Volume 27 — Oregon Reports

C. Hale, Judge. This controversy grows out of conflicting claims to water rights by George W. and W. J. Wimer against George Simmons and T. and Z. Cameron, the parties hereto. The plaintiffs are the owners of a ditch used to divert water from the east fork of the Illinois River, in Josephine County, at a point opposite or immediately below the mouth of Allen Gulch.

D. Shattuck, Judge. This is an action by B. H. Bowman against J. H. and Eliza Metzger to recover upon three promissory notes for one thousand dollars each, all bearing date August eighteenth,' eighteen hundred and ninety-one.

Boise, Judge.» This is a mandamus proceeding by Charles W. Shively to compel the board of commissioners for the sale of school and university lands to execute to plaintiff a quitclaim deed to tide lands in front of certain lots and blocks of the city of Astoria. The alternative writ issued upon filing the petition was attacked by demurrer, which, being sustained, the plaintiff filed an amended petition by leave of the court.

H. Burnett, Judge. This is a suit by Ella H. Mendenhall to enjoin the Harrisburg Water Power Company from taking possession of land belonging to the plaintiff, and cutting timb >r and enlarging a ditch thereon, without first having it condemned for that purpose.

H. Burnett, Judge. This is a suit by Marx and Jorgensen against A. E. La Rocque, H. M. Gilbertson, and the State Insurance Company of Salem for partition of real property.

A. McBride, Judge. This is a suit by Harvey E. Cross against Kasper Tscharnig and others to foreclose two mechanics’ liens, one filed by the Gladstone Sawmill Company, to secure the sum of three hundred and forty-nine dollars, for lumber furnished the defendant Tscharnig, and the other by the Oregon City Sash and Door Company, to secure the sum of ninety-three dollars for doors, sash, windows, etc., furnished the same party.

L. Bradshaw, Judge. The defendants Daniel Maloney and Charles Snelling were tried and convicted upon an indictment against them for the larceny of a horse, the property of one Michael Doyle, and from the judgment thereon bring this appeal.

•Appeal from Tillamook: Geo. H. Burnett, Judge. This is a suit by W. N. Vaughn and others to enjoin the issue of school district bonds, and the collection of a school tax.

H. Burnett, Judge. This is a suit to determine and enforce the right to priority of attaching creditors.

Action by Henry Whalley, administrator, against Frank P. Gould and his partners to recover damages for causing the death of plaintiff’s intestate. From a judgment for plaintiff the defendants appealed. An order was taken in the circuit court, without notice, enlarging the time within which to file the transcript in the appellate court, and now the respondent moves to dismiss the appeal.

D. Shattuck, Judge. This is an action by Colburn Barrell against the Title Guarantee and Trust Company to recover two and three eighths acres of land situate in Multnomah County, Oregon. The complaint contains the usual allegations.

A. McBride, Judge. This is a suit to reform two deeds. The facts are that the plaintiff Fred Kraushaar and one William E. Bremer were the owners, as tenants in common, of a tract of land in Washington County, containing sixty-seven and sixty hundredths acres, which, by agreement, but without the execution of any partition deeds, they divided, Kraushaar taking the north thirty-four acres, and Bremer the remainder.

A. McBride, Judge. This is a suit to set aside a deed, and subject the real property therein described to the payment of the grantor’s debts.

A. McBride, Judge. This is a suit brought by the Astoria Exchange Company against Charles W. Shively and Annie M., his wife, to quiet its title to certain tide lands in front of the city of Astoria. There was an answer filed, and a demurrer thereto having been sustained, plaintiff was allowed to dismiss without prejudice to its rights. Defendants appeal from both rulings.

L. Bradshaw, Judge. This is an action by Joseph Shmit against J. G. and I. N. Day to recover damages for personal injuries sustained by the plaintiff’s minor son while in the defendant’s employ upon the government works at the cascade locks, Oregon.

L. Bradshaw, Judge. The purpose of plaintiffs in this suit, Sarah A. and Anna Moore, is to have defendant Anna Simonson, who holds the legal title to the following described premises, to wit: “Beginning at the northwest corner of lot twelve, in block two, Biglow’s Addition to Dalles City, Wasco County, Oregon, and running thence in a southerly direction along Washington Street seventy feet; thence in an easterly direction one hundred feet to the west line of lot ten in said…

C. Hale, Judge. The Little Klamath Water Ditch Company, a corporation engaged in the business of furnishing water for irrigation and domestic purposes for hire, brought this action against B. Ream and E. J. Rohrer, and as cause thereof alleged that between the first day of May and the first day of September, eighteen hundred and ninety, it sold and furnished to them, at their special instance and request, water for irrigation and other purposes, of the reasonable value of…

C. Fullerton, Judge. This is an appeal by Rebecca J. Mayer from a decree of divorce granted to her then husband John Mayer on November fifteenth, eighteen hundred and ninety-three, without any appearance by her, or service of process, except by publication in a newspaper. In April, eighteen hundred and ninety-four, she appeared and filed a motion, supported by affidavits, asking to be relieved from such decree, and to be let in to defend the suit.

