Volume 49 — Utah Reports

<p>1. Appeai and Error — Appear on Judgment Roll — Effect of. Where under the findings the court rendered judgment for plaintiff on two theories, the judgment must, on defendant’s appeal on the judgment roll without a bill of exceptions, be upheld if either theory was correct. (Page 3.)</p> <p>2. Fraudulent Conveyances — “Stock of Merchandise” — Bulk Sales — Statutes—Applicability. Comp. Laws 1907, Section 2063x, entitled “An act to regulate the purchase, sale, transfer and incumbrance of a stock of goods, wares or merchandise in bulk, * * * otherwise than in the ordinary course of .trade,” provides that it shall be the duty of every purchaser of a stock of merchandise in bulk to secure from the seller a verified statement as to his creditors to whom five days’ notice shall be given by registered mail so that the purchase price may be paid to them, and that every sale not so made shall be fraudulent and void. Plaintiff purchased the business of one engaged in shoe repairing who sold to his customers small quantities of merchandise or materials which he carried for repair purposes consisting of shoe laces, polish, shoe brushes, and inner soles. These sales did not average more than $5 monthly. Held that, though the laces, etc., were displayed by the seller in a small showcase, the appliances and goods for repairs did not constitute a stock of merchandise within'Bulk Sales Act, and so compliance was unnecessary. (Page 3.)</p>

<p>Crimina! Law — Instructions—Accomplice’s Testimony. An employee of defendant testified, in a prosecution for cattle theft, that when directed by defendant to get up three red cows, he drove three cows marked similarly to those claimed to have been stolen, to a point near defendant’s place, and that when asked if everything was all right, defendant nodded in the affirmative. There was no other evidence to connect defendant with the theft of the cattle, and there was evidence that the employee acted with guilty knowledge if he was not the sole thief. Held, that defendant was entitled to a charge that if the employee was an accomplice, then defendant could not be convicted because there was no evidence, save that of the accomplice, to connect defendant with the crime, and a charge that, if the employee was an accomplice, his testimony required corroboration before a conviction could be had, was erroneous.</p>

Geo. G. Armstrong, Judge. Action, by G-. C. Spratt against J. P. Paulson. Judgment for plaintiff. Defendant appeals. APPELLANT’S POINTS. The complaint alleges an express contract for the purchase of stock upon certain terms and conditions, but the only evidence offered by the plaintiff in support of such pleading was evidence tending to prove a contract implied by law, and not the express contract relied upon and put in issue by the pleadings.

<p>1. Appeal and Ebeoe — Conflicting Evidence. A finding for ap-pellee will not be disturbed because based on conflicting evidence. (Page 21.)</p> <p>2. Eminent Domain — Damages—Question fob .Juey. Whether seepage of waters from a suitable and properly constructed and operated canal will collect in such quantity as to injuriously affect adjoining lands is a question of fact and not of law, and is dependent upon the particular conditions and facts of the case. (Page 22.)</p> <p>3. Eminent Domain — Canals—Damages. In action to condemn land for canal purposes, the damages recoverable by a landowner are such as naturally and directly result from the improvement properly constructed and operated. (Page 22.)</p> <p>4. Eminent Domain — Damages to Land — Canal. In action to condemn for canal purposes, a strip of land, 22% to 50 feet in width and 955 feet long, diagonally through a farm of about 25 acres under a high state of cultivation, it appearing that the canal would disarrange the irrigation system and the walls of the farm barn, and that about 8% acres would be so water-soaked as to be worthless, an award of $210 for the strip taken, and $1,042.50 for injury to lands not taken, was proper. (Page 22.)</p> <p>5. Eminent Domain — Damages—Highway—Easement. In pro- . ceedings to condemn for canal purposes a strip of land crossing a highway on a farm, the canal to cross the highway underneath the surface, the landowner was entitled to at least some compensation for the land within the highway, since she owned the fee of such land, although burdened with the highway easement. (Page 22.)</p>

N. J. Harris, Judge. In tbe matter of the estate of Charles M. Beason, deceased. Petition by Hattie P. Beason, as surviving wife, for an allowance pending the estate’s administration. Judgment granting allowance, and the administrator appeals.

G. W. Morse, Judge. Action by Daniel B. Richards and Hester T. Cannon Richards against Salt Lake City. Judgment for plaintiffs, and defendant appeáls. APPELLANT’S POINTS.

T. T>. Lewis, Judge. Action by R. E. Plough against Nils Nelson and others. Judgment for plaintiff. Defendant named appeals. APPELLANTS’ POINTS.

<p>1. Appeal and Error — Review—Findings. Findings of fact in a law case based upon conflicting evidence are conclusive on appeal. (Page 46.)</p> <p>2. Saxes — Validity op Contract — Certainty. A memorandum of agreement to purchase “3 carloads Crown silos, sizes to be specified within two weeks,” was not too uncertain to support action for damages for breach, for the reason that the sizes were left undetermined, but was an agreement for the delivery of a definite amount, imposing a duty upon the buyer to specify the sizes it might desire. (Page 47.)</p> <p>3. Sales — 'Action por Breach by Buyer — Measure of Damages. Where defendant refused to perform his contract for the purchase of three carloads of silo material which had not been manufactured at the time of the breach, as the plaintiff was not bound to manufacture the material and tender it to defendant, the measure of damages was the difference between the cost of manufacturing the silo material and the price agreed to be paid by the defendant therefor, less the freight which the plaintiff had agreed to deduct from the price, being equal to the profits the plaintiff would have derived from the contract if the defendant had performed. (Page 49.)</p> <p>4. Saxes — Action for Breach — Measure of Damages. Where finished- silo material purchased by the defendant was to be prepared so that it could be assembled into any size of silo that defendant might desire, as the plaintiff’s profits would have been the same regardless of the size of the silo constructed, it was immaterial, in determining the damages for breach of the contract, that the court adopted the standard size silo. (Page 50.)</p> <p>5. Evidence — Opinion Evidence — Conclusion. In an action for breach of a contract, the court did not err in striking an answer which consisted of a mere conclusion of the witness. (Page 51.)</p> <p>6. Appeal and Error — Pbesentation in Lower Court of Grounds for Review. In an action for breach of contract, where counsel duly assigned the court’s ruling on measure of damages as error and argued the assignment in the printed brief, and orally, the question was properly before the appellate court, though not argued in the court below. (Page 52.)</p> <p>7. Sales — Action for Breach — Measure of Damaoes. Where the price to be paid for finished silo material was twenty per cent, from the list price, less the. freight, in determining the damages for breach of the contract by the buyer the freight should be deducted from the agreed price, and not from the list price. (Page 52.)</p>

<p>Appeal from District Court, Third District; Eon. Geo. G. Armstrong, Judge.</p> <p>Action by the Salt Lake Engineering Works against the Utah Concrete Pipe Company.</p> <p>Judgment of non-suit. Plaintiff appeals.</p>

