we property by Knowles to the plaintiffs in error the fencing was expressly exempted, upon the ground that it had never been accepted by the purchaser. We think the court below erred in sustaining this lien. The material was never attached to and made a part of the land. The language of the statute is the same with reference age, and that the judgment gives dam- | Knowles, and sold. In the sale of the ages not warranted by the allegations of the petition; that the petition contains no averment of value. The petition states that the goods seized and still held belonged to the plaintiff, and were of the value of $190. This allegation, think, is sufficiently clear and definite to support the judgment. The same answer will apply to the last objection, that there is no allegation of damages in the petition. The value being stated, and the further allegation that the plaintiff was deprived of said goods, is sufficient to support the judgment. We recommend an affirmance of the judgment of the court below. * * * to buildings as fences: "Any * person who shall, under contract, shall, under contract, 營 * 營 * * * any person who furnish any fence." Section 1, c. 141, Sess. Laws 1872. This court has held that, to sustain a lien for material, it must appear, not only that PER CURIAM. It is so ordered; all the the materials were purchased to be used justices concurring. (45 Kan. 592) HILL et al. v. BOWERS et al. (Supreme Court of Kansas. March 7, 1891.) MECHANIC'S LIEN-FENCING MATERIAL. To entitle a person to a lien upon land for material furnished for fencing, it must appear, not only that such material was purchased to be used for that purpose, but it must also appear that the same was in fact so used as to become a part of the realty. (Syllabus by Green, C.) Commissioners' decision. Error from district court, Washington county; E. HUTCHINSON, Judge. J. G. Lowe, for plaintiffs in error. Charles Brown and E. Hutchinson, for defendants in error. GREEN, C. This action was commenced In the district court of Washington county, by J. C. Bowers & Sons, to foreclose a lien upon certain real estate, for iron fencing, gates, and posts furnished by them to E. C. Knowles, one of the defendants in the court below, who held the land upon which the lien was claimed under a bond for a deed from J. B. Besack. E. C. Knowles assigned his interest in the property to Edwin Knowles, and the same was afterwards assigned by him to the plaintiffs in error, who received a deed from J. B. Besack and wife, having complied with the terms of the original contract to convey. Service was made upon E. C. Knowles by publication. The other defendants answered that the material had never been used in the erection, alteration, or repairs of the fences upon the premises purchased by them; that the material for which plaintiffs claimed a lien had never been placed on said premises, or used thereon, in any manner. Judgment was rendered by the court below against the defendant E. C. Knowles for the amount due for the material, and the same was declared a lien upon the premises of the plaintiffs in error, who bring the case here. It was proven upon the trial that the material furnished was never used to build a fence on the land upon which a lien was claimed. It was piled upon the public highway in front of the premises, where it remained some time, and was afterwards taken by the sheriff of Washington county, on an execution issued against E. C. 66 in the building, but also that they were in fact so used. Rice v. Hodge, 26 Kan. 164. At common law, the mechanic had a lien on personal property benefited by his labor, but this lien, being a mere possessory right, could not apply to real estate which is incapable of manual possession. The statutory remedy simply extends the same right to real estate by giving the mechanic a charge thereon in the nature of a mortgage lien. As the law pertains only to the realty, it follows that, to come within the intent of the statute, the structure should be so affixed to the soil as to become a part of the realty. Kneel. Mech. Liens, 87; Bottomly v. Grace Church, 2 Cal. 90; Houghton v. Blake, 5 Cal. 240; Rogers v. Currier, 13 Gray, 129: Chapin v. Paper Co., 30 Conn. 461. In the latter case the court expressly held that no lien was created upon the building for which materials are expressly furnished, if they do not in fact go into the building. The fencing never having been placed upon the land, we are of the opinion that no lien attached. We recommend a reversal of the judgment. PER CURIAM. It is so ordered; all the justices concurring. (45 Kan. 560) BOARD OF EDUCATION OF CITY OF KANSAS March 7, 1891.) (Supreme Court of Kansas. A school-district was divided by an extension of city limits, and, the school-house being in that part of the district taken into the city by the extension, the board of education attempted to take possession of and exercise control over it. The officers of the school-district refused to allow this