Volume 27 — Idaho Reports

<p>APPEAL from the District Court of the Seventh Judicial District for Canyon County. Hon. Ed. L. Bryan, Judge.</p> <p>Action to recover damages alleged to have been caused by the illegal and malicious acts of the defendants. Judgment for the plaintiff.</p> <p>As to seepage, we contend that the complaint does not state facts sufficient to constitute a cause of action, because no negligence or carelessness in the construction or maintenance of said canal or reservoir is alleged. (Fleming v. Lockwood, 36 Mont. 384, 122 Am. St. 375, 92 Pac. 962, 13 Ann. Cas. 263, 14 L. R. A., N. S., 628.)</p> <p>Instruction No. 9 which clearly was to the effect that the jury had the right to award exemplary damages and not only against one defendant, but against both, and permitted them to jointly assess the exemplary damages, although each defendant acted separately, is erroneous. (Nightingale v. Scannell, 18 Cal. 315; City Water Power Go. v. Fergus Falls, 113 Minn. 33, Ann. Cas. 1912A, 108, 128 N. W. 817; McCarron v. Q'Connell, 7 Cal. 152; 38 Cyc. 1161.)</p> <p>The defendants could not be held liable on account of the manner of construction of the ditch or reservoir, because it had existed for such a period prior to the time that plaintiff purchased the land in question that no liability could exist on account of the construction or maintenance of the same, even if a proper allegation had been made. {St. Louis <& S. W. B. B. Go. v. Long, 52 Tex. Civ. App. 42, 113 S. W. 316.)</p> <p>The plaintiff wholly failed to prove the joint cause of action alleged, and we claimed a peremptory instruction, disposing of the case under the authority of Livesay v. First National Bank of Denver, 36 Colo. 526, 118 Am. St. 120, 86 Pac. 102, 6 L. R. A., N. S., 598, where the court held that “a failure to prove joint liability of persons charged as joint tort-feasors is a failure to prove the cause of action alleged.” {Mem v. Stoner, 15 Wyo. 109, 87 Pac. 434, 89 Pac. 466.)</p> <p>Defendants, cannot be required to pay loss for which they are not responsible. {Miller v. Highland Ditch Go., 87 Cal. 430, 22 Am. St. 254, 25 Pac. 550.)</p> <p>The amended complaint alleges acts of negligence on the part of defendants in causing water to both seep through and flow over and injure the property of plaintiff. (3 Kinney on Irrigation and Water Rights, pp. 3087-3089.)</p> <p>The construction of irrigation works in such a place and manner as to cause seepage in such manner and quantity as to damage other lands without providing proper and adequate drainage to prevent the damage is of itself negligence. {Howell v. Big Horn Basin Colonization Go., 14 Wyo. 14, 81 Pac. 785, 1 L. R. A., N. S., 596.)</p> <p>A prescriptive right to act negligently cannot be acquired, no matter how long practiced. (3 Kinney on Irrigation and Water Rights, pp. 3084, 3085.)</p> <p>It is not necessary that the acts of tort-feasors should be but a single act, or joint, or should not be separate as to place and time, in order to render the parties liable, jointly; but if they culminate in producing a nuisance which injures the person or property of another, or if their concurring negligence occasions the injury, then they are jointly and severally liable in the highest degree. (Miller v. Nor. Pac. By. Go., 24 Ida. 567, 135 Pac. 845, 48 L. R. A., N. S., 700; Hill-man v. Newington, 57 Cal. 56; Slater v. Mersereau, 64 N. Y. 138; 38 Cyc. of Law & Proc. 488, and notes; City of Valparaiso v. Moffitt, 12 Ind. App. 250, 54 Am. St. 522, 39 N. E. 909; Allison v. Hobbs, 96 Me. 26, 51 Atl. 245; Corey v. Havener, 182 Mass. 250, 65 N. E. 69; Green v. Davies, 100 App. Div. 359, 91 N. Y. Supp. 470; Strauhal v. Asiatic S. 8. Co., 48 Or. 100, 85 Pac. 230; Day v. Louisville C. & C'. Co., 60 W. Va. 27, 53 S. E. 776, 10 L. R. A., N. S., 167; Olsen v. TJpsahl, 69 111. 273; Blanchard v. Burbank, 16 111. App. 375; Drake v. Kiely, 93 Pa. 492; Walker v. Bead, 59 Tex. 187; McFadden v. Schill, 84 Tex. 77, 19 S. W. 368; Gerhardt v. Swaty, 57 Wis. 24, 14 N. W. 851; Cuddy v. Horn, 46 Mich. 596, 41 Am. Rep. 178, 10 N. W. 32; Kirby v. Del. & H. Canal Co., 90 Hun, 588, 35 N. Y. Supp. 975.)</p> <p>“Where the principal commands the wrong to be done, and therefore personally participates in it, the two may be sued jointly. They are in no different position than any other joint tort-feasors. If there are two or more principals, one or all or any number may be joined.” (Huffcut on Agency, 2d ed., p. 266; Weber v. Weber, 47 Mich. 569, 11 N. W. 389; Hamlin v. Abell, 120 Mo. 188, 25 S. W. 516; Stiewel v. Borman, 63 Ark. 30, 37 S. W. 404; 10 Cyc. of Law & Proc. 920, 931, 933; Crane v..Onderdonk, 67 Barb. (N. Y.) 47.)</p>

Hon. Ed. L. Bryan, Judge. Action to recover damages alleged to have been caused by the illegal and malicious acts of the defendants. Judgment for the plaintiff.

■APPEAL from the District Court of the Eighth Judicial District, in and for the County of Kootenai. Hon. R. N. Dunn, Judge. Action to quiet title to certain water rights in Lewellyn creek. The appropriator is not even entitled to the quantity actu ■ ally diverted and taken into possession, if he uses only a portion of it; his right is limited to the amount so actually used. (Wiel on Waters, sec. 168; Van Camp v, Emery, 13 Ida. 202, 89 Pac. 752; Trimble v. Hellar, 23 Cal.

<p>Criminal Law — Jurors—Challenge—Implied Bias — Evidence — Mo tion to Strike Out — Defendant’s Witness — Arrest of — In . Presence of Jury — Conduct of Prosecuting Attorney — Prejudice— Not Cured by Instruction- — Rejection of Offered Evi denoe — Continuance—Affidavit for — Additional Instructions— Error — Date of Crime —’ Election by State — Motion for New Trial — County Attorney — Compel Defendant to Leave the •State — Contradictory Testimony — Instructions—Accomplice.</p> <p>1. The court did not err in denying challenges to certain jurors on the ground of implied or actual bias.</p> <p>2. Where a motion is made to strike out the entire answer of a witness where a part of such answer is responsive to the question and a part is not, it is not error for the court to deny such motion.</p> <p>3. Where a witness for the defendant testifies that he was in the room of the prosecutrix on the evening or night the alleged crime was committed, and the prosecuting attorney states in open court and before the jury that the witness, according to his own testimony, had committed an offense under the laws of the state, and demands that he be remanded to the custody of the sheriff to be prosecuted for such offense, and the court thereupon orders the arrest of the witness, and he is arrested in the presence of the jury and taken from the courtroom and placed in the jail, such proceeding is prejudicial error and an invasion- of the rights of the defendant, and an intimation of the opinion upon the part of the court that the witness had committed either perjury or some other felony. Such action was prejudicial to the rights of the defendant.</p> <p>4. An instruction given by the court to the effect that the jury must not be influenced in any way by the action of the court in ordering the arrest of the witness in the presence of the jury and must not be influenced by the remarks of the court or counsel touching the arrest of said witness, did not, and could not, cure the error of the conduct of counsel or the action of the court in said matter.</p> <p>5. Held, that the action of the assistant prosecuting attorney and the arrest of the witness in the presence of the jury was reversible error.</p> <p>G. It was error for the court to rejeet any of the testimony given by the prosecutrix on the preliminary examination which would tend to impeach or contradict the testimony she gave on the trial of the case.</p> <p>7. Held, that the court erred in refusing to admit certain affidavits made for a continuance, where the state, in order to avoid a continuance, admitted that if the witnesses named in the affidavits were present, they would testify as set forth in the affidavits.</p> <p>8. Held, that the court erred in giving certain instructions.</p> <p>9. Held, that the court erred in not granting defendant’s motion for a new trial.</p> <p>10. Under the provisions of sec. 7871, Rev. Codes, a conviction cannot be had upon the testimony of an accomplice unless he is corroborated by other evidence.</p> <p>11. Where the testimony of the prosecutrix is contradictory or her reputation for truthfulness and veracity is impeached, and the defendant testifies and denies specifically the testimony of the prosecutrix, and his testimony is corroborated by other witnesses, the testimony of the prosecutrix without corroboration will not warrant a conviction.</p>

<p>Default — Premature Entry of — Procedure on Motions to Set Aside.</p> <p>1. A defendant is entitled to have a judgment formally vacated and set aside on the records by direct aetion of the court, upon proper application therefor, even though prior thereto the sustaining of a motion to set aside a default against such defendant has had the legal effect of vacating the judgment by implication.</p> <p>2. Where a motion to set aside a default because prematurely entered has been filed and argued by a defendant, but is not decided, and such defendant files and argues a second motion to set aside said default, on the grounds of surprise, inadvertence and excusable neglect, and said second motion also prays that a judgment based on said default be vacated, an order of the district court, made upon motion of the plaintiff, striking from the files said second motion to set aside the default and vacate said judgment, is error.</p>

<p>APPEAL from the District Court of the Fourth Judicial District, iu and for Elmore County. Hon. Edward. A. Walters, Judge.</p> <p>Order setting aside a default entered by clerk of the lower court against defendant.</p> <p>There is no hint in the motion, or the order, that either the manner or fact of service was in any way called in question. Respondent was and is prevented from raising under his motion any other question than that of the date of service. Every other point (if there are other points involved) is waived. (14 Ency. PI. & Pr. 117, and cases cited.)</p> <p>“Not only must a party assign a ground for his motion, but he must assign all of the grounds for the relief sought which he may have, and objections known to exist and not raised at the time of the motion may be deemed waived.” (14 Ency. PI. & Pr. 119, and eases cited; Broman v. Drobaz, 93 Cal. 647, 29 Pac. 254; Clarke v. Mohr, 125 Cal. 540, 58 Pac. 176; Harder v. Harder, 26 Barb. (N. Y.) 409; Corwith v. State Bank, 8 Wis. 376; Gould v. Moss, 158 Cal. 548, 111 Pac. 925; Nevada Co. v. Farnsworth, 89 Fed. 164.)</p> <p>No affidavit of merits was filed with the motion to set aside the default. Such affidavit is required. (Yollmer Clear-water Co. v. Grünewald, 21 Ida. 777, 124 Pac. 278; Hall v. Whittier, 20 Ida. 120, 116 Pac. 1031; Holzemam v. Henneberry, 11 Ida. 431, 83 Pac. 497.)</p> <p>The proof necessary to overthrow the return must be clear and unequivocal. (32 Cyc. 514, and cases cited.)</p> <p>The function of a summons is to inform the party against whom the action has been brought that he is being sued, and the nature of the suit brought against him, and the time within which he must appear and defend. An original summons performs this function as well or better than a copy. Any such irregularity as that complained of is immaterial and will not justify the setting aside of the service. (32 Cyc. 460, and cases cited; McDamel v. Scurlock, 115 N. C. 295, 20 S. E. 451.)</p> <p>The requirement of the statute that service shall be made by the delivery of a copy is evidently directory merely. (Clemmons v. State, 5 Okl. Cr. 119, 113 Pac. 238.)</p> <p>“It is the fact of service which gives the court jurisdiction, and not the proof of service.” (Call v. Rocky Mountain Bell Tel. Co., 16 Ida. 556, 133 Am. St. 135, 102 Pac. 146; TewaM v. Irwin, 164 111. 592, 46 N. E. 13.)</p> <p>There are cases in which motions may be granted for reasons not assigned. (14 Ency. PI. & Pr. 117, and eases cited in note; Hancock v. Youree, 25 OH. 460, 106 Pac. 841; Skinner v. Terry, 107 N. C. 103, 12 S. E. 118.)</p> <p>The practice of rendering judgments against the defaulting defendant where there is no proper proof of service upon him is a dangerous one and should not be tolerated. (Vermont L. & T. Co. v. McGregor, 5 Ida. 510, 51 Pac. 104; Strode v. Strode, 6 Ida. 67, 96 Am. St. 249, 52 Pae. 161; Applington v. G. V. B. Min. Co., 6 Ida. 216, 55 Pae. 241; Mills v. Smiley, 9 Ida. 317, 76 Pac. 783; Call v. R. M. Bell T. Co., 16 Ida. 551, 133 Am. St. 135, 102 Pac. 146.)</p> <p>“It is only where a judgment by default has been regularly taken that an affidavit of merits is required to open it; if irregular, no merits need be shown.” (1 Ency. PL & Pr. 355; Norton v. Atchison etc. R. R. Co., 97 Cal. 388, 33 Am. St. 198, 30 Pae. 585, 32 Pac. 452; 2 Ency. L. & P. 717, and cases cited; Hole v. Page, 20 Wash. 208, 54 Pac. 1123; Browning v. Roane, 9 Ark. 354, 50 Am. Dee. 218; Shanholtzer v. Thompson, 24 OH. 198, 138 Am. St. 877, 103 Pae. 595.)</p> <p>When, after order for publication of summons against an absent defendant has been duly made, the summons is personally served on such absent defendant out of the state, such service does not become complete until the expiration of the time prescribed in the order for publication; and a default judgment entered against him during said time is void and will be reversed on appeal. (Bowen v. Harper, 6 Ida. 654, 59 Pac. 179.)</p>

