repaired. The defendants and others requested | decided after the statute of 1911 was enactof the plaintiff the right to make a repair on ed, it was said: this break, which the plaintiff refused, and gave as a reason for his [her] refusal that such repair would cause injury to other neighbors. At each rise in the river the break becomes greater, and each year increasing portions of the flood water pass through said break upon the plaintiff's and defendants' lands. "XII. After the plaintiff declined to repair or permit the break in the bank to be repaired, the defendants, on or about the day of April, 1916, constructed a dike along the south bank of the bayou, about 30 inches high at its highest point and about 700 feet long, for the purpose of preventing the water in ordinary floods from breaking out over the south bank and spreading over the defendants' land, and to turn the same back into the channel of the Walnut river. This dike in no way affects any flood waters, except such as flow through the break of the river bank on the plaintiff's land. "XIII. This bayou and the island formed thereby is partly on the plaintiff's and partly on the defendant McDougal's land, practically all of which is farmed with different kinds of crops, and all of which can be protected from an ordinary flood or high water by a permanent repair of this break in the bank." [1] Plaintiff contends that the levee is maintained in violation of section 4050 of the General Statutes of 1915, which forbids a lower landowner to obstruct "the flow of surface water onto his land to the damage of the adjacent upper owner"; and plaintiff relies on the cases of Mo. Pac. Ry. Co. v. Keys, 55 Kan. 205, 40 Pac. 275, 49 Am. St. Rep. 249, and Singleton v. Railway Co., 67 Kan. 284, 72 Pac. 786, to support her position that the flood waters coming through the break in her river bank are to be considered as surface waters. When those cases were decided, the law of this state permitted a lower landowner to repel surface waters; and while it forbade, as it still does, any landowner to dike against the natural flow of flood waters to the detriment of others, it did permit a landowner, with due regard to the rights of others, to build dikes and barriers to protect his property from overflow and waste. Parker v. City of Atchison, 58 Kan. 29, 36, 48 Pac. 631. The rights and limitations of rights of landowners in dealing with flood waters were not changed, nor attempted to be changed, by chapter 175 of the Laws of 1911 (sections 4050-4052 of the General Statutes of 1915), unless indeed they have been somewhat enlarged by section 2 of the act): "Owners of land may drain the same in the general course of natural drainage, by constructing open or covered drains whereby the water will be carried into some natural watercourse, or into any drain upon a public highway, for the purpose of securing proper drainage to such land and when such drainage is wholly upon the owner's land he shall not be liable in damages therefor to any person or persons or corporation." Gen. Stat. 1915, § 4051. To regard flood waters escaping from a river as surface water led to little or no confusion before the enactment of 1911, but it may sometimes do so now. In Manufacturing Co. v. Bridge Co., 81 Kan. 616, 621, 622, ex "There are cases intimating, and even pressly holding, that whenever the banks of a stream are overflowed the surplus becomes at which any one may protect himself. The great once surface water-a 'common enemy,' against weight of authority, however, supports the view that it is to be so regarded only in case it has ing the channel; that if it continues to flow in ceased to be a part of a general current followthe same direction while outside of the banks, flood, it is to be deemed a part of a running returning thereto upon the subsidence of the stream; and that it only loses its character as and settles in stagnant pools or finds some other such when it spreads out over the open country outlet. # * As was said by Mr. Farnham: * *To make the rights with reference to flood water of a river dépend upon whether or not it is surface water is useless. The only itself and then determine the respective rights safe course is to treat flood water as a class by according to the character of the flood.' 