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the act does not create a trust, although a sacred obligation is imposed on the public faith of the state. The decision expressly recognized that there is no limitation upon the power of the Legislature to prescribe how the expenditures shall be made for the purposes stated.

A similar construction has been placed upon the act of Congress granting to the state of Arkansas certain swamp and overflowed lands to construct necessary levees and drains to reclaim such lands. Branch v. Mitchell, 24 Ark. 431; Hagar v. Reclamation District No. 108, 111 U. S. 701, 4 S. St. 663, 28 L. Ed. 569; and United States v. Louisiana, 127 U. S. 182, 8 S. Ct. 1047, 32 L. Ed. 66. See, also, Board of Supervisors of Whiteside County, State of Illinois, v. Burchell, 31 Ill. 68; Dunklin County ex rel. v. District County Court of Dunklin County, 23 Mo. 449; and Gaston v. Stott, 5 Or. 48.

The necessary result of all these decisions arising in various ways is to hold that the nature of the trust raised by the compact between the United States and the states, in cases of this sort, is a mere personal trust, and that its execution is a matter exclusively within the control of the Legislature. They hold that the trust is not fastened to the land and does not run with it.

Of course, while the power of the Legislature to deal with the land is not affected by the compact, it would be affected by any constitutional limitations of the state. Ar ticle 14 of our Constitution provides for the establishment and maintenance of common schools in this state and their support by taxation. The supervision of public schools, and the execution of the laws regulating the same, is vested in and confided to such officers as may be provided by the General Assembly.

Section 2 provides that no money or property belonging to the public school fund, or to this state for the benefit of schools or universities, shall ever be used for any other than for the respective purposes to which it belongs.

As we have already seen, this court and the Supreme Court of the United States have uniformly held that the title to these sixteenth section lands is vested absolutely in the states, and that the Legislature has ex

clusive control over the funds. The provision of the Constitution just referred to is mandatory in its nature, and would prevent the Legislature from using the proceeds from these school lands for any other purpose than the support of the common schools. The language of the Constitution however, does not limit the funds to the use of the particular district in which the sixteenth section lands are situated. The only restriction in the Constitution is that the money shall never be used for any other than school purposes. This was the dominant purpose guiding the court in the decision of Special School District No. 5 v. State, 139 Ark. 263, 213 S. W. 961.

While that decision does state that the state is under a sacred obligation to carry out the purposes of the grant, expressed in the act of Congress, yet it clearly recognizes that the trust is a personal one, and that the manner of its execution is exclusively within the power of the Legislature. In short it recognizes that the manner of the execution of the trust is a matter of public policy of the state, which can only be exercised by the Legislature, and which is a question that does not at all address itself to the courts.

The result of our views is that the grant of the sixteenth section lands, submitted to the state by the act of Congress, and accepted by the state, was of the fee to the lands without limitation upon the power of the state. It is true that the grant imposed a trust which was accepted by the state; but the trust was of a personal nature, and to be exercised by the state as a sovereign, and was not a trust fixed upon the land itself and running with it.

Reliance is placed by counsel for appellees upon the case of the State of Indiana v. Springfield township in Franklin County, 6 Ind. 83, but we think the trend of that decision is contrary to the reasoning of our own cases and those of the Supreme Court of the United States cited above, and its reasoning does not appeal to our minds.

It follows that the decree of the chancellor will be reversed, and the cause will be remanded, with directions to dismiss the complaint for want of equity.

SMITH, J., dissents.

(273 S.W.)

DAVOREN et al. v. KANSAS CITY.

(No. 23996.)

(Supreme Court of Missouri, in Banc. April 13, 1925. Rehearing Denied May 23, 1925.)

1. Negligence 39-City officers chargeable with knowledge ponds are attractive to children.

Officers of city and its agents should be reasonably charged with knowledge that ponds

of water in thickly populated cities are attractive to children for bathing and skating.

2. Evidence 14-Common knowledge that

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John B. Pew, Ilus M. Lee, and Solon T.

ponds of water, wherever located, are highly Gilmore, all of Kansas City, for appellant.

attractive to children.

It is common knowledge that ponds of water, wherever located, are highly attractive to children, both for skating and bathing purposes. 3. Negligence 28-Care required of keepers of pleasure resorts.

The duty is imposed on keepers of pleasure resorts to make them reasonably safe for those who use them.

Hogsett & Boyle, of Kansas City, for respondents.

Statement.

WOODSON, J. This was a suit instituted in the circuit court of Jackson county by the

plaintiffs, husband and wife, against Kansas City, the defendant, for the alleged negligence in drowning their minor son, 6 years and 7 months old. The case was tried before

4. Negligence 28-Reasonable care required the court and jury, which resulted in a verof property owner.

All reasonably prudent persons must so use their property as not to unreasonably injure others, and, if that duty is not exercised, then they are liable for its violation.

