and the injunction so granted be modified as to allow the defendant to remove the pump.

By the COURT. It is so ordered.

FIXTURES, WHAT ARE: See Hopewell Mills v. Taunton Sav. Bank, 150 Mass. 519; 15 Am. St. Rep. 235, and note 239. Compare McGorrisk v. Dwyer, 78 Iowa, 279; ante, p. 440, and note.

BARNEY V. Dudley.

[42 KANSAS, 212.]

LIFE INSURANCE - CONVERSION OF POLICY - MEASURE OF DAMAGES. — In an action to recover for conversion of a life insurance policy, the measure of damages is the present value of the benefit stated in the policy, less the value of premiums required to procure a similar policy on the same life calculated upon his expectancy of life, when the insured is in good health and his life insurable; but when he is not, this may be shown to reduce his expectancy, and it may also be shown by expert evidence that by reason of ill health a greater rate of premium would be required to reimburse him on account of his shortened expectancy of life, and if, from a computation of the present value of the benefit and the present value of the premiums to be paid during the life, the value of the benefit is greater than the value of the premiums, the difference is the measure of damages for the conversion.

ACTION by plaintiff against defendant and another to recover the value of a life insurance policy in favor of plaintiff's husband and payable to her at his death. She alleges that defendants have unlawfully and wrongfully converted such policy to their own use. Verdict for plaintiff. Defendants moved for a new trial, and their motion was sustained, from which an appeal was taken and the ruling of the lower court affirmed, after which a motion for a rehearing was filed.

G. C. Clemens, for the motion.

W. P. Douthitt, and Overmyer and Safford, against the motion.

CLOGSTON, C. The motion for a rehearing is denied; but, inasmuch as this case goes back for a new trial, it is thought better to establish the rule or measure of damages the plaintiff is entitled to if she should recover. The plaintiff had, before the conversion of this policy, paid in as premiums $803.60. This included fourteen semi-annual premiums of $57.40 each. Now, to establish this sum as the plaintiff's measure of recovery, with interest, would be to allow the insured free insurance

during the seven years in which premiums have been paid. This rule would not be a correct one, for the insured would have paid no consideration for the insurance during that period of time. The general rule is, as between the insured and the insurance company, when the company's business is wound up, or a policy is canceled, where an action is brought for damages, that the measure of damages is the difference between the rate of premium paid for the old insurance and what another company of equal credit and standing would charge to issue a new policy on the same life, and the difference in the rates of premium calculated upon his expectancy of life. This is upon the ground that the insured is placed in as good a condition as he was before his policy was canceled. This seems just and equitable: People v. Security Life Ins. Co., 78 N. Y. 114; 34 Am. Rep. 522; Bell's Case, L. R. 9 Eq. 717 Universal Life Ins. Co. v. Binford, 76 Va. 103; Phoenix etc. Ins. Co. v. Baker, 85 Ill. 410. But it is claimed that this rule i not an equitable one as applied to the facts of this case. It is shown here that Barney, by reason of ill health, is no'v non-insurable. This, then, presents a different question, a question that has been discussed in many courts, and alway's a conclusion reached with doubts as to its correctness. The rule above stated we think not equitable as applied to this case, for this reason: the insured, at the time of taking the insurance, does it upon the thought and reason that disease and sickness are likely to happen to him. Insurance would be effected upon few lives, we think, if the insured was certain that no such mishap would overtake him, and that only by old age would death come; and insurance companies insure each individual with this in view. The premiums are figured upon a contingency of accident, sickness, and premature death, and now to apply this rule to this case would leave the plaintiff robbed of a part of the contract against accident and premature decay: Holdich's Case, L. R. 14 Eq. 79.

Again, to establish a rule that would make the tables of mortality the only evidence of the number of premiums the plaintiff would be compelled to pay, and deduct these premiums from the face of the policy, would practically deprive the plaintiff of the very thing that insurance was taken to guard against, and plaintiff would recover no benefit by reason of the ill health of the insured which prevents reinsurance. This general rule is held to apply to both classes in the case of People v. Security Life Ins. Co., 78 N. Y. 114; 34 Am. Rep.

522; but that was a case where the insurance company was going out of business, and was closing up its affairs, and the court established that general rule in that case because of the impossibility and impracticability of ascertaining the state of health of each person holding a policy therein. The defendants in this case stand upon a different footing from the insurance company in that case. Here the insurance company is still carrying the policy, and the defendants will receive the benefit from it. They have elected to appropriate and withhold this policy from the plaintiff, seeking to pay the premiums, and finally to recover at the death of Barney. When they place themselves voluntarily in this position, they cannot complain if the strongest rule is held against them.