: M. G. Munly, Judge. This is a suit by George Shepperd against Joseph and Henry Latourell to set aside a conveyance by Joseph Latourell to his brother Henry of certain property adjacent to the celebrated Latourell Falls, as having been made to prevent the plaintiff from collecting a certain judgment which he had recovered against Joseph Latourell. There was a decree for plaintiff and Henry Latourell appealed.

Hanna, Judge. Tbe defendant W. E. Howe, wbo was treasurer of Klamath.

H. Burnett, Judge. This is an action by .David Carey against the Farmers’ and Merchants’ Insurance Company to recover two thousand six hundred dollars, the amount alleged to be due on an insurance policy, on account of loss by fire.

Stearns,- Judge. This is a suit in equity in which twelve persons join as plaintiffs against Dammeier and Coulter to recover on an alleged contract by which the defendants agreed to assume and pay to each plaintiff the amount of money advanced by him for the purpose of developing and prospecting a certain mine, under the following circumstances, as alleged in the complaint: On the fourteenth of October, eighteen hundred and eighty-nine, one J. H. Fisk, who had an option to…

A. McBride, Judge. This is a suit by P. O’Hara against H. B. Parker for the removal of a cloud from plaintiff’s title.

A. McBride, Judge. This is an action brought by Mary E. Lattie-Morrison against Joseph Holladay, Chas. B. Bellinger, and W. A. Malin, to recover possession of an undivided one third of the donation land claim of Elizabeth Lattie in Clatsop County, Oregon. The defendants Bellinger and Malin by their answers denied being in possession of the property, and disclaimed any interest in or claim thereto, and the action was subsequently dismissed as to them.

A. Stephens, Judge. This is an appeal from a judgment against the defendant upon his conviction of the crime of larceny by bailee. The indictment charges that on August twenty-ninth, eighteen hundred and ninety-three, the defendant was in possession as bailee of five hundred and twenty-five dollars, the property of Elizabeth Hess, and while so in possession embezzled and feloniously converted the same to his own use.

Stearns, Judge. This is a suit by Eliza Bradtfeldt to foreclose a mortgage alleged to have been executed by the defendant Martha S. Cooke, to secure the payment of a promissory note for four thousand dollars.

Stearns, Judge. This case arises out of the following state of facts: During the summer of eighteen hundred and ninety, the plaintiff J. W. Kern negotiated with Frank Sperling, who was then the agent of the New York Life Insurance Company, for insurance on his life to the amount of fifty thousand dollars.

Clifford, Judge. This is an action on a promissory note executed and delivered by Nat Blum and Ben W. Grandy to the La Grande National Bank on February twelfth, eighteen hundred and ninety-two, payable three months after date. The complaint is in the usual form.

A. McBride, Judge. This suit was instituted by George William Raymond against George Flavel for the purpose of having defendant declared a trustee of certain real property, described as- the south half of the donation land claim of William W. Raymond and wife; being claim number forty-four, notification number seven thousand nine hundred and twenty-six, in township eight north, range ten west of the Will amette Meridian, in Clatsop County, Oregon.

Fee, Judge. This is an original suit in equity by Mrs. Harriet Campbell against Edward Snyder to set aside and cancel a certain judgment, taken against her some four years ago under .the following circumstances: Charles H. Campbell, the husband of the plaintiff,' executed several' notes to Snyder, and secured them by a mortgage on certain real property, but whether this was his property or his wife’s does not appear on the record.

L. Bradshaw, Judge. This is a proceeding to establish and enforce a preferred claim to the .proceeds arising from the sale of attached property. The facts are that T. H. Johnston and G-. W. Johnston, partners doing business under the firm name of Johnston Brothers, having commenced an action against one Joseph Barrills, had a quantity of grain, the property of the defendant, attached to satisfy any judgment which they might obtain against him.

Clifford, Judge. This is an action by D. E. Josephi against W. J. Furnish to recover the possession of a certain stock of jewelry seized on legal process as the property of one William Wilkinson, of Pendleton, Oregon.

