author: VALLIANT, J.

text:
    DRAINAGE DISTRICT NO. 4 v. WABASH RAILROAD COMPANY, Appellant.
    Division One,
    February 25, 1909.
    1. APPEALS: Statutory R.ight. The right of appeal is one given by statute, and in order that a party may avail himself of the right conferred he must conform to the requirements of the enabling statute.
    2. -: Drainage District: Grounds. There are only two questions in the whole proceeding establishing a drainage district and assessing benefits that can be reviewed upon appeal to the circuit court: first, whether compensation has been allowed for property appropriated; and, second, whether proper damages have been allowed for property affected by the improvement.
    3. -: ——-: Exceptions. Unless there was an exception filed in the county court to the amount of damages awarded to a landowner of the drainage district, he cannot on appeal to the circuit court have the jury pass on the question of the amount of damages.
    4. -: -: -: Grounds Assigned. The defendant filed in the county court three exceptions to an assessment of $1,375 benefits against it as its share of the cost of establishing a drainage district: 1st, that the assessment was excessive; 2nd, •that the size of the proposed ditch was not sufficient; 3rd, that it had at great expense built a large embankment and trestle which fully protected it from overflow, and therefore it was not at all benefited by the proposed ditch. The court overruled the exceptions, made no order as to damages, but reduced the benefits to $825, and defendant filed its affidavit for an appeal, in which it specified as the grounds that the stream is a navigable river; that the benefits assessed are excessive, and the damages awarded are inadequate. Held, that the exceptions and specified grounds assigned do not involve either one of the only two questions the circuit court can try, and the appeal should have been dismissed; but, as it was not dismissed, hut the jury discharged, and the county court judgment affirmed, no harm came from discharging the jury or refusing to consider the whole proceeding void.
    Appeal from Chariton Circuit Court. — Eon. John P. Butler, Judge.
    Affirmed.

      James L. Mmnis, James C. Wallace and Craivley & Rucker for appellant.
    Upon the record appellant maintains: 1. That the Act of March 5, 1903 (Laws 1903, p. 234), does not apply to the Chariton River. 2. That the drainage proceedings in the county court are nullities. 3. That the persons appointed as viewers were not competent to assess damages and benefits for property condemned by them, and that in so far as section 8285 undertakes to empower them to make such assessment it violates article 3 of the State Constitution. 4. That the judgment of the circuit court is .void on its face.

      J. A. Collet for respondent.
    If appellant desired to challenge the action of the county court in organizing the drainage district, it should have done so at the time pointed out by the statute, and having failed to make timely objection, it will not now be heard to complain. Sec. 8283, R. S. 1899; Clark v. Brotherhood of Locomotive Firemen, 99 Mo. App. 687. It was entirely proper for the county court to* conclude the organization of the drainage district under the provisions of the law as amended by the Act of 1905. State ex rel. y. Chariton Drainage District, 192 Mo. 517. The objections filed by appellant were filed under the provisions of the law as amended by the Act of 1905, which law contemplated that the objections filed at the stage of the proceedings at which these were filed, should only go to the question of apportionments made by the viewers in relation to benefits and damages. There being no complaint as to assessment of damages, the only question raised by appellant was whether or not the assessment of benefits levied against his property was fair and just. Sec. 8292, E. S. 1899; Laws 1905', p. 185. The only issue tendered by appellant’s objection filed with the county court being the question as to whether the benefits assessed against its property were fair and just, and the law making the judgment of the county court final as to the assessment of benefits, there was nothing presented to the circuit court upon appellant’s appeal for determination. Sec. 8292, E. S. 1899; Laws 1905, p. 185. It is the settled rule of practice that only such-questions as are tendered by the litigants in the trial couid will be considered by the appellate courts on appeal. Benton Land Co. v. Zeitler, 182 Mo. 251; Dice v. Hamilton, 178 Mo. 81.

      James L. Minnis, James C. Wallace and Crawley S Rucker for appellant in reply.
    (1) The decisions hold that whenever the State or any municipal agency undertakes either to condemn private property or to impose a burden upon it for an alleged public use, the owner has a right to insist that every step in the proceedings shall literally comply with the requirements of the law. This rule is the same where property is merely assessed with benefits as where it is actually appropriated. St. Louis v. Koch, 169 Mo. 587; St. Louis v. Brinckwirth, 204 Mo. 280. (2) Although appellant’s exceptions filed in the county court only related to the question of benefits, yet when those exceptions were overruled, its application and affidavit for appeal to the circuit court was drawn in exact conformity to the statute as it then stood (Laws 1905, p. 185, sec. 8292) “specifying therein the matters appealed from,” which are the very same matters now being urged against tbe county court’s jurisdiction. By tbe terms of tbe act (Laws 1905, p. 186, sec. 8293), the case in tbe circuit court was triable “as other appeal cases are tried in tbe circuit court.” In other words, so far as this appellant’s property was involved, tbe whole matter in tbe circuit court stood for trial de novo. Bennett v. Hall, 184 Mo. 407; Wilhite v. Wolf, 179 Mo. 472; Seafield v. Bobne, 169 Mo. 537; Kings Lake Drainage Dist. v. Jamison, 176 Mo. 557. Before tbe circuit court could legally try tbe question of benefits to appellant’s property, it was bound to determine whether or not tbe petition and notice were sufficient to confer jurisdiction of tbe subject-matter; and if not sufficient there was nothing for tbe circuit court to act upon. Authorities last cited. But appellant was under no obligation to raise this jurisdictional question in tbe county court or in tbe circuit court; because, lying at tbe very foundation of tbe entire proceedings, it may.be raised at any time and in any court. Railroad v. Campbell, 62 Mo. 585; City of Hopkins v. Railroad, 79 Mo; 10Ü; Kings Lake Drainage District v. Jamison, supra.
   VALLIANT, J.

This is a proceeding under article IV, chapter 122, Revised Statutes 1899, and tbe amendments thereto, for tbe establishment of a drainage district and tbe construction of drainage ditches. Tbe proceeding was begun by filing a petition in tbe county court of Chariton county May 2, 1904. On tbe same date tbe petitioners gave bond as required by tbe statutes to cover tbe cost of tbe proceedings. On tbe filing of tbe petition and bond tbe county court, in conformity to section 8280, Revised Statutes 1899; Mo. Ann. Stat. vol. 4, p. 3917, made an order which was duly entered on tbe record appointing viewers (as they are called in tbe statute) and a civil engineer, with directions to them to view and survey, tbe route and make report to tbe court at its next session. It was also at the same time ordered that notice be published as required by section 8281, Revised Statutes 1899, which was done. Although no point is made by appellant on the sufficiency of the notice we deem it proper to note here, lest what we say of the notice might be misleading, that the order of publication was made before the filing of the report of the viewers and was in effect notice to all parties in interest that the petition was pending in the county court and that the viewers would report on the first day of July. That was in conformity to what the statute then required; afterwards in 1905 the statute was amended requiring the notice to be published after the viewers had made their report and the notice then required was tha't the petition was pending, that viewers had been appointed and had made their report, descriptive of the route, and the day appointed by the court for the hearing.

