the car reaches him; but if, on looking, he fails to see an approaching car, or if he sees it, but misjudges its speed or its distance, and an accident results, in which he is injured, the question of contributory negligence on his part is one of fact for the jury. 2. APPEAL AND ERROR 1067-REVERSAL FAILURE TO GIVE MATERIAL INSTRUCTION. Where a material instruction, that should be given, is requested, but is not given, either by itself or in any other instruction, the verdict should be set aside, and a new trial should be granted. but the car was then on him. The defendant's argument is that, if Salisbury had looked when he reached the street on which the track was laid, he would have seen the approaching car. The defendant further argues that Salisbury was guilty of contributory negligence in attempting to cross in front of the car which he had seen, or that, if he did not see the car, he must have failed to look. The defendant seeks to invoke the rule which requires one to look and listen when about to cross a railroad track, and if necessary to stop before attempting to cross, and which holds one guilty of contributory negligence if he attempts to cross in front of an approaching train after he has seen it. That rule does not apply to one who is attempting to cross a street railroad. In Railroad Co. v. Gallagher, 68 Appeal from District Court, Sedgwick Kan. 424, 75 Pac. 469, 64 L. R. A. 344, this County. court said: MARSHALL, J. The defendant appeals from a judgment against it for personal and property injury sustained by I. Salisbury in a collision with one of the defendant's street cars in Wichita. [1] 1. The first question argued is that the court erred in overruling the defendant's demurrer to the plaintiff's evidence. The defendant insists that the plaintiff's evidence showed that Salisbury was guilty of contributory negligence, and that, for that reason, the demurrer to the plaintiff's evidence should have been sustained. There was evidence to prove the following facts: At the time of the accident Salisbury, with a team and loaded wagon, was attempting to drive across the defendant's electric street railroad tracks in front of an approaching street car. The street along the tracks was being paved, and brick were piled along the track from two to five feet high. This prevented Salisbury from crossing the track on the street on which he was driving. He was compelled to turn from that street, and go along the street car track for about 40 feet, where there was a crossing place. From the street on which he was approaching the track, and from the place of the collision, he could see an approaching car for 300 feet. When he approached the track, he looked to ascertain if a car were coming; but he did not see any car. He then drove along the track, and attempted to cross it, when his "A traveler may cross an electric street railway track in front of an approaching car, not be negligent. If, in view of his distance which he plainly sees and distinctly hears, and from the car, the rate of speed of its approach, and all other circumstances of the event, a reasonably prudent man would accept the hazard and undertake to cross, a traveler may do so, and the propriety of his conduct is ordinarily a question for the jury." See, also, Railway Co. v. Summers, 75 Kan. 342, 89 Pac. 652; Railway Co. v. Schriver, 80 Kan. 540, 542, 103 Pac. 994, 24 L. R. A. (N. S.) 492; Marple v. Railway Co., 85 Kan. 699, 118 Pac. 690; Wiley v. Interurban Railway Co., 89 Kan. 84, 130 Pac. 659; note, L. R. A. 1917C, 692; 36 Cyc. 1554. The question of Salisbury's contributory negligence was one for the jury and could not be determined on a demurrer to the evidence. [2] 2. Another matter urged by the defendant is that the court committed error in refusing to give the following instruction: "If you find from the evidence that the plaintiff looked to the west for an approaching car before going upon the track, and you further find that, at the time he so looked, the said car was there approaching and within view of him, then you are instructed that plaintiff is chargeable with knowledge of its approach, although plaintiff claims that he did not see said car approaching." That instruction correctly stated the law. Railway Co. v. Agnew, 65 Kaǹ. 478, 70 Pac. 345, and note in 15 L. R. A. (N. S.) 259. It was error to refuse to give it unless it was substantially given in other instructions. The court did instruct the jury as follows: "You are further instructed that it was the duty of the plaintiff to take notice of the fact that street cars were liable to pass along the tracks of the defendant company at any time." The latter instruction was good as far as it went, but it did not give the law concerning an approaching car which the plaintiff did not see. The former charged the plaintiff with knowledge of the approaching car, | to pay an obligation at another bank that while the latter charged him with notice of the fact that a street car was liable to pass at any time. There is a material difference between the two, when applied to street car traffic within a city. Knowledge that a street car is approaching is quite different from notice that one may approach at any time. If the instruction requested had been given, it may be that the jury would not have found that the plaintiff exercised diligence before going upon the track. For the error in refusing to give the instruction requested, the judgment is reversed, and a new trial is directed. All the Justices concurring. (103 Kan. 711) KESSLER v. FROST et al. had been accumulating there for silos and other improvements he had put on his place; that he owed this other bank about $3,500, for which it held security on cattle and horses worth about $2,000 and some implements worth about $100; that when he built the silos he drew his checks, and this bank paid them. "I expected to use this money the same as any other money. I never intended to use any of this money to pay off the loan on the homestead." He intended to pay two of the plaintiffs out of this money if he did not get another place; he intended to pay them some time. He had owed them for a number of years and intended to pay them out of this money he got if he got no other. He was treating this mon DOUGLAS v. ey the same as any other. The wife testified that the money deposited in the bank in her husband's name "came from the loan we made on the home." She knew of her husband's owing the other bank the money advanced to build silos. She and her husband talked over the matter of making the loan. She signed the note and mortgage in order to raise money to pay the money advanced by the other bank to pay for silos and other improvements on the farm. That was the reason she consented to mortgage the homestead. It appears that the husband had talked Some of trading his farm for western land, but he testified that he did not intend to do so when he made this loan; "this