Volume 39 — Oregon Reports

From Multnomah: Melvin C. G-boro-e, Judge. Criminal action by the City of Portland against August Erickson. From a judgment of the circuit court on a writ of review setting aside a judgment of acquittal by the municipal court, defendant appeals.

From Josephine : Hiero K. Hanna, Judge. This is a suit by L. N. Browning against L. A. Lewis and W. H. Hampton to enjoin interference with the flow of water in the channel of Grave Creek, a nonnavigable stream, to plaintiff’s premises.

From Multnomah : Melvin C. George, Judge. Andrew Carlson appealed from two convictions of robbery with force. The cases are reported for convenience under one head.

From Lake : Henry L. Benson, Judge. This is a suit by Geo. Joues and others against Geo. Conn to enjoin him from diverting the waters of Chewaucan River through a ditch recently constructed by him. The plaintiffs are riparian proprietors on the river, and the owners in severalty of divers tracts of arid land, aggregating several thousand acres. These lands are level, and, when irrigated, very fertile, but valueless without.

From Harney : Morton D. Clifford, Judge. W. H. Huffman was convicted of the crime of rape, upon an indictment returned April 19, 1900.

<p>Waters — Maintaining Banks in Naturae Condition.</p> <p>Riparian owners may insist that the natural banks of the stream on which they own shall not be cut or interfered with so as to diminish the flbw of water to which they are entitled — the right to protect the flow of water is a necessary resul t of the right to have the stream undiminished and unimpaired.</p>

<p>Indictment for Rape — Age of Defendant.</p> <p>1. It is not necessary to allege the age of the defendant in an Indictment under a statute like Section 1738, Hill’s Ann. Laws, as amended by Laws, 1895, p. 67, which provides that if any person over a stated age shall carnally know any female child under a certain age, he shall he deemed guilty of rape. The allegation that defendant committed the offense is a sufficient statement of his capacity for so doing.</p> <p>Rape — Necessity for Corroborating Evidence.</p> <p>2. In cases of statutory rape a conviction may be had on the uncorroborated testimony of the prosecutrix, as she is not an accomplice.</p>

<p>Waters—Point of Diversion not a Test of Priority.</p> <p>1. Neither the priority nor validity of an appropriation of water is determined by the point of diversion, hence it is immaterial whether the ditch begins on public or private land.</p> <p>Water Right of Original Riparian Proprietor.</p> <p>2. The first settler upon public land through which flows a stream may either appropriate the water for some beneficial purpose, or insist that the stream shall flow in its natural channel without diminution, except as its waters may be used by upper riparian owners for domestic and irrigation purposes.</p> <p>Riparian Ownership—Appropriation—Departure. *</p> <p>3. The right to take and apply appropriated water to a beneficial use is incompatible with the right of riparian proprietorship; and there is a departure between a complaint alleging a right to a given quantity of water from a stream by appropriation, and a reply claiming a right to the same water by riparian proprietorship.</p> <p>Pleading—Motion to Strike Out—Statutes.</p> <p>4. - Under Hill’s Ann. Laws, g 79, providing that “sham, frivolous, and irrelevant replies may be stricken out” on motion, the entire reply must be moved against; the statute does not contemplate a motion to strike out a part of a reply, and such motions should be overruled.</p> <p>Pleading—Demurrer to Answer—Statutes.</p> <p>5. Under Hill’s Ann. Laws, g 79, providing that the defendant may demur to any new matter contained in the reply, when such matter is not a sufficient reply to the facts stated in the answer, a demurrer challenging the entire reply for the insufficiency of new matter contained therein was properly overruled, and a separate demurrer to the new matter because it did not state a cause of suit was also properly overruled.</p> <p>Sufficiency of Technical Objections—Waiver.</p> <p>6. Objections made or advantages claimed upon purely technical grounds must always be accompanied by specific statements of the reasons on which they are based: State ex ret. v. Estes, 34 Or. 196, applied.</p> <p>Diversion—Application of Act of Congress.</p> <p>7. A water appropriation for irrigation need not be made in accordance with any local custom or law, as referred to in the act of congress of July 26, 1866, since that act referred only to water appropriations for mining.</p> <p>Waters—Rights of Persons not Parties.</p> <p>8. Where, in a suit to determine the right to the use of a water supply, it appeared that parties other than the plaintiffs and defendants were entitled to prior use of the water, the court properly refused to award defendants the use of all the water in excess of plaintiff’s allowance.</p>

<p>From Umatilla : William R. Ellis, Judge.</p> <p>Minnie Crockett appealed from a conviction of murder in the second degree.</p>

From Josephine : Hiero K. Hanna, Judge. Bill by Henry York against O. T. Davidson and others to enjoin the operation of defendants’ mine. From a decree granting the injunction, defendants appeal.

<p>From Union : Robert Eakin, Judge.</p> <p>James Hill appealed from a conviction of the crime of horse stealing.</p>

From Josephine : Hiero KL. Hanna, Judge. This is a suit by A. H. Carson and others against F. M. Hayes and others to restrain the defendants from interfering with the regular flow of the waters of Oscar Creek, and from permitting the debris from their placer mines to come down to, and be deposited in, plaintiff’s ditches and reservoirs and on their mining ground. The plaintiffs are the owners of a mining claim through which Oscar Creek flows.

<p>Qualification of Expert Medical Witness.</p> <p>1. The fact that a person is a licensed and practicing physician in Oregon in 1901 is not a sufficient qualification to testify as an expert on a question of poisoning, for it is quite possible that there may still be persons in the practice who have never had any professional education or passed any examination in medicine, as the first statute regulating the practice of medicine and surgery was passed only ten years since, and all persons who were then practicing^were exempted from examination.</p> <p>Expert Witness — Facts Relied on Must be Stated.</p> <p>2. An expert, though thoroughly qualified as a witness, can not be permitted to give an opinion on facts known to him but not communicated to the j ury; he must fii-st detail to the j ury the facts on which he bases his opinion.</p> <p>Sufficiency of Objection to Testimony.</p> <p>3. Objection to the qualification of a witness is not waived because no objection was offered when he was called and testified in the first trial, where, in a second trial, the transcript of his evidence in the former trial was offered, and objected to as not tending to support the allegations of the complain t, and as being irrelevant, incompetent, and immaterial.</p>

From Josephine : Hiero K. Hanna, Judge. Bill by P. H. Oviatt and others against the Big Four Mining Company and others to prevent interference with a mining ditch. From a decree dismissing the complaint, plaintiffs appeal.

