Opinion by
Strang, C.:
This was an appeal from the
board of county commissioners of Osage county in allowing damages to the plaintiff in error on account of a public road laid out through his premises. The appeal came on for a hearing at the June, 1887, term of the district court of said county. Before the case was called, the parties entered into the following agreement:
“ It is hereby agreed between the parties hereto, that the questions to be determined by the jury shall be, is the road, as ordered and located by the board of county commissioners over and along the plaintiff’s land, of public utility? If found by the jury in the affirmative, then the question of the plaintiff’s damages by reason of the location of said road [38]*38shall be submitted to them upon evidence to be introduced before them. But if the jury shall determine said question in the negative, then the judgment of said court, shall be, that the order of said board of county commissioners ordering and locating said road, and ordering said road survey and plat to be recorded, and ordering the trustee to open said road for public travel, shall be set aside, and that the defendant pay the costs of this suit.”
The case was heard under this agreement, and the jury found in the negative, that the road was not of public utility. Afterward, on its own motion, the court set aside said finding, of the jury, on the ground that the court had no jurisdiction over the question. At the following November term of said court, the case was heard upon the question of damages and a verdict was returned for the plaintiff in the sum of $375, the exact amount allowed by the commissioners. Plaintiff filed a motion for a new trial, which was heard at the April, 1888, term, and allowed. The case was again tried at the following June term, resulting in a verdict for $378.70 in favor of the plaintiff. A motion for a new trial was again filed by the plaintiff, which was overruled, and judgment rendered in favor of the plaintiff for $378.70, and that the defendant recover costs. The judgment as to costs was based upon the fact that there was on file among the papers of the case an offer of the defendant confessing judgment in favor of the plaintiff for the sum of $500, a sum greater than the amount found by the jury in his favor. The plaintiff objected to the judgment as to costs, and offered to prove that he was not in court when said offer was made and knew nothing of it till afterward, and then only what he had heard out of court, and did not,know it had been filed in the case; that he had had no opportunity to accept or reject the offer. The court overruled his objection, and refused to allow th^ plaintiff to make the proof offered.
The first question argued by the plaintiff in error in his brief is, that the court erred in setting aside the finding of the jury that the road was “not of public utility.” It is conceded that the court had no jurisdiction over that question, unless such [39]*39jurisdiction was obtained by force of the agreement of the parties to submit the question to the court. And this court has decided that, on an appeal, in a case like this, in the absence of an agreement attempting to confer jurisdiction, the only question the court has jurisdiction to determine or to submit to the jury is, the amount of damages the appellant is entitled to. (Briggs v. Comm’rs of Labette Co., 39 Kas. 90.) The statute of our state has conferred upon road viewers and the board of county commissioners power to determine whether or not a proposed public road is of public utility; and we do not think parties by an agreement can take this power from the tribunals with which it is lodged by the statute and confer it on the district court. A public road usually affects the lands of more than one person, and the rights of travel of many persons. It would hardly be the proper thing to permit a single land-owner, by an agreement with the board of county commissioners, to confer jurisdiction on the district court that every one knows the statute has lodged elsewhere. Jt would be unfair to the other persons interested in and whose rights are affected by the question whether or not the proposed road is to be established.
A further contention of the plaintiff in error is, that the court erred in refusing, all through the trial, to allow the plaintiff to show, as an element of damage, what it would cost to keep up or in repair the new fences necessitated by the opening of the road through his land. In the case of Comm’rs of Dickinson Co. v. Hogan, 39 Kas. 606, a case like this, the court said:
“ In such a case, the proper elements of damages are whatever tends to make the land of less value after the location [of the road] than it was before, which may include additional fence, its repairs, separating the land, inconvenience of going from one tract of land to another separated by such road, and the like.”
The court also says in this case:
“ The fact of the land being separated by a public road, the ■disadvantage of maintaining and keeping up fences, the open[40]*40ing of gates and crossing from one part of the land to another* for the purpose to which the land was used and adapted, are all proper elements to be considered by the jury.”
In the light of this case, and upon the general principle that whatever tends to make the land of less value constitutes an element of damages, we think the court erred in excluding evidence as to what it would cost to keep necessary new fences in repair.