<p>1. Cakbiebs — Live Stock — Valuation. A provision, in a contract for the shipment of live stock in consideration of a reduced rate, that in the event of damage for which the carrier might be liable claim should not be made for any amount in excess of the actual value of the animals damaged at the time and place of shipment, nor in any event in excess of three dollars per head, did not estop a shipper who realized more than three dollars per head for all his sheep and lambs involved in the case from recovering on a claim for damages less than that' valuation. (Page 64.)</p> <p>2. Caebiebs — Live Stock — Claim for Damages — Sufficiency. A written claim for damages to a shipment of live stock under a contract requiring such claim to he filed within thirty days after their arrival at destination, which sufficiently .identified the shipment, was not invalid because “1907” instead of “1913” w.as written therein as the date of the shipment. (Page 64.)</p> <p>3. Carriers — Live Stock — Claim fob Damages — "Waiver. In a shipper’s action for damages to a shipment of live sotck, carrier’s claim agent, who received the claim and considered it on its merits, did not waive the presentation of a valid claim. (Page 64.)</p> <p>4. Appeal and Error — Harmless Error — Submission of Issue. Error in submitting to the jury the question whether a shipper’s claim for damages to live stock complied with the shipping contract was harmless, where the jury found that the claim did comply with the contract. (Page 64.)</p> <p>6. Carriers — Live Stock — Limitation of Liability — Reasonableness. A provision, in a contract for the shipment of live stock in consideration of a reduced rate, that in order that any claim of damages might be investigated the shipper, as a condition precedent to his right to damage for injury in transit, or from delay, or from a decline in the market due to such delay, would, upon final delivery on the carrier’s line, give a written notice of such damage to its station agent before the stock should be removed from the place of delivery and should not remove it for three hours thereafter, and that if final delivery was beyond the carrier’s line, such written notice should be given to the agent at the carrier’s station last reached by the shipment before delivery to a connecting carrier, was unreasonable and unenforceable. (Page 65).</p> <p>6. Appeal and Error — Harmless Error — Admission of Evidence. In an action for damages to a shipment of live stock, the admission of market reports, giving the current prices for live stock, though they also gave the amount of sales and prices paid therefor, was not prejudicial. (Page 68.)</p> <p>7. Evidence — Hearsay—Account of Sales. In an action for injury to a shipment of live stock, the account of sales rendered to the shipper by a commission merchant, showing the number of lambs and sheep sold, their weight and price per hundredweight, as prepared from weights ascertained by a weighmaster, in the absence of testimony of any one who saw the weighing or had knowledge thereof, or testimony that the weights were correct, was hearsay, and inadmissible.1 (Page 68.)</p> <p>8. Appeal and Error — Harmless Error — Admission of Evidence. Where a ease is tried to the jury, the admission of incompetent evidence to establish a material fact as to which the evidence is conflicting is ordinarily reversible error, hut where there is abundant competent evidence to establish the fact sought to be proved by such incompetent evidence, its admission is not. error. (Page 69.)</p>

A. II. Christenson, Judge. Action by Ephraim Milling & Elevator Company against the City of Ephraim. Judgment for plaintiff. Defendant appeals. APPELLANT’S POINTS. To sustain the allegations of the complaint and authorize the court to submit the case to the jury, it- was incumbent upon the plaintiff to show liability of the defendant for the overflow of the stream and the damage to the plaintiff.

C. W. Morse, Judge. Action by J. A. Fritsch against Henry J. Hess. Judgment for defendant. Plaintiff appeals. APPELLANT’S POINTS.

<p>Negligence — Caes on Siding — Escape—Negligence op Shippers— Res Ipsa Loquitur. Where plaintiff carrier placed, at the request and for the convenience of defendant shipper to he loaded by him, two cars on a siding owned and operated by it, and to which other shippers and the public generally had access, and they escaped and were injured, the doctrine of res ipsa loquitur does not apply, so as to raise a presumption of defendant’s negligence, though the brakes were in condition and were properly set when the cars were placed, and though defendant had loaded one car, and when one car was loaded it had to be moved forward before the other car could be loaded; the mere placing of the cars on the siding not being sufficient to bring them under the exclusive control and management of defendant for all purposes and at all times.1</p>

<p>Appeal from District Court, Third District; Hon. F. C. Loofbourow, Judge.</p> <p>Action by E. W. Hulse against R. W. Swicegood.</p> <p>From a final order or judgment discharging a writ of attachment plaintiff appeals.</p>

M. L. Ritchie, Judge. Action by Oscar W. Moyle, administrator of the estate of P. G. McKean, deceased, against Theodore McKean and Ruth Guliek McKean. Judgment for plaintiff. Defendants appeal. Appellant’s Points. The right of an adult, sound in mind and memory and not unduly influenced, to dispose freely of his property is an uncontrovertible rule of law.

<p>1. Witnesses — Impeachment—Materiality. 'To render testimony competent to impeach a witness, it, and his testimony, must be in substantial variance with respect to a material fact. (Page 102.)</p> <p>2. Witnesses — Impeachment—Materiality. Where one testifying as to the position of a servant injured by falling from a scaffold said that he saw the servant on a timber, just before he fell, .and, on turning around again, saw him falling, alleged impeaching testimony of another, that such witness, after the accident, when a posed picture of the surroundings was taken, said that the servant did not stand a certain way, which he neither denied nor admitted, was not proper impeachment, especially when it was not claimed that the injured servant • stood in that way. (Page 102.)</p>

Action by E. C. Wheatley against the Oregon Short Line Railroad Company. From a judgment of the district court affirming, except as to interest, a judgment of the justice’s court in favor of the plaintiff, defendant brings certiorari.

<p>Mandamus by Charles H. Schafer against M. L. Ritchie, Judge of the District Court in and for the County of Salt Lake.</p>

<p>Mandamus by Albert Watts and others against the Honorable Joshua Greenwood, as Judge of the District Court of Millard County.</p>

F. C. Loofbourow, Judge. 'Condemnation proceedings by the Bingham & Garfield Railway Company against the North Utah Mining Company of Bingham, William Robbins, and others. From separate ' judgments for damages in favor of the Mining Company and Robbins, plaintiff appeals.

<p>1. Mines and Minerals — Sale—Construction of Contract — Payment. Plaintiff, in 1901, entered into a contract with defendants to sell certain unpatented mining claims and the improve- . ments thereon for $21,000, payable $1,000 on the day of the contract, $1,000 on or before September 2, 1901, $6,000 on or before October 20, 1901, $4,000 on or before July 2, 1902, and the remaining $9,000’ payable “only in the manner following- and not otherwise,” that is, by the payment of a net one-half' of the proceeds of all ores mined from the property after deducting the expenses of mining, etc., and providing that the managing and developing of the property should be left solely to the sound and reasonable discretion of the defendants; that plaintiff, when the property was being worked, might have employment under defendant at the usual miner’s wages; that on payment of the $12,000 plaintiffs would deliver a warranty deed of title in fee clear of incumbrances, whereupon defendants would deliver an agreement to pay the balance, and that on payment of the first $1,000 the plaintiffs would put the deeds in escrow. Defendants made the first four payments itmount-ing to $12,000, and did not thereafter operate the mine or obtain any ..proceeds from ore up to September, 1909, when action for the balance of $9,000 was brought. Held, that plaintiff could not recover, since nothing in the contract obligated the defendants to develop the claims within what any one might consider as reasonable time, and since, there being no proceeds from ore, the balance was not due.1 (Page 144.)</p> <p>2. Contracts — Construction—Necessity. Unless it is shown that a contract was obtained by fraud, oppression, or duress, or that it is against law or public policy, or is unconscionable, it is the duty of the court to enforce it according to its terms, and it may not by forced construction modify or disregard it. (page 144.)</p> <p>3. Evidence — Contracts—Contemporaneous Statements. Statements of the parties contemporaneous with the making of their contract for the sale of mining claims could not he given the effect of enlarging liability under the contract. (Page 145.)</p> <p>4. Evidence — Parol Evidence — Contbadicting Teems oe Contract. Contemporaneous statements of the parties to a contract for the sale of mining claims, directly contradictory of the terms of their contract, would-he given no force where it was neither claimed nor found that they were intended for or constituted a modification of the contract. (Page 145.)</p> <p>5. Contracts — Construction—Intention of Parties. Where the terms of a contract are uncertain or obscure, the court not only may, hut should, avail itself of all the legitmate legal evidence appearing upon the intention of the parties and the rights created on the one side and the obligations assumed on. the other. (Page 146.)</p> <p>6. Contracts — Modification—Grounds. Courts of equity, under the guise of construction, may not so change or modify contracts as to impose conditions or obligations not express or clearly implied, though such conditions may make the terms of the contract more equitable and in accord with the court’s sense of justice; nor can they give relief merely because parties to a long-time contract did not provide for all possible emergencies. (Page 146.)</p> <p>7. Mines and Minerals — Sale—Terms of Payment — Sufficiency of (¡Evidence. In an action to recover the balance due upon the purchase price of certain mining claims, evidence held not to sustain a finding that defendants could have realized net proceeds in any amount between July, 1901, and September, 1909, out of which to pay the balance according to the contract. (Page 150.)</p> <p>STRAUP, C. J., dissenting.</p>