to be done, and a temporary injunction was allowed, restraining them from any interference with the action of the board of education; but, on motion of the school-district officers, the order of injunction was vacated. Held, that the trial court did not commit error in vacating such order, as it was not equitable. (Syllabus by Simpson, C.) Commissioners' decision. Error from district court, Wyandotte county; O. L. MILLER, Judge. Hutchings & Keplinger, for plaintiff in error. Alden & McGrew, for defendants in error. SIMPSON, C. By an extension of the boundaries of the city of Kansas City, a part of the territory of school-district No. 7 of Wyandotte county was brought within the limits of said city, and on the portion of said school-district thus added to the city was situate a school-house belonging to district No. 7. This school-house, known as "Stewart's School-House, " was built by district No.7 on an acre of ground conveyed in fee to said district by Sarah Driver on the 26th day of September, 1867. Just how the district was divided by the extension of the city limits, and what portion was left out, and what part taken into the city, is not disclosed by the record. Enough is said, however, to show that a large number of school children were left within the original district. After the extension of the city limits, the board of education of the city of Kansas City attempted to take possession and exercise control over said school-house. The director of scooc -district No. 7 resisted these attempts at control of the school-house by the board of education of the city, and this action was commenced by the board of education so restrain the officers of the school-district from any interference with the control of the board over the schoolhouse. An order of injunction was issued and served with the summons, but a motion to vacate the order was sustained; and from this ruling the case is brought here for review. The decision of this case must be controlled by equitable considerations, for while the statutes of the state have made provisions for the disposition of the property of a school-district when the same is abolished or discontinued, and when a school-district is divided by the county superintendent, or when by his action a part of the territory of a school-district is detached and put into another or new district, no express provision is made where a school-district is divided by reason of an extension of city limits absorbing a part of it. The case of Curtis v. Board of Education, 43 Kan. 138, 23 Pac. R. p. 98, is not controlling, because it appears from the record in that case that school-district No. 45 conveyed the school-hose property by a warranty deed to the board of education of the city of Topeka, in consideration of $400. This, under the statute, the school-district was authorized and empowered to do by section S, subd. 7, School Law. The general rule respecting such matters is that, where a part of the territory of a county, township, or a school-district is detached for ny purpose, the original municipal corporation still retains its property rights, powers, and privileges, and remains subject to its duty and obligations, unless som express provision to the contrary be made by the act authorizing the separation. As we have said, there is no provision of the statute that provides for an adjustment of the rights of the board of education and the officers of the school-district in a case of this kind. We cannot say, as a matter of law, that the board of education or the city became the owner of the school-house by reason of its being taken into the city by an extension of its limits. There ought to have been some adjustment of property rights between the parties, but, as the case stands, we could not reverse the judg ment of the court below, except upon the theory that school-district No. 7 had been divested of its ownership of the school. house by reason of its absorption by the city by the extension, and this we cannot do. No attempt has been made to adjust the conflicting claims upon an equitable basis. On the record, and the facts presented by it, we recommend that the order vacating the temporary injunction be af. firmed. PER CURIAM. It is so ordered. HORTON, C. J., and JOHNSTON, J, concurring. VALENTINE, J. I concur in the result reached, and in affirming the order vacat ing the temporary injunction. (45 Kan. 621) BENNINGHOFF V. CUBBISON et al.1 (Supreme Court of Kansas. March 7, 1891 ) DEMURRER TO EVIDENCE. Where an action in replevin is tried by the court without a jury, and a demurrer to the evi dence is interposed, and there is some evidence tending to establish the issues made by the plead ings, such demurrer should be overruled. Wil son v. Beck, 44 Kan., 24 Pac. Rep. 957, an. cases there cited, followed. (Syllabus by Green, C.) GREEN, C. This was an action in replevin, brought by the plaintiff in error against the defendants in error, in the district court of Butler county, for