Volume 46 — Utah Reports

<p>Appeal from District Court; Second District; Hon. J. A. Howell, Judge.</p> <p>Separate actions by A. M. Campbell, by Fred King, by P. B. Haslet, by George King, by Fred W. Voll, by Fred Brein-ing, by B. F. Estes, by W. B. Haymond, and by B. F. Rugg against the Zion’s Co-operative Home Building & Real Estate Company.</p> <p>Judgment for plaintiff in each case. Defendant appeals.</p>

<p>1. Indictment and Information — Statutory Offenses — Indictment in Language of Statute — “Indecent Assault” — “Indecent Liberties.” An indictment in the language of Laws 1909, chapter 26, declaring that every person who shall assault a child under the age of 14 years, and shall take indecent liberties with or on the person of such child, without committing, intending, or attempting to commit the crime of rape or assault with intent to rape, shall he guilty of an indecent assault, is sufficient without alleging in what manner and under what circumstances accused took indecent liberties with the person of prosecutrix, for the crime is in its legal import an indecent assault, and the terms “indecent assault” and “indecent liberties” are convertible, and the term “indecent liberties” is self-defining, and the term “indecent assault” is but the statutory definition epitomized.1 (Page 21.)</p> <p>2. Criminal Law — Witnesses—Competency of Child. The competency of a child to testify is within the discretion of the trial court, and its decision will not he disturbed, unless clearly abused. (Page 22.)</p> <p>3. Witnesses — Competency — Discretion of Court. On a trial for taking indecent liberties with a child (between seven and eight years old, the court may, in its discretion, permit the child, who was a “bright” girl, to testify.2 (Page 22.)</p> <p>4. Criminal Law — Instructions—Requests—Necessity. Failure of the court to charge on the good character of accused, proved by undisputed testimony, is not error, in the absence of a request therefor. (Page 23.)</p>

<p>Drains — Drainage DistRicts — Issuance or Bonds — Submission to Popular Vote — Notice. Laws 1913, chapter 95, section 32, provides, as to special drainage district elections to determine whether bonds shall issue, that the supervisors shall request the county commissioners to call a special election within from thirty to forty-five days “from the date of filing such request and due notice of such election, which shall be held within the said district or at some convenient point adjacent to said district,” and that such notice shall require the electors to cast ballots in the form therein specified, or in an equivalent form. Held, that the statute is meaningless as to the notice to be given, or by whom, when or in what manner it is to be given, and, as the giving of notice is a prerequisite to a valid election, an election held thereunder was invalid, though notice was given by posting and publication, as there was no statutory standard by which it could be determined whether the notice was sufficient.</p>

<p>Appeal from District Court, Third District; Hon. Geo. G. Armstrong, Judge.</p> <p>Action by George B. Hancock against Francis G. Luke and another.</p> <p>Judgment on the pleadings for plaintiff. Defendants appeal.</p>

<p>Appeal from District Court, Third District; Hon. F. C. Loofbourow, Judge.</p> <p>Action by Salt Lake City, a municipal corporation, against M. E. Wilson.</p> <p>Judgment for defendant. Plaintiff appeals.</p>

<p>Appeal from District Court; Fifth District; Hon. J. Greenwood, Judge.</p> <p>The appellant was convicted of a felony. He appeals.</p>

<p>1. Frauds, Statute of — Contracts. A memorandum, reciting the receipt of thirty dollars as part payment for thirty acres of land, is insufficient to take the case without the statute of frauds, not .describing the land. (Page 84.)</p> <p>2. Specific Performance — Evidence—Sufficiency. Evidence held insufficient to establish the terms of a parol contract for the sale of land, with the clearness and exactness necessary to award specific performance.1 (Page 84.)</p> <p>3. Frauds, Statute of — Part Performance. Where one who owned considerable land contracted to sell thirty acres, the fact that the purchaser mended fences on a particular thirty acres, and occasionally grazed stock thereon after paying part of the purchase price, is not such a part performance as will take the case out of the statute of frauds; the contract not designating the particular land. (Page 84.)</p> <p>4. Frauds. Statute of — Possession. Where a contract for the sale of thirty acres of land did not designate the property, and the grantor owned considerable land, mere possession of a particular parcel by letting stock graze thereon will not take the case out of the statute of frauds by identifying the land. (Page 87.)</p>

F. C. Loofbourow, Judge. Action by Rose Requa, individually and as guardian ad litem', etc., against the Daly-Judge Mining Company arid others. Judgment for defendants. Plaintiff appeals.

<p>1. Appeal and Error — Verdict—Conclusiveness. A verdict on conflicting evidence, and supported by some evidence, though weak, will not he disturbed on appeal. (Page 109.)</p> <p>2. Master and Servant — Death op Servant — Negligence—Inferences. Where an inference of the negligence of the employer, causing the death of an employee, arises from certain facts and circumstances, the inference may be strengthened by reason of the failure of the employer to offer any explanation of the cause of the accident.1 (Page 110.)</p> <p>3. Master and Servant — Misleading Instructions. Where, in an action for the death of an employee, the court charged that there could be no recovery unless the jury found that decedent was working within the scope of his employment at the time of the accident, a charge that it was the duty of the employer to use reasonable care to keep the premises about which decedent was employed in a reasonably safe condition was not objectionable as leading the jury to believe that the employer was liable, though the relation of master and servant, as to the particular work which decedent was doing at the time of the accident, did not exist. (Page 111.)</p> <p>4. Masteb and Sebvant — Death of Sebvant — Contbibtjtoby Negligence. ’ An employee going on a scaffold prepared and intended for that purpose, and on which at least two employees were working at the time, is not guilty of contributory negligence, precluding a recovery for his death by the collapse of the scaffold. (Page 111.)</p> <p>5. Death — Action foe — Damages—Excessive Damages. Under Comp. Laws 1907, Section 2912, authorizing the jury, in an action for death, to award such damages as may be just, a verdict for $5,300 for the negligent death of a man sixty-one years ' old, leaving a widow and three adult children and four minor children, aged eighteen, fifteen, fourteen and eleven years, respectively, was not excessive, where decedent was sober and industrious and of excellent health, and earning at the time of his death $3.75 per day, and constanty employed for nine months in each year at a wage of between three dollars and four dollars per day.2 (Page 112.-)</p>