<p>Indians—Crimes on Reservations * — Statutes.</p> <p>The act of congress of eighth February, 1887 (24 Stat. 388, c. 119), commonly called the Dawes Act, allotting public lands to Indians, and declaring that allot-tees to whom such lands shall be patented shall be subject to the laws of the state of their residence, and shall be citizens of the United States with all the rights, privileges, and immunities of such citizens, does not repeal or modify the act of third March, 1885 (23 Stat. 362, c. 341, Supp. Bev. Stat. p. 482, c. 341), which provided that Indians who should thereafter commit certain named offenses on a reservation should be tried by the federal courts; wherefore an allottee on the Umatilla Indian Beservation, in Oregon, charged with any offense enumerated in the act of third March, 1885, is triable only in the federal courts.</p>

From Malheur: Morton D. Clifford, Judge. Suit by Thomas J. Brosnan to restrain W. P. Harris from interfering with a spring, the waters of which plaintiff had conveyed to his ranch before defendant took up the land on which it is situated. Decree for defendant.

Action by the state against Riley M. Horn and others. Judgment for the state, and defendants appeal. Motion to affirm the judgment for appellants’ failure to serve and file a brief.

From Coos : Henry L. Benson, Judge. ' This is a suit by A. M. Crawford against Eugene O’Connell and others for an accounting and contribution, to establish an interest in real property, and to compel the execution of a conveyance thereof.

