Opinion of the Court.

the jury by charging that the single question was whether the frog was blocked or not at the time of the injury, and it is urged that the true rule is, that if the railroad company had once properly blocked the frog it incurred no liability to its employés by reason of the subsequent displacement of the blocking unless such displacement was with its knowledge or had continued for such a length of time as to impute notice to it. We do not question the proposition of law as thus stated, but the difficulty is that no such issue was tendered by the pleadings, and the parties evidently went to trial upon the single question whether the frog was or was not blocked at the time of the accident. The charge in the petition was that the frog was not and had never been blocked. The answer denied this fact, and did not assume to set forth as a defence that it had once been blocked and the block displaced without the knowledge of or notice to the railroad company. The railroad company was apparently content to rest its defence upon the single question of the existence of blocking at the time of the injury. The testimony went to that alone. In respect to this matter the trial judge in overruling the motion for a new trial observed as follows:

"The argument now advanced by defendant in support of his motion is, that even if the frog was unblocked, that fact of itself would not make defendant liable for the injury resulting therefrom; that the proof must go farther, and bring to defendant knowledge of such unblocked condition; either defendant must be proven to have had actual notice of such unblocked condition, or such condition must be proven to have existed so long as that, in the exercise of ordinary care, defendant should have discovered it. Defendant contends the proof did not fulfil these requisites as to notice, and that the jury were not instructed with reference to applying these requisites to the evidence.

"Neither in the opening statement to the jury, nor in the argument to the jury after the evidence had closed, did counsel for defendant lay his case on the line of these requisites. Throughout the trial, the position of defendant was that the frog was blocked at the time of the injury. Both in opening

Opinion of the Court.

statement and in closing argument defendant's counsel insisted the frog was blocked at the time of injury. To this, defendant's evidence was pointed, and in fact limited, so far as it tended to refute the charge of negligence alleged and attempted to be proven by plaintiff. Defendant did not attempt to escape or avoid, by any showing of sudden tearing out of the frog, whatever force attended plaintiff's evidence as to an unblocked condition of the frog. On neither side was any testimony introduced tending to show any sudden destruction of blocking at this frog. But on either side the contest was as to whether the frog was in fact blocked at the time of the injury. Plaintiff rested his claim, touching the cause of the injury, on the attempt to prove that such injury was caused by the frog being unblocked at time of injury. And defendant was equally content, as to evidence introduced, in attempting to prove the frog was then blocked. And defendant's counsel limited his argument to the jury upon the evidence to this same line of defence."

Yet notwithstanding the pleadings and the testimony seemed to narrow the issue to this particular matter, the court in its instruction discussed the further question of the liability of the company in case of an original proper blocking of the frog and its subsequent displacement. It said, among other things,. on this matter:

"If evidence had been introduced to show that suddenly,. by some disarrangement of the machinery of the train, the wooden part of the frog or blocking had been pulled out of the frog at a time so near the injury, as that the company could not have been charged with negligence in not having found it out reasonably by inspection through its workmen or otherwise, before the injury, then in an accident of that kind the company would not be liable for the injury to plaintiff, because the company would not have been negligent in not. ascertaining that the block had been thus removed."

So that it cannot be said that the proposition of law upon which counsel for the railroad company so strenuously insists was wholly ignored on the trial. It was in fact presented by the court to the jury, although, it is true, coupled with the

Statement of the Case.

statement that the issues made by the pleadings and the silence of the testimony in respect to the prior situation narrowed their inquiry to the single matter of the condition at the time of the accident.

It must be confessed that this case is not entirely clear, and yet, considering the entire record, we are not prepared to hold that there was error such as would justify this court in disturbing the judgment.

It is, therefore,

Affirmed.

MISSOURI, KANSAS AND TEXAS RAILWAY COMPANY v. COOK.

ERROR TO THE SUPREME COURT OF THE STATE OF KANSAS.

No. 178. Argued and submitted March 24, 1896. —Decided May 25, 1896.

By the filing of the map of the line surveyed prior to December 24, 1867, for the route of the railroad now known as the Missouri, Kansas and Texas Railway, the route of the road was definitely fixed within the intent and meaning of the act of July 26, 1866, c. 270, 14 Stat. 289, granting lands To aid in its construction; and while the principal object in filing the map was to secure the withdrawal of the lands granted, it also operated to definitely locate the line and limits of the right of way.