25 L. R. A. 530." See, also, Railway Co. v. Herman, 74 Kan. 77, 81, 85 Pac. 817. It cannot be said that the flood water which defendants seek to control by the levee is ordinary surface water. It is river water, flood water, water which, but for the negligence, indifference, and obstinacy of plaintiff, would never reach or concern the defendants. The attitude of plaintiff is glaringly inequitable. She will not mend her river bank, nor permit it to be done by defendants, although to do or permit this to be done would save her own property harmless and that of defendants. Her excuse, "that such repair would cause injury to other neighbors," is not an excuse which a court of equity can tolerate. Her "other neighbors" can look out for themselves, and it is no injury-no legally redressible injury-to them to endure the natural flow of high waters to which the location of their lands may subject them; and the plaintiff may not relieve them of their natural disadvantages to the damage and injury of defendants, and certainly she will get no affirmative aid in a court of equity to further such purpose. Plaintiff does not come into court in that just and equitable attitude herself which is a prerequisite to entitle her to discretionary relief at the hands of a court of equity. Freeman v. Scherer, 97 Kan. 184, 189, 154 Pac. 1019. [2] The defendants had the right to drain and turn this water back into the river, a natural water course. Gen. Stat. 1915, § 4051 (Laws 1911, c. 175, § 2). If plaintiff were free from negligence and obstinacy touching the repair of the river bank, and if she came into court in an equitable mood herself, the defendants would not be permitted, in the maintenance of their levee, to retard the flow of the water over plaintiff's land; but, where parties are in equal wrong, equity declines relief. Here the wrong of plaintiff is greater than any wrong of defendants, and consequently she is still less entitled to consideration in equity. fusal to make certain findings alleged to have in the falling of a rock and an injury to him been established by the proof, and in making certain others not thus established. These have been duly considered, but none of them are important. The trial court refused to find that the levee retarded the flow of water over plaintiff's land. Perhaps the court did not believe the evidence to that effect, and the court's personal view of the situation and premises may have entered into its denial of that finding. The findings quoted in this opinion were supported by evidence, and they control this case. So long as the levee is insufficient to retard or delay the flow of other or greater flood waters than those which escape only through the break in the river bank negligently and obstinately maintained by the plaintiff, she is not entitled to have defendants' levee abated. in defendant's coal mine. There was testimony that the plaintiff ordered 3-foot, 4inch props of the pit boss and the driver; that an area from 13 to 15 feet by about 24 feet in the room where the plaintiff worked was unpropped, and the height of the room was 3 feet and 4 inches; that there were no unused props in the room at the time. The jury returned a general verdict in favor of the plaintiff, and, in answer to the first special question, found that he was injured by the fall of a rock in a room in the defendant's coal mine. To each of the four following questions, as to whether the plaintiff ordered 3-foot, 4-inch props of the pit boss and driver, whether there was an area in the north end of plaintiff's room in which the room had not been propped, as to the height The judgment is affirmed. All the Justices of the rooms, and whether there were any concurring. Appeal from District Court, Crawford County. Suit by Mack Smart against John Mayer and Joe Gladdis. General verdict for plaintiff, and defendants' motion for judgment up on the special findings overruled and their motion for a new trial sustained, and defendants appeal and plaintiff takes a crossappeal. Orders affirmed. E. L. Burton, of Parsons, and J. J. Campbell, of Pittsburg, for plaintiff. Thomas W. Clark, of Pittsburg, for defendants. loose or unused props in the room, the jury answered, "We do not know." The defendants moved that the jury be required to return and answer these questions, which motion was denied. They afterwards filed a motion for judgment upon the special findings and a motion for a new trial. The former was overruled and the latter sustained. The defendants appeal from the order overruling the motion for judgment, and the plaintiff presents a cross-appeal based on the failure of the court to require the jury to answer the questions, and from the order granting a new trial. The defendants argue that the answers to the four questions amount to findings in favor of the defendants and mark the failure of the plaintiff to make out a case, and that, as no motion was made by either party to set aside these findings, it was error to overrule the motion for judgment. [1] The plaintiff raises the points that, as no judgment was entered on the verdict and a new trial was granted, there is nothing for the defendants to appeal from, and that the refusal of the court to require specific answers to the questions amounted to a withdrawal of such questions. Authorities are cited to the effect that the refusal to compel an answer amounts to a withdrawal of a question; but that rule did not apply in this instance, for the questions were answered, and, although improper in form, the answers were in effect as if they had been in the negative. [2] Much is said about the refusal of the court, "on the request of either party," to require the jury to answer the questions. It is true that either party may request this, but it does not follow that