<p>Qualification of Jubobs — Opinion.</p> <p>1. A juror Is not Incompetent to sit on a case because he has heard and read about It, and has expressed an opinion, but has since concluded that he does not know the facts, and has strong impressions, which would require some evidence to modify, yet on the whole believes he can decide the case fairly on the testimony.</p> <p>Ceiminal Law — Papers Found on the Defendant.</p> <p>¡¡. Articles found on the person of a prisoner when arrested, if otherwise admissible in evidence, are not incompetent because taken from him by the public authorities — such use of such articles is not a compelling the defendant to give evidence against himself * or a violation of the constitutional guaranties against unreasonable searches. †</p> <p>Letters—Sufficiency of Identification.</p> <p>3. At8 o’clock on the evening of July 20, in the latitude of the State of Oregon, a witness who was in the second story of a cottage some twenty-five feet from the sidewalk, saw two persons passing on the walk, one of them reading a letter having a prominent printed heading, and such witness testified that a letter found on the person of the defendant when he was arrested some thirty-six hours later was to the best of her knowledge the same letter. B.eld, that the paper was sufficien tly identified to be admissible in evidence as a means of fixing the identity of the prisoner and the person who was seen with the letter.</p> <p>Use of Parers Admitted in Evidence.</p> <p>4. An exhibit that has been received in evidence may be examined, and, if it be a document, may be read, by the jury.</p> <p>Admissibility of Prejudicial Exhibits.</p> <p>6. Being otherwise competent, the fact that the contents of a letter may tend to affect the character or reputation of the party against whom it is offered in evidence, or to prejudice him before the jury, is not a valid objection to its being admitted.</p> <p>Admissibility of Voluntary Statements by accused.</p> <p>6. Statements made by a prisoner voluntarily, and not in pursuance of threats or promises by those in authority, are competent testimony against him.</p> <p>Evidence of Other Crimes. *</p> <p>7. Where evidence tends to connect the defendant with the commission of the crime charged against him, or is so connected therewith as to be a part of it, such evidence is admissible, though it may also tend to show that defendant has committed other offenses as well as the one which is under investigation: State v. Baker, 23 Or. 441, applied. For example, where the body of an unmarried young woman was found in a secluded spot, and it was evident that an attempt had been made to produce an abortion on her, and defendant, who was indicted for her murder, was the last person seen with her, and it appeared that a few days previously he had sought some means of producing an abortion, a statement of defendant to the officers, that he had been physically intimate with the deceased, was so closely connected with the crime charged as to render it admissible, though it be considered as amounting to a confession of a different offense.</p> <p>Sufficiency of Identification of Handwriting.</p> <p>8. Evidence of two witnesses that they knew the defendant’s handwriting, and that they believed a certain letter was written by defendant, and evidence that while defendant was in jail a copy of the letter was read to him, and he admitted having written the original, was sufficient to show the letter was written by defendant, and to render it admissible against him.</p> <p>Right to Contradict One’s Own Witness.</p> <p>9. Where a witness testifies on a material point at the trial otherwise than he has previously done in the same case, or than he has stated his testimony would be, to the prejudice of the party calling him, such party may show previous statements contradictory of his testimony, in explanation of his having been called, though the rule may be otherwise where the witness simply fails to testify as fully or strongly as expected. The difference is between negative testimony and affirmatively contradictory testimony: Slate v. Sleeves, 29 Or. 85, cited. The fact that the party calling the witness may have had cause to anticipate his changed position does not alter the application of the rule.</p> <p>Improper Remarks by Court—Curing Error.</p> <p>10. A presiding judge is entitled to use such language during a trial as will make clear the point of his rulings, and an appellate court will hesitate to construe statements so used as an expression of opinion on a fact, and if such an error does appeal’, a subsequent prompt direction to disregard the objectionable words operates to render the error harmless.</p> <p>Competency of Explanatory Evidence.</p> <p>31. After the violent death of a young woman a letter addressed to her and shown to have been written by the defendant was found in her room, which stated that the defendant wished to see the deceased, and that he could hardly wait until Saturday before seeing her. Defendant had been constantly and conspicuously attentive to the dead girl. Held, that testimony of the mother that she and the dead girl’s sister intended to be absent from home Saturday, and that deceased knew that fact, was admissible as explanatory of the intimation in defendant’s letter that he and deceased had an appointment for Saturday, and as showing a reason for their selecting that day.</p> <p>Improper Remarks of Counsel—Curing Error.</p> <p>12. Where, during the argument as to the admissibility of testimony, the state’s attorney asked in what way the testimony proved that the defendant did not strangle the deceased, a statement by the court that it was unnecessary to use such language, and an instruction that the jury should disregard the remark, cured any error.</p> <p>Idem.</p> <p>13. Where the state’s attorney remarked that the witness was antagonistic to the state, and had been talking with defendant’s attorneys, a ruling of the court that the jury were the judges whether the testimony of the witness was for or against the state, and that the other remarks should be disregarded, and that it was no objection if the witness had been talking with the attorneys, and a subsequent instruction to disregard any remarks of counsel not based on the evidence, cured any error.</p> <p>Contradicting and Impeaching One’s Own Witness.</p> <p>14. Under Section 838 of Hill’s Ann. Laws, providing that the party producing a witness may contradict him by statements made at other times inconsistent with his present testimony, where the state claimed that the defendant killed the deceased because of his fear of her father in ease he should discover that the deceased was pregnant, and a witness testified that shortly before the homicide the defendant stated to witness that the father was “a savage old bulldog,” it was competent to ask the witness if he had not previously stated at a given time and place, and in the presence of certain named persons, that defendant also said in the same conversation that he was afraid to go with the deceased girl on that account, since the difference between the two statements was material and adverse to the prosecution.</p> <p>15. Testimony of an officer of the fire department that the fire bell did not ring on a certain night before 12 o’clock, and that he based his knowledge on the fact that the automatic indicator of the department did not register a ringing of the bell, was competent, though not based on the personal knowledge of the witness : Willis v. Lance, 28 Or. 371, cited.</p> <p>Triad — When Objections to Testimony Shotted be Made.</p> <p>16. Where a party neither objects to evidence when it is offered, nor moves to strike it out, objections thereto are waived, and a request to direct the jury to disregard it may properly be refused: First Nat. Bank v, Borne Ins. Co. 83 Or. at p. 237, cited.</p> <p>Competent Evidence Exceeding Other Hypotheses.</p> <p>17. Where it was material to show the time when a man returned to his lodgings on a certain occasion, and it had already appeared that the only other men staying in the house were in bed before a stated hour, evidence that a man was seen to enter that house after that time was competent, as tending to prove that such person was the defendant.</p> <p>Trial — Correcting Reding — Harmless Error.</p> <p>18. Where one of defendant’s witnesses was required to answer, on cross-examination, whether he had not been convicted of drunkenness, an instruction that the jury should disregard evidence as to such conviction rendered the error harmless.</p> <p>Competent Impeaching Testimony.</p> <p>19. Defendant roomed at M.’s house, and M. testified that he heard defendant come home on the night of the homicide at 11:30, and that he heard his footsteps -on the stairs. A member of the grand jury testified that M. swore before that body that he heard a squeaking noise on the steps during the night, hut did not know what it was, and on cross-examination the juror stated that he was not sure that the jury asked M. the specific question whether he heard defendant go upstairs, but that they questioned him particularly to find out if he knew when defendant came home, and from his general testimony found that.he did not know. Held, that a motion to strike out the juror’s testimony, as based on conclusions, was properly overruled, as it can not fairly be said that the witness was testifying to a conclusion.</p> <p>Refusing to Give Duplicate Instbuctions.</p> <p>20. Where all the requested instructions which were pertinent to the case were embodied in the charge prepared by the judge, it was proper to deny the request.</p> <p>New Tbial fob Misconduct of Jubob — Discbetion.</p> <p>21. Disputed questions of fact in connection with a motion for a new trial on account of alleged misconduct of a juror must be determined by the trial court, and, as in other discretionary matters, the decision will he reviewed only for manifest error: State v. Magers, 36 Or. 38, applied.</p> <p>Time foe Filing Motion.</p> <p>22. When a time is prescribed within which a motion is to be filed, it must be filed within that time or it may be disregarded.</p>

From Coos: J. C. Fullerton, Judge. This is a suit commenced by the Southern Oregon Company against Coos County and its officers to restrain the collection of certain taxes for the years 1893 and 1894. The interlocutory injunction having been made perpetual, defendants appeal.