a stock of goods kept in a store in the town of Leon, in said county. The case was tried to the court, and a demurrer to the evidence was sustained, and the plaintiff in error brings the case here, assigning error. The material facts developed on the trial were: That on the 16th day of July, 1886, F. W. Beckmeyer executed a chattel mortgage to J. Benninghoff, the plaintiff in error, upon a stock of merchandise in Leon, Butler county, to secure the payment of $4,260.30. The mortgage was filed for record on the following day; and a renewal affidavit was made and filed on the 7th day of July, 1887. Some time in the fall of 1886 the mortgagor made a partial transfer of the stock of goods to C. L. King. On the 11th day of December, 1886, King executed a mortgage upon this same stock of merchandise to the W. B. Grimes Dry Goods Company, to secure the payment of $800, due December 6, 1887, subject to the mortgage given by Beckmeyer to Benninghoff. This mortgage was filed for record on the same day, and a renewal affidavit was filed on the 23d day of December, 1887. F. W. Beckmeyer and C. L. King executed a chattel mortgage upon the same property the 1st day of June, 1887, to T. K. Hanna, 'Petition for rehearing pending. surviving partner of Tootle, Hanna & Co., for $875, payable on the 23d day of May, 1888. This last mortgage was subject to the mortgages given to Benninghoff and the W. B. Grimes Dry Goods Company, and was filed for record on the same day. The stock of goods was redelivered by King to Beckmeyer, who continued in possession until the 6th day of January, 18ss, when there was a conditional sale of the goods to Henry J. Dillon. The following is a copy of the contract for the sale of the stock of goods: "Leon, Kansas, Jan. 6, 1888. Agreement between F. W. Beckmeyer and Henry J. Dillon. The parties hereto agree as follows: The said Beckmeyer agrees to sell and has sold to said Dillon the stock of general merchandise now in building known as the 'Butler Co. Store,' subject to incumbrance of $1,$00.00. And the said Dillon hereby agrees to give said Beckmeyer, in exchange or payment for said stock of goods, the following described lands, and execute good and sufficient warranty deeds for the same to J. Benninghoff, the said lands to be free and clear of all incumbrance excepting mortgage of four hundred and fifty dollars and one hundred and fifty dollars, due the government, which Dillon agrees to pay when due, and one hundred and sixty acres of land. Description of land: Lots 3 & 4 of S. half of N. W. quarter section four, township 32, range 22, 160 acres; also the N. half of the S. W. quarter, N. half of the N. W. quarter of sec. 29, town 31, range 23, 160 acres; also the S. E. quarter of S. E. quarter sec. 15: W. half of S. W. quarter of S. W. quarter sec. 14, town 32, R. 21, 160 acres,-all in Clark county, Kausas: the last-named piece or tract being subject to mortgage of $450, and no more; and also execute to said Beckmeyer a second chattel mortgage on stock of goods for the sum of $800.00, with 12 per cent. interest from date of mortgage, said note and chattel mortgage to run one year from its date; the said Dillon to furnish at his own cost abstract, showing said land clear of all incumbrance, as above mentioned, and execute deed as above mentioned; these goods to be delivered into his possession. The said Dillon further agrees not to remove goods from Leon, Kansas, and to pay on said first mortgage to Benninghoff at least fifty dollars per week, until the whole is paid. the said mortgage to be given to said Beckmeyer for the $800 to cover all goods which may be added to stock of goods, and also book-account. The said Dillon hereby represents said land as being nearly all good, smooth land, and tillable, with Kansas houses on each quarter; also good wells, and 40 acres in cultivation. This trade being made upon the said Dillon's representations of said land, the said Dillon to comply with the said conditions within six days from this date, or sale is null and void. The said F. W. Beckmeyer to pay all other incumbrance on stock of goods. The said Dillon further agrees to give another note for $130.00, with the above $800.00 mortgage, which is to be paid Feb'y 5, 1888. [Signed] F. W. BECKMEYER. HENRY J. DILLON. Accompanying this contract, a bill of sale was ex | ecuted by Beckmeyer, which recited the fact that the property was free from all incumbrance, except a mortgage of $1,800. This sale seemed to have been made with the knowledge and consent of the plaintiff in error. Under this agreement and bill of sale, Dillon took charge of the store on the 8th day of January, and continued in possession until the 18th, when Benninghoff went to Dillon, and demanded possession of the stock of merchandise, who refused to deliver the key to him personally, or to turn over the stock, but consented that Beckmeyer might take charge of the store for him, and dispose of the goods for Benninghoff's benefit, and