<p>Fish— Game- — Private Risi-its. Though defendants confessedly were entitled to hunt and fish in a river, that right does not entitle them when plaintiffs’ property is covered with water to hunt and fish on the water submerging plaintiffs’ land.</p>

<p>1. Common Law — Husband and Wife — Property of Wife — Adoption by Territory — Statute. When Congress, in 1850, hy adopting the Organic Act for the government of the territory, provided in the last section that the Constitution and laws of the United States were thereby extended over the territory so far as the same might be applicable, that system was extended ' which generally prevailed in the country, and the old English common law, with its rigorous limitations imposed upon women by the status of marriage, was not adopted, but only so much thereof as was applicable to the conditions of the new territory, which recognized the equitable right of a married woman to a separate estate.1 (Page 127.)</p> <p>2. Husband and Wife — Property of Wife — Recovery'—Laches of Wife. Where the administrator of a wife sued to recover from the executors of her husband’s property alleged to have been the wife’s separate estate, and where the delay in asserting the right was less than the period of limitations, and it did not appear that the delay worked any disadvantage, dismissal of the complaint on the ground of laches was improper.2 (Page 129.)</p> <p>3. Limitation of Actions — Property of Wife — Recovery—Pleading. -Where an administrator of a wife sued the executors of her husband to recover property alleged to be her separate estate, and the allegations of the complaint, while showing lapse of time in excess of the statute of limitations, set up no demand and refusal, ouster, hostile assertion, or holding on the part of the husband against the wife, while asserting cotenancy, the married relation, and other trust or fiduciary relations against which the limitations do not run until demand and refusal, ouster, or open repudiation, the complaint was not demurrable. (Page 129.)</p> <p>4. Limitation of Actions — Suspension of Statute — Deatii " and Administration — Effect. Causes of action which accrue to the administrator after the death of an intestate are not complete and do not exist, so that limitations can begin to run upon them until the administrator is appointed who can bring suit. (Page 130.)</p> <p>5. EXECUTORS AND ADMINISTRATORS-CLAIMS-PRESENTMENT-STATUTE. Suit by the administrator of a wife against the executors of her husband to recover her separate estate was not of such character as to require presentment of claims to such executors within the provisions of the probate laws. (Page 131.)</p>

<p>WATERS AND WATER COURSES-IRRIGATION-INJURIES FROM OVERFLOW —Duty to Repair — Sufficiency of Evidence. In an action for damages to realty caused by overflow from an irrigation ditch, evidence on the issue whether defendants were under duty to repair such ditch held to render non-suit improper.</p>

<p>Appeal from District Court, Third District; Hon. F. C. Loofbourow, Judge.</p> <p>Giovanni Anselmo was convicted of murder in the first degree. He appeals.</p>

Geo. G. Armstrong, Judge. Action by the Salt Lake Investment Company against the Oregon Short Line Railroad Company to recover compensation for the taking of private property for public use with counterclaim to quiet title. Judgment for plaintiff. Defendant appeals.

<p>1. Deeds — Conveyance by Father to Son — Undue Influence— Presumption. Where a voluntary conveyance was made by testator to his son at the instigation of the mother, the relationship between the parties gave rise to no presumption of undue influence to cast upon defendants the burden of showing the good faith of the transaction.1 (Page 227.)</p> <p>2. Deeds — Deed to Son — Undue Influence — Sufficiency of Evidence. In an action to cancel a conveyance from father to son, made at the instigation of the mother, evidence held insufficient to show her undue influence.2 (Page 229.)</p> <p>3. Deeds — Incapacity of Grantor — Sufficiency of Evidence. In an action to cancel a conveyance alleged to have been made by one without capacity, evidence held insufficient to authorize finding of lack of capacity existing at time of conveyance.3 (Page 230.)</p> <p>4. Contracts — “Mental Capacity” — Statute. Comp. Laws 1907, section 4001, providing that the phrases, “incompetent,” “mentally incompetent,” and “incapable,” as used in the title (which regulates the appointment of guardians for incompetents), shall he construed to mean any person who, though not insane, is by reason of old age, disease, weakness of mind, or from any other cause, unable, unassisted, properly to manage and take care of himself or his property, and by reason thereof would be likely to be deceived or imposed upon by designing persons, does not alter the ordinary test of contractual capacity, which is impairment of the mental faculties to such an extent that the subject has not power to comprehend the matter of the contract, its nature and probable consequences, and to act with discretion in relation thereto, or to the ordinary affairs of life. (Page 230.)</p> <p>5. Deeds — Delivery—Presumption. Where a deed was recorded, the grantee going into and remaining in possession, and grantor survived the making of the deed for about three and one-half years without questioning its validity or delivery, a presumption of delivery arose. (Page 231.)</p> <p>6. Deeds — Validity—Undue Influence — -Evidence. In an action to cancel a deed alleged to have been procured by undue influence, two deeds, previously executed by the same grantor, one to another grantee, and one to the same grantee, reserving a life estate in the grantor, were properly admitted in evidence to show some reason for making the deed in question. (Page 231.)</p> <p>7. Executoes and Administbatobs — Conveyance of Testator— Undee Influence — Duty of Executor. It is the duty of an executor to bring suit to cancel his testator’s conveyances thought to have been procured by undue influence in order to conserve the estate. (Page 232.)</p>