<p>1. Evidence — ¡Value—Cost. While the amount expended in purchasing a lot and in erecting a house thereon, under certain circumstances and lor certain purposes, is some evidence of value, and, in the absence of other direct and positive evidence of competent witnesses showing the present value of the property, may have some weight, yet where there is direct and positive evidence of the present value of the property the mere cost thereof at some prior time is not controlling if of any weight whatever. (Page 171.)</p> <p>2. Homestead — Exemption—Deducting Mortgage. If after deducting value of subsisting liens on a homestead from its gross value, the net value does not exceed the exemption allowed by Comp. Laws 1907, section 1147, as to homestead exemption, a creditor may not interfere with the homestead. (Page 171.)</p> <p>3. Homestead — Appraisers—Statute. In action in nature of creditor’s hill to reach the equity in a homestead above the statutory exemption, it was not necessary to ascertain the value of the homestead by appraisers, since the statute relating to appraisers of homestead (Comp. Laws 1907, section 1166) provides for appraisers only in case an execution is levied on a homestead, etc., and under section 1162, as to homestead, no bid can be considered, and a homestead cannot be sold, unless the amount of the bid exceeds the statutory exemption; these statutes contemplating that before the court may proceed to appraise the homestead, it must be made to appear by proper evidence that its value is in excess of the exemption allowed by law.1 (Page 173.)</p> <p>4. Appeal and Error — Review—Findings—Equity. On appeal in action in nature of creditor’s suit to reach the value of a homestead, above the statutory exemption the court is not bound by a finding as to value of the homestead which is not supported by the evidence, for, the case being in equity, the appellate court'is bound by the undisputed evidence. (Page 173.)</p> <p>5. Fraudulent Conveyances — Purchase oe Homestead — Fraud op Creditors. Purchase by insolvent debtor of a homestead with non-exempt assets is not fraud. (Page 175.)</p> <p>6. Homestead — Loss op Exemption — Intention to Defraud Creditors. The fact that the owner of the homestead has conveyed it with the intent to defraud his creditors, does not affect his right to claim a homestead exemption in the premises so conveyed. ( Page. 176.)</p>

<p>1. Insueaitce — Reinsurance — Acceptance — Sufficiency. Where the secretary of the defendant fraternal society submitted a written proposal to another society, in which the deceased was insured, that defendant assume its obligations in consideration of a transfer of all the property of the insurer to defendant subject to the approval of the defendant’s directors, a delivery and acceptance of the property in accordance with the contract and the subsequent correspondence between the defendant and the plaintiff,' wherein the defendant in effect recognized the obligation as its own, by seeking to avoid it on the ground of breach of warranty, was sufficient evidence of approval of the contract to make a prima facie case. (Page 178.)</p> <p>2. Insurance — Fraternal Insurance — Action on Policy — Question for Jury. In action on a policy of fraternal insurance, the question as to the physical condition and health of the deceased when the certificate was issued to him held for the jury. (Page 179.)</p> <p>3. Appeal and Error — Review—Findings. A verdict on conflicting evidence is final. (Page 179.)</p> <p>4. Insurance — Fraternal Insurance — False Warranties. Where the false statements of the deceased in his application for life insurance in a fraternal association related to slight injuries which did not affect his general health, they will not avoid the contract unless they are material to and increase the risk of loss. (Page 179.)</p> <p>6. Insurance — Fraternal Insurance — Breach of Warranty— Question for Jury. In an action on a policy of fraternal insurance, whether the deceased’s failure to state, seven months prior to obtaining the certificate, he was visited by a physician for a sprained knee or that some years prior thereto he had injured his nose which had caused nosebleed, substantially increased the chances of loss insured against or were material to the risk, held for the jury. (Page 179.)</p>

<p>1. Indictment and Information — Requisites and Sufficiency. Under Comp. Laws 1907, section 4732, providing that the information must he direct and certain as it regards (1) the party-charged, (2) the offense charged, and (3) the particular circumstances of the offense, when they are necessary to constitute a complete offense, when a person is charged with having committed a particular crime which is not fully defined in the statute, it is necessary to charge the particular acts relied on as constituting the offense. (Page 184.)</p> <p>2. Homicide — Involuntary Manslaughter — Requisites and Sufficiency. An information charging accused with having operated a motor vehicle upon a public street at a greater speed than was safe, having due regard for the width, character, and common use of the street, and operating the vehicle so as to endanger life, limb and property, and without having it under immediate control, and driving it past and in close proximity to a street car while the same was standing still for the purpose of letting off passengers, and, while operating the vehicle in such unlawful manner and without due caution and circumspection, striking the deceased, is insufficient to charge involuntary manslaughter under Comp. Laws 1907, section 4163, defining the offense, since it charges no specific ultimate fact. (Page 186.)</p> <p>3. Homicide — Involuntary “Manslaughter” — Requisites and Sufficiency. Under Comp. Laws 1907, section 4732, subd. 3, requiring that the particular circumstances of the offense must be stated when they are necessary to constitute a complete offense, an information for involuntary manslaughter under section 4163, providing that manslaughter is the unlawful killing of a human being without malice, and is of two kinds, (1) voluntary, upon a sudden quarrel or heat of passion, and (2) involuntary, in the commission of an unlawful act not amounting to a felony, or in the commission of a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection, must definitely state the circumstances. (Page 186.)</p>

<p>1. Counties — Boundaries—Power of Legislature. The Legislature has the sole power to define and determine the boundary lines between counties and to provide the method by which such boundaries, when in dispute, may be established and marked upon the ground. (Page 192.)</p> <p>2. Counties — Boundaries—Statutes. Comp. Laws 1907, section 469, defined the boundaries of J. county, and section 477 defined the boundaries of S. county, and section 487 provided that any disputed county boundary might be determined by the county surveyors, boards of county commissioners, having the services of the state engineer, who should determine such line by survey which should be deemed permanent until superseded by legislative enactment. Laws 1918, c. 71, amending sections 469 and 477, established the disputed boundary line. Held, that the Legislature had power to define and establish such line, and that the boundary line as established pursuant to the later act should prevail. (Page 192.)</p> <p>3. Counties — Change in Boundaey — Constitutional Pbovisions. Const, art. 11, section 3, providing that no territory shall he stricken from any county unless a majority of the voters living therein, as well as of the county to which it is annexed, shall vote therefor, and then only as prescribed by general laws, was not violated by Laws 1913, c. 71, finally establishing a disputed county boundary line as defined therein, where the line had previously been surveyed and fixed until superseded by legislative enactment, as until so superseded the line was not permanently fixed, so that it could not he said that any territory was “stricken” by the statute. (Page 193.)</p>

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

M. L. Ritchie, Judge. Henry Lee was convicted in the City Court of violating an ordinance. On appeal to the District Court and on a trial de novo, he was again convicted. He appeals from the latter decision.