The viewers and the civil engineer qualified as the statute prescribed, and entered upon their work, which they completed and filed their report July 1, 1904. The substance of the report was that having done as they were directed to do they found the proposed improvement “necessary and practicable and will be conducive to the public health, convenience or welfare,” and the route given was as proposed in the petition, referring also to a map on file in court with the petition. On filing the report the court postponed the further hearing of the matter until July 23rd, and on that day again postponed it to the August term. At that term the court approved the report, designated the district as Drainage District No. 4 of Chariton County, ordered the construction of the work as prayed in the petition, and appointed the same men as viewers and engineers as had been appointed in the preliminary order, as provided in section 8284. In that order the court gave a more particular description of the route, following in detail the map on file which had been made by the engineer. The viewers made their final report to the county court April 13,1905, in which they assessed the Wabash Railroad Company $1,375 for benefits. On May 6, 1905, that company, the appellant herein, filed its exceptions to the report, on the grounds, first, that the assignment of benefits against it were excessive; second, the size of the proposed ditch was not sufficient; third, because of the frequent interruptions of its traffic it had theretofore suffered by reason of overflows it had at great expense built a large embankment and trestle which fully protected it from overflow and therefore it was not at all benefited by the proposed ditch. The court overruled the exceptions, but on the same day of its own motion, made an order reducing the assessment of appellant to $825. Appellant then filed an affidavit for appeal to the circuit court and it was allowed. The county court entered final judgment approving the final report of the viewers as awarded and carrying the scheme, into effect.

After the cause was lodged in the circuit court it came on for trial September, 1905, whereupon a jury was empannelled to try the issues. The judgment of the court, contains a recital that.the plaintiff introduced in evidence the record of the county court in relation to the matter “together with all original papers and documents pertaining thereto together with further evidence and thereupon the plaintiff rested its case. Whereupon the defendant mad.e certain proffers of testimony to the court and jury, which on objection was by the court excluded and the court having excluded all the evidence offered by the defendant because not pertinent to be considered on this appeal and not being within the limitations of the statutes governing appeals and having no further evidence to offer within the purview of the appeal, the plaintiff moved the court to discharge the jury and affirm the judgment of the county court which motion is by the court sustained. Wherefore,” etc.

From that judgment the defendant, the Wabash Company, has appealed to this court. The record shows that there was a bill of exceptions filed, but the bill does not appear in this record, and was intentionally omitted by appellant for' the reason as stated in its brief “no point is made here as to any matter of exception, since the abstract presents nothing but the record proper.”

I. Although the appellant was duly notified of the pendency of this proceeding yet it took no part in it until after the final report of the viewers and then it complained only of the benefit assessment against it.The county court overruled the exceptions but reduced the assessment from $1,375 to $825, then appellant appealed.

A right of appeal is one given by statute and in order that a party may avail himself of the right conferred he must conform to the requirements of the enabling statute. The General Assembly might, if it had seen fit to do so, have made the judgment of the county court in such case final and allowed no appeal, in which event the judgment could be attacked only either directly for fraud, or collaterally on the ground that it was void on its face. In this kind of proceeding the statute gives an appeal, but it prescribes the method to be pursued in taking the appeal and limits the questions that may be litigated in the appellate court. The General Assembly has been careful to express the limitations on this right, ánd also on the scope of the litigation after the appeal is taken, saying who may appeal, when and how the appeal may be taken, and what questions may be heard by the circuit court when the cause reaches that court. When we notice the' changes or amendments that have been made in the statutes on these points we see that the General Assembly has acted with deliberation.

Section 8292, as it appears in Revised Statutes 1899, says: “Any person or corporation party to proceedings may, . . . file exceptions to the apportionment, or to any claim for compensation or damages at any time before the day set for the hearing of said report by the court.” It then provides that the court may hear the evidence and pass judgment on the exceptions. Then it says: “Any person or corporation may appeal from the order of the court, and upon such appeal may determine either of the following questions: First, whether such improvement will be conducive to public health, convenience or welfare, or the location of any part changed; second, whether the route is practicable; third, whether compensation has been allowed for property appropriated; fourth, whether proper damages have been allowed for property affected by the improvements. The appellant shall pray an appeal and file a motion, in writing, specifying therein the matters appealed from, which motion shall be filed and recorded.” We -will note that it is there specified who may file exceptions, to what the exceptions may relate, who may appeal from the order sustaining or overruling the exceptions, how the appeal may be taken and what questions may be heard on the appeal. In 1903 that section was amended so as to reduce the questions that might be litigated on appeal from four to two: “First, whether compensation has been allowed for property appropriated; second, whether proper damages have been allowed for property affected by the improvements.” The amendment also provided that the appeal should not stay the proceedings in the county court or delay the work, but the proceeding subsequent to taking the appeal should affect only “the rights and interests of the property located in such drainage district owned by appellant or appellants.” [Laws, 1903, p. 235.]

In 1905 the section was again amended, so that instead of the persons or corporations who might file exceptions and who might appeal from the ruling of the court thereon as specified in the original section and repeated in the amendment of 1903, it was said: “Any person whose lands are affected by the proposed improvement” may file exceptions, etc., and appeal from the ruling of the county court thereon. The Act of 1905 corrects also the awkward wording of the last sentence of the amendment of 1903, so as to read: “and the subsequent proceedings in the circuit court shall affect only the rights and interests of the appellant in property located in such drainage district.” [Laws 1905, p. 185.] This section 8292, Revised Statutes 1899, rewritten so as to embody the amendments above noted, appears as section 8292 in Mo. Ann. Stat., vol. 4, pages 3922-3, and as it there appears is now the law.

Thus we see that the General Assembly has with great particularity limited the subjects to which the exceptions may relate, has limited the right of appeal to the ruling of the court on those exceptions and limited the questions to be considered by the circuit court on the appeal.

The exceptions filed by appellant contained three specifications, to-wit:

“First: Because its said right of way is not used for residence or agricultural purposes and is not benefited and cannot be benefited by preventing overflows in said stream as residence and agricultural lands may. be, should said ditch prevent such overflows. Its assessment of benefits as returned by said viewers is, therefore, and for that reason, out of proportion to assessments of benefits to residence and agricultural lands, and is excessive.
“Second: Because the size of said proposed ditch is insufficient to prevent the overflows of said stream, and for that reason cannot on any theory benefit its said property in any way or in any amount whatever.
“Third: Because of the frequent interruptions heretofore to travel and traffic on its said line of railroad in consequence and by reason of overflows in said stream, it has, at its own expense and cost, by a large outlay of money, built a very heavy, high embankment and trestle along and over that part of said track above mentioned, so that it is in that way and by reason thereof, fully and amply protected from overflow and interruption of traffic in its said line of railroad from said stream, and cannot and will not therefore be benefited in any sum whatever by the construction and opening of said ditch.”