<p>1. PRINCIPAL AND SURETY-BOND-LIMITATION 03? SUBETY’S LIABILITY. Although where a bond is given insuring the performance of a contract both instruments should he construed together to determine the scope of the obligation assumed by the surety, nevertheless such obligation may be specifically defined and limited in the bond itself, regardless of the provisions of the contract secured. (Page 238.)</p> <p>2. Pkincipal and Surety — Bond—Construction. Where the bond whereby a surety secured the performance of a contract specifically placed a limit upon such surety’s undertaking, by setting out the defaults for which it should be liable, the only difference between the provisions of the contract and those of the bond being a clause that the surety should not be liable for personal injuries to any person or persons, it was clear that such clause was purposely inserted, and that the understanding and intention of the parties was that the surety be liable only for the defaults for which it specifically assumed liability in the bond, irrespective of the provisions of the contract secured. (Page 239.)</p> <p>3. Principal and Surety — Bond op Surety Company — Construction. Sureties are favored by the law; but, while a surety’s contract will not be extended beyond its express terms by construction, nevertheless, as against a surety company executing bonds for profit, when the intention of the parties is once ascertained, the bond will be construed neither strictly nor liberally, but so to effectuate such intention.1 (Page 239.)</p> <p>4. Bonds — Construction. To ascertain, the intention with which a bond was executed, recourse must he had to the whole instrument, and proper effect given to every word, phrase, and sentence. (Page 239.)</p> <p>6. Bonds — Contract for Benefit of Third Person — Beneficiary's Right to She — Action by Materiahman Against Surety on Contract. A surety company executed a bond securing the performance of a contract to construct a tunnel, and providing that if the contractor should keep the terms of the contract as recited in the bond the obligation should he of no effect. A material-man sued the contractor and the surety on the former’s failure to pay. The provisions of the bond were such that it did not appear to have been made for the benefit of any parties other than the corporation for which the tunnel was to be built. Held, that the plaintiff had no right of action against the surety, since, although the third person for whose benefit a contract was made may maintain an action thereon, nevertheless it must appear from the provisions of such contract itself that it was made for the benefit of the plaintiff, either as an individual or as a member of a contemplated class.2 (Page 242.)</p>

W. W. Maughan, Judge. David Hammond was convicted of being tbe father of a bastard child, and was required to contribute to -its support. He appeals.

<p>Appeal from District Court, Third District; Hon. M. L. Ritchie, Judge.</p> <p>" Action by N. W. Miller against L. A. Maries.</p> <p>Judgment for plaintiff. Defendant appeals.</p>

A. B. Morgan, Judge. Action by Ernest Dayton against J. S. Free and others. ■ Judgment for plaintiff. Defendants other than the Snake Creek Mining & Tunnel Company appeal. Judgment in favor of such company. Plaintiff appeals.

<p>1. Constitutional Law — Pbotection of Peopeety — Police Pow-ee. All constitutional provisions relating to the rights of acquiring, possessing, and protecting property must he construed as subject to the police power of the state, unless the Constitution expressly provides otherwise. (Page 290.)</p> <p>2. Intoxicating- Liquobs — Pbohibition—Constitutionality. The state has the right, under its police, power, absolutely to prohibit the sale of intoxicating liquors; the provisions of the state Constitution respecting the protection of property rights being no broader than those of other states. (Page 290.)</p> <p>3. Constitutional Law — Intoxicating Liquobs — Local Option— Constitutionality. The local option statute is not unconstitutional as a delegation by the state of its police power to municipalities, since it may make such delegation in the premises. (Page 291.)</p> <p>4. Constitutional Law — Delegation of Powee — Local Option Law. Laws of 1911, c. 106, the local option statute, is not unconstitutional as being a delegation of legislative powers to the voters of the various local option units, since all that such voters may do under the act is to choose one of two methods to control the liquor traffic. , (Page 291.)</p> <p>5. Statutes — Local Option Law — -Constitutionality. Laws of 1911, c. 106, the local option statute, is not unconstitutional as a general law and not of uniform operation.1 (Page_)</p> <p>STRAUP, C. J., dissenting in part.</p>

For first appeal of this case see 42 Utah 157. Appeal from District Court, Third District; Hon. Geo. G. Armstrong, Judge. Action by Horace H. Cummings and wife against Christian Nielson and others. Judgment for defendants. Plaintiffs appeal.

N. J. Harris, Judge. Action by the Rocky Mountain Stud Farm Company, a corporation, against H. H. Lunt and others. Judgment for plaintiff against some of defendants, and for some of the defendants against plaintiff. All parties appeal. STATEMENT OP PACTS. This is an appeal from a judgment rendered in the District Court of Weber County.