apply the proceeds of sales in paying off Benninghoff's debt. The key was handed by Dilion to Beckmeyer, in the presence of Benninghoff, who continued in charge of the store until 9 or 10 o'clock the next day, when the representatives of the defendants in error came in and demanded possession of the store, and, under threats that he would be arrested, Beckmeyer surrendered the key. Dillon was not present at the time, and Beckmeyer stated that he was holding the stock for Benninghoff. On the following day the plaintiff commenced this action. The deeds for the land mentioned in the contract were received by Benninghoff, but, on account of some defect, they were returned by mail to the parties who had executed them. The plaintiff in error insists that the mortgage from Beckmeyer to Benninghoff was valid, and comes fairly within the rule heretofore laid down by this court, with reference to mortgages upon stocks of merchandise; that upon the trial there was some evidence to support the claim of the plaintiff in error to the title to the property in controversy; and therefore the demurrer to the evidence was improperly sustained. The contention of the defendants in error is that the evidence offered by the plaintiff below conclusively showed that, at the commencement of this action, the mortgage of the plaintiff in error was without force, and hence the demurrer to the evidence was properly sustained. We think the demurrer to the evidence should have been overruled. The mortgage under which the plaintiff in error claimed title seemed to have been given in good faith, for a sufficient considera. tion; and there was some evidence to indicate that there was an unpaid balance of about $1,800 still due the plaintiff in error. All of the mortgages under which title was claimed, by both plaintiff and defendants, were given upon the same stock of goods, and such mortgages have been upheld by this court. Frankhouser v. Ellett, 22 Kan. 127; Howard v. Rohlfing, 36 Kan. 357, 13 Pac. Rep. 566. There was an express recitation in the contract between Beckmeyer and Dillon that the sale was made subject to an incumbrance of $1,800, and in that agreement Dillon promised to pay at least $50 a week on the first mortgage to Benninghoff, until the whole was paid. As we view the testimony, there was evidence to show that, when Dillon delivered the key of the store to Beckmeyer, it was for the benefit of Benninghoff. We are not satisfied that the attempted sale by Beckmeyer to Dillon operated as a release of the Benninghoff mortgage. The deeds for the land were executed, but afterwards returned. If it did not, the question as to who was in possession of the store when the defendants below obtained possession through Beckmeyer is not very material. If the first mortgage was not discharged, by the making of the contract between Dillon and Beckmeyer the plaintiff in error had the undoubted right to maintain his action. We do not care to consider the evidence. That of the plaintiff alone is here, and all that we can now say is that the facts adduced before the trial court seemed to show a cause of action in favor of the plaintiff in error. Under the well-settled rule of this court, unless there has been a total failure upon the part of the plaintiff to prove a cause of action, or some material fact in issue, the demurrer should have been overruled. Wilson v. Beck, 44 Kan. —, 24 Pac. Rep. 957; Railroad Co. v. Cravens, 43 Kan. 650, 23 Pac. Rep. 1044; Gardner v. King, 37 Kan. 671, 15 Pac. Rep. 920; Merket v. Smith, 33 Kan. 66,5 Pac. Rep. 394; Wolf v. Washer, 32 Kan. 533, 4 Pac. Rep. 1036; Brown v. Railroad Co., 31 Kan. 1, 1 Pac. Rep. 605. We recommend reversal of the judgment. PER CURIAM. It is so ordered; all the justices concurring. (45 Kan. 674) by the special verdict it is error to overrule a Commissioners' decision. Error from district court, Atchison county; W. D. GILBERT, Judge. Geo. R. Peck, A. A. Hurd, and Mills & Wells, for plaintiff in error. Tomlinson & Eaton, for defendants in error. STRANG, C. This was an appeal from the report of commissioners appointed to condemn the right of way for the plain| tiff's railway. The plaintiffs below filed their amended petition in the district court of Atchison county February 4, 1888. To this petition the defendant below presented a motion to require the plaintiffs to separately state and number their alleged causes of action, which motion was overruled. A demurrer was then interposed to said petition, on the grounds: (1) That the first count or cause of action in said petition did not state facts sufficient to constitute a cause of action; (2) the defendant demurred to the second count or cause of action in said petition because it did not state facts sufficient to constitute a cause of action; and (3) defendant demurs to the petition because several causes of action are improperly joined. The demurrer was overruled. May 3d the defendant filed its amended answer, and the case went to trial before the court and a LEAVENWORTH, N. & S. RY. Co. v. WILKINS jury. May 7, 1888, the jury returned a et al. (Supreme Court of Kansas. March 7, 1891.) PLEADING-DEMURRER-EMINENT DOMAIN - JOINDER OF ACTIONS-DAMAGES-GENERAL AND SPECIAL VERDICTS. 