<p>Criminal Law — Cross Examination on Character of Accused.</p> <p>1. When-a person accused of a crime calls witnesses who testify that his general reputation is of a nature tending to negative the truth of the charge against him, such witnesses may be cross-examined as to their knowledge of the prior commission by accused of acts similar to that for which he is on trial.</p> <p>Showing General Reputation of Accused and Witnesses.</p> <p>2. It is never competent to attack the general reputation of a person accused of crime unless he has first offered testimony in favor of his reputation; but either side may at any time attack the reputation of witnesses.</p> <p>Statutory Right of Cross-Examination.</p> <p>3. Section 837, Hill’s Ann. Laws, giving either party the right to cross-examine opposing witnesses on any matters stated in their direct examination or connected therewith, confers an absolute right to inquire into the extent and character of the knowledge of a witness concerning matters testified to in chief; thus, where a defendant charged with rape has introduced evidence of the bad reputation of the injured person for chastity, and the state has called a witness who testified that her reputation in that respect was good, the defendant had a right, not resting in the discretion of the judge, to inquire if the witness had heard of her having been discharged from different places because of immoral conduct.</p> <p>Discretion of Court — Leading Questions.</p> <p>4. Hill’s Ann. Laws, § 835, authorizing the court, in the exercise of a sound discretion, to allow leading questions to be asked on direct examination, does not give the court arbitrary power to allow leading questions, but there must be some special circumstance, as unwillingness, youth, infirmity, lack of memory, or ignorance on the part of the witness, calling for the exercise of discretion.</p> <p>Appeal — Presumption of Correct Trial.</p> <p>5. Where the trial court has'allowed the prosecutrix in a rape case, who is twenty-one years old and in ill health, to be asked leading questions on direct examination, it will be presumed, in the absence of contrary evidence, that the embarrassment of the witness authorized the court to allow such questions.</p> <p>Rape — Complaint by Prosecutrix.</p> <p>6. In prosecutions for rape it is competent to show by the prosecutrix that she complained of the assault, and when and to whom.</p> <p>Idem.</p> <p>7. In such cases it is competent to show, and by the prosecutrix, if she knows, that some of the persons to whom complaint was made can not be called as witnesses, and the reason why.</p> <p>Impeachment of Previous Statements.</p> <p>8. Under Hill’s Ann. Laws, g 841, allowing a witness to be asked if he has not at other times made statements inconsistent with his present testimony, but requiring such statements to be related to him, and the circumstances to be detailed, a witness can not be asked if he did not make other statements at the preliminary hearing, without reciting such alleged statements.</p> <p>Impeachment — Omission not an Inconsistency.</p> <p>9. The failure of a witness to detail all the facts with particularity in her testimony on a previous occasion is not a ground of impeachment, for an omission is not an inconsistency, within the meaning of Section 841 of Hill’s Ann. Laws.</p> <p>Impeachment — Omission not a Disceepancy.</p> <p>10. The fact that in a previous proceeding a witness did not testify to certain things that are now testified to does not constitute a discrepancy between the two statements, unless the witness wason the first occasion specially asked about the very things that were omitted.</p> <p>Rape — Physical Examination of Peosectjtbix.</p> <p>11. A prosecutrix in a rape case need not be required to state if she was examined after the commission of the offense, for it is immaterial, as a matter of law, whether she was examined or not, whatever may be the force of an argument to the j ury on that point.</p> <p>Rape — Showing! Pbevious Unciíastity — Ceoss-Examination.</p> <p>12. A person charged with rape may show that the reputation of the prosecutrix for chastity is bad, if she is of the age of consent, and he may also show previous acts of intimacy by her with himself; but he may not inquire whether the prosecutrix had ever previously been intimate with any other person.</p> <p>Impeachment — Hostility of Witness.</p> <p>13. A witness may be asked on cross-examination concerning feelings of hostility between himself and the person to whom his testimony refers, but the inquiry must be limited the feeling of the witness for or against that person : Slate v. Welch, 33 Or. 33, applied.</p> <p>Witnesses — Knowledgge of Subject.</p> <p>14. Before a witness can be permitted to testify on a matter requiring special information it must be shown that the witness called has at least some knowledge of the subject referred to; thus, in a rape case, the mother of prosecutrix, who is not a physician, can not be asked if the ill health of prosecutrix is not due to intercourse with men.</p>

From Jackson : Hiero K. Hanna, Judge. Bill by James McDougal and another against Joseph H. Lame, to enjoin the defendant from interfering with a ditch. The facts are that the plaintiffs own a ditch in Jackson County, -which conducts water from Lane’s Creek to their land, where it is used in operating a placer mine.

From Multnomah: Alfred F. Sears, Jr., Judge. Action by George O. Mellott against F. O. Downing and F. H. Hopkins for money had and received by the defendants to the plaintiff’s use.

From Polk: Reuben P. Boise, Judge. This is a suit by Marcus Morton and George Strong, receivers of the firm of Little, Maxwell & Company creditors of James Denham & Company, a firm composed of James Denham and James D. Richardson, to set aside two deeds to sixty-eight and ninety-six hundredths acres of land situated in Polk County, Oregon, one executed and delivered by James Denham to his wife, Mary C. Denham, and the other by both to the defendant R. J. Fleming, and to…

- Prom Multnomah : John B. Cleland, Judge. This is a proceeding by the Mutual Savings Bank of San Francisco in the suit by Cleveland Rockwell to dissolve the Portland Savings Bank and wind up its affairs. The receiver, Richard Nixon, refused to pay the petitioner any part of certain dividends that he had been directed to distribute to the creditors of the insolvent, and he appeals from an order granting the prayer of the petitioner.

From Polk : Reuben P. Boise, Judge. This proceeding was commenced in the county court of Polk County to compel a guardian to file a final account.

<p>Railroads—Excavation—Lateral Support. *</p> <p>The general rule that an adjoining proprietor, in excavating on his own land, removes the lateral support to his neighbor’s soil at his peril, regardless of care or negligence, applies also to railroads. • “</p>

From Multnomah: Alfred F. Sears, Jr., Judge. This action was commenced by Stephen W. Aldrich against the Columbia Southern Railway Company in Wasco County, November 18, 1898, to recover money alleged to be due for grading done on the right of way for a railroad.

<p>From Coos : J. C. Fullerton, Judge.</p> <p>Action by Kate F. Thibault against J. A. Lennon to ■recover exempt property levied on by defendant. In an action pending in a justice’s court, the defendant, as constable, attached certain household goods, which the plaintiff some days later claimed as exempt from execution and attachment, being in actual use and kej)t for use by her and for herself and family for household purposes. Upon his refusal to comply with her demand, she instituted this action in the county court of Coos County, to recover the possession thereof, wherein she was successful, and the defendant appealed to the circuit court. The transcript having omitted a copy of the notice of appeal, the plaintiff moved on that ground for a dismissal, but on cross motion the defendant was given leave to supply the record, which was accordingly done, and the motion to dismiss was denied. At the trial the plaintiff produced evidence tending to show that she was a married woman and a householder ; that she was the owner of the property sued for, which is of the value of $107.75 ; and at the time of the attachment was in actual use and kept for use by and for her family, and that it was necessary therefor ; that said property was attached on January 26, 1897, while she was temporarily absent, but that as soon as she discovered what had been done — that is to say, on or about January 29,1897,— she claimed and demanded it from the officer as exempt from execution and attachment, but that he refused to redeliver the same to her, and still retains it. Having rested her case, the defendant moved for a nonsuit, and the same was granted upon the specific ground that the plaintiff had failed to prove that the property in controversy was all the household goods, furniture, and utensils she owned at the time of the commencement of the action, and that she was not withholding or had not other property of the kind. Judgment having been entered dismissing the action, plaintiff appeals.</p>