<p>1. Appeal and Ebbor — Matters Ricviewable — Judgment of Non-suit. A hill of exceptions reciting thát defendant interposed a motion for nonsuit, that the jury were excused and after argument of the motion were returned into court, that the court sustained the motion, and stated that judgment for nonsuit might be granted, whereupon the jury were discharged, is insufficient to show the entry of an appealable judgment.1 (Page 318.)</p> <p>2. Appeal and Error — Record—Order of Nonsuit. An order of nonsuit attached to a transcript, but not a part of the judgment roll, within Laws 1911, c. 94, providing that certain papers shall constitute the judgment roll, nor being included in the bill of exceptions, cannot be considered on appeal. (Page 318.)</p> <p>3. Appeal and Error — Record—“Judgment.” A judgment being the final determination of the rights of the parties, to ascertain what in fact was determined, recourse should be had, not to the bill of exceptions, but to the judgment itself or to the judgment record or recitals of it. (Page 319.)</p>

<p>1. Municipal Corporations — Collision with Wagon — Ownership ■ — Question foe Jury. In an action for injuries to plaintiff street sweeper by a delivery wagon, question of the ownership of such wagon field for the jury under the evidence. (Page 323.)</p> <p>2. Master and Servant — Injuey to Third Person — Use of Highway — Agency of Driver — Burden of Proof. Where plaintiff street sweeper was injured by being run into by a horse and delivery wagon, which he affirmatively proved were not driven by or under the control of the defendant at the time of the accident, but were under the control of a third person, the burden of proof was on plaintiff to produce evidence that the driver was the servant of the defendant, acting in the course of his employment at the time of the accident, since the mere use of a wagon is not sufficient to hold the owner for injuries caused by the driver. (Page 323.)</p>

<p>Appeal and Ekbok — Findings op Fact — Evidence. Findings for plaintiff will not be disturbed on appeal, in tbe absence of error of law, where they are supported by substantial evidence.</p>

<p>1. Pbohibitiox — Nature oe Remedy — Statute. Where a justice of the peace sought prohibition to restrain the board of county commissioners from taking further action under Laws 1915, e. 108, amending Comp. Laws 1907, Sec. 544, relating to the constitution of justice courts in cities of the first class and others, and regardless of an emergency clause which the applicant contended was unconstitutional, the act would go into effect May 11, 1915, and the case was presented to the court on oral argument on May 14th, although the board had appointed a second justice under the act before it went into effect, prohibition could not issue, since under Comp. Laws 1907, Sec. 3654, the office of the writ is to arrest the proceedings of any tribunal, corporation, ■ board, or person when such proceedings are without or in. excess of the jurisdiction of the tribunal; the writ of “prohibition” bei ing one commanding the person to whom it is directed not to do something which, by the suggestion of the relator, the court if informed he is about to doj a preventative rather than a corrective remedy, issuing only to prevent the commission' of a future act. (Page 333.)</p> <p>2. Statutes — Partial Invalidity. That Laws, 1915, e. 108, amending Comp. Laws 1907, Sec. 544, providing for the constitution of justice courts in precincts coextensive with, cities of the first class, and the appointment of a clerk and deputy clerks of the justice courts of such precincts, was in part repugnant to Const. Art. 8, Sec. 21, providing that judges of the Supreme Court, District Courts and justices of the peace shall be conservators of the peace, and may hold preliminary examinations in cases of felony, because of the provision that all causes of criminal action, arising within cities of the first class, and over which justices of the peace have jurisdiction, shall be brought before the respective justices for such cities, did not invalidate the entire act, since the power and jurisdiction of the justice in criminal cases within his precinct had nothing to do with the power of the board of county commissioners to appoint him, while an invalid section of a statute, which may be eliminated without affecting the other provisions, will not invalidate the entire act. (Page 33S.)</p> <p>3. Statutes — Justice Coukts — Constitutionality—“Subject of a Law.” Laws 1915, c. 108, amending Comp. Laws 1907, Sec. 544, providing for the election of justices of the peace and constables in cities of the first class and others, and the appointment of a clerk and deputy clerks for justice courts by the board of county commissioners, is not violative of Const. Art. 6, Sec. 23, providing that, with certain exceptions, no bill shall be passed containing more than one subject, since all the provisions of the act relate to the constitution of two justice courts in certain precincts made coextensive with cities of the first class, and one justice in precincts coextensive with other cities, all the provisions of the act relating to its general- purpose having a natural connection with the subject, while the fact that it provides for the election of constables and the appointment of a clerk and deputy clerks of the justice courts does not make it repugnant to the Constitution, since the provisions are germane to the subject of the act providing for the establishment of justice of the peace courts; the “subject of a law” being the matter to which it relates and with which it deals.1 (Page 336.)</p> <p>4. Statutes — Special Laws — Salaries of Justices of Peace— “County Officer.” Laws 1915, c. 108, amending Comp. Laws 1907, Sec. 544, providing for the constitution of justice courts in • precincts coextensive with cities of the first class, one justice court in precincts coextensive with cities of 15,000 to 40,000 population, etc., and providing for the payment of a salary to the justices instead of compensation by fees as previously, is not violative of Const. Art. 6, Sec. 26, prohibiting any private or special laws regulating the jurisdiction and duties of justices of the peace, the practice of courts of justice, or county and township affairs, or creating, increasing or decreasing the compensation of public officers during their respective terms, and providing that, where a general law can be applicable,' no special law shall be enacted, but that the section shall not restrict the power of the Legislature to establish and regulate the compensation and fees of county and township officers, since justices of the peace are “county officers,” and are not within the provision prohibiting the Legislature from increasing or decreasing fees of a public officer. (Page 338.)</p> <p>5. Justices of the Peace — Statute Fixing Salabies — Constitutionality. Laws 1915, c. 108, amending Comp. Laws 1907, Sec. 544, providing for the constitution of justice courts in precincts coextensive with cities of the first class, and one such court in precincts coextensive with cities of 15,000 to 40,000 population, is not violative of Const. Art. 21, Secs. 1, 2, providing that all officers, except notaries public, justices of the peace, and constables, shall be paid fixed salaries, provided that city justices may be paid by salary when so determined by the city authorities, and that the Legislature shall provide by law the fees which shall be collected by all officers within the state, and that notaries public, justices of the peace, and constables, paid by fees, shall accept them as their full compensation, but that all other officers shall keep a true account of all fees collected, and pay them into the proper treasury, since, when construed with' Const. Art. 6, Sec. 26, providing that nothing in that section shall be construed to deny or restrict the power of the Legislature to establish and regulate the compensation and fees of county and township officers, article 21 does not prohibit the Legislature from establishing and regulating the compensation of a justice of the peace. (Page 339.)</p> <p>6. Statutes — Special Laws — Justices of the Peace.- Laws 1915, c. 108, amending Comp. Laws 1907, Sec. 544, and providing for the constitution of justice courts in cities of the first class and that such justices shall be attorneys at law, is not totally invalid because violative of Const. Art. 6, Sec. 26, providing that, in all cases where a general law can be applicable, no special law shall be enacted, as fixing a different standard of qualifications for first-class cities than for justices in other precincts. (Page 340.)</p> <p>7. Statutes — -Special Laws — “Duty”—Justices of the Peace. Laws 1915, c. 108, amending Comp. Laws 1907, Sec. 544, providing for the constitution of justice courts in precincts coextensive with cities of the first class, and others, and providing that the board of county commissioners shall appoint a clerk and deputy-clerks for those precincts, is not violative of Const. Art. 6, See. 26, subd. 4, prohibiting the Legislature from enacting any special laws regulating the jurisdiction and duties of a justice of the peace, since the term “duties,” as used, comprehends only judicial acts, and such ministerial acts as justices must perform in their official capacity, and do not include the routine details of merely clerical character which clerks perform. (Page 340.)</p>