<p>1. Courts — City Court — Attachment—Dissolution by Appeal. Comp. Laws 1907, section 686x29, making rules of practice and procedure in district courts applicable to city court, applied to section 3313, providing that upon .appeal an attachment will not continue in force unless appellant files a separate bond therefor; and, where plaintiff in appealing from city court only filed the regular bond required by section 3747, the attachment did not remain in force. (Page 201.)</p> <p>2. Courts — Attack on Jurisdiction — Evidence. Where the jurisdiction of a court bf general jurisdiction is attacked, the lack of such jurisdiction must be clearly shown. (Page 204.)</p>

M. L. Ritchie, Judge. Action by the Giesy-Walker Company, a' corporation, against James I. Briggs, wherein, after judgment, plaintiff sued out writ of garnishment and attached- certain money in the hands of the Inter-Mountain Realty Company. From a judgment requiring the garnishee to pay plaintiff an amount, further ordering that the garnishee pay plaintiff another amount when it became due, Briggs, the judgment debtor, appeals. Appellant’s Points.

A. B. Morgan, Judge. Garnishment by Ernest Dayton against the Snake Creek Mining and Tunnel Co. J. S. Free and another file a complaint in intervention. Judgment dismissing intervener’s complaint, they appeal.

<p>Appeal from District Court, Fourth. District; Eon. A. B. Morgan, Judge.</p> <p>George Frisby was convicted of larceny. He appeals.</p>

F. G. Loofbourow, Judge. Action by Eli Golesh against the Utah Apex Mining Company, a corporation. From a judgment sustaining defendant’s motion for nonsuit and dismissing the complaint, plaintiff appeals.

<p>1. Dedication — Requisites and Sufficiency. Since a dedication rests primarily in the owner’s intent, there must be a concession intentionally made by him, provable by declarations or acts, or inferred from circumstances, though no form or ceremony is necessary, but it must appear that he knew of the public use and intended to grant to the public the right to such use. (Page“249.)</p> <p>2. Dedication — Evidence—Sufficiency. Evidence held insufficient to show dedication of highway to public use. (Page 250.)</p> <p>3. Dedication — Revocation. If a highway is established by dedication and acceptance by the public, it continues to be a highway as long as public use continues, regardless of attempted revocation by the dedicator. (Page 250.)</p> <p>4. Dedication — Use—Public Nature. Where the users of an alleged dedicated highway were of three classes, one using by a grant in a deed, another by the right of entry collateral to a canal easement, and the third by a right or claim not disclosed by the evidence, but using merely for egress from their own private land, there was no public use of the highway. (Page 250.)</p> <p>5. Highways — “Public Thoroughfare.” A “thoroughfare” is a place or way through which there is passing or travel, and becomes “public” when the public have a general right of passage. (Page 250.)</p> <p>6. Dedication — Use of Way Under Private Grant — Effect. Under Comp. Laws 1907, section 1115, providing that a highway shall be deemed to have been dedicated to the use of the public when continuously used as a public thoroughfare for ten years, use under private right is insufficient to show dedication, and such use, however long, does not make the way public, and the mere fact that the public also use it without objection from the owner will not make the way public. (Page 250.)</p> <p>7. Easements — Prescriptive Right — Highways. A prescriptive easement does not arise in seven years by analogy to the statute barring action to recover realty when a plaintiff was not seized of the property within seven years,- such statutes not applying to rights of way or easements, but prescriptive right can arise only by adverse use and enjoyment under claim of right uninterrupted and continuous for twenty years. (Page 252.)</p> <p>S. Easements — Prescription—(Evidence—Sufficiency. Evidence held insufficient to show acquisition of highway easement by prescription; the use having been interrupted at various times during the alleged prescriptive period. (Page 252.)</p> <p>9. Easements — Grant by Deed — Effect. While a deed of a part of a tract conveying it, “together with all the appurtenances,” would convey an existing highway easement, it would not serve to create an easement. (Page 253.)</p> <p>10. Easements — Grant by Deed — Requisites and Sufficiency. Generally, when the owner of a tract of land has arranged and adapted various parts, so that one derives a benefit from the other of a continuous and obvious character, and he sells one part without mentioning the incidental advantage or burdens of one in respect to the other, there is implied an understanding that such advantages and burdens continue. (Page 254.)</p> <p>11. Easements — Severance—Requisites and Sufficiency. Elements essential to constitute easement by severance are unity of title followed by severance, an apparent, obvious and visible servitude at the time of severance, reasonable necessity to the enjoyment of the dominant estate, and it must usually be com tinuous and self-acting. (Page 254.)</p> <p>12. Easements — Ways of Necessity — Reasonable Necessity of Use. An easement by severance in a right of way apparent at the time of severance • does not exist except so far as is reasonably necessary to the use of the dominant estate, and the fact that a house on the severed tract faced toward an extended way not necessary to access did not give an easement thereon. (Page 255.)</p> <p>13. Easements — Grant by Deed — Location. Generally on severance of title, if the deed conveys a right of way across land still held by the grantor, but does not fix its course or extent, and at the time of conveyance there was in use on the land reserved such a way plainly visible, and known to the parties, it will be deemed to have been intended by the grantor to be conveyed. (Page 256.)</p> <p>14. Easements — Conveyance—Instructions. In construing any grant of right of way, the use, in character and extent, is limited to such as is reasonably necessary and convenient to the dominant estate and as little burdensome to the servient estate as possible for the use contemplated. (Page 257.)</p>

<p>Original application for writ of mandamus by Edward I. Rich against H. H. Henderson and others.</p>

<p>Appeal from District Court, Third District; Eon. M. L. Eitchie, Judge.</p> <p>Action by I. X. L. Stores Company against C. L. Moon.</p> <p>Judgment for defendant. Plaintiff appeals.</p>

N. J. Harris, Judge. Actiop by S. P. Robinson against D. J. Rees. From judgment for defendant plaintiff appealed, and thereafter dying, Stuart P. Dobbs, as administrator of Ms estate, prosecuted the appeal by substitution.

<p>1. Injunction — Pleading—Adverse User — Dedication. A party basing his right to enjoin another from interfering with the use of land, upon either adverse user, or upon dedication, whether express or implied, must plead the facts constituting such right or claim. (Page 276.)</p> <p>2. Easements — Pleading. One claiming an easement over real property should set forth his claim in apt terms in his pleading. (Page 276.)</p> <p>3. Highways — Dedication—Pleading—Injunction. The allegations of a complaint in a suit to enjoin interference with the use of land did not show a right based on dedication, where it alleged merely that for thirty years plaintiffs, their predecessors, and the public had openly used the land as a highway. (Page 277.)</p> <p>4. Adverse Possession — Pleading—Injunction. The complaint in an action to enjoin interference with the use of land as a highway did not show a right based on adverse user, where it did not allege that the use of the land was adverse and under a claim of right.1 (Page 277.)</p> <p>5. Highways — Dedication—Pleading—Issues—Evidence. Where, in an action to enjoin interference with the use of land as a highway, dedication was not pleaded, declarations of a former owner, as to whether there had been a dedication, were properly excluded. (Page 278.)</p> <p>6. Evidence — Declarations oe Former Owner — Pleading. Under proper pleadings, declarations of a former owner of realty while in possession, which characterized his possession or ownership, are admissible against his grantee. (Page 278.)</p> <p>7. Appeal and Error — Decision—Equity. Where, on appeal in an equity case, it appears that the trial court erroneously overruled a demurrer to the complaint, but that if the demurrer had been sustained, the complainants would probably have amended their complaint to permit the introduction of evidence sustaining their contention, the Supreme Court instead of making or directing findings for judgment for appellant, will remand the case for another trial. (Page 278.)</p>

<p>1. PARTNERSHIP — ATTEMPTED ORGANIZATION OF CORPORATION. A Sale of business and stock of merchandise by B. to R. and K., who intended to incorporate for their own benefit, but failed, and an, agreement to take shares of stock as part payment, does, not make B. a partner as to R. and K. (Page 283.)</p> <p>2. Appeal and Error — Findings op Court — Presumptions. On appeal the presumption is that the court’s findings are correct, and unless this presumption is overcome the. judgment will be armed. (Page 283.)</p>