<p>From Multnomah : Alfred F. Sears, Jr., Judge.</p> <p>Action by Crown Cycle Company against Sherman D. Brown to recover the value of goods sold and delivered to defendant. From a judgment in favor of plaintiff, defendant appeals.</p>

From Coos : Henry L. Benson, Judge. This is a suit by H. W. Dunham against Nellie Siglin, individually and as administratrix of the estate of J. M. Siglin, deceased, to establish and enforce a trust against the representative of the dead trustee.

From Coos: J. C. Fullerton, Judge. This is a suit by James C. Brown and B. C. Shull against W. W. Whittington and wife to cancel a convey-' anee of real property from the defendant W. W. Whittington to his wife on the ground that it is void as to creditors. On October 5, 1889, Whittington purchased and took in his own name a deed for one hundred and sixty acres of land in Coos County, upon which he has since resided with his family.

From Linn : George H. Burnett, Judge. This is an action by J. L. Lewis against John and M. B. Craft to recover money paid on account of the purchase price of cattle, and damages for an alleged refusal to deliver them.

From Harney; Morton D. Clirrord, Judge. This is an action by Charles Altschul against Emmett Clark to recover possession of the southeast quarter of the southeast quarter, and lots 5 and 6 of section 23, township 22 south, range 30 east, Willamette Meridian. It is stipulated by the parties hereto that the plaintiff holds the record title, and that adverse possession for the period of more than ten years prior to the commencement of this action is the sole defense interposed.

From Coos : Henry L. Benson, Judge. This is an action by J. H. Nosler against the Coos Bay, Roseburg & Eastern Railroad & Navigation Company to recover damages for injuries to plaintiff from being thrown over an embankment, alleged to have been made by the defendant company within the limits of a public highway.

From Coos : Henry L. Benson, Judge. • This is an action by Jefferson Williams, administrator de bonis non of the estate of P. W. Williams, with the will annexed, against S. J. Culver, upon a promissory note executed by the defendant in favor of the plaintiff’s intestate on August 19, 1891.

From Lane : James W. Hamilton, Judge. This is an action by E. J. Frasier against the New Zealand Insurance Company on a policy of insurance against loss by fire.

From Grant: Morton D. Clifford, Judge. Action by Elmer Pruitt, an infant, by W. G. Overholt, his guardian ad litem, against Jennie Muldrick, as executrix of the will of John Muldrick, deceased. From a judgment in favor of defendant, plaintiff appeals.

<p>Landlord and Tenant — Statutory Construction.</p> <p>1. In Oregon the action of forcible entry and detainer is not a substitute for trespass or ejectment, but is confined to those cases where the entry or detention is forcible, or where, the relation of landlord and tenant existing, the tenant refuses to vacate when holding over after the expiration of the term, or refuses to vacate after receiving notice to quit.</p> <p>Creating Relation of Landlord and Tenant.</p> <p>2. The relation of landlord and tenant is the result of a contract, either express or implied, by which the lessor gives up possession of certain premises, and the lessee takes possession with the lessor’s permission — and in this case the evidence fairly shows that such a relationship existed between the parties.</p> <p>Forcible Detainer — Evidence of Ownership.</p> <p>3. In an action for forcible entry and detainer, it was not error to allow the plaintiff to testify to her ownership of the property, the evidence not being offered as proof of title, and not being prejudicial to defendant.</p> <p>Receiving Rent From Prospective Tenant.</p> <p>4. The fact that plaintiff received rent in advance from a prospective tenant does not affect her right to possession of the premises as against the present tenant, who refused to vacate after the expiration of his term on notice to quit.</p>

From Baker : Robert Eakin, Judge. Bill by the Crown Point Gold Mining Company against S. C. Crismon and another to determine the title of a mining claim. On January 1, 1889, A. H. Huntington, J. C. Young, and A. Olsen posted a discovery notice on the Crown Point quartz claim in Baker County, and during the following summer marked the boundaries thereof on the ground so that they could be readily traced.

Action by the Newberg Orchard Association against J. T. Osborn. From a judgment in favor of plaintiff, defendant appeals. The case is now heard on a motion to dismiss the appeal.

From Baker : Robert Eaeiin, Judge. This is an action by M. S. Hughes against H. E. McCullough to recover a commission as a real estate broker.

<p>From Morrow : William R. Ellis, Judge.</p> <p>This action was instituted by the state, on the relation of J. D. French against Andrew J. Cook, to determine the title to the office of road supervisor of District No. 8, Morrow County, Oregon, as between the relator and the defendant. The complaint states, in substance, that the relator was, on June 4, 1900, elected to the office; that a commission was duly issued to him by the county clerk of Morrow County certifying his election thereto ; that he subsequently accepted the office, and qualified by taking and subscribing the .requisite oath ; but that the defendant usurped ancl prevented him from entering upon the discharge of his duties as such supervisor. It is signed by G. W. Phelps, attorney for plaintiff, and verified by the relator. The defendant challenges its sufficiency on the grounds that it does not show that the relator was a resident of the district at the time of his election, and is not signed by the district attorney. Before the case was brought on for hearing, Hon. T. G. Hailey, District Attorney for the Sixth Judicial District, had his appearance noted upon the-journal, showing not only that the prosecution was being carried on with his express assent and approval, but that the case had been so commenced. Judgment was for plaintiff, and defendant appeals.</p>