The first of those specifications signifies that for the reasons therein stated the assessment of benefits against appellant’s lands is excessive. That is the only point in the exceptions that could with reason be claimed to come within the scope given by the statute; it may perhaps be considered as an “exception to the apportionments,” but it cannot be considered as an exception to “any claim for compensation or damages.” The second specification is only to the effect that the ditch as proposed is not big enough to do any good to appellant’s lands, and the third is that appellant has already protected itself and does not need any other protection. When the court overruled the exceptions appellant appealed. But the statute requires one appealing to specify in his application in writing the matter he appeals from, and that application is to be made a matter of record by being spread on the record of the county court. But appellant did not do that, it did not in its application state from what order or judgment of the county court it appealed.

The statute requires that the appellant make the affidavit required in ordinary cases of appeal from the circuit court, and that much of the requirement is here complied with, the affidavit says the appeal is not “for vexation or delay, but because this affiant believes that said appellant is aggrieved by the finding and order of the above-named court. ’ ’' That is the form of the affidavit required in cases of appeal from the circuit court, but this statute requires something more than that. The county court in proceedings of this kind may make, and in this case it has made, several findings and orders, many of which affect appellant; but from not all of which is he entitled to appeal, therefore the statute says he must specify in his application the particuar matter that he appeals from. In its application for appeal appellant enumerates what it calls “reasons” why the appeal is taken, chief of which, stated in various forms, is that the county court had no jurisdiction of the case. The only specification under that head is that Chariton river is a navigable stream. It also says the benefits assessed against it are excessive and that the damages awarded to it are inadequate. There was no exception filed in the county court to the amount of damages awarded, therefore, there was no order on that point to appeal from.

The specification of what particular order or judgment of the court the party proposes to appeal from is very essential in this statutory proceeding, because there are only two questions in the whole proceeding that can be reviewed on appeal, first, whether compensation has been allowed for property appropriated, second, whether proper damages have been allowed for property affected by the improvement; why therefore should an appeal be allowed if it is not to bring up for the consideration of the appellate court one or both of the only two questions that can be considered on the appeal? For example section 8284 requires that “if the county court shall find that the proposed ditch or other improvement is necessary for sanitary or agricultural purposes, or would be of public utility or conducive to the public health, convenience or welfare,” it shall spread that finding on the record, and make an order appointing commissioners, etc., and proceed to other steps looking to the establishment of the drainage district as prayed, and that the court did in this instance. That is the most important order made in the case, if it should be annulled an essential fact to support the final judgment would be lacking, but that order is not one that can be reviewed on appeal; in fact it was by the amendment of 1903 expressly eliminated from consideration on appeal. Now, suppose after final judgment an appeal should be prayed and appellant in his application for the appeal should specify that order as the one from which he would appeal, and suppose the county court should allow the appeal and the cause be carried to the circuit court, that court would be bound to dismiss the appeal because the order or judgment appealed from does not involve either one of the only two questions the circuit court can try. When an appeal in a proceeding of this kind comes to the circuit court it is the duty of that court to look into the record of the county court and see what order or ruling or finding the appellant has appealed from, and unless it appears that the appeal presents a question that can be litigated in that court it should be dismissed. That is what the circuit court might properly have done in this case, because the appellant in its application for an appeal did not state what order it appealed from. If appellant had stated in its application that it appealed from the order overruling the exceptions on the point of benefit assessments, even that would not have presented a matter that the circuit court could have taken cognizance of, because it presented neither' a question of “whether compensation had been allowed for property appropriated or whether proper damages had been allowed for property affected by the improvement,” but even if it had presented one or both of those questions that fact would not have given the circuit court, as an appellate court, jurisdiction over other questions which the Legislature has said should not be litigated on appeal, the court could not for instance have gone on and reviewed the whole action of the county court and have upset the whole proceeding because it found, if it should find, that Chariton river was a navigable stream. If, as appellant contends, the petition is a nullity and the whole county court proceeding is void on its face, an appeal to the circuit court is not a proceeding in which they may be so adjudged. .

Nor could the circuit court on such an appeal decide the question whether or not section 8285, authorizing the viewers to assess damages and benefits, was in violation of article III of our State Constitution as appellant now contends. Nor was appellant deprived of a constitutional light of trial by jury, as it claims it was, when the court discharged the jury and rendered judgment affirming the judgment of the county court, because the court on the face of the record would have been justified in dismissing the appeal.

When the cause reached the circuit court appellant made no effort to litigate a question of compensation for property appropriated or damages for property affected, but apparently relied on the same grounds it now relies on in this court, that is, that the whole proceeding is void. When appellant took that position the circuit court discharged- the jury and affirmed the judgment of the county court. It would have been more regular if the court had dismissed the appeal, but since dismissing the appeal would have had the effect of leaving the judgment of the county court in full force the affirming of the judgment by the circuit court has practically the samé effect, therefore it will not be disturbed.

Judgment affirmed.

All concur.


source: Caselaw Access Project

author: GRAVES, J.

license: Public Domain

text:
    WALTER J. BRANNOCK v. JAMES N. MAGOON, LYDIA E. MAGOON and VAN F. BOOR, Trustee, Appellants.
    Division One,
    February 25, 1909.
    1. APPELLATE JURISDICTION: Title to Real Estate: To Declare a Trust. A petition asking that a resulting trust in realty be declared, and that the title be decreed out of defendants and into plaintiff, involves title to real estate. But it is the judgment that is appealed from, and if the petition proceeds on the theory that other money than the trust fund was invested in the property, and asks that the amount of the trust fund be ascertained and a lien for the amount be decreed against the realty, and the judgment finds defendants to be indebted in a mone- • tary sum less than $4,500, and decrees a lien on the land for that sum and directs it to be sold to satisfy that indebtedness, but does not decree the title out of them, it does not involve title to real estate, and the appeal is to the Court of Appeals. The lien can be discharged by a cash payment at any time before sale.
    2. -: -: -: Inchoate Dower. Inchoate dower is not title to real estate so as to confer jurisdiction of the appeal on the Supreme Court from a judgment decreeing that a wife, in case of a sale of land to satisfy a lien, shall be forever barred from claiming dower therein. So that where the judgment finds that certain moneys belonging to plaintiff were used to purchase a lot, and that the title was taken in a husband, and decreed a lien against the lot in favor of plaintiff against both the husband and his wife, and directed the sale of the lot to satisfy the lien, and decreed that from and after said sale the wife be forever barred and foreclosed from claiming dower therein, the judgment does not involve title to real estate.
    Transferred from Kansas City Court of Appeals.
    Remanded to Kansas City Court oe Appeals.