<p>1. False Pretenses — Information—Sufficiency. Under Comp. Laws 1907, Section 4397, penalizing persons obtaining money by false pretenses, etc., an information alleging that stock subscriptions were obtained by falsely representing the corporation’s condition, etc., is sufficient, although the stock was delivered and its value may have been as represented. (Page 287.)</p> <p>2. False Pretenses — Information—Sufficiency. Under Comp. Laws 1907, Section 4397, providing different punishments where the value of property obtained by false pretenses is under or over $50, an information, not alleging the value ol a $250 promissory note obtained by accused, is insufficient. (Page 288.)</p> <p>3. Indictment and Infokmation — Vebdict—Curing Defective In-fobmation. Under Comp. Laws 1907, Section 4397, prescribing different punishments where value of property obtained by false pretenses is under or over $50, a verdict, finding accused guilty as charged in the information, does not cure the information’s failure to allege the value of the property secured.1 (Page 288.)</p> <p>4. Criminal Law — Admissibility of Evidence — Other Transactions. In a prosecution for obtaining property by false pretenses, evidence that accused made similar representations to other parties about the same time is admissible.2 (Page 291.)</p> <p>5. Criminal Law — Admissibility of Evidence — Letters Written by Third Persons. Where accused was charged with falsely pretending his stock subscription project was indorsed by certain church officials, letters written by such officials, indorsing the project are incompetent. (Page 292.)</p> <p>6. False Pretenses — Instructions—'Materiality of Misrepresentations. In a prosecution for false pretenses, an instruction that accused was guilty if one or all of certain misrepresentations was false is erroneous, because allowing conviction for an immaterial false misrepresentation. (Page 292.)</p> <p>7. Criminal Law — Instructions—Assuming Facts. In a prosecution for false pretenses, an instruction, assuming accused stated a factory for which he was selling stock was nearly constructed, is erroneous for assuming such fact. (Page 293.)</p>

Geo. G. Armstrong, Judge. Action by McCornick & Co., Bankers, against the National Copper Bank of Salt Lake City, in which Hanna D. Bowring and another and Harold C. Best filed answers and cross-complaints and the United Home Builders Company filed answers and cross-complaints against the Bowrings and Best; E. B. Wicks being made a party defendant during trial. Judgment for plaintiff and for United Home Builders Company and Best on their cross-complaints.

<p>1. Eminent Domain — Appeal—Preservation oe Grounds op Review — Waiver op Defect in Complaint. In proceedings to condemn land, where no demurrer was interposed to the complaint, and no objection respecting its sufficiency made, either before or during trial, the defect that the complaint failed to state that the attempted condemnation proceedings were authorized as required by statute being jurisdictional was not waived. (Page 310.)</p> <p>2. Eminent Domain — Exercise by Municipal Coepoeation — -Following Statutory Procedure. The general rule is that, where the statute prescribes the procedure or steps to be taken by a municipal corporation in exercising the right of eminent domain, the procedure prescribed becomes a matter of substance, and must be strictly followed by the condemner as against the owner. (Page 310.)</p> <p>3. Eminent Domain — Exercise by Municipality — Passage op Resolution — Jurisdictional Character op Requirement — Statute. Under Comp. Laws 1907, Section 206x2, authorizing the condemnation of a water supply by a municipality, before a town was authorized to commence condemnation proceedings to condemn a spring and appropriate its waters, it was necessary that the board of trustees should first adopt an ordinance or resolution declaring it necessary that the spring be condemned and the waters appropriated for the use of the' inhabitants of the town, thus giving the taxpayers the statutory opportunity to protest, and the passage of such a resolution was jurisdictional; Section 309, providing for the calling of a special election to vote bonds, the proceeds of which are to be applied in paying for the water or the property condemned or purchased by the town, having nothing to do with the authority to institute condemnation proceedings. (Page 311.)</p> <p>4. Eminent Domain — Evidence—Value—Remoteness. In a town’s condemnation proceeding, under Comp. Laws 1907, Section 206x2, to condemn the waters of a spring, testimony of the owner of the spring, on cross-examination, that 15 years before filing a declaration of homestead he had stated the value of the land and spring to be much less than he testified their value to be at the trial, was improperly elicited from him; the evidence being too remote. (Page 313.)</p> <p>5. Eminent Domain — Appeal—Haemless Erroe — Evidence. Such error was harmless as to the owner’s substantial rights. (Page 313.)</p>

<p>1. Evidence — Documents—Laying Foundation. Excluding a letter where a proper foundation has not been laid for its admission in evidence is not error. (Page 317.)</p> <p>2. Pleading — Evidence Admissible — General Denial — Affirmative Defense. Where the complaint states a cause of action on a promise to pay for release of plaintiff’s interest in certain sheep and an outfit of supplies, defendant cannot prove under a general denial that plaintiff leased sheep from an incompetent Indian ward of the United States, and that defendant took possession as a suh-agent. (Page 318.)</p> <p>3. Appeal and Error — Preservation of Grounds of Review — Instructions — Exceptions. Where no exception is taken to the charge it constitutes the law of the case. (Page 318.)</p> <p>4. Indians — Power of Indian Agent — Seizure of Property in Indian Country. Under Rev. St. U. S. Sections 2147, 2148 (U. S. Comp. St. 1913, Sections 4150, 4151), giving Indian sub-agents authority to remove from Indian country all persons therein contrary to law, an Indian sub-agent cannot, without going into court, seize property of an Indian ward held by a white man in Indian country. (Page 318.)</p> <p>5. Evidence — Judicial Notice — Status of Indian. This court will not take judicial notice of the legal status of any particular Indian, as many of them have the same status as white men. (Page 318.)</p> <p>6. Evidence — Judicial Notice — Indian—'Identity. This court will not take judicial notice that Towanta, an Indian, in this proceeding, is the same Towanta named in United States v. Fitzgerald, 210 Fed. 295, 119 C. C. A. 533. (Page 318.)</p>

District; Hon. J. H. Erickson, Judge. ’ Al. Williams was convicted of assault with a deadly weapon with intent to do bodily harm, and he appeals.

<p>1. .Cbiminai, Law — New Trial — Abuse of Discretion. Where the evidence harely sustained a conviction for larceny of horses, the trial court abused its discretion in denying a new trial motion, largely based on cumulative affidavits, showing there was nothing suspicious in accused’s connection with the horses, and that the man from whom he had innocently secured them really existed, which the sheriff had testified was not a fact. (Page 337.)</p> <p>2. Criminal Law — New Trial — Diligence in Preparing for Trial. Evidence held, to establish that accused was reasonably diligent in preparing for trial after his release on bail after seven months’ confinement, where he was without funds, and important witnesses lived several hundred miles distant, and subpoenas were given the sheriff to serve them, but they did not appear.1 (Page 337.)</p>

J. A. Howell, Judge. Joseph Henry Martin was convicted of robbery, and he appeals. Motion to strike the bill of exceptions denied and judgment affirmed.

Geo. G. Armstrong, Judge. Action by E. McCarrick against the Lenox Mining Company. Judgment for plaintiff. Defendant appeals. APPELLANT’S POINTS. It is a well settled principle of law that a secretary of a corporation has no authority as such to issne notes for the corporation, and this court has announced the same doctrine in principle in the case of Lochwits v. Pine Tree Mining and Milling Company, 37 Utah 349.

C.. W. Morse, Judge. • Injunction by Ontario Silver Mining Company, a corporation, against J. M. Hixon, County Treasurer, etc. Judgment for plaintiff. Defendant appeals.

J. D. Call, Judge. Certiorari proceedings by Jobn A. Beck, Jr., against Herbert C. Lewis and others to review a judgment entered in justice court. Judgment for petitioner. Respondents appeal.

