stated the following rule in Kansas

2011In Felten Truck Line v. State Board of Tax Appeals, 183 Kan. 287, 300 , 327 P.2d 836 (1958), this court stated the following test: "Whether the court may sever an unconstitutional provision from a statute and leave the remainder in force and effect *115 depends on the intent of the legislature.

2011In Felten Truck Line v. State Board of Tax Appeals, 183 Kan. 287, 300 , 327 P.2d 836 (1958), this court stated the following test: "Whether the court may sever an unconstitutional provision from a statute and leave the remainder in force and effect *115 depends on the intent of the legislature.

1999The court stated the following principle: “Although ordinarily an appellate court will not consider an issue which has not been raised in the trial court or which has not been raised by the parties on appeal, the court does have the power to do so in exceptional circumstances, where consideration of the new issue is necessary to serve the interests of justice or to prevent a denial of fundamental rights.” 230 Kan. 596 , Syl. ¶ 1.

1995K.S.A. 60-1203 provides in pertinent part: “Where the action is brought by a person claiming an interest . . . adverse to a[n] . . . ordinance . . . which is the subject of the action, it shall be prosecuted in the name and under the direction of such person, otherwise it shall be prosecuted in the name of the state by the attorney general or county attorney.” KCCI quotes from Rowlands v. State, 187 Kan. 174 , Syl., 354 P.2d 674 (1960), where the court stated the following rule: “An action to question the power or authority of governmental agencies or public officials should ordinarily be brou

1995K.S.A. 60-1203 provides in pertinent part: “Where the action is brought by a person claiming an interest . . . adverse to a[n] . . . ordinance . . . which is the subject of the action, it shall be prosecuted in the name and under the direction of such person, otherwise it shall be prosecuted in the name of the state by the attorney general or county attorney.” KCCI quotes from Rowlands v. State, 187 Kan. 174 , Syl., 354 P.2d 674 (1960), where the court stated the following rule: “An action to question the power or authority of governmental agencies or public officials should ordinarily be brou

1994Opportunity shall be given to make the objections out of the hearing of the jury.” In State v. Maxwell, 234 Kan. 393 , Syl. ¶ 5, 672 P.2d 590 (1983), this court stated the following rule pertaining to review *360 of unobjected-to jury instructions: “When an instruction has not been objected to at trial, this court’s scope of review is limited to a determination of whether the instruction is clearly erroneous.” The defendant carries the burden on appeal to establish the trial court was clearly erroneous in its offering of Instruction No. 10.

1994Opportunity shall be given to make the objections out of the hearing of the jury.” In State v. Maxwell, 234 Kan. 393 , Syl. ¶ 5, 672 P.2d 590 (1983), this court stated the following rule pertaining to review *360 of unobjected-to jury instructions: “When an instruction has not been objected to at trial, this court’s scope of review is limited to a determination of whether the instruction is clearly erroneous.” The defendant carries the burden on appeal to establish the trial court was clearly erroneous in its offering of Instruction No. 10.

1994“An instruction is clearly erroneous only if the reviewing court reaches a firm conviction that if the trial error had not occurred there is a real possibility the jury would have returned a different verdict. [Citation omitted.]” State v. Deavers, 252 Kan. 149, 164-65 , 843 P.2d 695 (1992), cert. denied 125 L.

1994“An instruction is clearly erroneous only if the reviewing court reaches a firm conviction that if the trial error had not occurred there is a real possibility the jury would have returned a different verdict. [Citation omitted.]” State v. Deavers, 252 Kan. 149, 164-65 , 843 P.2d 695 (1992), cert. denied 125 L.

1993Wall Products, Inc., 250 Kan. 655, 659 , 831 P.2d 958 (1992); and Admire Bank & Trust v. City of Emporia, 250 Kan. 688 , Syl. ¶ 7, 829 P.2d 578 (1992), hold otherwise and are fatal to the Nidas’ argument.” *232 In Audo , the court stated the following rule: “Where real property has been separated so that one person owns the surface and another owns a substratum, or the minerals under the surface, the person that owns the surface has an absolute right to subjacent support unless that right has been distinctly waived.” 99 Kan. at 457-58 .