      G. B. Silverman for appellants.

      L. W. By ram and Webster, Gilmer £ Crowley for respondent.
   GRAVES, J.

This case comes here upon an opinion of the Kansas City Court of Appeals to the effect that title to real estate is involved. The petition is one asking for the declaration of a resulting trust in realty, and in this the title to real estate is involved, provided that it asks that the title be decreed out of one person and into another. The judgment, however, is not so broad as the petition, and it is from the judgment the appeal is taken. The pleadings and facts can to a certain extent be stated together. Walter J. Brannoek is the son of Lydia E. (Brannoek) Magoon. Prior to her marriage to James N. Magoon, but on the day of said marriage, she executed a deed to her brother-in-law, Robert P. Stevenson, whereby she conveyed certain property, both real and personal, in trust. The personal property consisted of two promissory notes, one for $700’ and one for $2,000’. The real estate mentioned in said deed it is not necessary to discuss because not included in the petition in this case. After the execution of this deed in trust, it is pleaded, and from the evidence appears, that Mrs. Magoon, who had never turned over the note under the terms of her deed to the trustee, sold the $2,000 note, realizing the sum of $1,700. The note sold for $1,927.50 and presumably the difference went to the agent negotiating the sale. In the petition it is charged that this $1,700, she, with a design to defraud the remaindermen (of whom plaintiff is one) under her previous deed in trust, turned over to her then husband James N. Magoon, and that he invested it in certain property in Kansas City, particularly described in the petition, and against which the purpose of the petition and this suit was to establish a resulting trust.

In the petition the note said to be in controversy is thus described: ‘ ‘ One promissory note for the sum of two thousand dollars, executed by Simon R. Green to H. E. McElroy, dated January 2, 1899, and due five years after its date, with, interest at six per cent per annum, which said note was executed to said McElroy for convenience for the benefit of said Lydia E. Brannock, and was by him indorsed and delivered to her immediately after the execution of the same. Said note being the same note described in said deed as being executed by Simon R. Green to Lydia E. Brannock or order.”

In the deed to the trustee the note is thus described: “One promissory note for the sum of two thousand and no-100 dollars, executed by Simon R. Green to Lydia E. Brannock or order, dated January 2, 1899, due five years after date with interest at the rate of six per cent per annum.”

Under the evidence the note sold was the one described in the petition and not the one described in the written conveyance.

Stevenson, refusing to act, was by decree of court supplanted as trustee by the defendant Yan F. Boor. There was evidence tending to show that Magoon had no money of his own to invest in the property described in the petition. On the other hand there is evidence that he did invest his own funds therein.

The deed to Stevenson was made on the day Mrs. Brannock married Magoon. Shortly thereafter the Magoons brought suit to set aside this deed in trust on the ground that it was without consideration and was fraudulently procured. Upon trial of the issue the judgment of the circuit court sustained the validity of the deed, and that judgment is now in full force, no appeal having been taken. In the present ■case the two Magoons testify that no part of the money •.realized from the sale of the $2,000 note went into •the property sought to be charged with a resulting trust. On the other hand it is shown that Ur. Magoon, for it appears that James N. Magoon, was, in a way, at least, a doctor, had no property, and so admitted. The amount of money invested in the property in dispute is estimated from about $2,200 to $2,600. After tbe first suit, the $700 note was turned over to the trustee, Van P. Boor, and he reloaned $375 of it to Dr. Magoon, taking as security a deed of trust on a part of the property in dispute. The trustee refused to bring this suit, and this remainderman did, and all necessary parties were brought in as defendants, including the trustee Boor. After a lengthy detail of findings and facts the judgment of the trial court concludes thus:

“Wherefore, it is by the court considered, ordered and adjudged and decreed that the defendant, Van P. Boor, as such trustee, do have and recover of and f-yom the defendant, Lydia E. Magoon, the sum of two thousand dollars, and that he have and recover of and from the said defendant James N. Magoon, the sum of nineteen hundred and twenty-seven dollars and fifty cents, such judgment to bear interest at the rate of six per cent per annum; and that plaintiff have and recover of and from said defendants, James N. Magoon, and Lydia E. Magoon, all his costs in this behalf expended; that special execution issue to- the sheriff of Jackson county, Missouri, directing him to sell lots fifty-two and fifty-three in Cecil Heights and lots eighteen, nineteen and twenty, block six in Clifton Heights, both being additions to- Kansas City, Jackson county, Missouri, in the manner prescribed by law, and out of the proceeds of such sale pay, first, the costs of such sale, second, the costs of this suit, third, the amount found to be due as aforesaid, from the defendant, James N. Magoon, to defendant Van P. Boor, as such trustee, and that the balance, if any, be paid to the defendant, James N. Magoon; and that from and after such sale the said defendants, James N. Magoon and Lydia E. Magoon, be forever barred and foreclosed of and from any and all right, title, estate, interest or equity of redemption in and to said real estate or any part thereof, and more especially that the said Lydia E. Magoon he forever barred and foreclosed of and from claiming any right, title or interest in said real estate or any part thereof by way of dower or other marital right; whereof let execution issue.”

From this judgment, defendants appeal.

This sufficiently states the case for the present.

It will be noticed that there is a discrepancy in the description of the notes described in the deed of conveyance and not shown to have been sold and converted. But as we look at it, the question of our jurisdiction comes first. In the ordinary action to declare a resulting trust, title to real estate is involved— that is to say, where the petition asks that by reason of a resulting trust the title to real estate be decreed out of one person and decreed to be in another. The petition in this case does not so proceed. The pleader seemed to realize that there was more money in the property than the money belonging to the alleged trust fund, so that the pleader only asked that the alleged trust fund be made a lien upon the property. After pleading all the facts the petition concludes:

“Wherefore, plaintiff prays that said property purchased by the said James N. Magoon as aforesaid, together with the houses erected thereon as aforesaid be charged with the trust of seventeen hundred dollars in favor of the said defendant, Van F. Boor, trustee, as aforesaid, as a first lien on said property, and that said property be sold to satisfy and discharge said trust, and that the court fix and allow the plaintiff a reasonable attorney’s fee for the prosecution of this action, and that such fee be paid out of such trust fund, and that said Van F. Boor, as such trustee, have and receive judgment against the said James N. Magoon for $1,700 with interest at six per cent from May 8, 1901, and against the said Lydia E. Magoon for $2,000 with interest thereon at six per cent from May 8,1901, and that plaintiff have sneh other proper relief as may he just and equitable.”