<p>APPEAL from tbe District Court of the Third Judicial District for Ada County. Hon. Carl A. Davis, Judge.</p> <p>Action to recover from defendant his pro rata share for the management, maintenance and repairs of appellant's canal system. Judgment for defendant.</p> <p>Deeds of this character, to a part only of the water carried by the canal, clearly bring the grantee and the owners of the remainder of the water carried by the canal into the relation of tenants in common in water rights. (Frost v. Alturas Water Co., 11 Ida. 294, 81 Pae. 996.)</p> <p>Respondent relies upon Jackson v. Indian Creek Reservoir etc. Co., 16 Ida. 430, 101 Pac. 814, and Knowles v. New Sweden Irr. Dist., 16 Ida. 217, 101 Pae. 81. In those cases the court was only declaring the law in relation to contracts which attempted to fix charges for the use of water. The owners of water rights under such deeds as these in controversy are tenants in common with this appellant in this canal system, and we are no more under obligation to maintain this canal system for their benefit than that they should maintain it for us. It is merely a question of prorating the expense. This court has passed upon eases of this character in which the titles of grantees of undivided interest in water rights were respected and recognized in the following eases: Nampa & Meridian Irr. Dist. v. Qess, 17 Ida. 552, 106 Pae. 993; Idaho Fruit Land Co. v. Great Western Beet Sugar Co., 18 Ida. 1, 107 Pae. 989.</p> <p>The annual maintenance is a duty which rests upon the owner of a water right as an incident of such ownership; it is not part of the title, neither can it be the subject of a covenant running with the title to the property; agreements in relation thereto only bind the parties to such agreements, and cannot affect the title to other and different rights from the same canal system.</p> <p>The Central Canal & Land Co. could and possibly did impose that obligation on itself; but could not make such an obligation forever follow the title to water rights owned by the public and in regard to which the canal owner is “but an agent of the public for the distribution of such waters to such members of the public as may apply for them and pay Tiim the legal charge for the service rendered by him.” (Leavitt v. Lassen Irr. Co., 157 Cal. 82, 106 Pae. 404, 29 L. R. A., N. S., 213.)</p> <p>This same question of preferential rights was passed upon by the circuit court of appeals in Boise City. Irr. & Land Co. v. Clark et al., 131 Fed. 415, 65 C. C. A. 399, where the court held directly that the Boise City Irr. & Land Co., our predecessor in interest, could not lawfully fix a rate required to be charged to the users of water to pay for the maintenance properly chargeable to this land. If our predecessors in interest could not lawfully charge up their maintenance for the Gess tract to the other lands to which they supplied water, as the court held in that case, much less can this district do so, limited as it is by the law regulating irrigation districts. The Boise City Irrigation & Land Co. was a private corporation; this district is a public one. In Daly v. Josslyn, 7 Ida. 657, 65 Pac. 442, the court held that specific performance of a contract in relation to water rights could not be decreed. In other words, the contract was a personal one, and no person could be held unless he became a party thereto.</p> <p>The law is well settled that the owners of water rights carried through the same ditch are legally liable to contribute pro rata to the maintenance thereof. (Long on Water Eights, sec. 75. Nampa & Meridian Irr. Dist. v. Gess, 17 Ida. 552, 106 Pae. 993; Shelby v. Farmers’ etc. Ditch Co., 10 Ida. 723, 80 Pac. 222.)</p> <p>“Water appropriated for distribution and sale is, ipso facto, devoted to a public use, which is inconsistent with the right of the person so appropriating it to exercise the same control over it that he might have exercised if he had never so appropriated.” (McCrary v. Beaudry, 67 Cal. 120, 7 Pac. 264.)</p> <p>The charge for the use of the water when fixed under sec. 6, art. 15, of the constitution, is subject to modification from time to time. (Green v. Jones, 22 Ida. 560, 126 Pac. 1051.)</p> <p>The amount which the canal owner may lawfully charge for such use was as definitely fixed by statute prior to the constitution as by the constitution itself. See. 6, art. 15, merely authorizes the legislature to provide a method of determining the charge; and, as stated in see. 2, art. 15, the franchise can only be exercised “by authority of and in the manner prescribed by law.”</p> <p>This case is controlled absolutely by the decisions of this court in Knowles v. New Sweden Irr. Dist., 16 Ida. 217, 101 Pac. 81; Jackson v. Indian Greek Reservoir etc., 16 Ida. 430, 101 Pac. 814, and Nampa & Meridian Irr. Dist. v. Gess, 17 Ida. 552, 106 Pac. 994.</p> <p>In Knowles v. New Sweden Irr. Dist, the deed and agreement under which the plaintiff claimed is set forth in part in the opinion of the court, and in the important features is nearly identical with the deeds and agreements in controversy.</p> <p>The deed construed in Jackson v. Indian Greek Reservoir, etc., appears to be practically a duplicate of the deeds in controversy.</p> <p>Since the decision and application for rehearing in this case, this court has decided the case of Riverside Irr. Dist v. Black, 25 Ida. 98, 136 Pac. 611. In the latter case rights under' a contract have been sustained where water was reserved with a right to carry the same through a fixed portion of a canal system; and, while the court under the contract sustained the trial court in prorating the cost, it concluded the opinion as follows: “It is clear to us, on the other hand, that this reserved water cannot be subject to any charge other or greater than that stipulated and provided for in the deed which reserved that right”; citing in support thereof all of the eases upon which we relied on the original argument to sustain the validity of the contract and reservations in the various deeds through which the district acquired title to this canal property.</p> <p>In connection with the status of irrigation canals and irrigation districts in this state we call attention to the former decisions of this court in Wilterding V. Green, 4 Ida. 773, 45 Pac. 134; City of Nampa v. Nampa & Meridian Irr. Dist., 19 Ida. 787, 115 Pac. 979.</p>

<p>APPEAL from the District Court of the Sixth Judicial District for Custer County. Hon. J. M. Stevens, Judge.</p> <p>Action to recover damages on account of injury to crops and land by reason of defendant’s depriving the plaintiffs and their predecessor in interest of certain water to which they were entitled for the irrigation of said land. Judgment for plaintiffs.</p>

Original proceeding on application for writ of mandate against the Secretary of State. The Wyoming statute with reference to the duty of the Secretary of State in regard to commissions is to all intents and purposes the same as ours. (Sec. 8, chap. 95, Laws of Wyoming, 1890-91; State ex rel. Miller v. Barber, Secy, of State, 4 Wyo. 409, 34 Pac. 1028, 27 L. ft.

Hon. Alfred Budge, Judge. ' Action to recover the penalty of bail bond.' Judgment for plaintiff. In view of the obvious lack of merit of appellants’ defense and their reliance entirely upon technical matters, we have felt justified in asking that the appeal be dismissed under rule 23, which provides that the transcript on appeal must be filed within sixty days after the perfection of the appeal, while in this case 131 days elapsed. . (First Nat.

Hon. J. M. Stevens, Judge. Action for damages. Judgment for defendants. This judgment was rendered on an appeal from the probate court of Bingham county, and this appeal was not taken within 60 days after the entry of said judgment, and motion to dismiss the appeal should be sustained. (Grisinger v. Hubbard, 21 Ida. 469, Ann. Cas. 1913E, 87, 122 Pac. 853; McElroy v. Whitney, 24 Ida. 210, 133 Pac. 118.)

Hon. Edward A. Walters, Judge. Action to foreclose a vendor’s lien on real estate. Judgment for the plaintiff. In order for the plaintiff to maintain an action to foreclose a vendor’s lien he must prove that he sold and conveyed the land on which he claims his lien. (Sec. 3441, Rev. Codes; Kelly v. Ruble, 11 Or. 75, 4 Pac. 593.) The purchaser of land will not be compelled to take or pay for a doubtful title.

<p>Parties Interested — ■ Title op Actions — Conflicting Evidence — Subterranean Waters — Appropriation — Interference — Diversion — Actual Permanent Damage — Injunctive Relief — Findings op Fact — Insufficient—Cause Remanded.</p> <p>1. Where it appears that the respondents are the owners in fee of the land upon which artesian wells are located and retain the right to the control and management of water flowing from said wells to the place of distribution, and where it further appears that said respondents are the owners of virtually all of the capital stock of a private corporation to which the right to the use of said waters has been conveyed by deed, a motion for a nonsuit in an action by them to enjoin interference with the flow of water from said wells on the ground that they are not parties in interest will not be entertained.</p> <p>2. Where there is a substantial conflict in the evidence, the findings of the court will not be disturbed.</p> <p>3. See. 3242, Rev. Codes, provides: “The right to the use of waters of rivers, streams, lakes, springs and subterranean waters may be acquired by appropriation.”</p> <p>4. As between appropriators of subterranean waters, the first in time is the first in right.</p> <p>5. Where subterranean water exists in a state of nature throughout a tract of land the ownership of whieh is held in different proprietors, it would seem to be impossible to adopt a rule giving each proprietor the absolute right to withdraw all of the subterranean waters from his tract of land, and thus destroy the benefits made possible by the proper regulation of subterranean waters. And an injunction will issue to restrain any permanent interference by an adjoining land owner with the right to the use of subterranean water acquired by a prior appropriator.</p> <p>6. Before a permanent injunction should issue in a case of this character, the evidence should clearly and conclusively establish that the real cause of the loss of water flowing from the well of a prior appropriator of subterranean water is the construction of the well of a junior appropriator of said subterranean water.</p> <p>7. If the sinking of M.’s well to the depth that B.’s large well has been sunk, or to a greater depth, would not interfere with the flow of the water in B.’s well, or if there was a loss of water in B.’s well occasioned by the sinking of M.’s well, which, in like quantity, could be returned to B.’s well without material damage, and at the same time water secured in M.’s well, the court would not be justified in issuing a permanent injunction preventing the completion of M.’s well.</p> <p>8. Should it become necessary to change the method or means of diverting water by a prior appropriator of subterranean waters, that, in and of itself, should not deprive a subsequent appropriator from acquiring unappropriated subterranean water, unless it further appeared that it would be impossible to deliver said water to the diverting works of the prior appropriator.</p> <p>9. Although it. may be found that in the sinking of a well by a land owner direct communication was made with the same artesian belt or basin tapped by an adjoining land owner, who was a prior appropriator of subterranean water, the court would not be justified in issuing a perpetual injunction prohibiting the completion of the well of a junior appropriator of subterranean waters, unless it further conclusively appeared that the prior appropriator would suffer permanent loss of water by reason of the tapping of said artesian belt or basin.</p> <p>10. The fact that the sinking of a well would endanger the supply of water flowing from a well on adjoining land owned by a prior appropriator of subterranean waters, would not justify the issuance of a permanent injunction, unless it were conclusively shown that the water supply of the first appropriator would be actually and permanently diminished.</p> <p>11. If, in the sinking of a well, the flow from a well of an adjoining land owner and prior appropriator of subterranean water is lessened, before a permanent injunction should issue, it must be conclusively established that the water so lost cannot be returned from the well of the subsequent appropriator to the diversion works of the prior appropriator.</p> <p>12. Held, that the findings of fact are not sufficient to support the judgment, and it is accordingly ordered that the case be remanded to the district court with directions to suspend the injunction, permitting appellants to continue the construction of the well on said lot 5, until it is established that by reason of the sinking of appellants’ well the respondents’ well will sustain a material and permanent loss of water supply; and if it shall later appear to the satisfaction of the. district court that said actual loss of water has been sustained in respondents’ well due to the construction of appellants’ well, and such water cannot he returned to the diversion works of respondents, said injunction should he reinstated, permanently closing the well of appellants.</p>

<p>Appeal from: Police Court to District Court — Doss of Jurisdiction —Writ of Review Ineffectual.</p> <p>1. Where certain persons were convicted of violation of the anti-gambling ordinance of a village before a justice of the peace aeting as police magistrate of such village, and appealed from such judgment of conviction to the district court, sueh appeal being taken as prescribed by law, the jurisdiction of the justice of the peace acting as police magistrate ceased upon such appeal being perfected, and the jurisdiction of the district court attached.</p> <p>2. Where a writ of review is issued by a district judge, directed to a justice of the peace acting as police magistrate, seeking to review a judgment of conviction in said police magistrate’s court from which a valid appeal had already been taken to the district court, held, that the issuance of such writ was a futile thing, as the case was already pending in the district court for trial de novo, and the district court did not err in dismissing sueh writ of review.</p>