<p>1. Animals — Trespassing Animals — Actions—Complaint. A complaint alleging plaintiffs’ ownership of land, defendant’s ownership of sheep, and that the sheep trespassed on the lands of plaintiff to his damage, is sufficient as against general demurrer, though not expressly alleging that the trespass was willful and intentional; for the word “trespass” implies as much. (Page 376.)</p> <p>2. Appeal and Error — Review—Harmless Error. Where an action was tried to the court, and there was sufficient competent testimony to sustain its findings, the admission of incompetent testimony will he deemed harmless.1 (Page 376.)</p> <p>3. Animals — Trespass on Uninotosed Lands — Liability. Under Comp. Laws 1907, Section 20, declaring that, if any neat cattle, horses, sheep, etc., shall trespass or do damage upon the premises of any person, except where such premises are not inclosed hy a lawful fence in counties where a fence is required by law, the party aggrieved may recover damages by an action at law against the owner of the trespassing animals, an owner of sheep who directed his herder to drive or permit the animals on un-inclosed lands of plaintiff is iiable, though the statute, while recognizing the common law rule requiring every owner to restrict his animals on his own lands, made exceptions as to uninclosed lands.2 (Page 377.)</p> <p>4. Animals — Trespassing Animals — Actions — Evidence—Sufficiency. In an action against a sheep owner for damages for the trespass of his sheep on plaintiff’s property, evidence held to warrant a finding that the trespass was willful and intentional. (Page 380.) ■</p>

J. D. Call, Judge. Action by A. D. McGuire against the State Bank of Tre-monton and S. N. Cole. From a judgment directing the deposit of money in question pending administration, all parties appeal.

F. C. Loofbourow, Judge. Action by Gearson S. Bastían against George W. Nebeker, and another. Judgment for plaintiff. Defendants appeal. STATEMENT OF FACTS. The facts in this case are about as follows: In the year 1870 George W. Nebeker, one of the defendants, located upon and acquired a “squatter’s right” to a piece of meadow land of about twenty acres, known as King’s Meadows, and situate in what is known as King’s Meadows canyon, in Sevier County, Utah.

<p>Appeal from District Court, Third District; Hon. Geo. G. Armstrong, Judge.</p> <p>Action by T. H. Gleason against the San Pedro, Los An-geles & Salt Lake Railroad Company.</p> <p>Judgment for plaintiff.</p> <p>Defendant appeals.</p>

<p>1. Appeal and Error — Review—Motion for Nonsuit. A motion for nonsuit not shown hy the record cannot he considered on '' appeal. (Page 434.)</p> <p>2. Appeal and Error — Question por Jury. Where there is a substantial conflict in the testimony, it is the province of the jury and not the trial court or the appellate court to determine the weight of the testimony and find the facts.1 (Page 434.)</p> <p>3. Appeal and Error — Reservation of Grounds for Review — Exceptions. Where the only exception taken to an instruction was to one portion, the appellate court cannot consider as ground for a reversal complaints of other portions of the instruction urged for the first time in the appellant’s brief. (Page 436.)</p> <p>4. Trial — Instructions. In a servant’s action for injuries, an instruction that “the risks that are assumed by an employee * * * are those that * * * appear to threaten immediate injury to such employee,” considered with the whole instruction, which enumerates the circumstances under which an employee is held to have assumed the risk, held to tell the jury that the employee also assumes the risk where the dangers are of such a character as to a man in the exercise of average and ordinary care and precaution, situated as was the employee, appear to threaten immediate danger to such employee, and not , that before an employee can be said to have assumed the risk the danger must be such as to threaten immediate danger, and the portion complained of was not erroneous. (Page 436.)</p> <p>5. Trial — Instructions—Following Language of Statute. Acts of the court in charging the jury in the language of the statute as to what constitutes vice principals and fellow servants was error.2 (Page 438.)</p> <p>6. Appeal and Error — Review—Prejudicial Error. As' the evidence showed that plaintiff and a person causing the injury were not fellow servants, error in charging in the language of the statute as to what constitutes fellow servants was not prejudicial. (Page 438.)</p> <p>7. Negligence — Contributory Negligence — Evidence—Bubden op . Peoof. When the evidence is conflicting or different inferences may be drawn therefrom, the burden of establishing contributory negligence by a preponderance of the evidence is upon the defendant regardless of whether the evidence in relation thereto comes from the plaintiff’s or the defendant’s witnesses. (Page 438.)</p> <p>8. Tbial — Instruction—¡Burden of Pboof. An instruction that, if the jury found that plaintiff was injured by negligence of the defendant, in order to defeat plaintiff's recovery the burden is upon such defendant to prove by a preponderance of the evidence that plaintiff was guilty of negligence, proximately contributing to his own injury, or that plaintiff voluntarily assumed any risk of injury, was -not so erroneous as to mislead the jury to believe that in passing on these questions they were confined to the evidence of the witnesses for defendant alone, when the court in one instruction told the jury to weigh all the evidence and consider it together. (Page 438.)</p> <p>9. Tbial — Argumentative Instruction. A portion of an instruction that, if the jury find plaintiff was injured, and he had no knowledge or notice that coal was then upon an extension chute, and defendants had knowledge of such fact and full opportunity to warn the plaintiff of such fact and failed to so warn him, then the verdict must be in favor of the plaintiff, was not argumentative as against the defendants. (Page 441.)</p> <p>10. Trial — Instruction—Undue Prominence. Such instruction did not give undue prominence to particular facts to defendant’s prejudice. (Page 441.)</p> <p>11. Trial — Instruction—Cure. Such statement, when taken with a portion of same instruction, “should you further find that a reasonably prudent person situated as were the defendants . under all the surrounding circumstances would have given such warning, then your verdict must be in favor of plaintiff,” reasonably implied that the jury were to find that the defendants had knowledge that the plaintiff did not know that the coal ,was on the extension chute. (Page 441.)</p> <p>12. Appeal and Error — Harmless Error — Instruction. It was not prejudicial error to charge in the language of the pleadings as to what constituted the issues in the case where the issues were stated in plain and concise language. (Page 442.)</p> <p>13. Damages — Injury to Servant — Instruction. An instruction that, in determining the damages, if any, that the plaintiff is entitled, to, the jury 'should consider all the evidence, the nature of plaintiffs injuries resulting from the negligent act of the defendants, his suffering in body and mind, and such suffering and loss of health as the jury may believe “plaintiff has sustained, or will sustain,” by reason of such injuries, and find such sum as in “the judgment of the jury under all the evidence” will be just, did not leave the right to recover damages for future pain and suffering open to mere conjecture and possibility, but in effect told the jury that such right was limited by the evidence before them, and hence was not prejudicial error to the defendants. (Page 443.)</p>

<p>1. Taxation — Double Taxation of Capital Stock — Related Cor-pobations — “Ownee”—“Has Been Taxed.” Where plaintiff hank owned all the stock in building corporation in which it had invested one-half its capital stock, and which was evidently organized by the bank for its convenience, and the two concerns being in fact merged, the bank was the “owner” of the building held by the building company, within meaning of Const, art. 13, Sections 2, 3, and Comp. Laws 1907, Sections 2505-2509, .providing that corporate property shall not be doubly taxed, and the phrase “has.been taxed” in such Constitution and statutes does not refer only to property represented by capital stock which has been directly and actually taxed in the name of such corporation in view of Const, art. 13, Section 2, and Comp. Laws 1907, Section 2505, subd. 1, providing that provisions shall not be so construed as to authorize taxation of capital stock when property represented by such stock has been taxed. (Page 450.)</p> <p>2. Taxation — Double Taxation op Capital Stock — Assessment— Pbbsumption. Where bank furnished assessor statement as required by Comp. Laws 1907, Section 2507, showing ownership of building held, by building company of which bank held all the stock and in which it had invested one-half of its capital stock, and assessor erased that property from list and assessed it to building company, but assessed capital stock as given without deducting value of building, it will be presumed that the assessment of bank’s capital stock also covered such property, thus making double taxation. (Page 450.)</p> <p>3. Taxation — Double Taxation of Capital Stock — Related Corporations. Taxation of a bank’s capital stock without deducting value of realty owned by building company of which bank held all stock representing one-half of bank’s capital which realty was taxed to building company, was double taxation, prohibited by Const, art. 13, Sections 2, 3, Comp. Laws 1907, Sections 2505-2509.1 (Page 452.)</p>

T. D. Lewis, Judge. Action by the Board of Education of Salt Lake City, against the Wright-Osborn Company and the Fidelity & Deposit Company of Maryland, in which the Joseph Nelson Supply Company intervened. Judgments in favor of the plaintiff and the intervener. The Fidelity & Deposit Company of Maryland Appeal.