the party who makes no such request can avail himself of the refusal of a request made by the opposing party. While the plaintiff excepted to WEST, J. The plaintiff sued to recover the refusal, he did not make or join in the damages for failure to furnish sufficient prop request. The party against whom the ruling timbers of suitable length and size, resulting is made and the error committed is the one The plaintiff did not attack the findings or. request more specific answers. The defendants in their motion for a new trial asked that the verdict be set aside without mentioning the findings. The action of the court in granting this motion operated however, to set aside both the verdict and findings, thus leaving nothing on which to base a judgment. to make complaint. In this instance the [ part and may have believed that some of the error committed was against the defendants. answers were in conflict with the weight of [3] The motion for judgment on the special the evidence. findings and the motion for new trial were filed the same day, and both motions were passed upon at the same time. By this action of the court it came about that no judgment was entered against the defendants and that at their request a new trial was ordered, and it is difficult to see what they have to appeal from. To be final the order must, under section 566 of the Civil Code (Gen. St. 1915, § 7470), in effect determine the action and prevent a judgment, and, while in one sense the order prevented a judgment in favor of the defendant, the action is still undetermined. In Burton v. Boyd, 7 Kan. *17, it was held that: "A party against whom no judgment has been rendered or final order made, and who, after the trial of the court below, moved for and obtained an order granting him a new trial, has no good reason to complain in this court of the action of the court below." (Syl. 1.) In A., T. & S. F. R. Co. v. Brown, Adm'r, 26 Kan. 443, the defendant moved for judgment on the findings, which was overruled, and thereafter made a motion for new trial, which was sustained; and it was held that, as no judgment had been rendered against the defendant and no final order made against it, no petition in error would lie, following Burton v. Boyd. In the case of Railroad Co. v. Holland, 58 Kan. 317, 49 Pac. 71, a motion for judgment on the findings was held not to be a waiver of a motion for a new trial, and the danger was pointed out of failing to file the latter within the three days' time required by the statute. The defendant in Ratliff v. Railroad Co., 86 Kan. 938, 122 Pac. 1023, moved for judgment on the special findings. No motion for new trial was filed, but it was held that under the peculiar facts presented a new trial should be directed by this court. In Stanley v. Railway Co., 88 Kan. 84, 127 Pac. 620, both motions were filed, and the motion for new trial was denied solely because the motion for judgment on the findings was granted; the court also finding that the verdict was contrary to the evidence. It was held that upon reversal the trial court should pass upon the motion for new trial upon its mer its. In the situation presented by the record, the plaintiff is in no condition to complain, and the defendants, having solicited and obtained the granting of a new trial, do not present any adverse final order for our consideration. The orders of the trial court are affirmed. All the Justices concurring. (103 Kan. 385) BUSH et al. v. CHICAGO GREAT WEST- hearing Denied Oct. 18, 1918.) (Syllabus by the Court.) - 1. RAILROADS 139 MAINTENANCE OF touching the "good condition" of a set of signals Appeal from District Court, Leavenworth County. Action by B. F. Bush, receiver, etc., and others against the Chicago Great Western Railway Company and another. Judgment for plaintiffs, and defendants appeal. Af firmed. Ralph M. Shaw, of Chicago, Ill., and A. E. Dempsey, of Leavenworth, for appellants. W. P. Waggener and J. M. Challiss, both of Atchison, and C. F. W. Dassler, of Leavenworth, for appellees. While special findings control the general verdict when inconsistent therewith (Civil Code, § 294 [Gen. St. 1915, § 7194]; Tacha v. Railroad Co., 97 Kan. 571, 155 Pac. 922), it is also true that a new trial is not to be granted unless the trial court shall be of the opinion that the verdict or decision is wrong in whole or in some material part (Civil Code, 307 [Gen. St. 1915, § 7209]; Burnett DAWSON, J. This action seeks to charge v. Topeka R. Co., 90 Kan. 282, 133 Pac. 534). the defendant, a railway terminal bridge It is to be presumed therefore that the court company, with the cost of making certain below must have regarded the verdict or changes in the signal system used on and decision wrong in at least some material about the railway bridge which crosses the Missouri river at Leavenworth. The termi- the relocation of the signal system was not nal company owns the bridge and leases it to "maintenance" within the restricted definicertain railways which are defendants here- tion set down in the contract. But