The court instructed the jury that it might take into consideration the value of the title to the land over which the road was laid, and also the use of such land, for the purposes for which he might use it other than as a public road, in diminution of the damages suffered by the plaintiff. This instruction was given without any evidence in the case upon which it could be based, and was ¿for that reason, we think, error. There was no evidence in the case, and none offered, to prove the value of such title, nor the value of such use of the land over which the road was laid. The plaintiff objected to that part of the judgment relating to the costs, on the ground that he had no knowledge of any offer of judgment having been made, and offered to prove to the court that he was not in court when the offer was filed in the case, and had had no notice of it. The court refused to listen to proof on the subject, and entered judgment against the plaintiff for the costs. We think this was error. The mere fact of such an offer having been filed with the papers in the case is not sufficient to authorize the court to render judgment against the plaintiff for costs, especially when the plaintiff protests that he knew nothing of such an offer in the case, and offers to make proof of that fact to the court. A paper containing such an offer is not like a pleading, the filing of which imparts notice. But our statute points a way in which an offer confessing judgment may be made so as to save costs to the party making it, if the judgment obtained on the trial is not for a greater sum than the amount offered. Under ¶4622, General Statutes of 1889, if the defendant or his attorney serve a written offer to compromise on the defendant, and he refuses to accept, he must [41]*41pay all costs accruing subsequent to the offer, unless on the trial he recover a judgment for a sum larger than the amount so offered.
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Opinion by
Strang, C.:
This was an appeal from the
board of county commissioners of Osage county in allowing damages to the plaintiff in error on account of a public road laid out through his premises. The appeal came on for a hearing at the June, 1887, term of the district court of said county. Before the case was called, the parties entered into the following agreement:
“ It is hereby agreed between the parties hereto, that the questions to be determined by the jury shall be, is the road, as ordered and located by the board of county commissioners over and along the plaintiff’s land, of public utility? If found by the jury in the affirmative, then the question of the plaintiff’s damages by reason of the location of said road [38]*38shall be submitted to them upon evidence to be introduced before them. But if the jury shall determine said question in the negative, then the judgment of said court, shall be, that the order of said board of county commissioners ordering and locating said road, and ordering said road survey and plat to be recorded, and ordering the trustee to open said road for public travel, shall be set aside, and that the defendant pay the costs of this suit.”
The case was heard under this agreement, and the jury found in the negative, that the road was not of public utility. Afterward, on its own motion, the court set aside said finding, of the jury, on the ground that the court had no jurisdiction over the question. At the following November term of said court, the case was heard upon the question of damages and a verdict was returned for the plaintiff in the sum of $375, the exact amount allowed by the commissioners. Plaintiff filed a motion for a new trial, which was heard at the April, 1888, term, and allowed. The case was again tried at the following June term, resulting in a verdict for $378.70 in favor of the plaintiff. A motion for a new trial was again filed by the plaintiff, which was overruled, and judgment rendered in favor of the plaintiff for $378.70, and that the defendant recover costs. The judgment as to costs was based upon the fact that there was on file among the papers of the case an offer of the defendant confessing judgment in favor of the plaintiff for the sum of $500, a sum greater than the amount found by the jury in his favor. The plaintiff objected to the judgment as to costs, and offered to prove that he was not in court when said offer was made and knew nothing of it till afterward, and then only what he had heard out of court, and did not,know it had been filed in the case; that he had had no opportunity to accept or reject the offer. The court overruled his objection, and refused to allow th^ plaintiff to make the proof offered.
The first question argued by the plaintiff in error in his brief is, that the court erred in setting aside the finding of the jury that the road was “not of public utility.” It is conceded that the court had no jurisdiction over that question, unless such [39]*39jurisdiction was obtained by force of the agreement of the parties to submit the question to the court. And this court has decided that, on an appeal, in a case like this, in the absence of an agreement attempting to confer jurisdiction, the only question the court has jurisdiction to determine or to submit to the jury is, the amount of damages the appellant is entitled to. (Briggs v. Comm’rs of Labette Co., 39 Kas. 90.) The statute of our state has conferred upon road viewers and the board of county commissioners power to determine whether or not a proposed public road is of public utility; and we do not think parties by an agreement can take this power from the tribunals with which it is lodged by the statute and confer it on the district court. A public road usually affects the lands of more than one person, and the rights of travel of many persons. It would hardly be the proper thing to permit a single land-owner, by an agreement with the board of county commissioners, to confer jurisdiction on the district court that every one knows the statute has lodged elsewhere. Jt would be unfair to the other persons interested in and whose rights are affected by the question whether or not the proposed road is to be established.