The judgment we have quoted. That judgment up to a certain point does not disturb the title in Magoon. In fact it recognizes the title to be in him, and only -creates a lien thereon, which lien could be discharged, and the title therein left intact. Thus far the title to real estate is not involved, for the reason that the lien can be discharged by a cash payment at any time before sale.

We must look to the judgment in the ease to determine our jurisdiction. If the judgment is such as to involve the title of real estate, then we should assume jurisdiction, but if not, we should not assume jurisdiction. [Jones, Trustee, v. Hogan, 211 Mo. 45.]

The only thing in this judgment which lends color to the idea that title to real estate is involved is the latter clause thereof which bars Mrs. Magoon’s inchoate right of dower. Remembering that plaintiff only asks for a lien and further remembering that the judgment, up to this last clause, only decrees a lien, we are brought face to face with the proposition as to whether or not inchoate dower is title to real estate within the terms of our Constitutional provision, so as to confer jurisdiction on this court. If it is, we should hear this case; if not, it should have been determined by the Kansas City Court of Appeals.

What, then, is inchoate dower? Of this right in the wife 14-Cyc. 925-6 says: “An inchoate dower right is not an estate; nor is it an interest in real estate. It is, however, a substantial right, possessing in contemplation of law many incidents of property to be estimated and valued as such.”

This right or interest of the wife is thus defined in Tiedeman on Real Property (3 Ed.), sec. 85: “During coverture, her interest, though an incumbrance, is but an inchoate right, which she can neither assign, release, nor extinguish, except by joining in the deed of her husband, as explained later on. It cannot at this stage be considered even a chose in action; and it is not affected by any adverse possession until the death of the husband, when her right of action accrues and the statute of limitation begins to run against her; although such possession is sufficient to bar the husband’s interest in the land. Upon the death of the husband, the wife surviving, the right becomes consummate; it is then a chose in action which entitles her to have certain of her husband’s lands set out to her. She has not yet an estate, simply a consummate right to an estate, which she can assign in equity, and release at common law to one in possession, but which was incapable of assignment at common law, like all other choses in action. It only becomes an estate in the lands, when it has been set out to her. The act of setting out the dower is called the assignment of dower. From this time on, she has a life estate, with all the rights, incidents, and disabilities, which pertain to that class of estates.”

In 1 Washburn on Real Property (6 Ed.), sec. 360, the right is thus defined: “Until the husband’s death the right of dower is inchoate. This inchoate right of dower is not an estate, and it is therefore subject, during coverture, to be altered or abolished.”

Again, in Blain v. Harrison, 11 Ill. 1. c. 385, we find this language: ‘ ‘ The right of dower in a married woman is a mere intangible, inchoate', contingent expectancy, and even in a widow, until it is assigned, it is no estate in the land, but it is a right resting in action only, and it cannot be aliened.”

The same court later, in Heisen v. Heisen, 145 Ill. 658, said: “The right of dower in a wife is an inchoate expectancy during coverture, maturing upon the death of the husband into a right of action, to have admeasured to her dower in the lands of which he had been seized, and to which her dower had not been released. After the death of the husband, and before assignment, tbe right rests in action merely, is not an estate in lands, nor does it give a dowress a right of entry.”

The learned annotator in 59 American Decisions in Ms note to case of Moore v. Mayor, on page 475 says: “Until there has been actual admeasurement of dower, it is a mere potential interest, amounting to nothing more than a chose in action, and is not subject to seizure and sale by execution at law. [Pennington’s Exrs. v. Yell, 52 Am. Dec. 262.] Before ad-measurement of dower the wife has no interest or estate in the lands, and her deed operates, not as a grant, but as an estoppel. [Maloney v. Horan, 53 Barb. 38, 36 How. Pr. 267, citing the principal case.] The wife has no interest or estate in lands by virtue of her right of dower during the lifetime of her husband. [Dibble v. Clapp, 31 How. Pr. 424; Hammond v. Pennock, 61 N. Y. 158; Bennett v. Harms, 51 Wis. 258, all citing the principal case.] The right of dower before the death of the husband is only an inchoate right, not transmissible to her heirs. [In Matter of Rollwagen, 48 How. Pr. 113, citing the principal case.]”

The Kansas City Court of Appeals has likewise considered the character of this interest belonging to the wife in the very recent case of McCrillis v. Thomas, 110 Mo. App. 1. c. 703. Johnson, J., there says: “The inchoate right of dower which exists during coverture is not an interest in nor title to the land subject to conveyance. It may be released or relinquished; but such release does not operate as an extinguishment except in favor of the person to whom it is given and those who claim under him. The wife’s deed operates only by way of estoppel, not as the alienation of an estate. It is the release of a contingent future right.”

Our statute, section 2934, Revised Statutes 1899', allows the assignment of this right by the widow, after the death of the husband, but even this section in effect amounts only to an assignment of a right of action, for among other things it says: “And the assignee or grantee thereof shall have the right to sue for and have the same assigned and set apart to him: Provided, that the assignee shall take subject to all the liabilities that attach to such estates in the hands of the dowress.”

This is only by the wayside. This statute refers to the interest as it exists after the death of the husband and not to inchoate dower. It refers to dower consummate, but unassigned.

This wife had no interest in these lots except the right of inchoate dower. The property was not a homestead. The petition in the case did not ask that the title be decreed out of Magoon, but only that a lien be enforced .against the property. The judgment did not divest Magoon of title, but left the title in him, but subjected.it to a lien. Where there is a mere dispute as to whether or not a lien exists against real estate, the title to real estate is' not so involved as to confer jurisdiction upon this court.

To ou-r mind no title to real estate is involved in-this action. The cause should not have been transferred to this court, and it is certified back to the Kansas City Court of Appeals for final disposition upon the merits.

All concur.


author: LAMM, P. J.