<p>1. Assignments — Rights Acquired by Assignment. An assignee of a mere chose in action takes only the rights the assignor had therein. (Page 486.)</p> <p>2. Schools and School Districts — Rights of Laborers and Ma-terialmen — Assignments—“Lien.” Comp. Laws 1907, Section 1400x, provides that any person who has done work or furnished materials to any principal contractor for the construction or repair of any public work for any school district, etc., may sue the contractor and the school district, and that the court may render judgment against the school district for the amount due from it to the contractor or for a sufficient amount to pay the judgment recovered against the contractor. Meld that, while the statute does not use the word “lien” and does not require any notice or affidavit to perfect the lien, it gives a preferential right against the contract price to laborers and ma-terialmen bringing an action or intervening in some other action while such price remains in the hands of the school district, and an assignee of moneys due or to become due under the contract take subject to such preferential right. (Page 486.)</p> <p>3. Schools and School Districts — Rights of Laborers and Ma-terialmen. To enforce their preferential right to moneys due a contractor from a school district under Comp. Laws 1907, Section 1400x, it is not necessary for laborers and materialmen to bring separate actions, and they may set up their claims in any pending action in which the fund is in question or intervene in any action brought by one of their number. (Page 491.)</p> <p>4. Schools and School Districts — Construction Contracts — Failure to Take Bond — Liability. Under Laws 1909, c. 68, providing that any person contracting with any school district, etc., for the construction of any public building or public work shall be required to execute a bond for the performance of the work and with the additional obligation that the contractor shall pay all persons supplying labor and material, the failure of a school district to require such a bond from a contractor did not render it liable to one to whom the contractor assigned moneys due under the contract and whose right to such moneys was made subordinate to claims for labor and materials; as the bond provided for was not intended for its benefit. (Page 492.)</p>

A. H. Christensen, Judge. • Consolidated actions by Joseph Nelson Supply Company and others against Carbon County High School District and others, in which W. H. Leary, Trustee, intervened. From the judgment the plaintiff named and the Merchants Bank appeal. ' ■ .

Joshua Greenwood, Judge. Consolidated actions by the Geo. A. Lowe & Co. and others against the Wright-Osborn Co. and others, in which Wm. H. Leary, Trustee, intervened. From an adverse judgment, certain of the plaintiffs appeal.

<p>1. Evidence — Relevancy—-Similar Miseepeesentations. False representations, similar to those in issue, are admissible, where intent, motive, or knowledge of their falsity by the party making them is material, or to prove a general scheme to defraud.1 (Page 514.)</p> <p>2. Appeal and Beeoe — Haemxess Eeeoe — Admission of Evidence^-» Cube by Veedict. Where appellant prevailed in his claim, error in admission or exclusion of evidence relating thereto was harmless. (Page 515.)</p> <p>3. Evidence — Relevancy—Similab Miseepeesentations. In action on notes claimed to have been secured by misrepresentation, testimony of others, to whom plaintiff made similar statements, that they relied thereon was inadmissible, although such representations to others might be admissible; the issue here being whether defendant relied on plaintiff’s misrepresentations and the statements of others that they relied on similar misrepresentations not tending to establish a general scheme to defraud. (Page 516.)</p> <p>4. COBPOBATIONS-SALE OF STOCK — FRAUD-GENERAL SCHEME TÓ Defraud. A general scheme to defraud cannot be inferred merely because a vendor is charged with making certain false representations concerning stock offered for sale. (Page 516.)</p> <p>5. Pleading — Issues and Proof — Admission by Pleading. Where a fraudulent sale of stock was claimed, evidence that it was not treasury stock and was not nonassessable as represented was properly excluded where admitted by the pleadings, and since the statute provided that fully paid stock is nonassessable unless made so by articles of incorporation, which were in evidence. (Page 517.)</p> <p>6. Teial — Refusal of Instructions — Applicability to Evidence. In the absence of evidence from which a general scheme to defraud could be inferred, refusal of instruction upon this question was not erroneous. (Page 517.)</p> <p>7. Trial- — Refusal of Argumentative Instructions. Refusal to give argumentative instructions was no erroneous. (Page 517.)</p> <p>8. Appeal and Error — Review—Discretion of Court — Allowance of Costs. Where Comp. Laws 1907, Section 3341, placed the matter of allowing, costs within the trial court’s discretion where counterclaim was pleaded, the court’s action will not be disturbed except for abuse of discretion. (Page 518.)</p>

<p>1. Chattel Mortgages — Waiver op Lien — Confession op Judgment. Although Comp. Laws 1907, Section 3498, provides that there can he hut one action for the recovery of any debt or enforcement of any right secured hy mortgage, which action must he in accordance with the chapter, a chattel mortgagee did not waive his right to a lien hy selling the property under*a power in the mortgage after confession of judgment in his favor hy the mortgagor, though the confession was not in all things regular.1 (Page 523.)</p> <p>2. Bankruptcy — Waiver op Chattel Mortgage Lien — Confession . op Judgment. Neither the trustee in bankruptcy nor any of the mortgagor’s creditors could complain, the mortgagor having consented to the confession, although it was made less than four months prior to the bankruptcy, since it was in accordance with the mortgagee’s right under the mortgage. (Page 525.)</p> <p>3. Bankruptcy — Preferences—What Constitutes. Nor would such confession of judgment and sale of the property constitute a voidable preference. (Page 526.)</p>

<p>Appeal from District Court, Fourth District; Hon. A. B. Morgan, Judge.</p> <p>The Provo Meat & Packing Company was convicted of selling fresh meat without a license, and it-appeals.</p>

<p>Mandamus — Appropriations—Powers oe State Engineer. Under Comp. Laws 1907, Sec. 1288x10, providing that the state engineer shall approve applications for water rights not conflicting with prior applications or where the proposed use will not impair existing rights, a landowner was not entitled to mandamus to compel the engineer to grant the right to perfect the irrigation ditch of a third person so as to avoid waste of water by seepage and to permit the landowner to use the water saved.</p>

<p>CORPORATIONS-INSOLVENCY-PREFERENCES TO STOCKHOLDER. Where both parties act in good faith,' execution of a mortgage hy an insolvent corporation to a minority stockholder for money loaned to and applied by corporation to payment of current debts, and a subsequent foreclosure by the stockholder, is not an unlawful preference; the trust fund theory not prevailing.1</p>

Geo. G. Armstrong, Judge. Action by P. A. Sorenson Co. against the Denver & Rio Grande Railroad Co. Plaintiff appeals from judgment for defendant and from order denying new trial. APPELLANT’S POINTS. That respondent’s train set out the fire is proven by circumstances.