this court in. The plaintiff owns a railway running is of opinion that the relocation of the signorth and south in close proximity to the nals for the safety of railway trainmen was west end of the bridge. In 1892, and again in clearly within both the letter and the spirit 1898, the plaintiff undertook the obligation of that provision of the contract which reof keeping the bridge signal system in good quired the plaintiff to keep "the bridge sigcondition and maintaining it in proper re-nal system in good condition." And this expair. The defendant owner of the bridge pense was to be borne by the owner of the agreed to pay the bills therefor as rendered; bridge. Moreover, if there had been no speand the tenant railways using the bridge cific provision in the contract covering the guaranteed the prompt payment of the plain- subject, the defendant owner of the bridge tiff's bills for these services. would be bound to make the necessary changDuring the years which have passed since es to keep the signal system in good condithe bridge and its signal system were con- tion, and that would include a condition of structed, a systematic movement among railsafety, and since the defendant had chosen to way men for the safer operation of railroads select the plaintiff as manager and custodian has grown up. This is familiarly known as the "Safety First" policy of railroading. of its bridge signal property, it was bound to Railway companies have committees to de- reimburse the plaintiff for the reasonable vise and suggest the need of improvements to and necessary expenditures made in the lessen or avoid railroad accidents. These proper discharge of its duty. A point is committees are usually composed of the rail- urged that the signal system was installed way superintendent and a railroad man from many years ago in accordance with the plans every branch of the operating service-a of the plaintiff's chief engineer and with his roadmaster, a master mechanic, a trackman, approval. That does not alter the case. Perengineer, fireman, conductor, brakeman, haps the signal system was adequate and switchman, car man, and shop man. One safe at that time. Doubtless it was as good of these committees noticed that the signals as railway knowledge and experience at that But with the lapse of on this bridge and at its western approach time could suggest. were too close to the track; they learned years railway signal engineering has prothat an employé had been struck and knocked gressed the same as other arts and sciences, off a freight car and injured by the sema-and owners of railway property must keep up phore blade of one of the signals. The mat- with the reasonable demands suggested by new ter was brought to the attention of the plain-ideas for the better security of human life; tiff which was charged with the duty of keep- and necessary expenses for such new and iming the bridge signal system in good condi- proved methods and contrivances are merely tion. It set one or more of these signals one of the burdens attendant on the ownerback from the track and changed one or two ship of public utility property. Railway Co. others from high signals to low or "dwarf" v. Henry, 57 Kan. 154, 45 Pac. 576; Id., 60 signals in the interest of safety and in ac- Kan. 322, 56 Pac. 486; Water Co. v. City of cordance with present day ideas of good rail- Wichita, 98 Kan. 256, 259, 158 Pac. 49. roading. For this outlay, plaintiff submitted Moreover, it was shown that railway rolling a bill of costs to the defendant owner of the stock has considerably increased in size and bridge; this the latter refused to pay. width since the signal system was first inThe plaintiff brought this action, and ob- stalled, and this would require the signals tained judgment against the owner of the to be set further from the track than forbridge and against the tenant railways as guarantors that the plaintiff's expenses on [2] The plaintiff questions the competency the signal system of the bridge would be of evidence given by experienced railway promptly paid by the bridge company. The men who testified that a signal system placed bridge company appeals, contending that it is so close to the railway tracks as to cause not properly chargeable with the cost of re- trainmen to be knocked off the cars was not location of these signals, and that its lia- in good condition. This evidence was compebuty is limited by its contract to costs of tent. Duncan v. Railway Co., 86 Kan. 112, maintenance; and that the word "mainte- 119 Pac. 356, 51 L. R. A. (N. S.) 565; Baillod nance" is defined and restricted in the con- v. Grain Co., 93 Kan. 775, 782, 783, 145 Pac. tract of 1898 to mean "the necessary expense $95; Bushey v. Coffman (No. 21507) 173 Pac. incurred in making repairs and renewals to 341, decided June 8, 1918, syl. par. 3. See, said interlocking switch and signal plant." also, discussion on opinion evidence of ex[1] The bill of expenses for which payment pert railway men in Railway Co. v. Railway was demanded was for "labor and material Co. (No. 20943) 175 Pac. 97, decided May 11, in repairing, renewing, relocating and main- 1918. merly. taining interlocking plant," etc. Defendant The judgment is affirmed. All the Justices may be technically correct in contending that concurring. 