5. Negligence 41-Person creating dangerous condition must use reasonable precaution to prevent injury.

Legal obligation rests on all who create or allow dangerous conditions, such as pond created by city in constructing street across ravine, to use reasonable precautions to see that no unnecessary injury shall flow therefrom to others, and, if that duty is violated and injury results, guilty party will be held liable.

6. Negligence 39-Child attracted to pond not guilty of trespass barring recovery for death.

Boys of 6 years and 7 months, attracted to pond created by city in constructing fill across ravine for street purposes, held not trespassers so as to bar parents' right to recover for their death.

7. Municipal corporations 736-City not re

dict and judgment for the plaintiffs for $10,000, and, after moving unsuccessfully for a new trial, the defendant duly appealed the case to this court.

The pleadings are unassailed, and therefore it would be useless to notice them.

The facts of the case are simple and practically undisputed. The name of the dead child, for whose life the parents sued, was Karl Davoren, who had a twin brother named Kenneth, who was also drowned at the same time and place that Karl lost his life. They came to their death by drowning in a pond, which was created by the city constructing a high fill or dam across a ravine, for street purposes, on top of which a street was duly constructed. The city neglected to provide a culvert or other outlet sufficient to allow the surface water to escape therefrom that accumulated above said fill. Said pond of water was entirely upon private property, and was not so closely 10cated to a public street as to endanger the

lieved of liability for drowning of boys be lives of the deceased children by falling into

cause pond was on private property.

Where, in constructing street across ravine, city made fill within limits of street, which created pond on private property, it was its duty to abate the nuisance, and it was not relieved of liability for death of boys drowned in pond, on ground that it had no power to abate the nuisance, as it could have constructed a culvert.

8. Negligence 39-Instruction to find pond was attractive to children held without error. In action for death of boy from drowning in pond, created by city when constructing fill for street, instruction telling jury to find that pond was attractive for children held not error.

it while passing along the street.

The pond was located on the south side of Twenty-First street, between Bales avenue and Askew street, in Kansas City. Bales

avenue and Askew street run north and
south, and Twenty-First street runs east and
west, and crosses Bales and Askew. In the
space between Bales and Askew the natural
topography of the land is in the form of a
ravine or draw several blocks long, running
in a northerly and southerly direction. The
natural drainage of surface water through
this ravine or draw was toward the north.
The ravine began at Twenty-Fifth or Twenty-
Sixth street, which is 4 or 5 blocks south of

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
273 S.W.-26

Twenty-First street, and extended north to, height of the fill was about 12 to 14 feet Eighteenth street, making the ravine about 8 blocks in length. The ravine drained all of that territory lying between Twenty-Sixth street on the south, Bales avenue on the west, Askew street on the east, and Eighteenth street on the north-a territory comprising 8 square city blocks; 4 or 5 of these square blocks lay south of Twenty-First street.

In 1901 the defendant, city, constructed a high fill along and upon Twenty-First street, directly across this ravine, like a dam. The

above the surface of the water at the time of the drowning. The length of the fill was about 150 feet from east to west. Previous to the construction of this fill there was no pond on the private property south of Twenty-First street. Immediately after the city constructed this fill or dam, however, the surface water from the land to the south began damming up on account of the fill, and accumulating upon the private property south of the fill. The result was that a deep pond formed thereon, extending about 250

[graphic][merged small][graphic]

(273 S.W.)

feet across at its widest point, measuring | other one was running after him, possibly 8 east and west, and about 200 feet north and south. The contour and appearance of the pond are shown by the diagram and by the photographs in evidence. The pond was right up against the embankment of the fill; that is, the embankment formed the north shore of the pond.

The defendant, city, apparently recognized its duty not to dam up surface water on the abutting property, for when it constructed the fill it put a pipe through the fill to drain off the surface water. But the pipe was too small, and was wholly inadequate to drain away the water that accumulated. When the pond once formed it remained there as a permanent thing for the 19 years preceding the drowning of plaintiffs' two boys. The pond remained there from 1901, when the fill was constructed, until March, 1920. Nothing was done by the defendant, city, to remedy the situation prior to the death of the boys. The pond was 15 feet deep in the middle.