<p>Appeal from. District Court, Third District; Hon. M. L. Ritchie, Judge.</p> <p>Joseph Hillstrom was convicted of murder. He appeals.</p>

<p>1. Sales — Actions—Warranties. A written contract of sale contract of sale contained a warranty, providing that if after a trial of five days the machinery should fail to fulfill the warranty, written notice should he given to the seller and also the agent from whom the machinery was received, and that failure to make such trial or give such notices should he conclusive evidence of due fulfillment of warranty. Notice of breach of warranty was given to the agent, hut not given to the seller until nearly a year after the sale. Held that as notice was a condition precedent to the reliance on the warranty, action for the price could not he defeated on the ground of breach of warranty, the notice to the agent not being enough.1 (Page 383.)</p> <p>2. Sams — Warranties—Action. Where a contract of sale required machinery found defective to be returned, a failure to return defective machinery precludes reliance on the warranty. (Page 383.)</p>

F. G. Loofbourow, Judge. Action by Bennie F. Hunt against P. J. Moran, Contractor, Incorporated, a corporation. Judgment for plaintiff. Defendant appeals. Appellant’s Points. If respondent could not tell what the negligence of appellant was we respectfully contend that the trial court should not have permitted the case to go to the jury.

J. A. Howell, Judge. Action by Mary Moran against tbe Knights of Columbus. Judgment for plaintiff. Defendant appeals. APPELLANT’S POINTS. A member of a fraternal benefit society is bound by subsequently enacted by-laws or alterations in those previously-existing, but such by-laws or alterations will be given a prospective operation unless it clearly appears that they were intended to operate retrospectively. (Maynard v. Loco-Uve Engineers’ Mut. L. etc. Ins.

<p>Appeal from District Court, Second'District; Hon. N. J. Harris, Judge.</p> <p>Action for injunction by Edgar Jones and others against Wallace Foulger, City Treasurer of Ogden City, and Ogden City.</p> <p>Judgment for plaintiffs. Defendants appeal.</p>

<p>1. Pleading — Recoupment—Action por Tort — Claim of General Damages — Special Damages. Where the complaint, in an action against a street railroad for personal injury to plaintiff while a passenger, sought only general damages, and made no claim of special damages such as hospital expenses, etc., which defendant after the accident had provided and paid for, a plea in recoupment, setting up the hospital expenses, etc., as against the amount of recovery, was properly stricken, since the plaintiff had, in effect, approved such expenditure, and did not put defendant’s liability therefor in issue. (Page 428.)</p> <p>2. Appeal and Error — Harmless Error — Striking Plea in Recon-vention. Such action, if irregular and erroneous, was not prejudicial to defendant, as it left it in the same condition as though the amount claimed by it had been allowed to plaintiff as special damages, and he had been deducted the amount thereof from his claim. (Page 429.)</p> <p>S. Costs — Appeal for Delay — Penalty. In view of the absolute constitutional right of appeal and the statute allowing appellant to stay the judgment appealed from, defendant, whose notice of appeal from a judgment was duly served, and who executed a good and sufficient supersedeas bond securing the payment of the judgment if affirmed-on appeal, would not be penalized on the ground that the appeal was taken merely for delay. (Page 429.)</p>

<p>1. Eminent Domain — Condemnation—Damages. Notwithstanding Comp. Laws 1907, section 3598, declaring that from the damages for condemnation of property shall he deducted the benefits, general benefits for the establishment of a railroad cannot be deducted from the damages to owners whose land was taken for a right of way.1 (Page 433.)</p> <p>2. Trial — Instructions—Refusal. The refusal of requests covered by the charge given is not error. (Page 435.)</p> <p>3. Evidence — Opinion Evidence — Expert Testimony. Where a witness was qualified to give opinion evidence, the fact that his qualifications were shown in an informal manner will not render the admission of his testimony erroneous. (Page 435.)</p>