1993The Court of Appeals cited three additional examples from the line of Kansas cases which holds “that an actionable wrong for impairment for lateral and subjacent support is not the excavation, but the- act of allowing the owner’s land to fall”: Walsh v. Fuel Co., 102 Kan. 29, 32 , 169 Pac. 219 (1917); Fever v. Railway Co., 100 Kan. 266, 268-69 , 164 Pac. 159 (1917); and Railroad Co. v. Schwake, 70 Kan. 141, 145-46, 78 Pac. 431 (1904).

1993The Court of Appeals cited three additional examples from the line of Kansas cases which holds “that an actionable wrong for impairment for lateral and subjacent support is not the excavation, but the- act of allowing the owner’s land to fall”: Walsh v. Fuel Co., 102 Kan. 29, 32 , 169 Pac. 219 (1917); Fever v. Railway Co., 100 Kan. 266, 268-69 , 164 Pac. 159 (1917); and Railroad Co. v. Schwake, 70 Kan. 141, 145-46, 78 Pac. 431 (1904).

1993The Court of Appeals cited three additional examples from the line of Kansas cases which holds “that an actionable wrong for impairment for lateral and subjacent support is not the excavation, but the- act of allowing the owner’s land to fall”: Walsh v. Fuel Co., 102 Kan. 29, 32 , 169 Pac. 219 (1917); Fever v. Railway Co., 100 Kan. 266, 268-69 , 164 Pac. 159 (1917); and Railroad Co. v. Schwake, 70 Kan. 141, 145-46, 78 Pac. 431 (1904).

1993The Court of Appeals cited three additional examples from the line of Kansas cases which holds “that an actionable wrong for impairment for lateral and subjacent support is not the excavation, but the- act of allowing the owner’s land to fall”: Walsh v. Fuel Co., 102 Kan. 29, 32 , 169 Pac. 219 (1917); Fever v. Railway Co., 100 Kan. 266, 268-69 , 164 Pac. 159 (1917); and Railroad Co. v. Schwake, 70 Kan. 141, 145-46, 78 Pac. 431 (1904).

1993Wall Products, Inc., 250 Kan. 655, 659 , 831 P.2d 958 (1992); and Admire Bank & Trust v. City of Emporia, 250 Kan. 688 , Syl. ¶ 7, 829 P.2d 578 (1992), hold otherwise and are fatal to the Nidas’ argument.” *232 In Audo , the court stated the following rule: “Where real property has been separated so that one person owns the surface and another owns a substratum, or the minerals under the surface, the person that owns the surface has an absolute right to subjacent support unless that right has been distinctly waived.” 99 Kan. at 457-58 .

1993Wall Products, Inc., 250 Kan. 655, 659 , 831 P.2d 958 (1992); and Admire Bank & Trust v. City of Emporia, 250 Kan. 688 , Syl. ¶ 7, 829 P.2d 578 (1992), hold otherwise and are fatal to the Nidas’ argument.” *232 In Audo , the court stated the following rule: “Where real property has been separated so that one person owns the surface and another owns a substratum, or the minerals under the surface, the person that owns the surface has an absolute right to subjacent support unless that right has been distinctly waived.” 99 Kan. at 457-58 .

1993Wall Products, Inc., 250 Kan. 655, 659 , 831 P.2d 958 (1992); and Admire Bank & Trust v. City of Emporia, 250 Kan. 688 , Syl. ¶ 7, 829 P.2d 578 (1992), hold otherwise and are fatal to the Nidas’ argument.” *232 In Audo , the court stated the following rule: “Where real property has been separated so that one person owns the surface and another owns a substratum, or the minerals under the surface, the person that owns the surface has an absolute right to subjacent support unless that right has been distinctly waived.” 99 Kan. at 457-58 .

1993Wall Products, Inc., 250 Kan. 655, 659 , 831 P.2d 958 (1992); and Admire Bank & Trust v. City of Emporia, 250 Kan. 688 , Syl. ¶ 7, 829 P.2d 578 (1992), hold otherwise and are fatal to the Nidas’ argument.” *232 In Audo , the court stated the following rule: “Where real property has been separated so that one person owns the surface and another owns a substratum, or the minerals under the surface, the person that owns the surface has an absolute right to subjacent support unless that right has been distinctly waived.” 99 Kan. at 457-58 .