1. Each count in a petition containing more than one cause of action must contain, in and of itself, a full and complete statement of all the facts constituting the cause of action sought to be stated, except that a count subsequent to the first may be made sufficient by a proper reference to the first or some other preceding count, without a repetition of all the facts necessary to constitute the cause of action. 2. When the first cause of action in a petition contains no claim for damages, it is error to overrule a special demurrer to said cause of action, which states as a reason therefor that said count does not state facts sufficient to constitute a cause of action. 3. In the trial of an action on an appeal from the award of commissioners, in a railroad rightof-way case, a cause of action for injuries to lands owned by M. W. by reason of the appropriation of the right of way cannot be joined with an action for injuries to lands owned by M. W. and S. W. jointly. In such a case it is error to overrule a demurrer to the petition which avers the misjoinder as the reason thereof. 4. In an action for damages for injuries to lands by reason of the appropriation of a right of way for a railroad company across the same, damages must be confined to the tract of land over which the right of way is condemned, unless the owner has other lands contiguous thereto, and so situated with respect to the same that the value is appreciably augmented by their use in connection therewith as a single farm, and the appropriation of said right of way has destroyed or seriously interfered with such use. 5 When there is a discrepancy between the general and special verdicts of a jury the latter must control. 6. Where judgment is entered on the general verdict for a sum larger than is warranted general verdict for the plaintiffs, and also a special verdict, consisting of answers to a large number of questions submitted to them by the defendant below. The general verdict was for $2,462.09. May 10th, the defendant filed a motion to reduce the judgment, first, by $400, upon the ground that the special verdict showed the general verdict was that much too large: also by the sum of $170.59, for reason that the plaintiffs were not entitled to interest. This motion was overruled. Defendant then filed a motion for a new trial, which was also overruled, and the defendant comes here asking a review of the case by this court. Counsel for plaintiff in error in their brief first call our attention to their demurrer to the amended petition filed in the court below, and contend that the first count or cause of action therein set forth does not contain facts sufficient to constitute a cause of action. An examination of the petition satisfies us that the objection to this count of the petition is good. This cause of action fails to set up any claim for damages. Each cause of action in a petition containing more than one cause of action must "contain, in and of itself, a full and complete statement of all the facts constituting the cause of action therein intended to be stated. In other words, each count should be separate and distinct from every other count, and be complete within itself," except that a count subsequent to the first may be made sufficient by a proper reference to the first or some other preceding count. Stewart v. Balderston, 10 Kan. 145; Krutz v. Fisher, 8 Kan. 96. The first count was designed to set out a cause of action for damages ers, 38 Kan. 318, 16 Pac. Rep. 337; Durein v. Pontious, 34 Kan. 353, 8 Pac. Rep. 428; Jeffers v. Forbes, 28 Kan. 178. Counsel for defendants refer to the case of Commissioners v. Labore, 37 Kan. 480, 15 Pac. Rep. 577. In that case a father and two sons each owned a quarter section of land, lying together in a body. They entered into a copartnership to breed and raise cattle, and by the terms of the copartnership agreement they were to use the threequarters of land together in the business as one tract. A highway was construct to lands owned jointly by Michael and Sarah Wilkins, arising from the condemnation of the right of way of the plaintiff; but it is not complete "in and of itself. ' It contains no claim of damages. If it contained the necessary allegations that are wanting, so that it could stand alone as a cause of action, there would be no difficulty in the way of the plaintiffs below recovering damages to at least a portion of the land therein described. They would then have a right to recover for any damage to the S. of the S. E. 4 of section 10, because it is admitted that they are jointed so as to affect these lands. Damages owners of that portion of section 10, and that it is the ground over which the right of way of the plaintiff was