The surrounding neighborhood was a thickly populated residence district of the city. During all these years, it was a common practice for children in the neighborhood to play upon and about the pond, swiming in the pond in summer, and playing on the ice in winter.

or 10 feet behind. The first little fellow went through the ice about midway of the pond, and the other one was running so close to him he could not stop, and ran in after him. The second little boy clung with his fingers to the edge of the broken ice for a short space. In the meantime Cook immediately ran down the bank and ran in upon the ice, in the effort to rescue the boys. He got possibly half way from the bank to where the second little boy was clinging, when the ice broke and allowed Cook to go through. Both boys were drowned under his very eyes, but he was helpless to rescue them. The bodies of the boys were rescued from the water by the fire department by means of hooks and ropes.

The next day after the drowning, and two months before plaintiffs served any notice on the city of their intention to bring this suit, the city's claim department began taking numerous photographs of the pond. At the trial, however, the city made no attempt to excuse itself from the charge of negligence in creating this dangerous nuisance, and stood mute, offering no evidence whatever.

At the close of all the evidence the appellant asked a demurrer to the respondents' evidence, which the court refused, and counsel for the former duly excepted.

Opinion.

This dangerous condition was specifically reported to the city engineer's office at the city hall by one of the neighbors 15 or 16 years before the drowning of plaintiffs' sons. The engineer's office promised that the mat- I. Counsel for appellant insist that the ter would be attended to. It was impressed trial court erred in refusing its demurrer, upon the engineer's office that it was an ab- offered to respondents' evidence at the close solute necessity to have the pond drained on of their case, for the reason stated, that the account of the danger to children and on ac- pond was located wholly upon private propcount of the foul smell. In addition, one of erty, and that the accident did not result the neighbors notified a city policeman about from any use of a street, and under all the the matter. Nothing was ever done, how-facts there was no duty owing the deceased, ever, by the city authorities, to rectify the and hence no liability rested upon the appeldangerous condition prior to the drowning | lant. here in question.

Plaintiffs' boys were drowned on March 8, 1920, while playing upon the ice of the pond. The two boys were 6 years and 7 months old at the time of their death. They came home from school at about 3 o'clock in the afternoon, and, after getting something to eat and changing their clothes, went out to play; their mother at the time being engaged in preparing the evening meal. About 15 or 20 minutes later a neighbor boy came and reported to the mother that her two little boys were drowned in the pond. The pond was not in sight of plaintiffs' residence, and neither of the plaintiffs knew of the existence of the pond.

An eyewitness, Earl Cook, testified to the drowning of the boys. This witness was walking east along the south sidewalk of Twenty-First street at the time. When he first saw the boys they were playing on the ice, throwing a bottle across the ice. One of the boys was running after it, and the

In support of that contention counsel for appellant cite the following cases: Arnold v. City of St. Louis et al., 152 Mo. 173, 53 S. W. 900, 48 L. R. A. 291, 75 Am. St. Rep. 447; Overholt v. Vieths, 93 Mo. 422, 6 S. W. 74, 3 Am. St. Rep. 557; Moran v. Pullman Car Co. et al., 134 Mo. 641, 36 S. W. 659, 33 L. R. A. 755, 56 Am. St. Rep. 543; Kelly v. Benas, 217 Mo. 1, 116 S. W. 557, 20 L. R. A. (N. S.) 903; Hight v. Bakery, 168 Mo. App. 431, 151 S. W. 776; Buddy v. Terminal Ry. Co., 276 Mo. 276, 207 S. W. 821; State ex rel. Kansas City v. Ellison, 281 Mo. 667, 220 S. W. 498; Rallo v. Herman Const. Co. et al., 291 Mo. 221, 236 S. W. 632; City of Omaha v. Bowman, 52 Neb. 293, 72 N. W. 316, 40 L. R. A. 531, 66 Am. St. Rep. 506; Reeder v. City of Omaha, 73 Neb. 845, 103 N. W. 672; Murphy v. City of Brooklyn, 118 N. Y. 575, 23 N. E. 887; Von Almen's Adm'r v. City of Louisville, 180 Ky. 441, 202 S. W. 880; Peters v. Bowman, 115 Cal. 345, 47 P. 113, 56 Am. St. Rep. 106; Tavis v. Kansas

City, 89 Kan. 547, 132 P. 185; Harper v. City [ the city is liable in damages, the same as of Topeka, 92 Kan. 11, 139 P. 1018, 51 L. R. any other person or landowner. A. (N. S.) 1032; Schauf's Adm'r v. City of Paducah, 106 Ky. 228, 50 S. W. 42, 20 Ky. Law Rep. 1796, 90 Am. St. Rep. 220; Gillespie v. McGowan, 100 Pa. 144, 45 Am. Rep. 265; Dehanitz v. City of St. Paul, 73 Minn. 385, 76 N. W. 48; Klix v. Nieman, 68 Wis. 271, 32 N. W. 223, 60 Am. St. Rep. 854.