A further contention of the plaintiff in error is, that the court erred in refusing, all through the trial, to allow the plaintiff to show, as an element of damage, what it would cost to keep up or in repair the new fences necessitated by the opening of the road through his land. In the case of Comm’rs of Dickinson Co. v. Hogan, 39 Kas. 606, a case like this, the court said:
“ In such a case, the proper elements of damages are whatever tends to make the land of less value after the location [of the road] than it was before, which may include additional fence, its repairs, separating the land, inconvenience of going from one tract of land to another separated by such road, and the like.”
The court also says in this case:
“ The fact of the land being separated by a public road, the ■disadvantage of maintaining and keeping up fences, the open[40]*40ing of gates and crossing from one part of the land to another* for the purpose to which the land was used and adapted, are all proper elements to be considered by the jury.”
In the light of this case, and upon the general principle that whatever tends to make the land of less value constitutes an element of damages, we think the court erred in excluding evidence as to what it would cost to keep necessary new fences in repair.
The court instructed the jury that it might take into consideration the value of the title to the land over which the road was laid, and also the use of such land, for the purposes for which he might use it other than as a public road, in diminution of the damages suffered by the plaintiff. This instruction was given without any evidence in the case upon which it could be based, and was ¿for that reason, we think, error. There was no evidence in the case, and none offered, to prove the value of such title, nor the value of such use of the land over which the road was laid. The plaintiff objected to that part of the judgment relating to the costs, on the ground that he had no knowledge of any offer of judgment having been made, and offered to prove to the court that he was not in court when the offer was filed in the case, and had had no notice of it. The court refused to listen to proof on the subject, and entered judgment against the plaintiff for the costs. We think this was error. The mere fact of such an offer having been filed with the papers in the case is not sufficient to authorize the court to render judgment against the plaintiff for costs, especially when the plaintiff protests that he knew nothing of such an offer in the case, and offers to make proof of that fact to the court. A paper containing such an offer is not like a pleading, the filing of which imparts notice. But our statute points a way in which an offer confessing judgment may be made so as to save costs to the party making it, if the judgment obtained on the trial is not for a greater sum than the amount offered. Under ¶4622, General Statutes of 1889, if the defendant or his attorney serve a written offer to compromise on the defendant, and he refuses to accept, he must [41]*41pay all costs accruing subsequent to the offer, unless on the trial he recover a judgment for a sum larger than the amount so offered. Paragraph 4627, same statutes, provides that after an action for the recovery of money is brought, the defendant may offer in court to confess judgment for a part of the amount claimed, and if the plaintiff is present in court when the offer is made, or has had notice that the offer will be made, and of the time when it will be made and the amount thereof, and fails on the trial to recover a judgment for an amount greater than the sum confessed, he shall pay all the costs of the defendant incurred after the offer.
It will be seen that each of these paragraphs requires notice of some kind to the plaintiff of the offer, to render him liable for the costs of the defendant accruing subsequent to the offer, if he fails to recover a judgment for a sum larger than the amount of the offer. Under the first paragraph cited, a written offer must be served upon the plaintiff to render him liable for such costs. Under the latter paragraph, he must either be present in court when the offer is made or he must have notice thereof, to render him liable for costs. If he is present in court, and the attention of the court is called to the offer at the time it is made, that will be sufficient. But it will not be sufficient, even if the plaintiff is present in court, to file a written offer with the clerk of the court, without calling the attention of the court or plaintiff or his attorney in the suit thereto. If this was the only error in this case, this court could modify the judgment, by directing the court below to hear the plaintiff on the question of his knowledge of the offer to confess judgment in the case, and retax the costs if the court should find in his favor. But as the case must be reversed on other grounds and go back for new trial, such trial can be had in accordance with the views herein expressed.
It is recommended that the judgment of the district court be reversed, and the case remanded for a new trial.
By the Court: It is so ordered.
All the Justices concurring.