<p>1. Boundaries — Agreed Boundaries — What Constitutes. In a suit to restrain trespass on land, evidence held insufficient to show that plaintiff was entitled to the property in controversy by reason of a boundary line by acquiescence.1 (Page 452.)</p> <p>2. Adverse Possession — Adverse Holding — What Constitutes. Possession of land only by leaving vehicles there and occasionally depositing refuse is not such possession as will ripen into title. (Page 452.)</p> <p>3.. Appeal and Error — Determination—Reversal. Where the evidence in support of plaintiff’s pleaded title was insufficient to support judgment in its favor, and there were no findings on defendant’s claim of adverse possession, which was not established by the evidence, judgment for plaintiff should be reversed, the cause remanded, and the parties given leave to amend. (Page 452.)</p> <p>McCarty, J., dissenting in part.</p>

<p>Mandamus — Enforcements of Special Assessment — Statutes. Comp. Laws 1907, section. 258, requires that the total cost of improvements for paving shall he assessed as a special tax, and shall become delinquent in certain proportions each year. Section 282x6 provides that the city auditor, at the direction of;the city council, shall issue warrants for the cost of paving, which shall be drawn on the treasurer. Section 282x8 provides that any special tax which shall not be paid before the date on which the first payment of the levy shall become delinquent shall be due in five or ten yearly installments, provided-that one or more installments or the whole tax may he paid on the day any installment becomes due. A city ordinance provided that special taxes for paving should become delinquent in ten equal annual installments, and that one or more installments, or the whole of the warrant, might be paid on the day any installment became due. The ordinance provided that within ten days after delinquency, as fixed in the levy and notice of tax, the city treasurer should make up the list of all property uppn which the tax remained due and unpaid, and cause the same to he published, and that on the day fixed for the sale the city'treasurer should offer sufficient of the delinquent real estate to pay taxes and costs. Held, that the statutes and ordinance did not impose upon the city treasurer the power and duty to sell assessed property upon delinquency of an installment before the whole tax was due and delinquent with sufficient certainty to justify the direction of such action by the treasurer by mandamus.</p>

<p>1. Brokers — Right to Compensation — Sufficiency oe Evidence., In an action by real estate brokers for a commission, evidence' held to sustain findings that the sale was not procured by plaintiffs. (Page 478.)</p> <p>2. Brokers — Right to Compensation — Employment oe Several. Brokers. Where plaintiffs, real estate brokers, asked defendant realty owner for the terms upon which he would sell, he answering, but giving them no exclusive agency, and thereafter the owner, upon the request of another broker, likewise gave him quotations, and he succeeded in effecting á sale of the property, the owner paying a commission thereon, the owner was not liable to plaintiffs for a commission, since where several brokers-are openly employed, the entire duty of the seller is performed by remaining neutral between them, and he may sell to a buyer produced by any of them without being called upon to decide at his peril between the several brokers as to which was the primary cause of the purchase. (Page 483.)</p>

A. B. Morgan, Judge. Action by Spanish Fork City and others against Spanish Fork East Bench Irrigation & Mining Company and others, in which D. A. Mitchell was proceeded against upon affidavit charging contempt in disregarding a decree of the court. Judgment finding Mitchell guilty of contempt. He appeals.

<p>Appeal from District Court, Second District; Hon. .J. A. Howell, Judge.</p> <p>Action by George A. Whitmeyer against the Salt Lake & Ogden Railway Company.</p> <p>Judgment refusing an injunction. Plaintiff appeals.</p>

<p>1. Statutes — Constitutional Provisions — Subject and Title of Act. Laws 1915, c. 23, entitled "An act to regulate the working hours of all employees of mercantile establishments,” providing by section 1 that all mercantile and commercial houses in cities of 10,000 population and over should close at six p. m. on every business day in the year except for the six business days preceding December 25th, by section 2 exempting all houses dealing mainly in provisions of a perishable nature which are regarded as public necessities, by section 3, exempting drug stores which are regarded as public necessities, violated the constitutional provision that the subject of an act shall be clearly expressed in its title, since instead of regulating the working hours of employees, the body of the act fixed a closing hour for mercantile and commercial houses, extending both to those having employees and those having none. (Page 496.)</p> <p>2. Master and Servant — Statutory Regulations — Hours of Work and Closing. Such act was invalid as an exercise of the police power, since the men’s furnishing and jewelry business conducted by one of the petitioners without help, and the retail cigar business of the other petitioner, did not affect the health or safety of those engaged in it, and since the act fixed a closing hour and was not directed to enterprises affecting the health, morals, safety, or general welfare. (Page 497.)</p> <p>3. Statutes — Special Legislation — Occupation and Employment. Such act was objectionable as being special legislation, since it only applied to cities of 10,000 or more, and since it exempted drug stores and commercial houses dealing mainly in food stuffs and provisions of a perishable nature. (Page 498.)</p> <p>4. Constitutional Law — Personal Rights — Right to Acquire and Dispose of Property. Such act violated the constitutional right to enjoy, acquire, and possess property, the most valuable of which is that of the right to sell. (Page 498.)</p>