<p>From Union : Robert Eakin, Judge.</p> <p>This is a suit by S. O. Swackhamer against Joseph Johnson, Ung Cuey, the Wing Chin Lung Company, and Lee Tung Yin, to enjoin a trespass upon real property and to recover damages for injuries thereto. The facts are that the defendant Joseph Johnson, having conceived-the project of building a railroad from Union, Oregon, to Bear, Idaho, and being without means to execute his proposed scheme, certain citizens of Union, on June 8, 1898, to promote that-city’s growth, entered into a contract with him whereby they agreed to donate a right of way for said railroad through the corporate limits of Union, six acres of land therein for depot facilities, and the sum of $3,500 upon the construction of the first ten miles of railway. The plaintiff agreed with said citizens to donate the depot grounds required by them, but, Johnson having demanded a greater area than specified, the plaintiff on August 18, 1898, in consideration of the sum of $217, paid for Johnson by said citi-. zens, and Johnson’s agreement to pay the further sum of $283, executed a deed to him for twelve acres of land in said city, which he deposited with the First National Bank of Union, to be delivered upon the payment of the remainder of the purchase price, if the first ten miles of said railway were completed within six months. The land so selected for depot purposes and right of wTay therefrom across plaintiff’s premises was covered with valuable timber, which afforded security to his stock as a wind-break for their protection against the inclemency of the weather. Johnson on October 5, 1898, entered into a contract with Lee Ching Duck and Lee Tung Yin, partners as the Wing Chin Lung Company, and Ung Cuey, whereby they agreed to furnish him forty Chinese laborers to work upon said railroad for $1.10 each per day, except a bookman or foreman, for whose service they were to be paid the sum of $1.25 per day, the contract providing that the laborers so to be furnished “shall perform work faithfully, and at such times and places upon said line of railway as they may be directed by and under the supervision of the party of the first part (Johnson) and his superintendent or engineer.” After this contract was consummated, but before any laborers were furnished, Johnson, to secure Lee Tung Yin, assigned the subsidy agreement and conveyed all his interest in the depot grounds to him, and so notified the citizens’ committee, the First National Bank of Union, and the plaintiff; but the latter refused to yield his consent thereto. The laborers were sent to Union in charge of a bookman or foreman selected by the Wing Chin Lung Company, where, in pursuance of Johnson’s ordei'Sj and without the knowledge of the parties sending them or of the plaintiff, they cut down most of the timber growing upon the land set apart for depot purposes and on the right of way leading therefrom across the plaintiff’s premises. The first ten miles of said railroad were never constructed, and, the project having been abandoned by Johnson, who left the country without paying the Wing Chin Lung Company any part of the expense of about $3,000 incurred on account of the laborers so furnished, plaintiff commenced this suit, but, having served a summons upon Lee Tung Yin only, and the other defendants not having appeared, a trial was had, resulting in a decree perpetually enjoining any further trespass upon plaintiff’s premises, and awarding him the sum of $750 as damages, from which Lee Tung Yin appeals.</p>

<p>From Umatilla : Stephen A. Lowell, Judge.</p> <p>This action was originally instituted by Zoeth Houser against Peter West and others to recover upon a bond given to the plaintiff, as sheriff, by defendant and his sureties, to indemnify him against any liability that he might incur in selling two stacks of wheat hay at the request and by the direction of defendant, under an execution issued by his direction against the property of Charles Campbell. After levy, Campbell’s wife claimed the proxDerty ; whereupon plaintiff demanded indemnity, and the bond sued on was eventually given. The property was sold pursuant to the execution, and the proceeds paid to defendant. Subsequently, Mrs. Campbell sued the plaintiff, and recovered judgment for the value of the property, which he satisfied, and this action is prosecuted for his reimbursement. Three trials of the cause have been had. At, or prior to the second, the action was dismissed as to the sureties, and left to proceed against West, who denied that the levy was made in pursuance of his direction, plaintiff’s allegations of his refusal to sell unless indemnified, the agreement to indemnify, the giving of the undertaking, and the conditions set out. And, as a separate defense, he avers that he directed the plaintiff to levy upon two certain stacks of wheat hay upon the west half of the northwest quarter of section 14; that the plaintiff levied thereon in accordance with instructions, and sold them under the writ,— all prior to the giving of the undertaking, which, when executed, was without consideration and void. The reply admits the sale of the property before the execution of the undertaking, but alleges that West, at the request of the plaintiff for indemnity, first deposited county scrip therefor, but subsequently withdrew it, and gave the undertaking in its stead. There was a judgment for plaintiff, from which West appeals.</p>

<p>Counties — Voluntary Debts-JHecovery of Consideration.</p> <p>1. Though a voluntary agreement entered into by a county, involving it with liabilities after the limit of its indebtedness has been reached, is ultra vires and unenforceable, one contracting with a county under such circumstances may recover “property transferred to the county in such transaction, providing it can be identified, upon returning unpaid warrants issued by the county in return for the property.</p> <p>County Debt Limit — Limitation of Actions.</p> <p>2. The right to recover the consideration paid in part performance of a void contract accrues at the time of payment, and the statute of limitations then begins to run; thus, where a county voluntarily purchased sundry chattels in 1891, it being then in debt beyond the constitutional limit, and the warrants so issued were, in 1897, declared by the appellate court ultra vires and nonenforceable, the cause of action of a suit to recover the specific personal property accrued when the property was delivered in 1891, and not when the mandate of the appellate court was entered.</p> <p>Counties — Prohibition Against Tenancy in Common.</p> <p>3. The Constitution of Oregon, Article XI, § 9, providing that no municipal corporation shall become a stockholder in any corporation or association, does not prevent a tenancy in common between a county and a private person or company.</p>