All of these cases proceed along the line that the appellant was not required to fence or otherwise protect nuisances, or to secure dangerous places upon their private property from trespassers or other persons who might be thereon without the authority or permission of the respective owner thereof. | Generally speaking, and as an abstract legal proposition, those cases announce a correct legal proposition, but in my opinion they state the rule of law too broadly when applied to all cases, for the reason that there are often other facts and circumstances entering into the case which qualify or limit that harsh and unfeeling rule. For instance, in the case of the City of Hannibal v. Richards, 82 Mo. loc. cit. 336:

Likewise in the case of Salmon v. Kansas City, 241 Mo. loc. cit. 53, 145 S. W. 16, 28, 39 L. R. A. (N. S.) 328, this court held that the city was liable for its contracts and torts in the prosecution of that work, is open to suit in the same manner and to the same extent as a private person doing or causing to be done the same work, and cited Donahoe v. Kansas City, 136 Mo. 665, 38 S. W. 571; Dolan v. Laclede Gas Light Co., 145 Mo. 550, 46 S. W. 1133; Ely v. City of St. Louis, 181 Mo. 723, 81 S. W. 168; State ex rel. Gates, 190 Mo. loc. cit. 550, 89 S. W. 881, 2 L. R. A. (N. S.) 152; Barree v. Cape Girardeau, 197 Mo. loc. cit. 389, 95 S. W. 330, 6 L. R A. (N. S.) 1090, 114 Am. St. Rep. 763; Broadwell v. City of Kansas, 75 Mo. 213, 42 Am. Rep. 406; Werth v. City of Springfield, 78 Mo. 107; Wegmann v. City of Jefferson, 61 Mo. 55; Thurston v. City of St. Joseph, 51 Mo. 510, 11 Am. Rep. 463.

II. Counsel for appellant insist that this case was brought and tried upon the theory of the Sioux City & P. R. Co. v. Stout, 17 Wall. 657, 21 L. Ed. 745.

In my opinion this is a clear misconception of the case. The turntable cases turn upon the theory that the defendants in such cases construct those dangerous devices upon their own premises which are so attractive to children, they enter the premises, and, while playing on them, they are injured thereby. Because of the attractions of the turntable, and the absence of any special danger appearing to the child the injury is unexpected

"The construction of the embankment on Second street by the city was subsequent to defendant's purchase of the lots and that embankment prevented the flow of the water from the lots and occasioned its accumulation upon them, which, it is alleged injuriously affected the health of the city. It has been repeatedly held by this court that the owners of the lots under such circumstances could not maintain an action against the city for the damage to them but that such injury is damnum absque injuria. Now we are asked to hold also that the city may create a nuisance upon the lot of an in-ly inflicted upon it, and out of this lure to

dividual and then have it abated at his expense, if he refuse to do it when ordered. As well at once declare that no one can acquire any rights to town or city lots which the municipal corporation is bound to respect. The city cannot create a nuisance upon the property of a citizen and compel him to abate it"-citing the case of Weeks v. City of Milwaukee, 10

Wis. 269.

The first case by implication held that the city owed the duty to the citizens of Hannibal and to Richards to abate that nuisance. In the case of State ex rel. Lamm v. Sedalia (Mo. App.) 241 S. W. 656, this court held that a private person, specially injured by a public nuisance, may sue to abate it and it would naturally follow that he could recover any special damages sustained, caused by such nuisance. The state may also compel a municipal corporation to abate a nuisance. State ex rel. Lamm v. Sedalia, supra.

So in the case of Roth v. St. Joseph, 180 Mo. App. 381, 167 S. W. 1155, 171 S. W. 944, the Kansas City Court of Appeals held that, where a city, either by its own act, or by permitting a railroad to erect an embankment in a street which creates or suffers and permits a stagnant pool to collect and be

the unsuspecting child arises the duty of the proprietors to so guard the tables so that no injury can reasonably happen to them.

[1, 2] But that is not this case. Here the officers of the city and its agents should be reasonably charged with the knowledge of such facts that all other reasonably prudent men know, and that is that ponds of water in the thickly populated portions of large cities are attractive to children, and that is why they congregate there in summer for bathing in the waters and in winter for skating on the ice formed thereon. It is common knowledge that ponds of water, wherever located, are highly attractive to children both for skating and bathing purposes, as much so as the old creek down over the hill in the meadow, we all read so much about, both in verse and fiction.

[3, 4] The same instinct and desire for pleasure induces the tourists of the country to resort to the seashore for bathing, and the more hardy to travel to the northern ice fields for skating or tobogganing. The law imposes the duty upon the keepers of our own resorts, as well as upon the keepers of the others, to make them reasonably safe for

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