<p>1. Witnesses — Credibility—Cross-Examination—Interest. In an action to condemn land for a.railroad right of way, plaintiff, on cross-examination of defendants’ witness, and as affecting the credibility of the witness, could inquire whether witness and other interested landowners had met and agreed to demand of the road a certain amount as damages for lands taken and damaged. (Page 501.) ’</p> <p>2. Witnesses — Credibility—Examination. In an action to condemn land for a railroad right of way, wherein plaintiff claimed that witnesses for defendants were present at a meeting of owners who agreed to demand a certain amount as damages, questions to a witness for plaintiff as to .who executed the vouchers in settlement made for lands, whether there had been a settlement with or a purchase from an owner not a party to the action, and as to what property in the vicinity of defendants’ property had not been purphased for the right of way, did not show on their face any connection with the fact that certain of the witnesses for defendant were defendants in other similar cases, as bearing on their credibility, and were properly excluded. (Page 501.)</p> <p>3. Eminent Domain — Review—Harmless Error — Exclusion of Evidence. In such action error, if any, in excluding the cross-examination of defendants’ witness as to his relation to a defendant in another action, was- not prejudicial, where it was otherwise shown that the witnesses for defendants were landowners along or near the right of way, and were indirectly interested in the location. (Page 502.)</p>

Joshua Greenwood, Judge- Action by John Fowkes against the J. I. Case Threshing Machine Company and another. Judgment for plaintiff. Defendants appeal. Appellant’s Points.

<p>1. Appeal and Error — Record—Abstract and Assignments op Error — Service and Piling. Appellant’s failure to file an amended abstract and assignments of error within the time allowed, though they had been served within such time, was not jurisdictional, and, where appellee was not thereby prejudiced, the appeal would not be dismissed therefor. (Page 516.)</p> <p>2. Taxation — Tax Deed — Action—Burden op Proof. Notwithstanding Comp. Laws 1907, section 2629, providing that tax deeds issued by the county auditor shall recite substantially the amount of the tax for which the property was sold, the year for which it was assessed, the day and year of sale, the amount for which the real estate was sold, a full description of the property, the name of the purchaser, and that when attested by the county auditor they shall be •prima facie evidence of the facts recited therein, one claiming and asserting a tax title against the owner must allege all facts essential to the validity of the tax deed; and hence a plea in an action to quiet title, .alleging that the property had been sold for taxes, that it had not been redeemed, and that a tax deed was issued to the purchaser, without attaching or referring to the recitals of the tax deed itself, was insufficient as a plea of tax title.1 (Page 516.)</p> <p>3. Taxation — Tax Title — Action—Pleading and Reply. In such action, a reply, not particularly averring the grounds on which plaintiff claimed that the tax sale and deed were invalid, was sufficient, since any reply was good enough to meet defendants’ imperfect and insufficient plea of tax title; and the averment in the reply that the tax sale and purchase “was not in accordance with law, hut was contrary to law,” in the absence of a special demurrer or a motion to make more specific, was sufficient. (Page 516.)</p>

F. G. Loofbovrow, Judge., Action by Genevieve Candland, for whom, after her death, A. D. Candland,' her administrator, was substituted, against J. W. Mellen. Judgment for plaintiff. Defendant appeals.

<p>Master and Servant — Injuries to Servant — Negligence oe Master. That a master did not tie a roll of blankets on a wagon does not show him negligent, for he could not assume that the blankets which slipped down upon plaintiff would knock him from the seat under the feet of the mules.</p>

N. J. Harris, Judge. Action by T. D. Ryan, as administrator of the estate of Kan-tara Yoshitake, deceased, against the Union Pacific Railroad Company. Judgment for plaintiff. Defendant appeals. APPELLANT’S POINTS.

M. L. Ritchie, Judge. Action by Alice E. Moyle against Moroni J. Thomas and another. Judgment. Plaintiff appeals. Defendants cross-appeal. APPELLANTS’ POINTS. The defendants have pleaded the Statute of Limitations as a bar to plaintiff’s cause of action.

F. C. Loofhourow, Judge. Clifford Daniels was convicted in the Justice.’s Court of peddling without a license, contrary to ordinance. Judgment of conviction entered on appeal to the District. Court. Defendant appeals. APPELLANT’S POINTS. An ordinance passed .under fehe police power is not subject to the same test of equality or uniformity that is required of a revenue measure.

<p>1. Street Railroads — Personal Injury — Questions por Jury— Negligence and Contributory Negligence. On evidence in an action for personal injurjr from a collision with defendant’s street car while crossing the tracks at a street intersection, alleging negligence in running the car at an excessive speed, and in failing to give warning signals, held,, that the questions of plaintiff’s contributory negligence and defendant’s negligence as the proximate cause of the injury were for the jury.1 (Page 573.)</p> <p>2. Street Railroads — Personal Injury — Contributory Negligence. The same degree of care is not imposed upon a pedestrian attempting to cross an ordinary street car track that is imposed on him in attempting to cross a steam railroad track. (Page 573.)</p> <p>3. Street Railroads — Operation—Care Required. While a street railroad has a preferential right of passage along and over its car tracks to which all others must yield, yet the street car operatives and a traveler must reciprocally exercise ordinary care to avoid injury.2 (Page 573.)</p> <p>4. Street Railroads — Contributory Negligence — Stopping and Listening. A traveler is not required either to stop and listen or to specially look for an approaching street car, though hound to exercise ordinary care for his own safety in crossing a street car track. (Page 574.)</p> <p>5. Street Railroads — Personal Injury — Negligence—Last Clear Chance. Where plaintiff crossing defendant’s street car track did not exercise the required degree of care, defendant had no right to run him down, if by ordinary care it could have avoided doing so after discovering his inattention or peril. (Page 574.)</p> <p>6. Negligence — Proximate Cause, The negligence of either party is operative only when it constitutes the proximate cause of the injury or damage complained of, and if it is merely the remote cause the law regards it as inoperative and inconsequential. (Page 575.)</p>