It is said in People v. Security Life Ins. Co., supra: "But the health of the policy-holder may since his insurance have become so impaired that his life is not now reinsurable, and hence in his particular case the value to be arrived at upon this basis [speaking of the general rule] would not be the measure of his damage." So we think as applied to these defendants the rule ought to be such as will give the plaintiff the full value of the policy at the time of its conversion, with interest. How to arrive at this value, as we said before, is a difficult question, one surrounded with uncertainties, depending upon the opinions of persons or insurance companies; but as before said, the defendants voluntarily assumed the risk, and they cannot complain. We therefore think the general rule above stated applicable to this case, with the modification, that if Barney is not insurable by reason of ill health or accident, that fact may be shown to reduce his expectancy. It may also be shown by experienced and expert insurance men that by reason of the ill health of the insured a greater rate of premium would be required to reinsure him on account of the shortened expectancy of his life. All these things may be given for the purpose of aiding the jury in determining his expectancy, and in this way determining the actual value of the policy at the time of its conversion; for if the insured's expectancy has been reduced in proportion to such reduction the value of his policy has increased.

It was said in Bell's Case, L. R. 9 Eq. 717: "As to the lives, it will be assumed, until the contrary is shown, that they are all in a normal state; that no other change has taken place than that which arises from the advance of age. If in addition to that, either from accident or illness, a higher rate of assurance is

required, that must be added to the proof. That is one of the things which the office has assured against, and the chance of life has diminished." See also Speer v. Life Ins. Co., 36 Hun, 322.

We think the rule is fair and equitable as between the plaintiff and defendants, and therefore recommend that it be adopted.

By the COURT. It is so ordered.

MEASURE OF DAMAGES IN ACTIONS OF TROVER for the conversion of property: Woolley v. Carter, 11 Am. Dec. 527, 528; Hersey v. Walsh, 38 Minn. 521; 8 m. St. Rep. 689, and note.

KANSAS, NEBRASKA, AND DAKOTA RAILWAY COMPANY V. CUYKENDALL.

[42 KANSAS, 234.]

DAMAGES - ABUTTING LOT-OWNER. In order to justify a recovery for damages by an abutting city lot-owner against a railroad company authorized to construct and operate its road along a street, there must be such a practical obstruction of the street in front of the lots that the owner is denied ingress to and egress from them.

Ware, Biddle, and Cory, for the plaintiff in error.

Kirk, Schoonover, and Bowman, for the defendant in error. SIMPSON, C. Cuykendall commenced his action in the district court of Anderson County, alleging that he was the owner in fee-simple of the north half of lots 9, 10, 11, and 12, in block 76, in the city of Garnett; that said lots front 70 feet on Main Street and 180 on Seventh Avenue, are improved by a dwelling-house, fencing, and otherwise, and are occupied by plaintiff and his family as a residence; that the dwellinghouse faces on Main Street, and the outlet and inlet to the property is over and upon these two streets; that the railroad company, on or about the first day of March, 1886, constructed, and has ever since operated, its line of road in and upon said Main Street, and made an embankment six feet in height near the east side of said Main Street, and directly up to and fronting against the west side of plaintiff's property; that said embankment and line of railroad are so constructed as to obstruct the street, and are illegally and improperly made and maintained; and he prays for a judgment for damages. The railroad company pleads a city ordinance granting it the right

of way over and upon said street and others, and that the line was constructed in accordance with the terms and conditions of the ordinance. At the trial the following special interrogatories were answered by the jury, and a verdict returned in favor of Cuykendall for $190.

"1. Is the defendant's railway constructed along and upon Main Street west of plaintiff's property? A. Yes.

"2. What is the distance from plaintiff's lots to the railroad on Main Street? A. Northwest corner, thirty-three and a half feet, more or less; southwest corner, twenty-seven feet, more or less.

"3. How many feet on Main Street is there on the east side of defendant's railroad and between the railroad and plaintiff's property that is now open for use? A. Outside of sidewalk, fifteen feet more or less.

"4. Does the defendant's railroad obstruct the means of ingress to and egress from plaintiff's premises to and upon Main Street? A. Yes.

"5. Does the defendant's railroad obstruct the means of ingress to and egress from plaintiff's premises upon Seventh Street? A. No.

"6. If the defendant's railroad obstructs the plaintiff's ingress and egress to and from Main Street, state in what such obstruction consists. A. By defendant's railroad embankment.

"7. If defendant's railroad obstructs the plaintiff's ingress and egress to and upon Seventh Avenue, state in what such obstruction consists. A. Nothing."

The question involved in this case has been the subject of much consideration in this court, and three opinions have been rendered which mark with some degree of reasonable certainty the line between the liability and non-liability of railroad companies whose lines are constructed along public streets, to abutting owners for damages. These cases are: Atchison etc. R. R. Co. v. Garside, 10 Kan. 552; Central Branch etc. R. R. Co. v. Andrews, 30 Kan. 590; Ottawa etc. R. R. Co. v. Larson, 40 Kan. 301. The rule to be deduced from these cases, and from what has been said by the court in the cases of Central Branch etc. R. R. Co. v. Twine, 23 Kan. 585, 33 Am. Rep. 203, Kansas City etc. R. R. Co. v. Hicks, 30 Kan. 288, and Heller v. Atchison etc. R. R. Co., 28 Kan. 625, is, that in order to justify a recovery for damages by the abutting lotowner, there must be such a practical obstruction of the street