<p>1. Appeal — Failure to Include Testimony or Bill op Particulars in the Record.— Where there is no bill of exceptions or testimony in tho record, the court will consider only whether, under the findings, appellant is entitled to the relief asked.</p> <p>2. Presumption.— Where a trial court, in granting a mandamus requiring a justice of the peace to allow an appeal and stay of proceedings, finds that the justice’s refusal to allow the same was without excuse, but fails to impose a fine, it will be presumed that the court found that the justice’s conduct was caused by ignorance of law, and was not prompted by bad faith or a disregard of duty.</p> <p>3. Costs — Discretion op Court. — A justice of the peace who becomes a partisan in a case and defends a proceeding by mandamus to compel him to allow an appeal and stay of proceedings which he has refused without excuse will be charged with the costs and expenses both of the trial court and of an appeal taken by him.</p>

Stearns, Judge. This is a suit brought by the Willamette Steam Mills Lumbering and Manufacturing Company against N. E. McLeod, Lydia Henry, F. E. Beach, and C. A. Plummer to forclose a mechanics’ lien upon lot number one, in block number one, of Henry’s Addition to Portland, Oregon.

J. Sheahan, an accommodation indorser, against A. F. Davis, the maker of two negotiable notes, to recover the amount he was compelled to pay to the holders thereof upon the default of the maker.

D. Shattuck, Judge. This is an action by Isam White to recover of A. H. Johnson upon two promissory notes. The complaint was filed April sixteenth, eighteen hundred and ninety-four, and on the same day a writ of attachment was issued, which, as shown by the return of the sheriff, was received and served by him on that day by attaching certain real estate, the property of A. H. Johnson, situate in Multnomah County, Oregon.

Clifford, Judge. This is a suit in equity by the firm of Balfour, Guthrie and Company, who are judgment creditors of the Baker City Gas and Electric Light Company, to reach certain unpaid subscriptions to the capital stock of that corporation, and have them applied to the satisfaction of their judgment. There was a decree for the plaintiff, and Isaac Bloch appealed.

Fee, Judge. This is an action by Laurena A. McFerren against Umatilla County to recover damages for injuries to the plaintiff, caused by defects in a bridge upon a public highway under the control of defendant, from which she was precipitated while lawfully traveling thereon with a team and wagon, which bridge, it is alleged, was, at the time of the accident, out of repair, and in a dangerous and unsafe condition, and suffered to become and remain so through the gross…

Fee, Judge. This is a suit by Mark S. Robinson against Fred Laurer to ascertain and locate the common boundary between the northwest quarter of section eleven in township five north of range thirty-six east, in Umatilla County, owned by the plaintiff, and the south half of the southwest quarter of section two in said township, the property of defendant.

L. Bradshaw, Judge. This is an appeal by James Cameron from the judgment of the circuit court upon review of the proceedings of the County Court of Wasco County in the location and establishment of a county road therein. It appears from the record that the circuit court sustained the action of the county court and dismissed the writ of review.

Fee, Judge. Action by Peter Clemens against W. D. Hanley and another in which plaintiff recovered seven hundred and fifty dollars, and defendants appeal.

D. Shattuck, Judge. This is an action by Fleckenstein and Mayer against Inman, Paulson and Company (a corporation) to recover for certain saw logs alleged to have been sold and delivered by Matti Makarainen to the defendant between November twenty-ninth, eighteen hundred and ninety-two, and the twenty-first day of February, eighteen hundred and ninety-three.

<p>1. Pleading Fraud.— Under the established rule that facts and not conclm sions must be pleaded, an allegation that a certain deed was made “for the purpose of hindering, delaying, and defrauding the creditors” of the grantor is not sufficient to sustain a decree, for it states only a conclusion-</p> <p>2, Fraudulent Conveyance — Subsequent Creditors. — That a conveyance by a grantor who at the time had no creditors to subserve was without consideration does not render it fraudulent as against a subsequent creditor, in the absence of any reservation of an interest in trust for the grantor.</p>

This is an action by Thomas McGuire against Baker City to recover the sum of six hundred and fifty-one dollars and twenty cents, alleged to be due the plaintiff as fees for the collection of delinquent city taxes under an ordinance providing that the chief of police shall receive such fees for the collection of delinquent taxes as are allowed the sheriff of Baker County by general law for similar services.

Fee, Judge. Action of ejectment by George Rader against Edward G. Allen and Walter Brown. The case comes here on appeal from the decision of the court below sustaining a demurrer to the complaint.

Clifford, Judge. This is a suit by Louisa Garrett to enjoin P. R. Bishop and C. H. Stuller from continuing an alleged trespass on plaintiff’s premises.

Fee, Judge. This is a suit by Pat Kine against Ida and R. Marvin Turner to enforce the specific performance of a parol contract for the conveyance of a small tract of land in what was formally the Umatilla Indian Reservation.