<p>1. APPEAR AND ERROR — FINDINGS-SUPPORT IN EVIDENCE-REVIEW. All parties are entitled to invoke the Supreme Court’s judgment on the facts in equity cases, and where the findings of fact are clearly against the evidence, or the court is satisfied that the presumption of their correctness has been overcome by the record, it must make or direct findings according to the evidence and the law applicable thereto.1 (Page 583.)</p> <p>2. Lost Instruments — Deeds—Restoration—Sufficiency of Evidence. Evidence in an action to restore a lost deed brought against the administrator of one of the alleged grantors, notwithstanding the trial court’s findings that the deed was made, acknowledged, and destroyed, held to require a decree restoring the deed. (Page 584.)</p>

F. C. Loofbourow, Judge. Action by S. B. Wright against Richard Howe and Frank Howe, partners under the firm and style name of Murray Coal & Lumber Company. Judgment for plaintiff. Defendants appeal.

<p>1. Appeal and Error — Review—Questions of- Fact — Finding. Inequity cases the' findings of the trial court prevail, unless it clearly appears from the record that they are against the weight of the evidence. (Page 602.)</p> <p>2. Appeal and Error — Findings of Fact — Review. Under the Constitution, the parties to every appeal in equity cases have the right to invoke the judgment of the Supreme Court upon the facts as well as upon the law, so that, where the findings, on the evidence as to boundaries were not clearly against either the volume or the weight of the evidence, and are such that the Supreme Court had practically the same opportunity to determine its weight as the trial court had, the Supreme Court must pass upon the evidence, determine the ultimate facts, and adjudicate the rights of the parties.1 (Page 602.)</p> <p>3. Boundaries — Occupancy—Fences and Projection oe Roof. In an action in equity to compel defendant to remove a part of his dwelling house from the plaintiff’s premises, wherein the defendant claimed that plaintiff’s house encroached upon his premises, and it appeared that plaintiff and his predecessors had been in the actual possession and use of his premises so far as they were bounded in part by a fence and by the projection of the roof of his cottage, and had paid taxes upon that much of the premises at least, defendant was bound to respect plaintiff’s right to that extent, and, in view of the disputed boundary and the uncertainty of its location, each was bound to respect the rights of the other to the extent that each had taken actual pos^-session of ground, whether within or without the line described in their respective deeds. (Page 606.)</p> <p>4. Adjoining Landowners — Encroachments—Suit in Equity — Relief. In such suit, where the claimed boundary lines of the parties overlapped, and there was an uncertainty respecting the actual location thereof, neither law nor equity required that either of the lines described in the deeds of the parties should be followed, but where no injury would result to the complaining party by granting him what he was entitled to according to his possessory rights, and injustice would result if more were given, the doubt would be resolved in favor of the party on whom unnecessary injury'would be inflicted by compelling the other to undo what he had done, though in good faith and under a claim of right, so that equity would limit each party to his possessory rights, and require the removal of so much of the roof of defendant’s house as cast water perpendicularly upon the lower roof of plaintiff’s cottage, regardless of the boundaries described in their deeds or surveys. (Page 607.)</p>

N C. Loofbowrow, Judge. Action by Joseph Fares against Rachel Urban. Judgment for defendant. Plaintiff appeals. RESPONDENT’S POINTS. Until plaintiff, by some act, showed an intention to claim the land adversely by paying taxes on it, by a description that would apprize the owner of such intention, he is, under our statute, presumed to be in subordination to the legal title. (Comp.

C. W. Morse, Judge. Action by Amanda E. Ward against Salt Lake City. Judgment for pláintiff. Defendant appeals. The following are the cases cited in appellant’s brief, referred to by the court in the opinion: Lansing v. Todian, 37 Mich. 153; Teager v. Elemingsburg, 109 Ky. 746, 60 S. W. 718, 22 Ky. Law Rep. 1442, 53 L. R. A. 791, 95 Am. St. Rep. 400; Gould v. Topeka, 32 Kan 485, 4 Pac. 822, 49 Am. Rep. 496; Watters v. Omaha, 76 Neb. 855, 107 N. W. 1007, 110 N. W. 981, 14 Ann.

<p>1. Mines and Minerals — Mining Contkacts — Construction. Where a mining contract obligated defendant to work and have employed in the construction of a tunnel at least four men per day working twenty days per calendar month, it was not a' compliance with the stipulation for defendant to have employed a less number of men working a greater number of hours than the usual mining day, though the total of the hours of work on the tunnel was equal to eighty regular mining days. (Page 627.)</p> <p>2. Mines and Minerals — Contracts—Right to Minerals. Defendant was engaged to drive a tunnel in a mine under a contract providing that he should have the right to dispose of all the ore excavated within the four lines of the tunnel, but should not be allowed to stope any veins, lodes or ledges without the agreement in writing of plaintiffs. The contract further provided that defendant should have the right to drive other and smaller tunnels and to stope any and all veins, but that 60 per cent, of the proceeds of the ores should go to plaintiffs. Plaintiffs claimed ore taken from the mine by defendant, and defendant’s witnesses testified that the ore was taken from an old tunnel or stope which had for a long time existed on the mining claim. Held that, under the contract, plaintiffs were entitled to the ore; defendant not claiming it under the share clause of the contract. (Page 630.)</p>