is the only place I ever owned, and everything I bought went on this place." It was alleged that the notes sued on were for money which went to the erection of improvements on the homestead, but this claim was waived by all but one of the plaintiffs whose claim of lien was by the trial court denied. Hence the exemption question is the only one presented. [1] Of course, any part of the deposit which Mr. Frost intended to use for ordinary expenses would not be exempt; but as only about $100 seems to have been thus used, and as the amount garnished was ap WEST, J. A bank in which the defendant Frost had deposited certain money was gar-parently enough to pay all the claim sued on, nished in actions to recover on certain promissory notes. The garnishments were discharged on the ground that the money was exempt, and the plaintiffs appeal. The defendant asserts the exempt character of the fund because borrowed for the purpose of paying for improvements on his homestead. His evidence, in substance, was that he with his family had occupied his farm as a homestead for about 18 years; that about June, 1917, he made a loan thereon for $6,000, paid off a loan of $3,600 out of the proceeds and a commission note or two, paid the garnishee about $500, drew out about $100 for his own use, and left about $1,100 in the bank, with which he intended the result depends on the character of the remaining fund on deposit, which character in turn depends on the intention the depositor had when he left it in the bank. Smith v. Gore, 23 Kan. 488, 33 Am. Rep. 188; Milberger v. Veselsky, 97 Kan. 433, 155 Pac. 957. In Brenneke v. Duigenan, 6 Kan. App. 229, 49 Pac. 687, it was held that "The husband and wife have a right to sell or mortgage the homestead, and the money derived from such sale or mortgage is exempt." Syl. 1. The defendants could have sold their homestead and devoted the proceeds to other purposes, or they could have used the proceeds to buy another homestead, and, such intention existing, such proceeds would be exempt. The general purport of the husband's testimony was that he intended to repay the other bank the money it had advanced for building silos. The wife testified that for this purpose only she signed the mortgage, and there is therefore fair support for the conclusion of the trial court that the money was exempt. A mortgage on the homestead for the purpose of paying for improvements could not legally harm general creditors. Neither could they resort to the proceeds to pay their nonlienable claims. for want of notice, and the second, which was approved, was essentially a duplication of the first. The result was to establish the west line of the new part of the cemetery some distance west of an old hedge, and to establish Webb's west line accordingly. The appellants claim the hedge was the true cemetery line, and that the effect of the survey was to move Webb's west line over on their land. While the appellants make some technical objections to the survey, there is no doubt that it correctly established the disputed boundaries, unless it were defective because [2] The motion to discharge the garnish- it ignored the hedge. In one of the deeds ment was heard by the court on an ad- pertinent to the controversy one of the calls journed day of the June term. A jury was was "the McDonald line," and it is claimed demanded and denied. The statute (section the hedge constituted the McDonald line. 7215, Gen. Stat. 1915) provides that issues of It is further claimed that the hedge was an law and motions may be heard by the court old landmark, an ancient monument, and a or judge in term time or vacation. No au- known and recognized boundary acquiesced thorities are cited to buttress the conten- in since 1863. On the other side, it is said tion that on hearing of this motion the plain- that in deed descriptions by metes and tiffs were entitled to a jury. Usually mo- bounds there is no reference to the hedge, tions are triable by the court. Indeed, the such as would have been almost inevitable presentation and determination of a motion if the hedge had been a recognized boundary. have been termed a hearing instead of a It is further said that the hedge not only was trial. McDermott v. Halleck, 65 Kan. 403, not an ancient boundary known and acquiesc69 Pac. 335. There is no provision for mak- ed in, but that it was well understood the ing up issues as to the trial of motions. Ber-city owned ground sufficient for two rows of ry v. Dewey, 102 Kan. 392, 170 Pac. 1000. Juries are for the trial of issues of fact, and a demand for a jury on the hearing of these motions was properly denied. The judgment is affirmed. All the Justices concurring. (103 Kan. 693) McDONALD et al. v. CITY OF IOLA et al. (No. 21631.) (Supreme Court of Kansas. Nov. 9, 1918.) (Syllabus by the Court.) BOUNDARIES 37(1)-SURVEY-EVIDENCE. The evidence examined, and held to sustain the judgment of the district court approving a survey. Appeal from District Court, Allen County. Appeal by L. A. McDonald and others from the judgment of the district court approving a survey instituted by the City of Iola and another establishing certain boundaries. Affirmed. Apt & Apt, of Iola, for appellants. G. R. Gard and S. A. Gard, both of Iola, for appellees. BURCH, J. The appeal was taken from the judgment of the district court approving a survey establishing certain boundaries. The survey was instituted by the city of Iola, the owner of the Iola cemetery, which consists of two parts, the old and the new, and by S. Webb, the owner of a tract of land lying west of the cemetery. The surveyor made two reports. The first was set aside cemetery lots west of the hedge, and the ancestor of the appellants, from whom they derived title, at one time stated he would try to buy the ground. The question of fact thus presented was determined by the trial court in favor of the survey, and the finding is supported by abundant evidence. The judgment of the district court is affirmed. All the Justices concurring. On the question involved, did the plaintiff herein deliver to the defendant a deed purporting to convey a tract of land with the intention that it should become effective as a present conveyance, the trial court found that there was a delivery, and it is held, that there is sufficient evidence to uphold the finding. 2. DEEDS 56(7), 179-DELIVERY-SURREN DER OF TITLE. Where there is a complete delivery of a deed by grantor, the fact that the grantee subsequently handed the instrument back to the grantor, with the request that she should try to obtain the signature of another person who had an interest in the land, did not defeat the delivery already made, nor operate as a surrender of the title transferred. (Additional Syllabus by Editorial Staff.) 3. DEEDS 56(1)-DELIVERY-INTENTION. Delivery is largely a matter of intention, and the test is: Did the grantor by words and acts evidence an intention to part with control |