Eidemiller v. Wyandotte City. the county of Wyandotte, under a contract between the county commissioners and the King bridge company, in relation to which there is a dispute between the county and this company. The county has never accepted the bridge, and the present board of county commissioners deny the authority of the former board to make the contract for its erection, and repudiate the bonds issued in payment or part payment for it. The contractors claim a balance due them of over $20,000. The west end of the bridge in question is at the end or on one of the streets of Wyandotte city. The east end of the bridge is in Kansas City, Kansas, at the end of the road or highway before mentioned, and on the land of the complainants. The middle thread of the river is the boundary line between the two cities. It will thus be seen that Wyandotte is. engaged in making an approach to the bridge, not only without her own limits, but within the limits of another municipal jurisdiction. This is being done, however, with the assent of the corporate authorities of the latter place. This approach is being made by filling with earth upon the lands of the complainants a road bed, about 80 feet wide and 20 feet deep at the bridge, thus dividing these lands by a high embankment, which, it is alleged, will greatly injure them and destroy them for the uses to which they are devoted by the complainants. It is alleged that no payment for the land thus appropriated has ever been made or tendered or deposited for the complainants. A temporary injunction is prayed to restrain the defendants from further proceedings with their work upon the complainants' lands, or using them, and for general relief. No compensation having been made, tendered, or deposited for the plaintiffs, as required by the constitution of Kansas to be first done before their property can be appropriated to public use, it follows that they have never been divested either of the title or right of possession of their lands by the proceeding to lay out the county road through Eidemiller v. Wyandotte City. 66 them. Damages were awarded them, but being dissatisfied they appealed from the decision of the county commissioners to the district court. The statute gives the right to appeal in such cases upon the same terms, in the same manner, and with the like effect as in appeals from judgments of justices of the peace." (Gen. Stat. 1868, p. 900, sec. 7.) I have discovered no provision regulating the rights of the parties pending the appeal. To enter upon the lands of another, not for a preliminary and temporary purpose, but for the purpose of making an embankment or roadway upon them for public travel and use is a clear taking or " appropriation" of the land; and this the constitution of the state says shall not be done "until full compensation therefor be first made in money, or secured by deposit in money, to the owner." Here no compensation has been made to the owners, nor secured to them by a deposit of money, and therefore the public authorities have no right thus to use the complainants' lands without their consent, and the use of them in the manner here shown is in violation of their rights guaranteed by constitutional provision. It does not appear that the amount awarded by the county commissioners was ever paid, or tendered, or placed on deposit for the complainants, and therefore we need not now inquire what effect that would have had on their rights had this course been pursued. The statute gives the land owner an unqualified right to appeal, and pending this appeal (in the absence of statute provisions to the contrary, and in the absence of any payment, tender, or deposit of the money), such owner's rights are not divested or affected by a mere unpaid award or assessment of damages. Whether the constitution does not imply and mean that there shall be a final ascertainment of what the "full compensation" to the owner is, and that when thus ascertained this precise amount must be paid in money, or deposited in money, before the owner can be deprived of the use of his land, I need not now give any Eidemiller v. Wyandotte City. opinion; for if it be conceded that the legislature under the constitution could authorize the use by the public, after a deposit of the amount awarded by the commissioners, and pending the appeal, it does not appear that any such provision has been made by the legislature, or any such course pursued by the public authorities. It is objected by the defendants that the complainants are not entitled to an injunction, because the injury complained of is not irreparable, and because they have a full and adequate remedy at law. These positions are controverted by the complainants, who maintain that such an embankment is an irreparable injury to their land, and that as the acts of the city of Wyandotte with respect to this land are acts done wholly outside of the limits of the city they are ultra vires, and give no action whatever for damages against the city in its corporate capacity. I deem it unnecessary to follow the counsel in these discussions. The making of a high embankment of great width and length, to be used as a public roadway, falls, I think, within the legal notion of an irreparable injury, and gives a clear and recognized