<p>APPEAL from the District Court of the Sixth Judicial District for Custer County. Hon. James M. Stevens, Judge.</p> <p>Appeal from the board of county commissioners disallowing a part of a claim for prosecuting a criminal case by a special prosecutor appointed by the district court. Judgment for plaintiff.</p> <p>A special prosecutor has all the powers of a regular prosecuting attorney in the prosecution of the particular case he is appointed for, but he is not a prosecuting attorney in the sense that the term is used in sec. 2084, which only refers to prosecuting attorneys who are elected to fill that office, which is created the same as any other county or state office under our laws. (State v. Corcoran, 7 Ida. 220, 61 Pac. 1034.)</p>

<p>Disputed Lot Line — Former Hearing — Purpose for Which Remanded —Establishment of Permanent Monuments.</p> <p>1. Held, that upon a former hearing this ease was remanded to the trial court in order that “permanent and lasting monuments” might be established upon the dividing line between the lots in controversy, in accordance with the findings and decree of the trial court, and not for the purpose of making any .change in such line, as found by the trial court to be the true line between said lots.</p>

<p>National Banks — Corporate Existence — Allegation of — Denial on Information and Belief — Matters of Public Record — Proof of Incorporation.</p> <p>1. Where the corporate existence of a national bank, which is plaintiff in an action, is alleged in the complaint and denied on information and belief in the answer, such denial is not sufficient to put in issue such allegation, since the corporate existence of national banks is a matter of public record.</p> <p>2. A denial on information and belief of matters of public record is no denial, and does not put in issue the fact alleged in the complaint which it attempts to deny.</p> <p>3. Held, that the court erred in holding that the corporate existence of a national bank could be proved only by its articles of incorporation.</p> <p>4. Courts will take judicial notice of the general laws of tho United States in regard to the incorporation of national banks, which laws indicate that such banks are to be regarded as public institutions, and sueh banks, when .parties to a suit, may prove by parol that they were carrying on a general banking business authorized by the general laws of the United States.</p>

Hon. Edgar C. Steele, Judge. Action to procure a divorce. Judgment lor plaintiff. The proof of adultery as a ground for divorce must be clear and positive. (Berckmans v. Berckmans, 17 N. J. Eq. 453; Gibson v. Gibson, 18 App. Cas.

<p>Notice op Appeal — Service op — Adverse Parties.</p> <p>1. Under the provisions of sec. 4808, Rev. Codes, the notice of appeal mnst be served upon every party to the action not appealing whose interests might be affeeted by the reversal or modification of the judgment, irrespective of whether they are plaintiffs, defendants or intervenors.</p>

<p>Motion to Dismiss — Stenographer’s Transcript — Settlement or.</p> <p>1. Under the provisions of see. 4434, Kev. Codes, as amended by chap. 119, Laws 1911, p. 379, in order to review the matter contained in the stenographer’s transcript, such transcript must be settled by the' judge.</p>

<p>APPEAL from the District Court of the Second Judicial District for Idaho County. Hon. Edgar C. Steele, Judge.</p> <p>Motion to dismiss appeal on the ground that the notice of appeal was not served on all of the adverse parties.</p>

<p>APPEAL from the District Court of the Second Judicial District for Idaho County. Hon. Edgar C. Steele, Judge.</p> <p>Action to recover possession of certain real estate. Judgment for the defendant.</p> <p>In the case of Brown v. Brown, 18 Ida. 345, 110 Pac. 269, a ease upon the facts essentially on all-fours with the case at bar, this court has sustained every vital principle now contended for by appellants. “If the agreement was made and entered into under a mistake of fact, a party is not precluded from claiming his right, as under such circumstances there is no presumption of his surrender or waiver of rights given up under misapprehension.” (Enowlton v. Smith, 36 Mo. 507, 88 Am. Dec. 152 j Howard v. Reedy, 29 Ua. 152, 74 Am. Dec. 58; Preble v. Maine Central B. Co., 85 Me. 260, 35 Am. St. 366, 27 Atl. 149, 21 L. R. A. 829.)</p> <p>“The possession of coterminous proprietors under a mistake or ignorance of the true line and without intending to claim beyond the true line will not work a. disseizin of either. ’ ’ (Finch v. Tillman, 105 Mo. 255, 24 Am. St. 383, 16 S. W. 863; Fieldhouse v. Leisburg, 15 Wyo. 207, 88 Pae. 214; King v. Brigham, 23 Or. 262, 31 Pae. 601, 18 L. R. A.-361; Scott v. Williams, 74 Kan. 448, 87 Pac. 550; Shanline v. Wiltsie, 70 Kan. 77, 78 Pae. 436, 3 Ann. Cas. 140; Crawford v. Hebrew, 78 Kan. 401, 96 Pae. 348.)</p> <p>Where coterminous owners agree upon a division line and fence up to the same, and go into actual occupation, exercising acts of ownership and physical control of the premises believing the line so established and agreed upon to be the true line, whether the same be in accordance with the original government survey or not, it becomes the true boundary line between their respective premises. All subsequent owners and purchasers are bound by such agreement, and after the lapse of the statutory period of limitation are estopped from asserting any other line to be the dividing line between such premises. (Brown v. Brown, 18 Ida. 345, 110 Pac. 269; Bay-house v. TJrquides, 17 Ida. 286, 105 Pac. 1066.)</p>

<p>APPEALS from the District Court of the Second Judicial District for Latah County. Hon. Edgar C. Steele, Judge.</p>

Hon. Edgar C. Steele, Judge. Action to quiet title to certain land as against a tax deed. Judgment for plaintiff. In order to defeat appellant’s tax title to said land, respondent must prove the omission of some jurisdictional act or step in the proceedings on which appellant’s tax deed is based.

Hon. Ed. L. Bryan, Judge. The defendants were convicted of grand larceny and sentenced to the state penitentiary. The caption neither takes from nor adds to the validity of an indictment. (Commonwealth v. Drewry, 126 Ky. 183, 103 S. W. 266; Mitchell v. Commonwealth, 106 Ky. 602, 51 S. W. 17.) In charging the offense, nothing is left to implication or intendment or to conclusion.

Original application in this court by Fred L. Huston for a writ of habeas corpus. In all eases where it has been sought to indict state or county auditors under the provisions of this statute, it has been held that such officers are not4 4 charged with the receipt, safekeeping, transfer or disbursement of public moneys” within the meaning -of this statute.

Hon. Edgar C. Steele, Judge. Action to recover for personal injuries. Judgment for plaintiff.

<p>APPEAL from the District Court of the Second Judicial District for the County of Nez Perce. Hon. Edgar C. Steele, J udge.</p> <p>Appellant was charged with murder and convicted of manslaughter.</p> <p>“In criminal cases, and especially in capital felonies, where members of the jury are permitted to read editorial comments unfavorable to the accused, a new trial ought always to be granted.” (Thompson and Merriam on Juries, sec. 531, p. 413, note and authorities cited; People v. Murray, 85 Cal. 350, 24 Pac. 666; Farrer v. State, 2 Ohio St. 54; Walker and Black v. State, 37 Tex. 366; Hare v. State, 4 How. (Miss.) 187.)</p> <p>If the state had refuted the statements contained in defendant’s affidavits in support of motion for new trial by all the other jurors except Le Clair, which it had an opportunity to do and did not do, then the objection raised by defendant might not be tenable. (People v. Goldenson, 76 Cal. 328, 19 Pac. 161; People V. Williams, 24 Cal. 31.)</p> <p>“Where the intention to convey a fee does not appear, as in case of the conveyance of a ‘right of way’ for the railroad through certain lands, the company takes an easement only. ’ ’ (2 Elliott on Railroads, sec. 398.)</p> <p>‘ ‘ The grant of a right of way to a railroad company is the grant of an easement merely and the fee to the soil remains in the grantor.” (14 Cyc. 1162; 6 Am. & Eng. Ency. 531; Redfield on Railways, pp. 267, 268 (eases cited); Smith v. Townsend, 148 U. S. 490,13 Sup. Ct. 634, 37 L. ed. 533; Northern Pac. By. Co. v. Townsend, 190 U. S. 267, 23 Sup. Ct. 671, 47 L. ed. 1044.)</p> <p>The United States has exclusive jurisdiction to enforce liquor laws over the right of way of the Palouse & Spokane' Ry. (State v. Lott, 21 Ida. 646, 123 Pac. 491; Dick v. TJmited States, 208 U. S. 340, 28 Sup. Ct. 399, 52 L. ed. 520.)</p> <p>The defendant at the date of the alleged shooting and at the date of the death of the deceased was a United States officer in the discharge of his duties, and as such is triable only in the United States court. (In re Waite, 81 Fed. 359; Tennessee v. Davis, 100 U. S. 257, 25 L. ed. 648; United States v. Lipsett, 156 Fed. 65; Ohio v. Thomas, 173 U. S. 276, 19 Sup. Ct. 453, 43 L. ed. 699.)</p> <p>Since we must presume that the jury did not violate the court’s instructions (2 Thompson on Trials, 2d ed., sec. 2616), it is fair to presume that the jury did not read the newspaper report, although they might have read all the rest of the paper; or if this presumption seems too violent, then we can presume that the bailiff, a court officer, performed his duty and culled from these papers all reference to the trial of the defendant. (United States v. McKee, 3 Cent. Law J. 258, Fed. Cas. No. 15,683; United States v. Reid and Clements, 53 U. S. (12 How.) 861-366,13 L. ed. 1023-1025; People v. Gaffney, 14 Abb. Pr., N. S. (N. Y.), 36; Mattox v. United States, 146 U. S. 140, 13 Sup. Ct. 50, 36 L. ed. 917; State v. Cucuel, 31 N. J. L. 249, 263.)</p> <p>The case of Dick v. Umted States, 208 U. S. 340, 28 Sup. Ct. 399, 52 L. ed. 520, involved merely the question as to whether the introduction of liquor and the sale thereof to an Indian in Culdesac, which is within the exterior boundaries of the Nez Perce Indian reservation, was a violation of sec. 2139, as being “Indian country” within the terms of the treaty between the Nez Perce Indians and the United States. The question of the territorial jurisdiction of Indian police was not there passed upon nor considered. An Indian police has no authority to arrest without a warrant, except for a misdemeanor committed in his presence. (John Bad Elk v. United States, 177 U. S. 529, 20 Sup. Ct. 729, 44 L. ed. 874.)</p>

<p>Appearance — How Made — Notice—Default—How Vacated.</p> <p>1. Sec. 4892, Rev. Codes, provides that “a defendant appears in an action when he answers, demurs, or gives the plaintiff written notice of his appearance, or when an attorney gives written notice of appearance for him.....”</p> <p>2. The written notice of appearance contemplated hy said section is a statement in writing by the defendant or his attorney whereby the plaintiff is informed that the defendant has appeared, generally or specially, in the case and has submitted himself to the jurisdiction of the court.</p> <p>3. A motion that a nonresident plaintiff be required to give security for costs is not an appearance as contemplated by said section.</p> <p>4. In a ease where such a motion has been made and such security has been given, if the defendant fails to appear, as provided in said sec. 4892 within the time specified in the summons, his default may be properly entered.</p> <p>5. A nonresident plaintiff upon whom demand for security for costs has been made is not required to give notice to the defendant when such security is given, neither is the defendant, who has failed to appear, entitled to other or additional notice than that contained in the summons that the plaintiff will apply for a default against him.</p> <p>6. When a default has been regularly and properly entered it can be vacated only upon a satisfactory showing being made that the defendant has a meritorious defense to the action and that he has failed to answer, or otherwise appear, by reason of mistake, inadvertence, surprise or excusable neglect.</p> <p>7. In order to vaeate a default it is incumbent upon the defendant to show that his mistake was one of fact and not of law, and the neglect of a lawyer to familiarize himself with the law governing the practice of the forum wherein his case is pending cannot be held to be excusable.</p>

Original application for a writ of prohibition to the board of trustees of the Soldiers’ Home. The act violates sec. 3, art. 6, of the constitution, in providing an additional qualification to hold a civil office, in that no person shall be appointed for the sole disqualification that he is related within the third degree by affinity or consanguinity to the appointing officer or his voting associates.

<p>Default — Setting Aside — Discretion of Court.</p> <p>1. Held, that the court did not abuse its discretion in refusing to set aside the default entered against the appellant.</p>

Hon. Edgar C. Steele, Judge. Action to recover on an alleged warranty the amount paid to relieve the property involved from mechanics’ or laborers’ liens. Judgment for plaintiff. If the theory of the plaintiff is correct that under the facts the warranty in his deed bound him, there were no liens or claims on the lots for which he or McPherson were responsible or for which there could be a foreclosure of the lien. (Steel v. Argentine Min. Go., 4 Ida. 505, 95 Am.