condemned, and its road-bed constructed. The demurrer to this cause of action must be sus. tained. The second count, with its reference to the first, may state a cause of action in favor of Michael Wilkins; but, as there is a demurrer to the petition as a whole, upon the ground that distinct causes of action are joined therein, which cannot be united, and as the same question is raised by objections to evidence, we will | examine this count in the light of these objections. This count alleges that the plaintiffs, Michael and Sarah Wilkins, are entitled to damages to the lands therein described by reason of injuries sustained thereto, growing out of the condemnation of the right of way of defendant railroad. The petition here avers that the lands therein described belong to Michael Wilkins as sole owner thereof. It follows, then, that Sarah Wilkins, who is made a coplaintiff with Michael Wilkins in this Count, has no interest whatever in any damages which might be awarded for inJury to the land therein described. The question, then, is, can the second count, which, if it state a cause of action at all, states one in favor of Michael Wilkins alone, be united in the same petition with the first count, which attempts to set out a cause of action in favor of Michael Wilkins and Sarah Wilkins jointly? We think not. Paragraph 4166, Gen. St. 1889, is the provision in our Code relating to joinder of actions, the last clause of which reads as follows: "But the causes of action so united must all belong to one of these classes, and must affect all parties to the action, except to enforce mortgages or other liens." In this case the first of the two causes of action affects Michael and Sarah Wilkins jointly, while the second cause of action affects only Michael Wilkins. It cannot be said, then, that the second count affects all the parties to the action, and hence the Code forbids their joinder in the same petition. In Palmer v. Waddell, 22 Kan. 352, the court held that "where two or more persons have separate causes of action against the same defendant, arising from the obstruction of a natural water-course, and the injury of their lands and crops thereby, they cannot unite in the same petition to recover damages of such injuries which are plainly distinct and unconnected. Hudson v. Atchison. 12 Kan. 140; Swenson v. Plow Co., 14 Kan. 387; Schultz v. Winter, 7 Nev. 803; State v. Commissionv.26p.no.1--2 were separately awarded to two of these parties, and none to the third. Each one for himself appealed. On the trial in the district court, by the consent of parties, the three cases were consolidated and tried together. But several judgments were rendered in favor of two of the parties for damage to their several lands, and against the third party. The court also rendered judgment for damages in favor of all the parties for injury to the use of their land under their copartnership contract. This court sustained the judgment.. But it must be remembered that the several actions in the name of each of the individual owners of the three-quarters of land, and the claim for damages to their joint use and occupancy of the same, were joined in the district court, and tried together by consent of the parties, and that the improper joinder of causes of action in the case was by consent, and there was at no time any objection thereto. For the same reasons the objections to the evidence concerning damages to lands in sections 15 and 9 should have been sus tained. But, aside from this, we do not think the plaintiffs below, or either of them, can recover damages to lands in sections 15 and 9 by reason of the appropriation of the right of way for the railroad of the defendant below, across, and over the S. of the S. E. of section 10. We do not think these lands are in any appreciable way damaged thereby. The general rule in relation to the assessment of damages to land for injuries thereto by reason of the appropriation of a right of way by a railroad company is that the damages shall be limited to the lot of land over and across which the right of way is condemned. Under our statutes this court has extended this rule by giving a liberal construction to the phrase "lot of land, so as to include any contiguous compact body of land used as a single farm. The warrant for this seems to be found in the language of the constitution, (section 4, art. 12,) which provides that the compensation for such right of way appropriated to the use of the company includes not only the value of the property taken, but also the loss the land-owner sustains in the value of his property by being deprived of a portion of it; and also warranted by the language of the statute, (paragraph 1395, Gen. St. 1889.) a portion of which reads as follows: "And for all other damages sustained by such person or persons by reason of such right of way so appropriated." This language not only includes damages for the right of way taken, but for all other actual damages sus |