right to an injunction. And it has been held that when an appeal is given by law, and the land owner availed himself of it, he was entitled, in the absence of provisions to the contrary, to the possession of his land during its pendency, and to an injunction, if necessary to protect such possession. Browning v. Railroad Company, 3 Green Ch. N. J. 47; Trustees of Iowa College v. City of Davenport, 7 Iowa, 213. Compensation and appropriation should be concurrent (2 Kent, 339, note; Cooley Const. Lim. 567), and under the constitution of Kansas must be; or rather compensation or deposit of money must precede the appropriation of the land. It was suggested at the argument that the proper order would be one denying the injunction, if the highest proba Eidemiller v. Wyandotte City. ble amount to which the complainants would be entitled were brought into court for their benefit. But this court has no jurisdiction or control over the proceedings in condemnation, nor over the county authorities by which these proceedings were instituted, nor over Kansas City, it not being made a party to this suit. The payment, tender, or deposit should be made in that proceeding, and not in this. I think, therefore, that the complainants are entitled to the injunction they ask, but it will be granted only until the compensation to which the complainants are entitled for the right of way has either been paid or deposited as required by the constitution of the state. ORDERED ACCORDINGLY. NOTE.-In England a difference is recognized between the construction of legislative power to condemn lands when conferred upon a railway or other private corporation, and when conferred upon the corporation of a city charged with the duty of making public improvements; in the latter case the House of Lords have held that the powers will not be subjected, as in the former case, to a strict and restrictive construction; but the case shows that parliament, to aid in making public improvements, such as opening and widening streets, confers powers (as, for example, to compulsorily take more land than is necessary, with a view of selling the surplus for profit), which it is not within the constitutional authority of our state legislatures to grant. Galloway v. Mayor, &c. of London, Law Rep. 1 H. L. 34, 1866. In England "it has become," says Lord Chancellor Cranworth, in the case just cited, “a well settled head of equity, that any company authorized by the legislature to take compulsorily the land of another for a definite object, will, if attempting to take it for any other object, be restrained by injunction of the court of chancery from so doing." In this country, see: Western Md. Railroad Company v. Ownings, 15 Md. 199: Browning v. Railroad Company, 3 Green Ch. (N. J.) 47; Stacy v. Vermont Railroad Company, 27 Verm. 39; Cosens v. Railway Company, 1 Law R. Ch. App. 594; Thompson v. Railroad Company, 3 How. (Miss.) 240; Beasley v. Company, 13 Cal. 306; 27 Cal. 427; Richards v. Railroad Company, 18 Iowa, 259; High on Injunction, secs, 391–304 and cases cited; Pierce on Railroads, 164; Cooley Const. Lim. 562; Gray v. Railroad Company, 13 Minn. 315; Railway Company v. Nesbit, 10 How. (U. S.) 395; Dillon, Munic. Corp. sec. 480; compare ib. sec. 476 and cases cited; Ib. secs. 727–738. Borland v. Phillips. BORLAND & MANLOVE v. PHILLIPS & SCOVILL. The defendants, private bankers, received from the bankrupts, who were also private bankers, after the latter had closed their doors for general business, a draft on New York "for collection," and on being advised by their correspondents in New York of its payment there, then paid the full amount thereof to one of the bankrupts: Held, if this payment to the bankrupts was made in good faith, without reasonable cause on the part of the defendants to believe that the bankrupts intended to make therewith any fraudulent payments or preferences, that the defendants were not liable to the assignee in bankruptcy under the 35th section of the bankrupt act. (Before DILLON and Delahay, JJ.) Bankrupt Act.-Section 35 Construed. THE plaintiffs are assignees in bankruptcy of Van Fossen & Britton, who were private bankers in Fort Scott. Defendants were also private bankers in the same place. This action is brought to recover $3,000, the amount of a draft or bill of exchange on New York, which the bankrupts, a few days after their suspension, left with the defendants "for collection." The defendants forwarded the draft to their correspondent in New York for collection, and on being advised of its payment there paid the full amount thereof to one of the bankrupts. This draft was received by the defendants for collection after the bankrupts had closed their doors for general business, but within four months of the bankruptcy. On these facts the plaintiffs sought to recover under the second clause of section 35 of the bankrupt act. On the trial the defendants testified that they received and forwarded the said draft for payment only, and in good faith paid the full amount of the proceeds thereof to the bankrupts. The defendants, although they admitted that they knew the bankrupts had suspended, also testified that they had no knowledge of any intention on the part of the bankrupts to make any improper use of the money thus paid |