<p>Admission and Practice of Attorneys — Statutory Requirements— Appearance of Foreign Attorneys in District and Supreme Courts — How Regulated — Motion to Strike Improper Brief Sustained.</p> <p>1. Section 3990, Rev. Codes, provides: “Any citizen or person, resident of this state, or who has Tiona fide declared his intention to become a citizen in the manner required by law, of the age of twenty-one years, of good moral character, and who possesses the necessary qualifications of learning and ability, is entitled to admission as attorney and counselor in all courts of this state.” But, before being admitted as such attorney and counselor, as provided by see. 3991, Rev. Codes, as amended by Sess. L. 1909, p. 110, “must produce satisfactory testimonials of good moral character and .... undergo a strict examination in open court as to his qualifications, by the justices of the supreme court.” Sec. 3994, Rev. Codes, as amended by Sess. L. 1911, p. 338, provides: “The examination may be dispensed with in the case of any person who has been admitted to practice law under license or certificate from the highest court of another state or territory, and has thereafter actually engaged in the practice of law as a principal occupation for not less than three years immediately preceding with [the] date of application for admission to practice in this state, and who is in good standing as such.”</p> <p>2. Sec. 3995, Rev. Codes, provides: “Each clerk must keep a roll of attorneys and counselors admitted to practice by the court of which he is clerk, which roll must be signed by the person admitted before he receives a license.”</p> <p>3. Sec. 3996, Rev. Codes, provides in substance that if any person shall practice law in this state in any court, except a justice’s court, without having received a license as attorney and counselor, he is guilty of a contempt of court.</p> <p>4. Under the amendment to see. 3991, Rev. Codes, supra, the admission of attorneys of sister states and territories to practice in all the courts of this state is placed wholly within the jurisdiction of the supreme court of this state, and the law does not authorize the admission of such attorneys by the district courts.</p> <p>5. Subdivision 4 of sec. 4002, Rev. Codes, provides, as one of the causes for which an attorney may be disbarred or suspended: “Lending his name to be used as an attorney and counselor by any other person who is not an attorney and counselor,” and regularly admitted to practice.</p> <p>6. See. 4198, Rev. Codes, provides: “All pleadings filed in the district courts or supreme court of this state shall be signed by a resident attorney of the state of Idaho, who shall state his residence or postoffice address; and the name of a resident attorney shall be indorsed on all summons issued out of the district courts, and all pleadings required to be verified shall be verified by a party to the action, or any attorney residing in the state of Idaho and regularly admitted to practice in the courts of this state.”</p> <p>7. Nonresident attorneys, who are admitted to practice in this state under section 3994, Rev. Codes, as amended, supra, in order that they may be permitted to appear in the courts of this state, must associate with them a resident attorney who has been regularly admitted to practice in the courts of this state, who shall be held primarily responsible by, and answerable to, the courts of this state, for all proceedings had in connection with the litigation in which they are so employed before the courts of this state. Said employment of a resident attorney is not to be a mere subterfuge, but tona fide and in good faith, and for whieh services, said attorney is entitled to charge and receive adequate compensation.</p> <p>8. Upon motion, an order will be made by this court striking the name of a person who has not been regularly admitted to practice in the courts of this state, or by comity extended upon application by the court, from all original files and briefs, where the name of said person appears; and he will be denied the right to appear in this court, or the district courts of this state, as an attorney and counselor, until he has fully complied with all of the requirements of the statutes of this state governing the admission of attorneys and counselors to practice law in this jurisdiction.</p> <p>9. A motion will be sustained to strike from the files, briefs couched in language disrespectful to the court and court officers, and unbecoming an attorney and officer of the court.</p>

<p>APPEAL from the District Court of the Eighth Judicial District for Bonner County. Hon. John M. Flynn, Judge.</p> <p>Action to remove a village trustee under the provisions of sec. 7159, Eev. Codes. Judgment for defendant.</p> <p>The Utah court, under an identical statute, has held that any officer (except those who, under the constitution, can be removed only by impeachment) may be removed under the provisions of said section identical with sec. 7159. (Sheen v. Crcdg, 31 Utah, 20, 86 Pac. 187.)</p> <p>The sales of merchandise and supplies to the village by the defendant were void acts. The statutes of this state have been adopted with the idea of prohibiting public officers from being interested directly or indirectly in any contract with the municipality which they represent. (Stoohey v. Commrs., 6 Ida. 512, 57 Pac. 312.)</p> <p>Our legislature has seen fit to enact several classes of statutes relating to officials of different municipal corporations. (Eev. Codes, sec. 625; Nuchols v. Lyle, 8 Ida. 589, 70 Pae. 101; Independent School Dist. v. Collins, 15 Ida. 535, 128 Am. St. 76, 98 Pac. 857</p> <p>With reference to county officials there are two statutes, one Rev. Codes, see. 1959, relating solely to board of county commissioners, and the general statutes found in secs. 255, 256 and 257, and the attention of the court is especially directed to see. 257. Under this section and sec. 1956 this court held that contracts for the sale of a letter-press and the rental of a barn to the county by a member of the board of county commissioners were illegal and void. (Robinson v. Huffaher, 23 Ida. 173, 129 Pac. 334.)</p> <p>There is still another statute relating to the officers of cities and villages, namely, sec. 2279, Rev. Codes.</p> <p>Under the first seventeen counts of the information in this case, there can be no doubt but that the defendant was guilty of charging and collecting from the village of Hope illegal fees within the meaning and intention of sec. 7459, Rev. Codes. (Robinson v. Huffaher, 23 Ida. 173-190, 129 Pac. 334; Sheen v. Craig, 31 Utah, 20, 86 Pac. 487.)</p> <p>There are only two things for which a defendant can be prosecuted under sec. 7459.</p> <p>“The first is charging and collecting an illegal fee for services rendered or to be rendered in his office, andj second, neglect to perform an official duty pertaining to his office.” (Corher v. Pence, 12 Ida. 152, 85 Pae. 388.)</p> <p>It certainly cannot be charged that the defendant failed or neglected to perform a duty. As a matter of fact, they did act and allow the claims. It was not neglect or refusal to perform an official duty, under the provisions of sec. 7459. (Siebe v. Superior Court, 114 Cal. 551, 46 Pac. 456; State v. Norris, 111 N. C. 652, 16 S. E. 2; 5 Words & Phrases, 4741.)</p> <p>The organization of villages or towns was not authorized or recognized by the general laws of the state, at the time of the adoption of sec. 7445 to sec. 7458.</p> <p>Villages did not exist by general laws at that time, and see. 7459 was not made or intended to be applicable to the removal of village trustees or municipal officers. (Brown v. Village of Grangeville, 8 Ida. 784, 71 Pac. 151; Hodges v. Tucker, 25 Ida. 563, 138 Pac. 1139; Conwell v. Village fof Culdesac, 13 Ida. 575, 92 Pae. 535.)</p> <p>The collection of illegal fees was not a wilful neglect of official duties. (Skeen v. Paine, 32 Utah, 295, 90 Pac. 440.) The statute under which this proceeding is brought is penal and should be strictly construed, and should not be enlarged to include any facts or circumstance or offense which is not clearly within its meaning. (Askew v. Ebberts, 22 Cal. 263; Crossman v. Kenmston, 97 Cal. 379, 32 Pac. 448; Crossman v. Lesher, 97 Cal. 382, 32 Pac. 449; People v. Burnside, 3 Lans. (N. Y.) 74; 23 Am. & Eng. Ency. Law, 445.)</p>

<p>APPEAL from the District Court of the Eighth Judicial District, in and for Bonner County. Hon. John M. Flynn, Judge.</p> <p>Proceedings' under see. 7459, Rev. Codes, for the removal of the defendant as a member of the board of trustees of the village of Hope. Judgment for defendant.</p>

Hon. Robert N. Dunn, Judge. Action to perpetually enjoin collection of tax on property in an annexed district. Judgment for respondent. Noncontiguous territory cannot be annexed. (28 Cyc. 193, 194; Truax v. Pool, 46 Iowa, 256.) This question was set at rest by the leading case of Forsythe v. Hammond, 142 Ind. 505, 40 N. E. 267, 41 N. E. 950, 30 L. R. A. 576. In the latter case the right of way of the Chi.

<p>APPEAL from the District Court of the Eighth Judicial District for Kootenai County. Hon. Robert N. Dunn, Judge.</p> <p>Action to recover damages for breach of contract. Judgment for plaintiff.</p> <p>Appellant had refused to sign the contract, and would not have signed it had not respondent agreed that he would not hold him to a strict fulfillment thereof, and promised that no action for damages would be brought for the nonfulfillment of the contract. Said promises of respondent were the consideration for appellant’s executing the contract,■ and are" not in the nature of an oral agreement tending to vary or change the terms or conditions of a written agreement. (17 Cyc. 638 et seq.)</p> <p>“Parol evidence is admissible to show that an instrument was never intended by the parties to become operative as a valid binding obligation.” (9 Eney. Evidence, 335.)</p> <p>This oral agreement does not in any sense conflict with the contract, nor does it vary, contradict or change the terms of the contract, because nothing is mentioned in said contract in regard to damages. There may be an independent oral agreement as to matters on which the written contract is silent, and which is not inconsistent with its terms. (9 Ency. Evidence, 350 D.)</p> <p>Parol evidence is admissible to show the rescission of a contract in writing by a subsequent parol agreement between the parties thereto. (9 Ency. Evidence, (5) 359; 9 Cyc. 597, 598.)</p> <p>This court has more than once held that great liberality must be exercised in the allowance of amendments to pleadings. (Kroetch v. Empire Mill. Go., 9 Ida. 277, 74 Pac. 868; Dunbar v. Griffiths, 14 Ida. 120, 93 Pac. 654.)</p> <p>The written contract provides explicitly for the delivery of 50,000 ties; the defendant sets up a contemporaneous parol agreement that he did not have to deliver this number of ties. The parol contract is not only inconsistent with the written contract, but absolutely abrogates it.</p> <p>“A plea or answer setting up a parol contemporaneous agreement inconsistent with the written contract in suit is bad on demurrer.” (9 Cyc. 733; Fitzgerald v. Burke, 14 Colo. 559, 23 Pac. 993; Fort Scott Coal & Min. Co. v. Sweeney, 15 Kan. 244; Thisler v. Mackey, 65 Kan. 464, 70 Pac. 334; Jacobs v. Shenon, 3 Ida. 274, 29 Pac. 44.)</p> <p>This is the universal rule and is sustained by all the authorities. (Merrill v. Young, 5 Kan. App. 761, 47 Pac. 187; Daly v. Kimball Co., 67 Iowa, 132, 24 N. W. 756; Kinnard Co. v. Cutter Tower Co., 159 Mass. 391, 34 N. E. 460; Davis v. Robinson, 71 Iowa, 618, 33 N. W. 132; Engelhorn v. Reitlinger, 122 N. Y. 76, 25 N. E. 297, 9 L. R. A. 548; Wheaton Roller Mills Co. v. John T. Noye Mfg. Co., 66 Minn. 156, 68 N. W. 854; Ryan v. Cooke, 172 111. 302, 50 N. E. 213; Lilienthal v. Suffolk Brewing Co., 154 Mass. 185, 26 Am. St. 234, 28 N. E. 151, 12 L. R. A.' 821.)</p> <p>The question of permission to amend a pleading, especially during the trial of a case, is always entirely within the discretion of the trial judge, and unless it appears clearly that that discretion has been abused, his ruling thereon will not be reviewed or interfered with. (31 Cyc. 368; Anthony v. Slayden, 27 Colo. 144, 60 Pac. 826; Lowe v. Long, 5 Ida. 122; 47 Pac. 93; Small v. Harrington, 10 Ida. 499, 79 Pac. 461.)</p> <p>Defendant’s proposed amendment came too late to allow him to interpose the same, as to be allowed or permitted to amend at this time would certainly have been a ease of great injustice against the plaintiff. (Garrison v. Goodale, 23 Or. 307, 31 Pac. 709.)</p> <p>Where an amendment is sought after the trial is commenced the party asking to amend should make a good and sufficient showing as to why the amendment was not made sooner, and in the absence of such showing the disallowance of the amendment is no ground for complaint. {Phenix Ins. Co. v. Stocks, 149 111. 319, 36 N. E. 408; Phenix Ins. Co. v. Caldwell, 187 111. 73, 58 N. E. 314; Loverin-Browne Co. v. Bank of Buffalo, 7 N. D. 569, 75 N. W. 923; Dublin v. Taylor B. & H. B. Co., 92 Tex. 535, 50 S. W. 120.)</p>