text:
    PATRICK KELLY and NELLIE KELLY, Appellants, v. HENRY BENAS and GEORGE BENAS.
    Division One,
    February 25, 1909.
    1. NEGLIGENCE: When Action Lies. There must be a duty raised by the law and breached by defendant before an action for negligence lies.
    2. -: -: Trespassers: Volunteers. The owner or occupant of a lot owes no duty to trespassers or volunteers going upon the lot for their own purposes, to maintain it in any particular condition for their benefit. Volunteers, bare licensees and trespassers assume the risk of injury from the condition of the premises, the owner being liable only for concealed guns, or hidden traps intentionally put out to injure them, or any form of wilful illegal force used towards them. To invitees, however, the owner or occupant owes the active duty to exercise reasonable care for their safety.
    3. -: -: -: Turntable Doctrine. On the theory that a railroad turntable, when exposed in a public place where children resort to it with the knowledge and tacit acquiescence of its owner to play on it, when left unlocked when it might easily have been locked, is an attractive nuisance and operates as' an inducement or implied invitation to them, when injured they are not treated strictly as trespassers, and recovery is allowed. That doctrine has become a fixed principle of the law, and a recovery would be permitted in other cases coming strictly within the limits of the doctrine and presenting every earmarking element upon which liability in a turntable case is predicated. But the doctrine ought not to be extended.
    4. -: -: Child: Playing on Lumber Yard: Implied Invitation. A child nine years old, with other boys, climbed on a shed eighteen inches from defendants’ loose and high-piled lumber, and engaged in flying a kite, and being warned off by a neighbor got down to the ground, and in some way, either by one of -the other boys jumping upon the top-heavy pile which fell upon him while he was on the .ground, or may be by the child himself climbing or jumping upon the pile, it fell, and he was killed. Held, that the lumber piles were not an attractive nuisance as defined in the turntable cases, that the boy was a trespasser, that defendants did not intentionally injure him, and the lumber yard not. being used by children by . their invitation, express or implied, as a playground, even though their, watchman did not always drive children away and even though at times he was off of duty, plaintiffs cannot recóver damages from the owners of the lumber yards as for negligence.
    Appeal from St. Louis City Circuit Court. — Hon. Jesse A. McDonald, Judge.
    Affirmed.

      A. R. Taylor and Howard Taylor for appellants.
    (1) There was ample evidence given in favor of plaintiffs’ cause of action tending to prove each material averment of the petition, and if the petition states a cause of action plaintiffs’ evidence entitled them to have their cause submitted to the jury and a verdict thereon. The trial court ruled twice that plaintiffs were entitled to have the case submitted to the jury, first, on the objection to the petition as not stating a cause of action, and again at the close ■of the evidence for plaintiffs, and yet after the evidence was all in lie ruled plaintiffs not entitled to recover. In doing this the trial court violated the right of jury trial as declared hy this court. Rinehart v. Railroad, 204 Mo. 276; Porter v. Stock Yards* Co., Ill S. W. 1137; Berry v. Railroad, 124 Mo. 244; Eckhard v. Railroad, 190 Mo. 611. (2) This action is founded upon the law applicable to injuries to children who are attracted to be or play about a place or object that is dangerous to children by reason of their immaturity of judgment and understanding when such place or object is exposed and unguarded, and where it would impress a reasonably prudent person having in charge such dangerous attraction that children would probably be attracted to be and play about the dangerous agency and be injured thereby. The doctrine is akin to the doctrine known as the humanitarian doctrine applied by the courts to adults. The attraction exposed, together with the youthful thoughtlessness and want of judgment as to dangers, overcomes the technical trespass of the child, and binds the proprietor of the dangerous agency to use ordinary care to avert dangers which he, as a reasonable man, should anticipate. In Hydraulic Works v. Orr, 83 Pa. St. 336, the court declares that to so keep a dangerous agency is actionable. ' In the case at bar the proof shows, or tends to show, that defendants had actual knowledge of the danger, full knowledge that children were attracted daily to he at and about the dangerous agency and liable to be killed or injured thereby. If the principle of that case is sound, it is clear this cause should be reversed and remanded. This doctrine has often been announced as the law in this State. Fink v. Mo. Furnace Co., 10 Mo. App. 61, 82 Mo. 276; Morgan v. Railroad, 159 Mo. 275; Klockenbrinek v. Railroad, 172 Mo. 687; Scullin v. Railroad, 184 Mo. 707; Reyburn v. Railroad, 187 Mo. 574; Sites v. Knott, 197 Mo. 711; Wise v. Railroad, 198 Mo< 558; Goff v. Railroad, 199 Mo. 709; McQuade v. Railroad, 200 Mo. 158.

      Lyon & Swarts and Dwight D. Currie for respondents.
    (1) The petition does not state facts sufficient to constitute a cause of action. Smith v. Packing Co., 82 Mo. App. 9; Barney v. Railroad, 126 Mo. 372; Arnold v. St. Louis, 152 Mo. 173; Moran v. Car Co., 34 Mo. 641; Overholt v. Vieths, 93 Mo. 422; Gillespie v. McGowan, 100 Pa. St. 144; Rodgers v. Lees, 140, Pa. St. 484; Thompson v. Railroad, 218 Pa. St. 444; Butz v. Cavanaugh, 137 Mo. 503; Loftus v. Dehail, 133 Cal. 214; Richards v. Connell, 45 Neb. 466; Hargraves v. Deacon, 25 Mich. 1; Klix v. Nieman, 68 Wis. 271; Rattle v. Dawson, 52 N. W. 965; Benson v. Traction Co., 77 Md. 535; Vanderbeck v. Hendry, 34 N. J. L. 466; Shea v. Gurney, 47 Am. St. Rep. 446; Williams v. Railroad, 96 Mo. 275; Straub v. Soderer, 53 Mo. 43; Barney v. Cemetery Assn., 106 Mo. App. 358; Johnson V. Laundry Co., 92 S. W. 330; Friedman v. Snare & Triest Company, 70 L. R. A. 147; Smith v. Hopkins, 120 Fed. 921; Matthews v. Bonsee, 51 N. J. L. 30; Railroad v. Edwards, 32 L. R. A. 825; Clark v. Richmond, 83 Ya. 355; Williamson v. Railroad, 88 S. W. 279. (2) The evidence introduced did not establish any liability upon the part of defendants and the instruction to find for them was correct. Cases cited under point 1. (3) At the time appellants’ son was killed he was a trespasser upon respondents ’ property, and, therefore, respondents owed him no duty except to refrain from willfully injuring him. Barney v. Railroad, 126 Mo. 372; Moran v. Car Co., 134 Mo. 641; Williams v. Railroad, 96 Mo. 275; Smith v. Packing Co., 82 Mo. App. 9; Gillespie v. McGowan, 100 Pa. St. 144; Rodgers v. Lees, 140 Pa. St. 484; Thompson v. Railroad, 218 Pa. St. 444; Williamson v. Railroad, 88 S. W. 279. (4) The doctrine for which appellants contend in the second point in their brief is founded upon the case of Hydraulic "Works Company v. Orr, 83 Pa. St. 336. This case has been overruled by the court which delivered it. Gillespie v. McGowan, 100 Pa. St. 144; Rodgers v. Lees, 140 Mo. Pa. St. 484; Thompson v. Railroad, 218 Pa. St. 444. The Supreme Court of Missouri has expressly approved the doctrine laid down in Gillespie v. McGowan, which case was the first to overrule Hydraulic Works Company v. Orr. Overholt v. Vieths, 93 Mo. 429: Barney v. Railroad, 126 Mo. 390.
   LAMM, P. J.

Plaintiffs (father and mother of Michael Kelly) sued for the death of Michael, an infant of tender years, laying their damages at $5,000, and grounding their action on negligence. Proof went in pro and con. At the close of the evidence the court instructed the jury that under the pleadings and evidence their verdict must be for defendants. Thereupon plaintiffs took a nonsuit with leave. Failing to get it set aside, they appeal.