Clifford, Judge. This is an action by S. B. Elder against T. F. Rourke to recover nine hundred and eighty-six dollars and twenty-five cents, alleged to be due the plaintiff from the defendant for cutting and harvesting grain.

Fee, Judge. This is an action by Eliza Rule to recover the possession of fifty-seven head of horses from J. T. Bolles. The complaint is in the usual form. The defendant, who was the sheriff of Union County, justifies the taking and detention of the property in question by alleging that it was seized by him as the property of Robert S. Rule, the husband of the plaintiff, under a writ of attachment issued in an action against him by one Horner.

Clifford, Judge. This is a suit to enjoin T. F. Rourke from collecting, Folsom, county treasurer, from paying, and Furnish, sheriff and tax collector, from receiving in payment of taxes, certain county warrants numbered from eight hundred and thirty-eight to eight hundred and ninety, inclusive, aggregating three thousand five hundred dollars, alleged to have been unlawfully issued by W. M. Pierce, county clerk of said county.

<p>1. Assignability op Option — Contracts.—A contract to repurchase stock, if a purchaser or his legal representatives so desire, is assignable by such purchaser before asserting his option: Some v. Jackson, 24 Or. 99, cited and approved.</p> <p>2. Contracts — Breach.—A contract to repurchase, at any of the stated dates of payment, stock that is to be paid for in installments by paying the sums paid, with interest, is not broken by refusal to repurchase after the purchaser has made default in an installment; the purchaser is entitled to a contract free from infirmities.</p> <p>3. Waiver — Appeal.— Where a supplemental complaint, by alleging an acceptance of the assignment of a contract after commencement of the action, establishes a cause of action, and no exception is taken, the objection that no cause of action existed when the action was commenced cannot be urged on appeal.</p>

Pipes, Judge. This is a suit brought by Philomath College to enjoin E. C. Wyatt and others from acting as trustees of the plaintiff, or… Held: and met in a body at the Park Opera-house, in said city of York, and, after organizing, adopted a paper which stated, in substance, that inasmuch as one hundred and ten of the delegates and members of the general conference did, on May eleventh, eighteen hundred and eighty-nine, vote to adopt a new constitution and confession of…

Stearns, Judges. These two cases, which for convenience were heard together in this court, involve the constitutionality of an act of the legislature of eighteen hundred and ninety-five, providing for the acquisition by the City of Portland of the Morrison-street bridge, Stark-street ferry, and the upper deck of the steel bridge, and requiring the supervision, management, and control of said bridges and ferry, when so acquired, and of all the free bridges and ferries of the…

Clifford, Judge. Action by John Lawrence and others against J. P. Phy and J. W. Couper for the wrongful taking and conversion by defendants of certain grain, and for damages in the sum of two thousand dollars.

Clifford, Judge. This is au action to recover possession of thirty-seven head of cattle.

Burnett, Judge. This is an action in trover originally commenced by L. Bentley against H. Hirschberg to recover the value of ten thousand two hundred and eleven bushels of wheat, which it is alleged Hirschberg wrongfully converted to his own use. After the commencement of the action Bentley made an assignment, and thereupon Miller, as assignee, was duly substituted as plaintiff, and the action thereafter proceeded in his name.

D. Shattuck, Judge. This is au action against the City of Portland as the successor of the City of East Portland, by consolidation of the two cities, to recover the cost of improving a street.

Fee, Judge. This controversy has arisen in the course of the settlement of the estate of A. Dray, deceased.

Clifford, Judge. This is a mandamus proceeding by Miss Nellie M. Stevens against J. L. Carter to compel the latter to surrender the books and papers belonging to the office of the county superintendent of common schools of Union County.

H. Burnett, Judge. This is an action to recover possession of certain personal property levied upon by tbe defendant as sheriff under a writ of execution against one Williams.

Clifford, Judge. This is a suit to foreclose three several miners’ liens claimed for work and labor done and performed at the instance of the defendant O. B. Hardy, who was operating certain mining properties under the following agreement with the owners thereof, viz.:— “ This indenture, made and entered into this twelfth day of October, eighteen hundred and ninety-three, by and between C. M. Berry, C. M. Collier, L. M. Barnett, and J. M. Barnett, his wife, and D. L. Choate,…

Clifford, Judge. This is a suit by Arthur J. and Alvin S. Moss to enjoin Wm. A. Rose from obstructing the flow of water in a ditch constructed across his lands.

<p>Appeal from Multnomah: E. D. Shattuck, Judge.</p> <p>Action by Aurelia J. Barrell to recover possession of ten and seven eighths acres of land in Multnomah County. There was a judgment for defendant and plaintiff appeals.</p>