<p>APPEAL from the District Court of the Eighth Judicial District for Kootenai County. Hon. Robert N. Dunn, Judge.</p> <p>Action to recover damages for the killing of certain animals by the defendant railway company. Judgment for plaintiff.</p> <p>All of the proceedings upon which the application to set aside the default and judgment were taken appear in the record. The court heard the case upon affidavits and no oral testimony was introduced; so that this court will hear and determine this question now the same as if the matter had been presented to it in the first instance and will review the court’s decision and exercise its own discretion in the matter the same as the trial court is authorized to do in such eases. (Van Gamp v. Emery, 13 Ida. 202, 89 Pac. 752; Council Improvement Go. v. Draper, 16 Ida. 541, 102 Pae. 7.)</p> <p>By see. 4360, Rev. Codes, subd. 2, it is contemplated1 that such cases will remain upon the calendar after the entry of default and be set for hearing at the next term, but in this case the judgment was entered ex parte at chambers without notice to any person whatever. This section of the statute provides for the court hearing cases and entering judgments and not for the judge to do so at chambers. Upon this proposition, we think, the plaintiff could only have the court to enter judgment at a time when the defendant would be present and allow an opportunity to contest the amount of damages. (Parke v. Wardner, 2 Ida. 263, 285, 287, 13 Pac. 172; Ruth v. Smith, 29 Colo. 154, 68 Pac. 278; 2 Sutherland on Damages, 3d ed., sec. 429; 6 Eney. PI. & Pr. 132; Ballard v. Purcell, 1 Nev. 342, 343.)</p> <p>Even though in default the defendant has a right to question the amount of damages, to cross-examine the witness and to object to incompetent evidence being introduced. (6 Ency. PI. & Pr. 136-138, and notes;. 2 Sutherland on Damages, 3d, ed., sec. 430.)</p> <p>“After the defendant has appeared in an action he is entitled to notice of the assessment of damages which should always be given.” (10 Ency. PI. & Pr. 1140; Searles v. Lawrence, 8 S. D. 11, 65 N. W. 34.)</p> <p>“The power of the court should be freely and liberally exercised under the statute, to mold and direct its proceedings, so as to dispose of cases upon their substantial merits.” (Hamilton v. Hamilton, 21 Ida. 672, 123 Pac. 630; O’Brien v. Leach, 139 Cal. 220, 96 Am. St. 105, 72 Pac. 1004.)</p> <p>Defendant failed to plead to the amended complaint within the time allowed by law, and upon such failure, judgment by default could be entered, as in other cases. This brought the case within the provisions of sec. 4360, Rev. Codes, the same as though no appearance had ever been made by the defendant. (Hall v. Whittier, 20 Ida. 120-125,116 Pac. 1031.)</p> <p>. The defendant was not entitled to any notice of this application, and this was, therefore, not a ground on which to base a motion to vacate the judgment and set aside the • default. (Hall v. Whittier, supra.)</p> <p>“After default a defendant cannot be heard to contest the subsequent proceedings, and certainly it would be a useless thing to require notice of such proceedings to be served upon him.” (Norris v. Campbell, 27 "Wash. 654, 68 Pac. 339; Hyde v. Heaton, 43 Wash. 433, 86 Pac. 664; General Litho. Co. v. American Trust Co., 55 Wash. 401, 104 Pac. 608.)</p> <p>“An application to set aside and vacate a judgment is addressed to the sound legal discretion of the court, and unless it appears that such discretion has been abused, the order will not be disturbed upon appeal.” (Culver v. Mountain-home Electric Co., 17 Ida. 669, 107 Pac. 65; Harr v. Eight, 18 Ida. 53, 108 Pac. 539; Vollmer Clearwater Co. v. Grünewald, 21 Ida. 777, 124 Pac. 278; Richards v. Richards, 24 Ida. 87, 132 Pac. 576; Baker v. Knott, 3 Ida. (Hasb.) 700, 35 Pac. 172; Holland Bank v. Lieuallen, 6 Ida. 127, 53 Pac. 398; TTvum v. Pyke, 6 Ida. 359, 55 Pac. 864; Pease v. County of Kootenai, 7 Ida. 731, 65 Pac. 432; Holzeman v. Henneberry, 11 Ida. 428, 83 Pac. 497; Western Loan & Savings Co. v. Smith, 12 Ida. 94, 85 Pac. 1084; Vane v. Jones, 13 Ida. 21, 88 Pae. 1058; Pittock v. Buck, 15 Ida. 47, 96 Pac. 212; Council Imp. Co. v. Draper, 16 Ida. 541, 102 Pac. 7; Morbeck v. Bradford-Kennedy Co., 19 Ida. 83, 113 Pac. 89; Humphreys v. Idaho Gold Mines Development Co., 21 Ida. 126, 120 Pac. 823, 40 L. R. A., N. S., 817; Brooks v. Orchard Land Co., Ltd., 21 Ida. 212, 121 Pac. 101; Hamilton v. Hamilton, 21 Ida. 672, 123 Pac. 630.)</p> <p>Where a defendant suffers a default to be taken against it because of its failure to employ Idaho attorneys to look after its cases pending in the courts of Idaho, it should receive scant consideration. (Manning v. Roanoke etc. R. Co., 122 N. C. 824, 28 S. E. 963; Jett v: Herald, 23 Ky. L. 9, 62 S. W. 264; Union etc. Ins. Co. v. Lipscomb (Tex. Civ.), 27 S. W. 307; Benedict v. Hacdow Co., 52 Fla. 188, 42 So. 239; Bank of Glade Springs v. Palmer, 153 N. C. 501, 69 S. E. 507.)</p>

Hon. John M. Flynn, Judge. Action on contract. Judgment for plaintiff. Under the terms of the contract, it was the duty of respondent to supply all means and appliances necessary to prosecute the work and to deliver the logs along camp 4 spur on or before Nov. 1, 1912, and the law will presume that the supplying of such appliances was a part of the contract price and covered thereby. (GodMn v. Monahan, 83 Fed. 116, 27 C. C. A. 410; Gabrielson v. Hague Box & Lbr.

Original application for a writ of prohibition. The notice required by statute is jurisdictional, and must be given in strict conformity to the statute. A failure, therefore, to give the notice required is a fatal error, which if not waived by an appearance or otherwise, renders the proceedings absolutely void, even when called in question collaterally.

Original application for a writ of prohibition. If this notice is not process, then service by mail would satisfy the requirements of the code. If it is process, then its service must be in accordance with sec. 4144, Rev. Codes, as amended by the 1909 Sess.

<p>APPEAL from the District Court of the First Judicial District for Shoshone County. Hon. 'William W. Woods, Judge.</p> <p>Action for damage against the sheriff of Shoshone county for alleged failure and refusal to take into his possession personal property described in a chattel mortgage under an affidavit and notice of sale. Demurrer to amended complaint sustained by the trial court.</p> <p>The respondent, as sheriff of Shoshone county, had no authority to sell the mortgaged property in question until appellant had demanded possession of the property and peaceable possession thereof could not be obtained, and the complaint failing to show such demand and failure to obtain peaceable possession by the mortgagee is subject to demurrer. (Sec. 3413, Rev. Codes, as amended by 1909 Sess. Laws 149.) For a construction of the statute before amendment, see Rein v. Callaway, 7 Ida. 634, 65 Pac. 63.</p> <p>A sheriff is not responsible for dereliction of duty in failing to execute process if the person demanding the execution thereof has other means at hand to secure his demands. (Townsend v. Libbey, 70 Me. 162; Clark v. Smith, 10 Conn. 1, 25 Am. Dec. 47.)</p> <p>“A plaintiff cannot recover damages from a sheriff on account of negligence by which an attempted writ was rendered ineffectual, if he contributed to the result by his own negligence.” (Parrott v. McDonald, 72 Neb. 97, 100 N. W. 132.)</p>

Hon. Carl A. Davis, Judge. Suit to foreclose mechanic’s lien. Judgment for plaintiff. A judge cannot make a finding inconsistent with the claims and proofs of both parties and inconsistent with the evidence in the case. (King v. Bendell Com. Co., 7 Colo. App. 507, 44 Pac. 377; Robeson v. Miller, 4 Colo. App. 313, 35 Pac. 880; State ex rel.

Hon. E. N. Dunn, Judge. Action to recover damages for flooding plaintiff’s land. Judgment for defendant. “Proof of the violation of any legal right entitles the injured party to some damages. If no actual damage appear, nominal damages are given for the technical injury. This rule is applied to all actions whether ex contractu or ex delicto.” (5 Am. & Eng.

<p>APPEAL from tbe District Court of the First Judicial District for Shoshone County. Hon. William W. Woods, Judge.</p> <p>Action for damages for failure to record a mortgage and for procuring it to be released when recorded, whereby plaintiff’s security was lost. Judgment for defendants. Order granting a new trial.</p> <p>The acts of Norbeck were clearly without the scope of his employment. (City Electric Street Ry. Co. v. First Nat. Bank, 65 Ark. 543, 47 S. W. 855; Hummell v. Bank of Monroe, 75 Iowa, 689, 37 N. W. 954; Langlois v. Gragnon, 123 La. 453, 49 So. 18, 22 L. R. A., N. S., 414; School Dist. v. Be ~Weese, 100 Fed. 705; Sherwood v. Home Savings Bank, 131 Iowa, 528, 109 N. W. 9; Lilly v. Hamilton Bank, 178 Fed. 53, 102 C. C. A. 1, 29 L. R. A., N. S., 558; Schumacher v. Greene Cananea Copper Co., 117 Minn. 124, Ann. Cas. 1913C, 1115, 134 N. W. 510, 38 L. R. A., N. S., 180; Kennedy v. Otoe County Nat. Bank, 7 Neb. 59; State v. Commercial Bank, 14 Miss. 218, 45 Am. Dec. 280; Ballston Spa Bank v. Marine Bank, 16 Wis. 120.)</p> <p>The jury by their verdict upon all of the disputed questions of fact found in favor of the appellants, and under the decision of this court in the case of Maw v. Coast Lumber Co., 19 Ida. 396, 114 Pac. 9, the trial court as well as this court is bound by the findings of the jury upon these questions. 1,1 No legal cause has been given why the new trial was granted and under the cases a new trial should not be granted except for some legal cause. (Clifford v. Denver etc. By. Co., 12 Colo. 125, 20 Pac. 333; Braithwaite v. Aiken, 2 N. D. 57, 49 N. W. 419.) A new trial should not be granted unless it appears that an injustice has been done. (Manning v. German Ins. Co., 107 Fed. 52, 46 C. C. A. 144; Barksdale v. Smith, 31 Ga. 671; Woodward v. Horst, 10 Iowa, 120; Rowe v. Matthews, 18 Fed. 132.)</p> <p>When, in the course of his employment, an officer or other agent of a bank acquires knowledge or receives notice of any fact material to the business in which he is employed, the bank is deemed to have notice of such fact. (Tiffany on Banks, 333; 5 Cyc., subd. 2-c, 460.)</p> <p>A more stringent rule applies to the president, cashier or other managing officer, because he devotes his chief attention to the business of the bank. All the knowledge acquired by him pertaining to its affairs is imputed to the institution. (Bolles on Banking, 398 (5).) Notice to the cashier is notice to the bank. (First Nat. Bit. v. Ledbetter (Tex. Civ.), 34 S. W. 1042; City Nat. Bank v. Martin, 70 Tex. 643, 8 Am. St. 632, 8 S. W. 507.)</p> <p>A bank is liable for the fraud of its agent committed in the course of the bank’s business, at least to the extent of the benefit received by it from the' fraud. (Binghamton Trust Co. v. Auten, 68 Ark. 299, 82 Am. St. 295, 57 S. W. 1105.)</p> <p>In such a case as this the bank should be held responsible instead of an innocent party upon every principle of reason and morality. (Cooke v. State Nat. Bk., 52 N. Y. 96, 11 Am. Rep. 667; Farmers’ etc. Bank v. Butchers’ etc. Bank, 16 N. Y. 125, 69 Am. Dec. 678,- New York & N. H. B. v. Schuyler, 34 N. Y. 30; Bell v. Campbell, 123 Mo. 1, 45 Am. St. 505, 25 S. W. 359.)</p> <p>The owner is always entitled to follow a trust fund where-ever he may find it. (Bolles on Banking, 495; Bank of Virginia v. Domestic Sewing Machine Go., 99 Ya. 411, 86 Am. St. 891, 39 S. E. 141; Overseers v. Bank of Virginia, 2 Gratt. (Yt.) 544, 44 Am. Dee. 399; State v. Bruce, 17 Ida. 1, 134 Am. St. 245, 102 Pac. 831.)</p> <p>Failure to assign errors upon appeal from an order granting a new trial is fatal and amounts, to a waiver of all error. (2 Cyc. 1010; Hollister v. State, 9 Ida. 8, 71 Pae. 541.)</p> <p>All exceptions taken in the court below will be treated as waived unless they are assigned as errors in the supreme court. (Purdy v. Steel, 1 Ida. 216.)</p> <p>Errors not set out. in the specifications of error, in the statement of the case and in the bill of exceptions will not be considered on appeal. (Gaffney v. Hoyt, 2 Ida. (184) 199, 10 Pae. 34.) Error assigned in the transcript but not referred to in brief is waived. (Idaho Mer. Co. v. Ealanquin, 8 Ida. 101, 66 Pac. 933; Byron v. First Nat. Bank (Or.), 146 Pac. 516; Adrich v. Chemical Nat. Bk., 176 U. S. 618, 20 Sup. Ct. 498, 44 L. ed. 611; Wyman v. Wallace, 201 U. S. 230, 26 Sup. Ct. 495, 50 L. ed. 738; Poppleton v. Wallace, 201 U. S. 245, 26 Sup. Ct. 498, 50 L. ed. 743; United States Nat. Bank v. First Nat. Bank, 79 Fed. 296, 24 C. C. A. 597; Merchants’ Bank v. State. Bank, 10 Wall. (U. S.) 604, 19 L. ed. 1008; Chapman v. First Nat. Bank (Or.), 143 Pac. 630.)</p>