52 SALE OF CORPORATION ACTIONABLE FALSE REPRESENTATIONS-SUFFICIENCY OF EVIDENCE. issued. It is true that a part of the testimony of the plaintiff seemed to indicate that he knew the application for the patent was still pending, but it is possible that he was referring to some other device, and in any event it was the province of the jury to resolve any conflict and determine the net effect of the evidence. Acker v. Norman, 72 Kan. 586, 84 Pac. 531. The fact that the patent In an action for damages for fraud in the was afterwards granted may have had some sale of property, the evidence is held sufficient to bearing upon the extent of the injury sufsustain findings that actionable false representa-fered, but could not prevent the false reptions were made by the defendant. resentation from amounting to a fraud. 2. FRAUD 50 - FALSE REPRESENTATIONS · PURCHASE OF STOCK-VALUE-PRESUMPTION. The evidence also justified a finding that the defendant had represented that the stock of the company was fully paid up in cash, whereas it was issued for patents pending, legal services, and good will. The matter was obviously material. The point is made that the representation charged in the petition was, not that the stock had been paid up in cash, but merely that it was fully paid up. In alleging the falsity of the representation, however, the pleading said that the stock had not been paid up in cash or in any other valuable thing, but was subscribed in good will, legal services, and pending patents. This seems sufficient to present the issue; but, if not, the petition may be regarded as amended. In such an action there is a prima facie presumption that, if the property had been as represented, it would have been worth the amount paid for it. 3. APPEAL AND ERROR 1064(1)-TRIAL 4. APPEAL AND ERROR 1056(1)—FRAUDULENT REPRESENTATIONS-EXCLUSION OF EVI DENCE. Various rulings held not to constitute mate rial error. (Additional Syllabus by Editorial Staff.) 5. APPEAL AND ERROR ~1005(2) · CONCLUSION OF TRIAL COURT-FINALITY. The trial court's conclusion that no prejudice resulted to plaintiff when the testimony of his wife, originally joined as a party plaintiff, was stricken out after a dismissal as to her, was final on such matter. Appeal from District Court, Wyandotte County. Action by A. J. Meyers and another against the Acme Iron Company and others. Judgment for plaintiffs, and defendants appeal. Affirmed. Emerson & Smith, of Kansas City, for appellants. David F. Carson, of Kansas City, for appellees. MASON, J. A. J. Meyers bought 10 shares of the stock of the Acme Iron Company for $1,000. He brought an action against its president, J. T. Woolsey, on the ground that the purchase had been induced by his false and fraudulent representations. The plaintiff recovered a judgment, and the defendant appeals. The evidence further warranted a finding that a false representation had been made that 147 of the machines handled by the company had been sold. The defendant claims that the making of such a representation is negatived by the fact that the jury returned affirmative answers to questions submitted by him, asking whether he had represented to the plaintiff that 2 machines had been installed, and that, if these proved satisfactory, the purchaser intended using 147 of them. A construction of these answers, which is reasonable and consistent with the verdict, and which we are therefore required to adopt, if necessary to uphold the judgment, is that the jury meant that, after the stock had been purchased, the defendant, in justification or explanation of what he had previously said, told the plaintiff that 2 machines had been placed, and that 137 would be, if these proved satisfactory. We regard it as unnecessary to comment on any of the six other representations alleged, as we deem those already mentioned sufficient to uphold the verdict. [1] 1. The defendant maintains that there was no evidence whatever of the making of any actionable false representations. We regard the contention as not well taken. A device which was handled by the company had not been patented at the time of the purchase of the stock, although an application was then pending, and a patent was afterwards granted. There was evidence sufficient to sustain a finding that the defendant represented that the patent had already been resented." 12 R. C. L. 453. [2] 2. The defendant urges that no evidence was introduced showing what the stock would have been worth if the representations made had been true, and that therefore no recovery can be had, because the measure of damages is the difference between that amount and the true value of the property. "The price paid for the property should be taken as strong, but not conclusive, evidence of what its value would have been if as rep |