The grant of the lands and the grant of the right of way were alike grants in præsenti, and stood on the same footing; so that, before definite location, all persons acquiring any portion of the public lands after the passage of the act took the same subject to the right of way for the proposed road.

The rights of the settler in this case were acquired after the line had been located, and were not affected by the subsequent act of the company in changing the location.

THIS was an action of ejectment brought by the Missouri, Kansas and Texas Railway Company, a corporation of the State of Kansas, and the Missouri Pacific Railway Company, a corporation of Missouri, in the District Court of Labette County, Kansas, August 17, 1887, against J. B. Cook and L. H. Printz, to recover possession of certain real estate situated in

Statement of the Case.

the city of Chetopa in that county, and described in the petition. Defendants filed a general denial. The case was tried by the court on an agreed statement of facts, and judgment rendered for defendants. Plaintiffs thereupon took the case on error to the Supreme Court of Kansas, by which the judgment of the District Court was affirmed. 47 Kansas, 216. Thereupon a writ of error was taken out from this court.

The agreed statement was as follows:

"1. The Missouri, Kansas and Texas Railway Company was on the 25th day of September, 1865, duly organized as a corporation under the name of the Union Pacific Railway Company, Southern branch, and on the 3d day of February, A.D. 1870, its name was duly changed and made the Missouri, Kansas and Texas Railway Company, and it is the railway company referred to in the act of Congress, approved July 26, 1866, entitled an act granting lands to the State of Kansas to aid in the construction of a southern branch of the Union Pacific Railway and Telegraph from Fort Riley, Kansas, to Fort Smith, Arkansas.

"2. The acceptance of the terms, conditions, and impositions of said act by the said Union Pacific Railway Company, Southern branch, was signified in writing, under the corporate seal of said company, duly executed pursuant to the direction of its board of directors first had and obtained, which acceptance was made and deposited with the Secretary of the Interior within one year after the passage of said act.

"3. The land in the petition described is a part of the lands known as the Osage ceded lands granted to the United States by the treaty between the United States of America and the Great and Little Osage Indians proclaimed January 21, 1867.

"4. Prior to the 24th day of December, 1867, a line was surveyed for the route of said railroad by G. M. Walker, then chief engineer of said company, which was the line from which the lands mentioned in stipulation No. 7 herein were withdrawn from market, but that line did not touch the southwest quarter of section thirty-four (34), township thirty-four (34), range twenty-one (21), which includes the land described in plaintiffs' petition in this case, and afterwards and between

Statement of the Case.

May 1, 1870, and June 6, 1870, said company located its road on the line where now operated, and built same in substantial compliance with said act of Congress, but the route of said road on its present location has never been approved by the President of the United States, unless such approval is shown by the other facts herein admitted.

"5. The premises in plaintiffs' petition demanded lie wholly within one hundred feet of the centre line of the main track of the railway so built and constructed as aforesaid, the centre line of said main track being the centre of the right of way of the railroad company.

"6. On the first day of December, 1880, the said Missouri, Kansas and Texas Railway Company leased said railway to said Missouri Pacific Railway Company, which has, since possessed and operated the same as such lessee.

"7. Upon the completion of said railway through said Osage ceded land the President of the United States issued to said Missouri, Kansas and Texas Railway Company patents under said act of Congress, approved July 26, 1866, for the alternate sections of land designated by odd numbers to the extent of five alternate sections per mile on each side of said railroad, which are the same patents set aside in the case of The Missouri, Kansas and Texas Railway Company v. The United States, reported in 92 U. S. 733, 760.

"8. The quarter section, including the land in question, was entered and purchased by one W. A. Hodges from the Government of the United States on October 9, 1869, and a certificate in due form was on that day, by the proper officers, issued to him therefor, and thereafter and on November 1, 1870, a patent in due form was issued therefor pursuant to the said entry, by the Government of the United States to said patentee, Hodges, which was duly signed and executed, and a perfect chain of title from said Hodges, patentee, now runs to and terminates in said defendant, J. B. Cook, and he is the owner thereof, unless the same is owned by plaintiffs by virtue of the facts herein admitted and the law governing the same. Defendant Printz is in possession of the premises in controversy as the tenant of defendant Cook.