<p>Pleading — Evidence—Conflict—Physical Pain an Element of Damage — Misconduct of Jury.</p> <p>1. In an action for damages for personal injury the complaint must state all facts necessary to inform the defendant of all acts or omissions relied upon for a recovery, hut only ultimate facts need be pleaded.</p> <p>2. Although no damage is claimed because of loss of employment, evidence showing that plaintiff suffered ineonvenieuee and pain after the accident in attempting to perform his work is competent as tending to show the extent of his physical injury and suffering.</p> <p>3. Where there is a substantial conflict in the evidence, a judgment based upon a verdict will not be disturbed upon appeal.</p> <p>4. Physical pain suffered by the plaintiff as a direct result of the accident is a proper element of damage, although the evidence fails to show that he sustained financial loss by reason of his injury.</p> <p>5. One of the attorneys for appellant filed his affidavit in support of a motion for a new trial, alleging that he had been told by members of the jury that the verdict was reached as the result of chance, and detailing certain purported faets which, if true, would amount to misconduct on the part of the jury. The respondent filed the affidavits of two members of the jury denying that chance was resorted to and showing that the conduct of the jury was in all respeets, regular and proper. Held, that the trial judge was justified in reaching the conclusion that appellant’s contention was not established.</p>

<p>APPEAL from the District Court of the Eighth Judicial District for Kootenai County. Hon. Robert N. Dunn, Judge.</p> <p>Action to recover the amount of an alleged fraudulent preference made by a bankrupt. Motion for a continuance denied, and judgment of dismissal entered.</p> <p>We are not willing to concede that the court exercised a sound discretion. On the contrary, we insist that he abused the discretion vested in him. (Hamilton v. Hamilton, 21 Ida. 672, 123 Pac. 630.)</p> <p>This court has not heretofore hesitated to reverse the trial court upon a matter of its discretion with respect to a continuance. (Storer v. Heitfeld, 17 Ida. 113, 105 Pac. 55.)</p> <p>“It is error on the part of the court to allow the dismissal of a case for want of prosecution where the delay has been caused or acquiesced in by defendant or where defendant has been equally negligent in the prosecution of a counterclaim interposed by him.” (14 Cyc. 446.)</p> <p>A motion for continuance is addressed to the sound legal discretion of the court, and unless there is a clear abuse of that discretion the order will not be disturbed on appeal. {Richards v. Richards, 24 Ida. 87, 132 Pac. 576; De Puy v. Peebles, 24 Ida. 550, 135 Pac. 264; Holt v. Gridley, 7 Ida. 416, 63 Pae. 188; Reynolds v. Corbus, 7 Ida. 481, 63 Pac. 884 ■ Richardson v. Ruddy, 10 Ida. 151, 77 Pae. 972; Storer v. Heitfeld, 17 Ida. 113, 105 Pac. 55; Rankin v. Caldwell, 15 Ida. 625, 99 Pac. 108; Miller v. Brown, 18 Ida. 200, 109 Pae. 139; Walsh v. Winston Bros. Co., 18 Ida. 768, 772, 111 Pac. 1090.)</p> <p>“A party to an action must so arrange his engagements that he can be at the trial of his cause, if he deems it for his best interest or pleasure to do so. The business of the court and his adversary are quite as important as his own.” {Richardson v. Dinkgrme, 26 La. Ann. 651; Schlesinger v. Hunan, 26 111. App. 525.)</p> <p>“The absence of counsel upon the calling of the ease for trial is little favored by the courts as a ground for continuance.” (Lightner v. Menzel, 35 Cal. 452; Hammond v. Haws, 11 Fed. Cas., p. 390, No. 6,002; Banmberger v. Arjf, 96 Cal. 261, 31 Pac. 53; Keegan v. Domielly, 11 Colo. App. 31, 52 Pac. 292; Reynolds v. Campling, 23 Colo. 105, 46 Pac. 639; Cox v. Allen, 91 Iowa, 462, 59 N. W. 335.)</p> <p>“Due diligence is a question upon which the decision of the trial court is'always presumably correct.” (Vol. 4, Bncy. PI. & Pr. 856; Blair v. Chicago etc. R. Co., 89 Mo. 383, 1 S. W. 350; State v. Whitton, 68 Mo. 91; Boone v. Mitchell, 33 Iowa, 45.)</p>

<p>APPEAL from the District Court of the First Judicial District for Shoshone County. Hon. John M. Flynn, Judge.</p> <p>Action for the cancellation of certain contracts to purchase mining claims, and for the possession thereof; that defendant be enjoined from interfering with plaintiffs’ possession.</p> <p>When a party moves for a judgment on the pleadings he not only admits the truth of all of the allegations of the answer, but he also admits the untruth of all of the allegations of his complaint which the defendant has by his answer1 denied. (Wading v. Botun, 9 Ida. 184, 72 Pac. 960; Mills Novelty Co. v. Dunbar, 11 Ida. 671, 83 Pac. 932; Idaho Placer Min. Co. v. Oreen, 14 Ida. 294, 94 Pae. 161.)</p> <p>Only those things are admitted by motion for judgment on the pleadings which are well pleaded and which are statements of fact and not conclusions of law. Calling a thing a fraud does not necessarily make it so. Where the denials of an answer are not sufficient to make an issue, the court errs in denying plaintiff’s motion for judgment on the pleadings. (Toledo etc. Scale Go. v. Young, 16 Ida. 187, 101 Pac. 257.)</p>

<p>Pire Insurance — “Watchman Clause” — Proof of Loss — Waiver— Misconduct of Counsel.</p> <p>1. When the insured had employed two competent watchmen and, in good faith, instructed them to carefully watch the property and to guard against fire, both by da,j and by night, the condition of the “watchman clause” in the policy was fully complied with on the part of the insured.</p> <p>2. Regardless of the clause in a policy that no officer, agent or other representative of - the insurance company shall have the power to waive -any of its provisions or conditions, where other proofs than those required in the policy are accepted by an agent, authorized to adjust a loss, the company will be deemed to have waived the provisions of the policy fixing the manner of making proof of loss.</p> <p>3. A judgment should never be reversed by reason of misconduct of counsel at the trial, unless the appellate court is of the opinion such misconduct had prevailing influence upon the jury to the detriment of appellant.</p>

<p>Action upon fire insurance policy. Judgment for plaintiff.</p>

<p>APPEAL from the District Court of the Eighth Judicial District for Kootenai County. lion. Robert N. Dunn, Judge.</p> <p>Action to recover damages for alleged carelessness and negligence in leaving a sponge in the abdomen of a patient, which caused her death. Judgment for defendant.</p> <p>Plaintiffs’ requested instruction No. 5 correctly stated the law in a case of this kind, and it was clearly erroneous for the court to refuse to give that instruction and to shift the burden upon the plaintiffs. In a great number of cases heretofore decided this instruction has been approved and the law there laid down has been held to be the correct rule of law governing a case of this character. (Harris v. Fall, 177 Fed. 79, 100 C. C. A. 497, 27 L. R. A., N. S., 1174; Wharton v. Warner, 75 Wash. 470, 135 Pac. 235; Jones v. Tri-State Tel. & Telg. Go., 118 Minn. 217, 136 N. W. 741, 40 L. R. A., N. S., 485; Zilke v. Johnson, 22 N. D. 75, Ann. Cas. 1913E, 1005, 132 N. W. 640; Reynolds v. Smith, 148 Iowa, 264, 127 N. W. 192; Abridge v. Nolle, 114 Ga. 949, 41 S. E. 78; Gillett v. Tucker, 67 Ohio St. 106, 93 Am. St. 639, 65 N. E. 865; Palmer v. Humiston, 87 Ohio St. 401, 101 N. E. 283, 45 L. R. A., N. S., 640.)</p> <p>The burden was upon the surgeon in an action for malpractice to show that the leaving of a sponge in the body of a patient was not due to his negligence, and the burden was upon him to prove that he was not negligent in leaving it there. (Samuels v. Willis, 133 Ky. 459, 118 S. W. 339, 19 Ann. Cas. 188.) Instruction No. 3 given by the court was erroneous for the reason that it was contrary to the rule of law laid down in McGraw v. Kerr, 23 Colo. App. 163, 128 Pac. 870. (Coleman v. Wilson, 85 N. J. L. 203, 88 Atl. 1059.)</p> <p>By instruction No. 11 the court invades the province of the jury for the reason that it was for the jury to say and not the court as to what proximately caused the death of Mrs. Ruble. (Fleenor v. Oregon Short Line By. Go., 16 Ida. 781, 102 Pac. 897; Pilmer v. Boise Traction Co., 14 Ida. 327, 125 Am. St. 161, 94 Pae. 432, 15 L. R. A., N. S., 254.)</p> <p>Instruction No. 3, as given by the court, correctly states the law applicable to this case. (Samuels v. Willis, 133 Ky. 459, 118 S. W. 339, 19 Ann. Cas. 188; Whitesell v. Hill, 101 Iowa, 629, 70 N. W. 750, 37 L. R. A. 830, and cases cited in note; Force v. Gregory, 63 Conn. 167, 38 Am. St. 371, 27 Atl. 1116, 22 L. R. A. 343; Dorris v. Warford, 124 Ky. 768, 100 S. W. 312, 9 L. R. A., N. S., 1090, 14 Ann. Cas. 602.)</p> <p>There can be no recovery if no injury resulted from the act of the physician. (Craig v. Chambers, 17 Ohio St. 253.)</p> <p>The plaintiff must show, not only that the physician was negligent or unskillful, but also that the injury resulted from such neglect or unskillfulness. (Ewing v. Goode, 78 Fed.' 442.)</p> <p>The burden is on the plaintiff to show that the injury resulted from the negligence of the physician. (Chase v. Nelson, 39 111. App. 53.)</p> <p>Where the evidence on material facts is conflicting or where on undisputed facts reasonable and fair-minded men may differ as to the inference and conclusion to be drawn, or where different conclusions might reasonably be reached by different minds, the question of negligence is one of fact to be submitted to the jury. (Fleenor v. Oregon Short Line, 16 Ida. 781, 102 Pac. 897.)</p>

Hon. B. N. Dunn, Judge. Prosecution for the crime of selling intoxicating liquors in a prohibition district. Judgment of guilty, from which defendant appeals. After a witness has once testified that the general reputation of another witness, in the community in which he resides, for truth or veracity, honesty or integrity is bad, he may testify whether or not he would believe him under oath.

Hon. R. N. Dunn, Judge. Action to remove a county officer under the provisions of sec. 7459, Rev. Codes. Motion to dismiss appeal. The judgment of removal and the judgment imposing the penalty are not interdependent, but each must be rendered upon proof of guilt; one is for the benefit of the public, and the other for the benefit of the informer, and the accused is accountable both to the public and to the person who prosecutes the action.

Hon. John M. Flynn, Judge. Action to recover damages for personal injuries. Nonsuit granted and judgment of dismissal entered. Whether or not the jumping of the horse was the proximate cause, and whether or not appellant might have been injured had the respondents furnished proper appliances, were matters of fact to be submitted to the jury. (Goe v. Northern Pac.

<p>Liens upon Logs — Pleadings—Errors not Affecting Eights of Parties — Piling Lien With Lumber Inspector.</p> <p>1. While it is the correct practice in a case of this kind to allege all the ultimate facts made necessary by statute to create a valid lien, and while the requirements in this behalf are not complied with by attaching a copy pf the notiee of claim to the complaint as an exhibit, where the defendant answers and denies the existence of such facts, the allegations of the answer are deemed to be controverted by the plaintiff and the issue is thus plaeed before the court.</p> <p>2. A judgment will not be reversed by reason of an error or defect in the pleadings or proceedings which does not affect the substantial right of the parties.</p> <p>3. A claim of lien, valid in all other particulars, is not void as against parties thereto by reason of not being filed with or recorded by the lumber inspector as provided by sec. 1503, Rev. Codes.</p>

Hon. John M. Flynn, Judge. Action to recover on an alleged contract of agency. Demurrer to complaint sustained and judgment rendered in favor of defendant. “The subsequent ratification of the act done by even a voluntary agent of another without authority from him is equivalent to a previous authority.” (Gleason v. Dyke, 22 Pick.

