Wilgus v. Miami County Com'rs

• Decision Date: 05 January 1895
• Citation: 54 Kan. 605,38 P. 787
• Court: Kansas Supreme Court
• Parties: F. M. WILGUS, as Surviving Partner of A. & F. M. Wilgus, et al., v. THE BOARD OF COMMISSIONERS OF MIAMI COUNTY et al

38 P. 787

54 Kan. 605

F. M. WILGUS, as Surviving Partner of A. & F. M. Wilgus, et al., v. THE BOARD OF COMMISSIONERS OF MIAMI COUNTY et al

Supreme Court of Kansas

January 5, 1895

Error from Miami District Court.

ALL the material facts of this case appear in the opinion herein filed January 5, 1895.

Judgment affirmed.

W. R Wagstaff, for plaintiffs in error.

J. D Snoddy, and W. T. Johnston, for defendants in error.

HORTON C. J. All the Justices concurring.

OPINION

HORTON, C. J.:

This case has been here before. (42 Kan. 457.) After the opinion was handed down at the July term of this court for 1889, reversing the judgment, a new trial was had, commencing on the 3d of March, 1890, before the court, a jury having been waived. Special findings of fact were made by the court to the effect that "seminary square, in the city of Paola, belongs to the public for seminary purposes." It is insisted that the issues last tried were materially different from those on the former trial. An examination of the record shows, however, that the alleged differences are so slight as to be immaterial, in view of the special findings of the court. The facts regarding the ownership and status of "seminary square," in the city of Paola, are fully stated in the former decision of Comm'rs of Miami Co. v. Wilgus, 42 Kan. 457. It appears from the special findings in the record that from April 17, 1861, when the town company filed in the office of the register of deeds its map or plat of the town of Paola, having thereon two blocks or squares, one being on the plat marked "public square," and the other marked "seminary square," up to November 27, 1882, and sometime thereafter, "seminary square" remained vacant and unoccupied, but that afterward, under a deed of conveyance from Wagstaff, "as manager of the late corporation known as the Paola Town Company," A. & F. M. Wilgus took possession of the "square," and planted a large number of walnut trees thereon. But about June 15, 1886, the city of Paola took possession of the "square," and inclosed it with a barb-wire fence, but afterward the Wilguses again obtained possession, and they and their successors held possession up to the 10th of September, 1886, the time of the commencement of this action.

It is insisted that the evidence contained in the record shows that the Paola Town Company never yielded possession of "seminary square" to the custody or control of the public, but, on the contrary, that the company, during its lifetime, and, after its dissolution, the manager thereof held the possession adversely to the public. In support of this contention it is said that the evidence shows the burial of dead bodies in the "seminary square," and that the town company and its agents permitted "seminary square" to be used as a place for circuses or public shows. An examination of the evidence shows that the burial of dead bodies in the "square" was the result of carelessness or mistake. The evidence that...