The pleadings.

The petition charges the intermarriage of plaintiffs; that their son, Michael, was the rise of nine years old on the 18th of June, 1905; that defendants were the owners, occupants and proprietors of certain premises on South Second street in the city of St. Louis and the lumber and lumber yard thereon; that said premises opened on said street and on a public alley, were unfenced and unguarded, and that children in large numbers played on the premises, all of which defendants well knew; that such open lumber yard was an attraction for children to play on said premises at and about where the lumber was piled, as defendants well knew; that children in large numbers were attracted to play at and about the piles of lumber upon said premises and were endangered, if such lumber be negligently piled, all of which defendants well knew before Michael was killed; that defendants negligently piled lumber in their yard so loosely, insecurely and without any fastenings that said lumber fell upon Michael and injured him so that he died; that on said date defendants had piled and were maintaining a pile of lumber in .said yard in such manner that long pieces of lumber and timber were laid on top of shorter pieces, to a great height; that thereby said pile was made top-heavy and. liable to fall; that the pile was built without braces or cleats to secure it from falling and was without fastenings of any kind to prevent its falling; that a pile so piled was dangerous to persons near the lumber, because liable to fall and injure them; that it was especially dangerous to children attracted by said premises to be and play near said pile, as defendants well knew at all said times, notwithstanding which defendants so negligently piled and maintained said lumber pile in such dangerous and defective condition that on said date Michael was attracted to said premises to be and play thereon near said dangerous pile of lumber, when by reason of its defective condition it gave way and the lumber falling upon Michael fractured his skull and otherwise so broke his bones and crushed him that he died two. days later.

The answer was a general denial and a plea of the negligence of Michael, in that he with some companions wrongfully trespassed upon the premises and carelessly and negligently caused lumber to fall upon him; and, moreover, that the injuries of Michael were caused, or directly contributed to, by the carelessness and negligence of plaintiffs in permitting their said son wrongfully to trespass upon said premises and the lumber piles.

The reply was a general denial.

The facts.-

It is agreed on all sides that defendants for many years maintained a box factory across the street from the locus; that they owned a lumber yard maintained on the north half of a certain lot and that they rented the premises from month to month; that at the time in hand they had several piles of lumber on this half lot; that said half lot never had been fenced in front or rear, but wagons drove through the yard directly from Second street to the alley. That plaintiffs lived in an upper apartment in a house next door to the lumber yard.

Plaintiffs put in proof tending to show that they did not allow Michael to play in the lumber yard and that whenever they found him there in disobedience to their instructions, they admonished him and brought him away; that the yard is located in a populous -part of the city of St. Louis and many children lived in that region; that the pile killing the boy had been there several months and was twelve feet and upwards high, was some distance from the alley and some distance from Second street; that it had no cleats or “stick binders” and no bracing of any kind and that while short pieces were on the bottom, longer pieces were on top. They also put in evidence tending to show that children played in the yard frequently, mostly afternoons after school hours and Sundays; that the right way to pile lumber safely was to pile it with cross-binding sticks or cleats to brace the pile. Patrick Kelly testified that defendant, G-eorge Benas, told him in the presence of one Carraher and his own foreman, the next day after the accident, that he (Benas) knew boys played there and that the pile was not in good condition. Carraher also testified that he heard Benas say that the lumber was not piled right. Plaintiffs’ evidence further tended to show that at about seven o’clock Sunday evening on said 18th day of June, Michael’s father was eating his supper when the boy left the room and went down stairs. In about fifteen minutes the crash of falling lumber was heard and Michael was found, under some boards that had fallen off said pile, mortally hurt. The boards were about sixteen feet long, two inches thick and twelve inches wide. Their evidence further tends to show that at the time the upper part of the pile fell off nobody was on it and that Michael was standing four or five feet from it watching another boy fly a kite, when all at once the lumber gave way and crushed him. There was evidence of a negative character put in by plaintiffs to the effect that neither the defendants nor their watchman had been seen by the witnesses testifying or heard to chase or warn boys away from the yard; that on some occasions the watchman was seen looking at boys playing there and did or said nothing.

Defendants on their part put in proof to the effect that the lumber was carefully piled; that they employed a watchman on Sundays and evenings who guarded the yard and lumber against trespassers and warned children away; that children did not play there with the consent of defendants, but, to the contrary, were constantly warned and driven away by them and their employees and by policemen; that the pile was not rickety or top-heavy; that there was a shed used by a junk dealer joining the lumber yard, about a foot from the pile, which was a little higher than the pile; that at the time of the accident there had been some boys on the roof of this shed flying a kite — Michael one of them; that they were warned off by the wife of the owner of the shed and, in jumping from the shed to the lumber pile, Michael was the last to go and the lumber fell just as he jumped. Other evidence tended to show that, in flying a kite, the boys went on a lumber pile instead of the roof of the junk dealer’s shed, that Michael had been on the roof shortly before but got down to the ground and, in climbing back on the lumber pile, the upper part fell on him. Evidence was put in contradicting the#,dmissions testified to by Patrick Kelly and Carraher to the effect that Benas knew the lumber was not piled properly.

Such, in brief, is .the case on the facts.

On such record we are of opinion plaintiffs cannot recover. This, because:

One applicable general rule of law is that there must be a duty raised by the law and breached by defendant before an action for negligence lies. Another is that the landowner or occupant owes no duty to trespassers or volunteers going upon his land for their own purpose, to maintain it in any particular condition for their benefit. [Sweeny v. Railroad, 10 Allen (Mass.) l. c. 372; Straub v. Soderer, 53 Mo. 38.] Volunteers, bare licensees and trespassers take the premises for better or for worse, as they find them, assuming the risk of injury from their condition, the owner being liable only for concealed spring guns, or other hidden traps intentionally put out to injure them, or any form of willful, illegal force used towards them. To invitees, however, he owes the active duty to exercise reasonable care for their safety.

There was always a main modification allowed to the foregoing general non-liability to persons entering without the owner’s permission and that arose where he made such changes in his land so hard by a public highway as to put a traveller in danger who mistook the course of the highway and, without fault on his part, inadvertently strayed from it into the danger. [Railroad v. Harvey, 77 Ohio St. l. c. 240.]