<p>When Judgment Becomes a Lien.</p> <p>Judgment liens on realty are entirely a creation of statute, and, under Section 269 of Hill’s Ann. Laws, a judgment does not become a lien on the debtor’s real estate until it is entered in the j udgment docket of the proper court.</p> <p>Judgment Docket-Effect of Wrong Headings.</p> <p>The j udgment lien docket provided for by Section 572 of Hill’s Ann. Laws is a book intended to be complete within itself, and should contain ever5T statement prescribed by the statute directing it to be kept, or it will not accomplish its purpose; thus, the entry of a judgment in a judgment docket which does not state when it was “docketed,” as required by section 572, it is not sufficient to create a lien on the debtor’s real estate.</p> <p>Statutes — Courts—Judgment dockets.</p> <p>Hill’s Ann. Laws, § 569, specifying the records of the county and circuit courts as consisting of registers, judgment dockets, etc., requires each court to keep a separate judgment docket.</p> <p>Titees of Judgment Dockets.</p> <p>The entry of a judgment in a book entitled, “Judgment Lien Docket, B County,” is insufficient to create a lien, since it is not a compliance with Hill’s Ann. Laws, § 569, requiring the circuit and county courts'to keep judgment dockets; the docket should have shown on its face that it was the judgment docket of a particular court. .</p> <p>Presumption of the Performance of Officiad Duty.</p> <p>Where a j udgment docket does not show the date of docketing the j udgment, as required by Hill’s Ann. Laws, § 572, there is no presumption that the clerk properly docketed the judgment at the date of its rendition, as required by section 269.</p>

<p>Bciuity — Specific Pebfobhance — Intekest in Unpatented Device.</p> <p>1. A court of equity has jurisdiction to compel the performance of a parol contract to convey an interest in letters patent, if and when issued, for a patentable device.</p> <p>Sufficiency of Evidence.</p> <p>2. The evidence in this case is sufficient to support a finding that the parties were equally interested in patenting a patentable device, and that defendant agreed that plaintiff should have a half interest in the letters patent.</p> <p>PRESUMPTION OF INTEBEST IN JOINT VENTUBE.</p> <p>8. Where persons enter into a joint venture, it will be presumed that they are equally interested, and of course the burden of proof is on the party who alleges otherwise.</p>

<p>Constitution — Legislative Power — County Commissioner.</p> <p>1. The legislature may in its discretion commit the care and transaction of county business to the county judge alone, or to a court composed of the judge and two commissioners, or to an independent board of three commissioners; and it may change a plan that it has adopted, and try one of the others at its pleasure. The discretion is absolute and is inexhaustible, except that one of the three named methods must be used. 1</p> <p>Power to Legislate Out an Elected Officer.</p> <p>2. As state legislatures have all the power not expressly or impliedly withheld, and as the legislature of Oregon has power to change at will the constituí ion of the tribunal for the transaction of county business, it seems to naturally follow that the incumbent of an office that becomes superfluous by changes, maybe dropped. As the legislature has the power to change the tribunal, it may depose officials in office so as to make the new plan effective, without reference to whether such officials have been elected or appointed.</p> <p>Tenure of Office of County Commissioner.</p> <p>3. A county commissioner is subject to removal by the legislature by changing bis term of office or abolishing the office entirely — the fact that the office is elective does not put it beyond legislative control.</p> <p>Statutes — Title of Act.</p> <p>4. The title of an act stating that its purpose is to repeal a certain act providing for a separate board for the transaction of county business in a certain county, and to provide for the appointment of two commissioners to sit with the county judge for the transaction of such business, is sufficient to embrace the removal of one of the members of the former board from office, where his removal is necessary to effectuate the purpose of the act.</p>

<p>Cemeteries as Nuisances.</p> <p>1. A cemetery is not per se a nuisance, and whether it is so in a given case will depend upon local conditions.</p> <p>Power of Municipality to Declare Nuisances.</p> <p>2. Under a charter authorizing a city to declare what shall constitute nuisances, it can not arbitrarily declare that to be a nuisance which is not so in fact or by statute, nor was so at common law; thus, under such a charter, a city can not declare generally that the burial of a dead body in any portion of the city shall constitute a nuisance, when such interment might be made in certain sections thereof without giving offense to the senses or endangering the health of the community: Grossman v. City of Oakland, 80 Or. 478, applied; City of Portland v. Terwilliyer, 16 Or. 465, explained.</p> <p>Municipal Obdinances Relating to Bubials. *</p> <p>3. Under a charter conferring power to provide for the health, cleanliness, peace, and good order of the city, and to prevent and remove nuisances, a municipality may prescribe reasonable rules for the place and manner of burying the dead, and whether a given rule is reasonable is a question to be determined by the courts.</p> <p>Municipal Obdinances—Pbesumption op Reasonableness.</p> <p>4. There is a presumption indulged that municipal ordinances are reasonable, and the burden of proof is on him who asserts otherwise.</p> <p>Judicial Notice oe Municipal Chaetees.</p> <p>5. Courts will take notice of the public laws incorporating cities and of the boundaries of such municipalities.</p> <p>Reasonableness oe Obdinances Peohibiting Bubials.</p> <p>6. Under a city charter authorizing a city to provide for the health, cleanliness, peace, and good order of the city, and to prevent and remove nuisances, an ordinance prohibiting burials in certain parts of the city which are distant from any inhabitants or any public thoroughfare, is unreasonable, and, being general in its territorial operation, is entirely void.</p>

<p>From Umatilla: Stephen A. Lowell, Judge.</p> <p>Action by J. P. Perry against William Gholson. From a judgment in favor of plaintiff, defendant appeals.</p>

