Wichita Natural Gas Co. v. Ralston

The opinion of the court was delivered by Graves, J.: The first ruling of which the defendants complain is the refusal of the court to sustain their demurrer to the plaintiff’s petition. The ground of the demurrer was that the petition contained several causes of action which were improperly joined. The court evidently concluded that the petition stated but one cause of action, which consisted of a purpose upon the part of all the defendants to injure the plaintiff’s pipe line, this purpose being evidenced by open threats of violence on the part of some of the defendants and by active encouragement given to such threats by the other defendants, whereby they were all combined in a common design to carry out the threats made. This would make them jointly liable in one and the same cause of action. This seems to have been the view of the district court, and the averments of the petition seem to justify such a conclusion. We think, therefore, that this ruling was not erroneous. It is further claimed that the land was a homestead and the joint consent of the husband and wife was not obtained for a pipe line right of way. The evidence can probably be so interpreted as to show a joint consent, both in point of time and intent. The wife consented, and at the time she consented the husband had .already consented and was then consenting, so that their consent joined in point of time, and their intent that the pipe line should occupy the land was identical. But whether or not this interpretation is justified by the evidence is not important, as there is evidence tend [90] ing to show that the wife gave her consent, and upon this evidence the court found that she did -consent. There being some evidence to sustain this finding, it is conclusive here. The court does not find in express terms that the consent given was the joint consent of husband and wife which is required to authorize the alienation of the homestead, but it does find that actual consent was given by both husband and wife. This consent is sufficient to bar both the husband and wife and all persons acting for them from destroying or injuring the property of the plaintiff. It will be remembered that this is not an action brought by the owners of the property to prevent the plaintiff from entering into the possession of the premises or to eject it after a wrongful entry, as was done in the cases of Pilcher v. A. T. & S. F. Rld. Co., 38 Kan. 516, and Withers v. Love, 72 Kan. 140, cited by the defendants; The plaintiff, after entering peaceably into possession of the farm with the express consent of the owners, and after expending large sums of money in making improvements thereon, is entitled to have its property protected from forcible destruction or injury by the owners of the land, whether the proceedings under which it entered amount in law to an alienation of the homestead right or not. If the owners were not willing for the plaintiff to put its pipe line upon their premises, they or either of them could easily have prevented it until proper legal steps had been taken which would give it that right. It seems evident, although the record does not expressly so state, that the plaintiff was permitted to place its. pipe line upon the land while .negotiating with the parties interested as to the amount of damages the owners should receive, and after the work was completed, the parties being unable to agree, this action was commenced. It is insisted that several of the findings of fact are not sustained by the evidence, but this court can hot [91] weigh testimony. The findings of fact, when supported by any evidence, can not be disturbed here. The statute of frauds, estoppel and other questions have been discussed by counsel, but in our view they are not controlling and need not be considered. In any view under the facts found by the trial court the plaintiff is entitled to the remedy prayed for. The judgment of the district court is affirmed.