Hon. J. J. Guheen, Judge. Action to have the Bannock Hotel building in the city of Pocatello adjudged and declared to be a common nuisance and to enjoin the defendant from selling intoxicating liquors in said hotel. Temporary injunction granted. Motion to dissolve or modify denied. The effect of the judgment granted was to completely abate the place alleged to have been a nuisance.

Hon. W. W. Woods, Judge. Action in ejectment to recover possession of certain real estate. Judgment for defendants. The engineer who made the survey for the defendants admitted that his plat did not conform to the original plat of the tract in question; that he had not tied his survey to any permanent monument or government survey, and that it was otherwise unreliable. Such a survey is not a legal survey and cannot be accepted in court. (Boise Valley Const.

An original proceeding in this court for a writ of mandate to compel the state auditor to draw his warrant for the payment of the January, 1915, salary for the principal of the Alhion Normal School and to charge the same against the Albion Normal School fund which had accrued previous to the first day of January, 1915.

The question as to whether or not sec. 2115 is repugnant to see. 8, art. 18 of the constitution has been passed upon indirectly by this court in the ease of Stookey v. Board of Nez Perees County Comnvrs., 6 Ida. 542, (547), 57 Pac. 312, wherein the court says: “ ....

Hon. W. W. Woods, Judge. Action in ejectment to recover possession of certain real estate. Judgment for the plaintiffs. The court by the order of Nov. 10, 1915, in legal effect, extended the time in which to take the necessary proceedings to secure a new trial. (Kelley v. Clark, 21 Ida. 231, 121 Pac. 95.) The Idaho statute is taken bodily from the statutes of California. (Sec. 1054, Cal.

<p>District Courts — Jurisdiction in Misdemeanor Cases — Concurrent With Probate and Justices’ Courts — Methods op Procedure Adopted, Sec. 3925, Bev. Codes.</p> <p>1. See. 20, art. 5, of the constitution, provides: “The district court shall have original jurisdiction in all eases, both at law and in equity, and such appellate jurisdiction as may be 'conferred by law.”</p> <p>2. Sec. 13, art. 5, of the constitution, provides: “The legislature shall have no power to deprive the judicial department of any power or jurisdiction which rightly pertains to it as a co-ordinate department of the government; but the legislature shall provide a proper system of appeals, and regulate by law; when necessary, the methods of proceeding in the exercise of their powers of all the courts below the supreme court, so far as the same may be done without conflict with this constitution.” The above provision of the constitution is a restriction upon the power of the legislature to limit the jurisdiction conferred by the constitution on the judicial department of the state. The legislature has no power to prescribe a jurisdiction for the district courts of the state less broad than contained in sec. 20, art. 5, of the constitution.</p> <p>3. It is the settled law of .this state, under sec. 20, art. 5, and the decisions of this court, construing said section of the constitution, that district courts have original jurisdiction in all misdemeanor cases, including such misdemeanors as are cognizable in the first instance by probate and justices’ courts.</p> <p>4. Sec. 22, art. 5, of the constitution, provides in part: “Justices of the peace shall have such jurisdiction as may be conferred by law, but they shall not have jurisdiction of any cause wherein the value of property or the amount in controversy exceeds the sum of three hundred dollars, exclusive of interest, nor where the boundaries or title to any real property shall be called in question.”</p> <p>5. See. 8, art. 1, of the constitution, provides that “No person shall be held to answer for any felony or criminal offense of any grade, unless on presentment or indictment of a grand jury or on information of the public prosecutor, after a commitment by a magistrate, except in cases of impeachment, in cases cognizable by probate courts or by justices of the peace, and in cases arising in the militia when in actual service in time of war or public danger.”</p> <p>6. Sec. 20, art. 5, enlarged the jurisdiction of the district courts so as to include cases cognizable by the inferior courts in addition to cases which, prior to the adoption of the constitution, were prosecuted by indictment only.</p> <p>7. Sec. 8, art. 1, of the constitution, places a limitation upon the power of the legislature to confer criminal jurisdiction on probate and justices’ courts. (Case of State v. Saaf, 16 Ida. 411, 101 Pac. 747, cited and modified.)</p> <p>8. In construing sec. 8, art. 1, in the light of the system of courts existing prior to, and at the time of, the adoption of our constitution, it was obviously intended to limit the jurisdiction of the probate and justices’ courts in criminal and civil cases, giving to them jurisdiction over such misdemeanor cases as were triable in such courts under the statutes of the territory as they existed prior to the adoption of the constitution. It was also intended to provide that probate judges and justices of the peace act as committing magistrates, before whom any person charged with a felony may have, or waive, a preliminary examination.</p> <p>9. When jurisdiction Was conferred upon the district courts by the constitution in all eases, both at law and in equity, there was conferred, as an incident to such grant, the power to make the same effective by any suitable process or mode of procedure, and 'district courts may avail themselves of the method of procedure prescribed by the statutes for inferior courts, or as provided by sec. 3925, Rev. Codes.</p> <p>10. Where a district court, in a proper case, assumes jurisdiction of a misdemeanor, cognizable before a probate or justices’ court, and files a complaint and issues a warrant, it is the duty of said court to proceed with the trial of the cause; and a writ of mandate will issue from this court compelling such court to so proceed.</p>

<p>County Commissioner — Awarding Contracts — Insufficiency of Indictment to Constitute Public Offense — Statutory Construction.</p> <p>-.1. An indictment which fails to allege that a county commissioner was interested directly or indirectly in a contract awarded by the board of county commissioners of which he was a member, or in the benefits to be derived therefrom, at the time said contract was awarded, is insufficient, and fails to state any faet or facts sufficient to constitute a public offense under the pro-visions of sec. 88-b, Sess. Laws 1911, p. 169.</p> <p>2. Held, that the indictment in this case is insufficient, and the demurrer should have been sustained.</p>

Original application for writ of prohibition. The writ will issue whenever the district court is proceeding without or in excess of its jurisdiction. (Cronan v. District Court, 15 Ida. 184, 96 Pac. 768; Clark v. Bossier, 10 Ida. 348, 78 Pac. 358, 3 Ann. Cas. 231.) The general demurrer filed by counsel to the petition herein is not sufficient to raise the question of the remedy, but only goes to the sufficiency of the petition itself. The writ should lie in all such cases.

<p>Public Utilities Commission — Review of Proceedings of — Fixing Rates — Scope and Basis of Authority to — Rule for Determining Value of Public Utility Plant — Proper and Improper Items of Value —Depreciation —Value of Water Right ■ — Franchise— “Going Concern Value” — Personal Property — Enlargements and Extensions — What Commission must Find to Justify Order for.</p> <p>1. Under see. 63 (a) of the public utilities statute (Sess. Laws 1913, p. 286), this court is vested with substantially the same authority in reviewing the proceedings of the Public Utilities Commission as on appeal, and is given ample power to review the orders of the commission and correct any mistakes that may have been made. (Idaho Power etc. Co. v. Blomquist, 26 Ida. 222, 141 Pae. 1083, eited and approved.)</p> <p>2. When proceeding under sec. 30 (a) of the publie utilities statute (Sess. Laws 1913, p. 268), empowering the Publie Utilities Commission to fix rates to be charged by the proprietor of a publie utility, before lowering an existing rate the commission must first find that it is unjust or unreasonable. On the other hand, before raising an existing rate the commission must first find that it is insufficient. Upon finding that a certain rate is discriminatory, preferential or in any way violative of law, the commission may change it so as to correct or eliminate the objectionable feature. The rate as fixed must be a fair one to the consumers or patrons of the utility, but it must also be sufficient to assure the proprietor of the utility a fair and safe return on his investment, and to encourage rather than discourage the investment of capital in publie utility enterprises in this state.</p> <p>3. In determining the value of a public utility plant for the purpose of fixing rates, the rule of “cost of reproduction less depreciation” is the correct general rule or principle to be applied. In applying this rule the worth of a new plant of equal capacity, efficiency and durability, with proper discount for defects in the old plant and actual depreciation for use, should be the measure of value, rather than the cost of exact duplication.</p> <p>4. In making deduction for the item of depreciation in appraising the value of a public utility plant, such deduction should be allowed only for actual, tangible depreciation, and not for theoretical, or “accrued depreciation”; and if it be shown that the plant is in good operating condition, and giving on the whole as effective service as a new plant, the question of depreciation may be disregarded,</p> <p>5. The actual value.of a water right as an item in the worth of a public utility plant should be considered and arrived at by the same rule as applied in the case of any other class of property. The value of such water right should be measured by the fair market value of a similar water right in the same locality, if that can be shown. If no market value can be established, then the opinion of competent witnesses as to the actual value may be considered. The fair present value of the water right is the ultimate fact to be found and considered by the commission and the court.</p> <p>6. Seld, that the commission erred in refusing to consider the actual present value of the water right of plaintiff as an element in the value of his plant, except to the extent of $2,000 which was paid for it by plaintiff to certain Indians who asserted a claim to •the water in question.</p> <p>7. Evidence on behalf of the proprietor of a public utility to the effect that certain expenses have been incurred in building up the business may be considered by the commission as one of the elements of value, under the head of “going concern value.” The fact that it is a going concern, in successful operation, should be considered in estimating the value of the physical property and assets, but the commission should not attempt to calculate or segregate any specific theoretical value which might attach to the plant or system merely by reason of the fact that-it is a going concern.</p> <p>8. Held, that plaintiff has not established his possession of a valid, existing franchise to operate his utility in the city of Poeatello, and that the commission did not err in refusing to consider the matter of the value of the franchise in its decision and order. As to whether the value of a franchise should be considered in fixing value for rate making purposes, quaere.</p> <p>9. Held, that if, in constructing a new plant, of equal capacity, efficiency and durability to plaintiff’s present plant, it would be reasonably necessary to place or replace mains and hydrant connections at places where paving has been laid, proper allowance should be made therefor, but if such mains and hydrant connections could be located as effectively in other places where paving has not been laid, then no allowance should be made therefor.</p> <p>10. The personal property of the proprietor of a publie utility, such as office furniture, horses, wagons, tools and materials on hand, and the cost of improving ground around a reservoir, are proper items to be considered by the Publie Utilities Commission in estimating the value of the plant, if they represent an investment reasonably necessary to the carrying on of the business of the utility and rendering efficient se.rviee to the public; otherwise not.</p> <p>11. In order to justify the Public Utilities Commission in ordering enlargements or extensions of a publie utility plant, the commission must be satisfied from the evidence, first, that the existing plant is not reasonably sufficient to render adequate service; second, that the extension or enlargement is within the scope of the original professed undertaking of the proprietor of the utility; third, that after the completion of the enlargement or extensions the proprietor will be assured of a fair return upon his whole legitimate investment; fourth, that the particular enlargements or extensions in question are reasonably necessary to insure reasonably adequate service.</p> <p>12. Held, that in the absence of a showing that the plaintiff in this case has a valid existing franchise to operate his utility in the city of Pocatello, an order by the Publie Utilities Commission requiring him to extend and enlarge his plant is not reasonable, and that said commission had no authority to make such order.</p>

<p>Original application for a writ of prohibition. Alternative writ issued.</p>

<p>Involuntary Manslaughter — Facts Constituting Elements of— Sufficiency of Information.</p> <p>1. Where it clearly appears from the facts set forth in the information that the defendant is charged with the crime of involuntary manslaughter, and the acts or elements which constitute the offense of involuntary manslaughter are sufficiently charged to enable a person of common understanding to know what is-intended, the information is sufficient, even though it fails to allege that the defendant is charged with the crime of involuntary manslaughter, and makes the general charge of manslaughter. The facts alleged, rather than the designation of the offense, control.</p>

Petition for writ of mandamus. Mandamus is a proper remedy where the judge of the inferior court refuses to proceed because of an erroneous determination by him that he has no jurisdiction. {Hill v. Morgan, 9 Ida. 718, 76 Pac. 323; State ex rel. Miss.

<p>APPEAL from the District Court of the Eighth Judicial District for Kootenai County. Hon. William W. Woods, Presiding Judge.</p> <p>Action for damages for personal injuries. Judgment for plaintiffs.</p> <p>The damages awarded by the jury in this case are excessive, as respondent did not suffer any permanent or even serious injuries, and her age would preclude the recovery of any such sum of money awarded by the verdict. (Muskogee Electric Traction Co. v. Mueller, 39 Okl. 63, 134 Pac. 51; Hase v. City of Seattle, 57 "Wash. 230,107 Pac. 515; Heath v. Seattle Taxicab Co., 73 Wash. 177,131 Pac. 843; McCabe v. City of Butte, 46 Mont. 65, 125 Pac. 133; Chicago ~W. D. Ry. Co. v. Hughes, 87 111. 94; Louisville & N. R. Co. v. Survant, 96 Ky. 197, 27 S. W. 999.)</p> <p>The damages awarded were not excessive. (Hinton v. Cream City R. Co., 65 Wis. 323, 27 N. W. 147; Texas P. Ry. Co. v. Davidson, 68 Tex. 370, 4 S. W. 636; Johnson v. St. Paul City Ry. Co., 67 Minn. 260, 69 N. W. 900, 36 L. R. A. 586; Keim v. Gilmore & Pittsburg R. R. Co., 23 Ida. 511, 131 Pac. 656.)</p>

An original application for a writ of mandate to the defendants, commanding the Land & Water Company to immediately assign, transfer and set over to the plaintiff forty shares of the capital stock of the North Side Canal Company and to cancel a certain lien and commanding the Canal Company to deliver to the plaintiff certain water for the irrigation of the forty acres of land described in the petition.