<p>Rescission of Contract — Returning Consideration.</p> <p>1. Before a rescission of a partly performed contract can be demanded, and a reconveyance be had of property that has been transferred in pursuance of such, contract, the moving party must return, or offer to return, whatever has been received of the agreed consideration.</p> <p>Vendor and Purchaser — Enforcement of Contract.</p> <p>2. Part of the purchase price for land and mining claims sold by plaintiffs to defendants was paid, and it was agreed that a portion of the balance was to be paid to a trustee to whom plaintiffs deeded the property, who should therewith clear up outstanding claims and procure patents from the government. When the trustee had done this, the remainder of the purchase money was to be paid to plaintiffs. The trustee cleared up all claims, and applied for and obtained patents for all except fifteen acres, which were omitted from his application because it was believed that the claim thereto, though made in good faith, was void, in that it did not conform to the government subdivisions. The law on this point is apparently unsettled. Held, that it was the duly of the trustee to endeavor to secure the patent for the fifteen acres, and that, the plaintiffs not being at fault in the failure to obtain such patent, were entitled to a decree that the trustee turn over to them the balance of the purchase price which he had on hand.</p>

<p>From Union : Robert Eakin, Judge.</p> <p>Action by M. C. Hunter against the Grande Ronde Lumber Company. From a judgment in favor of.plaintiff, defendant appeals.</p>

From Union : Robert Eakin, Judge. This is an action by D. Sommer against H. W. Oliver, D. Y. K. Deering, sheriff, and another to recover possession of three hundred thousand feet of lumber attached as the property of one S. L. Akin by the defendant Deering, as sheriff of Union County, under a writ of attachment issued in an action brought by H. W. Oliver against Akin.

From Harney: Morton D. Clifford, Judge. This is an appeal by Newt. Hoover from a nunc pro tunc order amending the final decree in the case of Alice L. Hoover against appellant.

<p>From Umatilla: William It. Ellis, Judge.</p> <p>Action by Peter West against George and Andrew Eley, wherein an involuntary nonsuit was entered.</p>

<p>From Marion : Henry H. Hewitt, Judge.</p> <p>Suit against the City of Salem, resulting in a decree for defendant.</p>

From Multnomah : Arthur L. Frazer, Judge. Action by Edward B. Watson and B. B. Beekman to recover from the Southern Oregon Company $6,000 for services as attorneys for defendant in certain suits. Defendant admitted the performance of the services, but denied that they were worth more than $500.

For Multnomah : Arthur L. Frazer, Judge. Action by C. E. Burrows and others against Robert Balfour and others. From a judgment affirming the clerk’s decision on motion to retax costs, defendants appeal.

From Marion : George H. Burnett, Judge. Action for damages by S. B. Catterlin against A. Bush, resulting in a judgment for defendant on the pleadings. Plaintiff gave notice of appeal and filed the undertaking required by law. At that time the law required that the transcript should be filed in the supreme court at the beginning of the next term.

From Multnomah: Alfred F. Sears, Jr., Judge. This is an action by Thomas J. Hammer against F. 0. Downing and F. H. Hopkins to recover certain moneys paid to them by plaintiff and others. There was a judgment for plaintiff. The judgment was reversed and a rehearing denied, the opinion in both instances being written by Judge Wolverton. Afterward a motion to vacate the judgment for costs was overruled, and finally part of the costs claimed were disallowed.

From Multnomah: Alfred F. Sears, Jr., Judge. Action by Henry Smith against The Dalles, Portland & Astoria Navigation Company and J. G. and I. N. Day, partners, for damages. From an order sustaining a demurrer to the complaint plaintiff appeals.

<p>From Umatilla : William R. Ellis, Judge.</p> <p>Action by Lina H. Sturgis against William Baker. From a judgment in favor of defendant, plaintiff appeals.</p>

<p>From Sherman : „ W. L. Bradshaw, Judge.</p> <p>Unsuccessful replevin by F. R. Messinger against the Union Warehouse Company. Affirmed.</p>

<p>From Union : Robert Eakin, Judge.</p> <p>Action of replevin by J. L. Alberson against the Elk Creek Gold Mining Company to recover possession of sundry chattels that he might foreclose a chattel mortgage thereon. The facts in detail appear in the opinion of the court. Defendant appeals from a judgment for the plaintiff.</p>

<p>From Union : Robert Eakin, Judge.</p> <p>Action by L. Oldenburg against the Oregon Sugar Company, a private corporation. From a judgment in favor of plaintiff, defendant appeals.</p>

<p>From Clatsop : Thos. A. McBride, Judge.</p> <p>Action by Susan Mattson, as guardian ad litem for Henry Mattson, against the City of Astoria. From a judgment for plaintiff, defendant appeals.</p>

<p>From Union : Robert Eakin, Judge.</p> <p>Action by John Meyers against John Dillon and Chas. Mellquist. From a judgment in favor of plaintiff as against Dillon, the latter appeals.</p>

From Marion : Reuben P. Boise, Judge. Action by S. E. Young and others against John Hughes, as administrator of the estate of Seth R. Hammer, deceased. From a judgment for plaintiffs, defendant appeals.

From Sherman : W. L. Bradshaw, Judge. Action by M. F. Parrish and Byron Simmons, copartners under the name of Parrish & Simmons, against George P. Higinbotham. - From a judgment in favor of the defendant, the plaintiffs appeal.

From Clatsop : Thomas. A. McBride, Judge. Suit by G-. Wiugate and others to enjoin the City of Astoria and its chief of police from collecting certain assessments for a street improvement. After a hearing on the merits, there was a decree for the defendants, hence this appeal.

From Coos. J. O. Fullerton, Judge. Suit to restrain the public officers of Coos County from attempting to collect certain taxes, and defendants appeal from a decree as prayed.

From Baker : Robert Eaicin, Judge. Suit by Olive E. Dyke against H. E. Currey and another, to restrain the enforcement of a certain judgment. There was a decree as prayed for, and defendants appealed.

From Linn : Reuben P. Boise, Judge. This is a suit by John Meinert against Emma Harder and others to set aside a judgment, and to enjoin the levy of an execution issued thereon.

<p>From Umatilla: William R. Ellis, Judge.</p> <p>An Indian named Toy Toy was not satisfied with a sentence of death following a conviction on a charge of murder by poisoning, and appealed.</p>