Says Campbell, J. (Hargreaves v. Deacon, 25 Mich. l. c. 5): “We have found no support for any rule which would protect those who go where they are not invited, but merely with express or tacit permission, from curiosity or motives of private convenience, in no way connected with business or other relations with the occupant. ... A person incurs no duty towards persons by not warning or driving them from his pjpmises, and they go there, if mere volunteers, and without invitation, at their own risk. ”

In the same case that jurist says (referring to the application of the foregoing principles to children): ‘ ‘ There is some danger in dealing with these questions, of confounding legal obligations with those sentiments which are independent of the law, and rest merely on grounds of feeling, or moral considerations. We feel, usually, more indignation at wrongs done to children, •than at wrongs done to others. But the law has not usually given them civil remedies on any such basis. Nor does it usually, if ever, impose any duties on strangers towards them, resting entirely on the fact that they are children. Those who have any special dealings with them, as parents, teachers, and employers, incur obligations appropriate to- their relations, and differing from those incurred towards others in proportion to the necessity of care and protection, and the risk of injury. But those who have no1 such relations with them are not liable for negligence in carrying on their own business, beyond what would be their liability to others, as well as children, who are equally free from blame. ’ ’

In the Hargreaves case care was taken to express no opinion concerning cases where the nature of the business is such as to present peculiar attraction to children, beyond other kinds of occupation, nor was the writer' dealing with the subject-matter of contributory- negligence relating to children which is to be gauged with reference to infantile capacity. With -these modifying suggestions we give approval to -Judge Campbell’s remarks.

There is another main exception grafted on the general rule of non-liability to trespassers, volunteers •or bare licensees and on that exception appellants lean as on a staff. It is known in the law as the doctrine of the turntable cases — a doctrine of this court (Berry v. Railroad, 214 Mo. 593; Koons v. Railroad, 65 Mo. 592; Nagel v. Railroad, 75 Mo. 653), and of many other courts of last resort. The doctrine of those cases is, in substance, that a railroad turntable is a dangerous machine created by the act of its owner, peculiarly attractive to the childish instincts of little ones as a merry-go-round, and, if left unlocked when not in use (when it might be easily locked) and when exposed in a public place where children resort to it with the knowledge and tacit acquiescence of its owner to play on it, becomes an attractive nuisance and operates as an inducement, an implied invitation to them, and, therefore, when injured thereon they are not treated strictly as voluntary trespassers, but as toled into a hidden pitfall or trap.

There has been marked judicial eloquence and astuteness in stating the legal ground of liability in the turntable cases and no little difficulty is found in formulating sound and settled legal principles for it to rest on, but it is established in our law, and doubtless on principle ought to be applied (in those jurisdictions asserting the doctrine) to other cases coming strictly within the limits of the doctrine and presenting every ear-marking element upon which liability is predicated in the principal case. "While this is so, the manifest distress and injustice flowing from unnecessarily extending the doctrine, or loosely applying it to many conceivable cases, has caused those courts accepting it to restrict its application to the narrowest bounds.

For instance: In this court, in Overholt v. Vieths, 93 Mo. 422, we refused to apply it in a case where a child was drowned in a pond of water in a rock quarry.

In Schmidt v. Kansas City Distilling Co., 90 Mo. 284, we applied it to a little pool of hot water on the private premises of defendant, made by blowing off hot water, debris and steam through an escape pipe from defendant’s distillery, in which pool a child was fatally scalded.

But in Barney v. Railroad, 126 Mo. 372, we doubted and refused to follow the Schmidt case and held that moving railroad cars were not within the purview of the turntable cases as dangerous and attractive machinery. In that case a child, six years old, got into a railway yard where children much frequented and catching hold of the stirrup in the foot of the ladder on a car and putting his feet against the trucks to steal a ride, he slipped off and was mangled.

In Witte v. Stifel, 126 Mo. 295, a little boy went to a building under way, three feet from the street line, and tried to draw himself up by taking hold of a loose stone placed across the top of a cellar window frame. The stone fell and killed him. It was held there could be no recovery.

In Moran v. Pullman Car Company, 134 Mo. 641, the owner of a lot was held not liable for failing to fence it. In that case there was a pond on the lot and a child was drowned while bathing in it.

In the Butz Case, 137 Mo. 503, the owner of land was held not liable for injuries to a child who voluntarily went on his private premises against the -'admonition of his own father and, in trying to get a piece of wire in an old quarry, used as a dumping ground, burned his feet in a smouldering fire.

And in Arnold v. St. Louis, 152, Mo. 173, a pond, lightly frozen over in the neighborhood of a public school, attractive to children of tender years for skating purposes and where children were known by defendants to resort, was allowed to exist. Two children-, were drowned there while skating without the permission or invitation of the owner of the lot, and recovery was denied.

In Carey v. Kansas City, 187 Mo. 715, a child lost its life by drowning. While pursuing a frog he got through a fence inclosing a public reservoir. This reservoir .was located in a public park or pleasure ground of the city, and the parents were cast on the theory that when the boy fell into the reservoir he was trespassing.

In other jurisdictions applying the turntable doctrine, there is the same tendency to limit it within strict bounds, as pointed out by Summers, J., in Railroad v. Harvey, 77 Oh. St. l. c. 245. The prying mind of the student in jurisprudence may see cases in point there collated from Minnesota, Georgia, Nebraska, California, Kansas, Texas, Tennessee and Washington, to that effect. See also, authorities cited by diligent counsel in their briefs.

If the old channel of the law is to he quite changed by the application of the new doctrine automatically and without discrimination, if sentimental considerations (however elevated and tender) are to usurp the place of cold and calm reason as the foundation for rules of law, then the floodgate now damming back liability will be raised letting in strange and deep waters for the landowner to struggle with. Not only will he be liable for boys drowned while swimming in his stock pond (the idea of swimming being alluring to a boy), for those who fall into uncovered wells, cisterns and cellars (the notion of playing on the brink of such being a boyish one), for children who are suffocated while playing in piles of sand accumulated for building purposes or in sliding down stacks of' straw unscientifically piled and exposed, but he may be mulcted in damages for injuries to his neighbors’ children, who, romping in his haymow, without his invitation, break their bones by sliding down his hay chute, or those who, playing in his rock quarry, are hurt. Shall he fence against adventurous, trespassing boys? Almost as well suggest “that he build a wall against birds.” If be is beld to liability for injury to tbe children of Jones because of tbe way be piles bis lumber, by tbe same token, as to Brown, liability would be fastened on bim for tbe way be piles bis stones, bis bricks, bis corn in pens, bis bay ricks and bis cord wood'on bis private grounds — in fact, as bas been pointedly said, every landowner will be liable for injuries to bis neighbor’s children under tbe new doctrine except the neighbor himself. We cannot well write tbe law that way.

Michael was a trespasser. Defendants did not intentionally injure bim. They set no trap for bim. Their lumber piles were not an attractive nuisance as defined in tbe turntable cases. Their yard was not used by children by their invitation, express or implied, as a playground, even though their watchman did not always drive children away, and though, on this Sunday evening, be was off duty for a spell. We think tbé court ruled correctly.

Therefore, tbe judgment is affirmed.

All concur.