Petition for writ of prohibition. The expenses intended by the framers of the constitution to be included in the term “ordinary and necessary” are such as recur with regularity and certainty, and are generally within the usual income and revenue and have some fairly well-defined limits.

Hon. Edgar C. Steele, Judge. Action by plaintiff to recover from Wilfred L. Gifford, Secretary of State, a license tax paid under protest. Judgment for defendant. Plaintiff appealed. In the concurring opinion of the chief justice in Pullman Co. v. Kansas, 216 Ü. S. 56, 68, 69, 30 Sup. Ct. 232, 54 L. ed. 378, it was said: “ ....

It has been held by all the courts of last resort in the United States, passing upon statutes similar to the one under discussion, that such statutes, prohibiting the mere possession of intoxicating liquor for one’s own use, are not a legitimate exercise of the police power, in that such possession is not inherently injurious to the health, morals or safety of the public, and that the enactment of such statutes is an attempt at the abridgment of the privileges and immunities…

Hon. Chas. P. McCarthy, Judge. Action to quiet title to an easement of land for reservoir and dam purposes.

<p>APPEAL from the District Court of the Second Judicial District for Nez Perce County. Hon. Edgar C. Steele, Judge.'</p> <p>Action to recover damages for personal injuries. Judgment for the plaintiff.</p> <p>“Statutes creating liability for causing death (Employers’ Liability Law), while not strictly construed are not to be extended by implication, being in derogation of the common law.” (McClaugherty v. Rogue River Electric etc. Go. (Or.), 140 Pac. 64.)</p> <p>“About” commonly denotes nearness or proximity in degree. (1 Cyc. 196; Feafherman v. Eennessy, 43 Mont. 310, 115 Pae. 983.)</p> <p>“Words that are in common use among the people should be given the same meaning in the statute as they have among the great mass of people who are expected to read, obey and uphold them.” (Adams v. Lansdon, 18 Ida. 483, 110 Pac. 280; In re Bossner, 18 Ida. 519, 110 Pac. 502; 1 Corpus Juris. 338, and note; Rankin v. Amazon Ins. Co., 3 Cal. IJnrep. 330, 25 Pac. 260; Trojan Mfg. Co. v. Fireman’s Ins. Co., 67 Cal. 27, 7 Pac. 4.)</p> <p>“This statute does not cover every case of an employer’s liability to his employee, but only the specific eases enumerated in the act.” (Schulte v. Pacific Paper Co., 67 Or. 334, 135 Pac. 527, 136 Pac. 5.)</p> <p>“The word ‘about’ is a relative term, which may indicate one thing when applied to one state of facts, and another under different circumstances.” (1 Cyc. 196.)</p> <p>“In concern with; engaged in; dealing with; occupied upon.” (1 Corpus Juris. 333.)</p> <p>The above quotation, wherein the author states that the word means “in concern with,” is peculiarly applicable to the circumstances under which the word is used in connection with the milling plant.</p> <p>We must take into consideration the fact that the jammer was used in connection with the manufacturing plant; was in fact a part of the plant itself; and is therefore, a relative term. (1 Corpus Juris. 333; Brooke v. Warwick, 12 Jnr. 912, 913; Powell v. State, 63 Ala. 177.)</p> <p>The only case we have been able to find in the state of Idaho in which this act has been considered at all is the case of Chiara v. Stewart Min. Co., 24 Ida. 473, 135 Pac. 245, in which the court holds that the purpose of the act was to extend the right of employees and limit the defense of employers in cases of personal injury. This end would be frustrated if appellant were permitted to successfully interpose the highly technical defense by which it seeks in this case to defeat respondent’s recovery. (Labatt, Master & Servant, sec. 1840 (3); 4 Thompson, Law of Negligence, sec. 4582; Shain v. Sloan, 38 Scot. L. R. 475, 8 Scot. L. T. 498; Mooney v. Edinburgh etc. Co., 38 Scot. L. R. 260; 9 Scot. L. T. 366.)</p>

<p>Petition for writ of mandate.</p> <p>The settler has the permanent right to enough water to thoroughly irrigate. Otherwise the object of the Carey Act would be defeated. And furthermore, it is clearly shown by the language of sec. 16 of the state contract that the lands segregated under said act have a prior right over other lands. {McKinney, v. Big Horn etc. Go., 167 Fed. 770, 93 C. C. A. 258.)</p>

Hon. Ed. L. Bryan, Judge. Action to recover tax collections made by Washington county for bridge purposes in a good road district. Judgment for defendant. The terms “highway” and “road” have been used indiscriminately, and are synonymous in our statute.

Hon. James G. Grwinn, Judge. Action to quiet title to certain property in Idaho Falls. Judgment for defendant. A payment to the proper officer is a sufficient payment of the tax, whether the county actually gets the money or not; the tax lien is thereby discharged, and the county has no right thereafter to sell the property and can acquire no equity therein by such a sale.

<p>Jurisdiction — Amount in Controversy — Parties—Causes of Action —Misjoinder—Public Officers — Powers and Duties — Discretionary Powers — Constitutional Law — Action Prematurely Brousht — Interest.</p> <p>1. Where a state, as trustee of an express trust, sues to recover sums which, in the aggregate, exceed $3,000, exclusive of interest and costs, for and on#behalf of certain depositors in a bank whose deposits have been lost as a result of the failure of the bank commissioner to perform his official duty and where the claim of no individual depositor amounts to $3,000, although diversity of citizenship exists between the parties to the action, a petition for removal to the federal court was properly denied.</p> <p>2. In such ease the state was plaintiff for the use and benefit of the depositors, and properly united the several causes of action stated in the complaint, since they arose out of contracts, and the causes of action so united affect all parties to the suit and did not require different places of trial. The demurrer to the complaint upon the ground of misjoinder of parties plaintiff and misjoinder of causes of action was properly overruled.</p> <p>3. Where power is given by statute to a publie officer in permissive language — as that he may do a certain thing, — the language used will be regarded as peremptory if the public interest or individual rights require that it should be so regarded.</p> <p>4. The law invests a- bank commissioner with discretion while he is making his investigation and up to the point where he reaches the conclusion and becomes satisfied that the bank has unlawfully refused to pay its depositors and has become insolvent, but at this point Bis discretion ends and it becomes his mandatory duty to close it, a duty the failure to perform which renders him and the surety upon his official bond liable to depositors who lose their money as a direct result thereof.</p> <p>5. The provisions of sees. 73 and 74, chap. 124, Sess. Laws 1911, held, not to be in contravention of the 14th amendment of the constitution of the United States nor of see. 13, art. 1, nor sees. 2 and 13, art. 5, of the constitution of Idaho.</p> <p>6. The contention that an action has been prematurely brought cannot be successfully made for the first time upon appeal, but must be made first in the trial court.</p> <p>7. In eases of this kind, where the amount claimed is definite and certain or can be readily ascertained — of a character not wholly unliquidated — in the absence of a stipulation in the bond to the contrary and in the absence of a controlling statutory provision, interest begins to accumulate as against the surety on the bond at the same time as against the principal obligor. If a breach in the conditions of the bond creates a debt on the part of the principal, it becomes the debt of the surety as well, and if it is unnecessary to make demand upon the one in order to start the interest period, none need be made upon the other.</p> <p>8. Where a statute imposes a duty upon one for the protection and benefit of others, and does not invest him with discretionary power in the matter, if he neglects to perform the duty, he is liable to those for whose protection the statute is enacted for any damage resulting proximately from his neglect, whether he be actuated by malice, a corrupt motive or otherwise.</p>

<p>City Ordinance — Nuisance—Ditch in Street — Covering op — Eight op Way por Ditch — Extension op City Limits — Authority op City Council — Estoppel.</p> <p>1. Where a ditch is constructed under a contract with the state to reclaim certain lands included in a Carey Aet Irrigation project, and thereafter a town or city extends its limits so that one of the streets of such extension is so platted as to include such diteh, and thereafter the city council passes an ordinance requiring such diteh to be covered and declaring it to be a nuisance if not covered, such ordinance held invalid when applied to the diteh in question.</p> <p>2. Held, that the city of Twin Palls as a municipality of the state has not the power or authority to declare a ditch constructed under the laws and supervision of the state a nuisance.</p> <p>3. Under the provisions of sec. 3S59, Eev. Codes, nothing which is done or maintained under the express authority of the statute can be deemed a nuisance.</p> <p>4. Where a diteh has been constructed and operated in accordance with the law, it is not a nuisance, and can only become one by reason of the manner in which it has been maintained and operated; and the fact that a municipality subsequently extends a street along and includes in it the right of way for such ditch does not convert such ditch into a nuisance.</p> <p>5. Because a city fails to perform a duty that devolves upon it, a person eannot be punished for a condition resulting from such nonperformance.</p> <p>6. Held, under the facts of the ease and the law, that it was the duty of the city to cover said diteh if it was considered dangerous, or otherwise to protect the people from such danger.</p> <p>7. Held, that a ditch or cahal that was constructed prior to the time that a town or city was located along it occupies substantially the same position with reference to the city and its inhabitants as would a natural stream.</p> <p>8. A right conferred or protected by the law cannot be overthrown or impaired by any authority of the city council derived from the police power.</p> <p>9. Held, that the ditch in question is maintained and operated by the company in the usual manner, and that no unusual conditions exist, and nothing is shown to be harmful or dangerous aside from the fact that people live near it and may fall into it.</p> <p>10. Held, that the duty to cover said ditch devolves upon the city, and that the city cannot impose such duty on the canal owner by declaring said ditch a nuisance.</p> <p>11. Where a trial court judicially declares a thing to be a nuisance, its judgment is subject to review on .appeal the same as any other judgment it may render.</p> <p>12. Held, that because of the ehange made in that part of said ditch that runs through the Murtaugh Addition and the consent thereto by the city, the doctrine of estoppel is applicable to said city, and that the covering of said ditch through said addition is a matter between the city and the person who made the change.</p> <p>13. The general power of a eity to declare, prevent or abate a nuisance does not include the power to declare anything a nuisance which is not one in fact nor one per se.</p>

Honorable J. M. Stevens, Judge. Criminal prosecution for herding and grazing sheep on cattle range in violation of sec. 6872, Rev. Codes. Judgment for defendant. “It is a part of the public history of this state that the industry of raising cattle has been largely destroyed by the encroachments of innumerable bands of sheep.

<p>Penal Statutes — Definiteness of Terms — Language of Sec. 6872, Bev. Codes, Sufficiently Definite and Certain.</p> <p>1. This is a companion case to that of State v. Horn et al., ante, p. 782, and the conclusions reached by this court in that case are decisive of all but one of the questions raised in the case at bar, viz., the uncertainty of sec. 6872, Bev. Codes, and consequently its unconstitutionality as a criminal statute.</p> <p>2. Where a statute has been in force for many years, receiving a practical interpretation and accepted in all its terms, the most careful consideration should be given questions involved in its interpretation if it then be attacked as conflicting with the constitution; as, unless its language is so obscure and doubtful as to entitle it to no weight or consideration, the long-accepted, practical interpretation is more likely to be right than a newly discovered one suggested by the exigencies of current litigation.</p> <p>3. Held, that sec 6872, Bev. Codes, which was enacted by the 12th session of the territorial legislature in 1883, re-enacted as sec. 6872; Bev. Stat. of 1887, and continued in force by sec. 2 of the schedule and ordinance contained in article 21 of the state constitution, approved by the federal government at the time Idaho was admitted to the Union, is couched in sufficiently definite language to meet the object sought to be attained.</p> <p>4. Where there are two constructions that may be fairly given a legislative act designed to efifeet a great public purpose, one of which will carry out the intent and purpose and the other will defeat the intent and purpose of the act, the former construction should be applied.</p> <p>5. Laws are enacted to be read and obeyed by the people, and in order to reach a reasonable and sensible construction thereof, words that are in common use among the people should be given the same meaning in the statute as they have among the great mass of the people who are expected to read, obey and uphold them.</p> <p>6. A cattle range in this state has a well-defined meaning, and so has a sheep range; and this meaning is fully recognized by persons engaged in the two industries.</p> <p>7. Sec. 6872, Bev. Codes, is a police regulation and must necessarily be construed with and as a part of sec. 6314, Bev. Codes, ■which provides: “In every erime or public offense there must exist a union, or joint operation, of act and intent, or criminal negligence.” In other words, there must be an intent to violate sec. 6872, Eev. Codes, swpra, as well as the act of driving or herding sheep upon a cattle range, in order to warrant a conviction of the defendant.</p>