1986In Hanna v. CRA, Inc., 196 Kan. 156 , 409 P.2d 786 (1966), this court stated the following test for determining whether or not the injury-producing work is part of the principal’s trade or business under K.S.A. 44-503(a): “(1) [I]s the work being performed by the independent contractor and the injured employee necessarily inherent in and an integral part of the principal’s trade or business? (2) [I]s the work being performed by the independent contractor and the injured employee such as would ordinarily have been done by the employees of the principal?

1986In Hanna v. CRA, Inc., 196 Kan. 156 , 409 P.2d 786 (1966), this court stated the following test for determining whether or not the injury-producing work is part of the principal’s trade or business under K.S.A. 44-503(a): “(1) [I]s the work being performed by the independent contractor and the injured employee necessarily inherent in and an integral part of the principal’s trade or business? (2) [I]s the work being performed by the independent contractor and the injured employee such as would ordinarily have been done by the employees of the principal?

1983This court would also direct attention to the case of In re Phelps, 204 Kan. 16 , 459 P.2d 172 (1969), cert. denied 397 U.S. 916 (1970), where the court stated the following rule: “ . . where the contract of employment is for a stipulated fee but their [the attorneys’] services are dispensed with before the conclusion of the litigation or other professional work for which they were engaged, the client is bound to pay what the services performed are reasonably worth.’ ” 204 Kan. at 24 , citing Shouse v. Consolidated Flour Mills Co., 132 Kan. 108 , Syl. ¶ 3, 294 Pac. 657 (1931).

1983This court would also direct attention to the case of In re Phelps, 204 Kan. 16 , 459 P.2d 172 (1969), cert. denied 397 U.S. 916 (1970), where the court stated the following rule: “ . . where the contract of employment is for a stipulated fee but their [the attorneys’] services are dispensed with before the conclusion of the litigation or other professional work for which they were engaged, the client is bound to pay what the services performed are reasonably worth.’ ” 204 Kan. at 24 , citing Shouse v. Consolidated Flour Mills Co., 132 Kan. 108 , Syl. ¶ 3, 294 Pac. 657 (1931).

1983This court would also direct attention to the case of In re Phelps, 204 Kan. 16 , 459 P.2d 172 (1969), cert. denied 397 U.S. 916 (1970), where the court stated the following rule: “ . . where the contract of employment is for a stipulated fee but their [the attorneys’] services are dispensed with before the conclusion of the litigation or other professional work for which they were engaged, the client is bound to pay what the services performed are reasonably worth.’ ” 204 Kan. at 24 , citing Shouse v. Consolidated Flour Mills Co., 132 Kan. 108 , Syl. ¶ 3, 294 Pac. 657 (1931).

1983This court would also direct attention to the case of In re Phelps, 204 Kan. 16 , 459 P.2d 172 (1969), cert. denied 397 U.S. 916 (1970), where the court stated the following rule: “ . . where the contract of employment is for a stipulated fee but their [the attorneys’] services are dispensed with before the conclusion of the litigation or other professional work for which they were engaged, the client is bound to pay what the services performed are reasonably worth.’ ” 204 Kan. at 24 , citing Shouse v. Consolidated Flour Mills Co., 132 Kan. 108 , Syl. ¶ 3, 294 Pac. 657 (1931).

1983This court would also direct attention to the case of In re Phelps, 204 Kan. 16 , 459 P.2d 172 (1969), cert. denied 397 U.S. 916 (1970), where the court stated the following rule: “ . . where the contract of employment is for a stipulated fee but their [the attorneys’] services are dispensed with before the conclusion of the litigation or other professional work for which they were engaged, the client is bound to pay what the services performed are reasonably worth.’ ” 204 Kan. at 24 , citing Shouse v. Consolidated Flour Mills Co., 132 Kan. 108 , Syl. ¶ 3, 294 Pac. 657 (1931).