<p>Appeal from District Court, Second District; Hon. N. J. Harris, judge.</p> <p>Suit to enjoin tbe collection of a special improvement tax by Henry W. Gwilliam and others against Ogden City.</p> <p>Judgment holding special assessment legal and denying prayer for injunction. Plaintiffs appeal.</p> <p>APPELLANTS’ POINTS.</p> <p>“While the judicial decisions differ somewhat concerning certain details in the description of the proposed improvement, resulting from construction of laws more or less variant, they are reasonably uniform in sustaining the sound and salutary position that the improvement should be described in such a manner that an interested property owner may judge with reasonable certainty the effect it will have on his property. Obviously, property owners who will have to pay the cost of the improvement, or else have their property sold to satisfy the same, should be apprised in the notice of the character and extent of the improvement.” (McQuillin, Municipal Corporations, Yol. 4, page 3980.)</p> <p>In the case of Jones v. Foulger, 46 Utah 419, 150 Pac. 933, this court held the notice of intention jurisdictional.</p> <p>See also Stott v. Salt Lake City, 47 Utah 113, 151 Pac. 988; Branting v. Salt Lake City, 47 Utah 296, 153 Pac. 995.</p> <p>Upon the trial of the case in the lower court it was contended by counsel for the city that the plaintiffs could not complain in the form of action adopted by them; in other words, that the tax should not be declared void in consequence of any error or irregularity committed or appearing in any of the proceedings relating to this improvement, and Section 264, C. L. 1907, was referred to; and furthermore that plaintiffs had an adequate remedy at law under that section and also under Section 282. If this were the case of a mere irregularity, those sections would apply, but this court has already held in a number of cases that those sections are not applicable to the failure of the council to take jurisdictional steps required by law, which are conditions precedent to the validity of the tax. It is so held in the following cases:</p> <p>Armstrong v. Ogden City, 12 Utah 476; Mercur Mining Company v. Spry, 16 Utah 222; 4 McQuillin on Municipal Corporations, Section 2004; 5 McQuillin on Municipal Corporations, Section 2127.</p> <p>RESPONDENT’S POINTS.</p> <p>The city’s “authority must be strictly pursued. But it must, also, in order to be enabled to perform its agency to advantage, be allowed to make the assessment, and even the collection of it shall be deemed proper, in advance. The assessment must, of course, be made upon an estimate which may be more or less incorrect, as all estimates for public works are likely to be, but the liability to error ought not to defeat a special any more than a general levy for future purposes. If it prove too large it is not fatal, though the excess properly belongs to the lot owners, who would be entitled to have it returned to them).” Cooley on Taxation, 2d.Ed., 665.</p> <p>“Items of cost improperly included may be deducted in proceedings to set the assessment aside and the balance sustained.” (Matter of Met. Gas Light Co., 85 N. Y. 526; Note Cooley on Taxation, 2d Ed., 665; In re Merriam, 84 N. Y. 596 id.)</p> <p>“An assessment should be limited to the actual cost of the improvements; but this may properly include all incidentals, such as the cost of advertising, engineering, superintendence, etc.” Cooley on Taxation, 2d Ed., 664.</p> <p>“Where in a suit to enjoin the collection of an assessment, equitable jurisdiction has been acquired, all pertinent controversies between the parties should be adjudicated.” (Un. Pac. Co. v. Kaney, 141 Pac. 302, 92 Kans. 487.)</p> <p>■ “The owner of property cannot enjoin enforcement of a total assessment for municipal improvement where it is clear that he ought to pay.a part and it can be seen what that part is.” Jones v. Whittaker, 33 OH. 13, 124 Pac. 312.</p> <p>‘ ‘ The inclusion of illegal items in an assessment for public improvement does not render the entire assessment void, where the illegal charges may be segregated from the legal.” Hildreth v. City of Longmont, 47 Colorado 79, 105 Pac. 107.</p>

<p>Appeal and EeROE — Appeal from Joint Judgment — Service of Notice on Codefendant. Where a joint judgment was entered against two defendants, and one. of them, appealing alone, served plaintiff with notice of appeal, but failed to serve such notice upon its codefendant, the appeal will be dismissed, as the Supreme Court has no jurisdiction, since to serve notice on the code-fendant or to obtain a waiver of service of notice was necessary.1</p>

<p>1. Waters and Water Courses — Agreement by Owner of Water Right — Binding Force. An owner of a water right could agree to any arrangement as to the use of water which was satisfactory to himself and to the other water users on the ditch, and his agreement as to the amount of water to which he was entitled, if acted upon by the other water users, bound him and those who claimed through him. (Page 574.)</p> <p>2. Waters and Water Courses — Rights oe Landowner — Quantity. No landowner is entitled to more water from a ditch for any specific purpose than is reasonably necessary to supply his needs for that purpose, regardless of the quantity that has been used and the length of use. (Page 578.)</p> <p>3. Waters and Water Courses — Appropriation — Diversion to Other Use. A landowner may not appropriate water from a ditch for one purpose and then apply it or any part of it to another purpose. (Page 579.)</p> <p>4. Water and Water Coueses — Methods of Diverting and Conveying Water. Where parties have acquired a vested right to the use of water for beneficial purposes, and have adopted the usual and customary means of conveying it from the point of diversion to the place of use in vogue in this arid region, namely, an open ditch with bed and banks consisting of the natural soil through which it is constructed, they cannot be compelled to substitute and install a more expensive method of diversion in order to prevent loss by seepage and evaporation. They may, however, be compelled to keep their ditch in good repair so as to prevent unnecessary waste. (Page 579.)</p> <p>5. Waters and Water Courses — Appropriation—Waste. Claimants of water may not waste it, either by applying more than is reasonably necessary to supply their needs for culinary, domestic, or live stock purposes, or in conducting the water from the main source or supply to their premises. (Page 581.)</p> <p>6. Waters and Water Courses — Appropriation — Irrigation — Waste Water. Where a continuous open stream of water is permitted to flow to certain premises for culinary, domestic and live stock purposes, a reasonable amount of excess water passing the premises may be used in a garden or orchard, or for other irrigation purposes. (Page 581.)</p> <p>7. Waters and Water Courses — Water Rights — Appear. In a case involving water rights, though the trial courts possess a better opportunity to reflect the equities of the case than does the Supreme Court, when it is apparent that the trial courts have failed to reflect justice in a particular matter in view of the whole evidence, the parties to the record have the right to invoke the judgment of the Supreme Court on the particular matter. (Page 588.)</p> <p>8. Waters and Water Courses — Water Rights — Appeal. In cases' involving water rights in arid regions, the appellate court should be very slow to interfere with judgments unless it is clear that equity and justice require such interference. (Page 588.) ‘</p> <p>9. Waters and Water Courses — Irrigation—Rotation—Duty oe Courts. The courts are under duty to prevent discrimination and inequality among water users who have adopted a system of rotation on any particular irrigation system or stream. . (Page 588.)</p> <p>10. Appeal and Error — Cross-Errors—Appeal oe Codeeendant. Where a codefendant appeals, another codefendant may not, upon such appeal; assign cross-errors against respondent, and secure modification of the judgment in so far as it affects him; the proper procedure is to file a cr,oss-appeal from the judgment. (Page 590.)</p> <p>11. Appeal and Error — Cross-Assignments—Oeeice. To modify an independent portion of the decree not touched by the appeal is not the office of mere cross-assignments, but the peculiar province of a cross-appeal. (Page 590.)</p> <p>McCARTY, J., dissenting in part.</p>

<p>1. Appeal and Ebeoe — Recobd—Sufficiency—Motion fob Non-suit. Whether motion for nonsuit should have been sustained will not be reviewed, unless it is apparent from the record that the motion was made before the trial court and properly included in the record on appeal. (Page 601.)</p> <p>2. Witnesses — Cobeobobation—Undisputed Testimony — Remoteness — Condition of Machineey. In action for injuries in motor vehicle collision, where defendant’s testimony that his brakes were all right was undisputed, exclusion of testimony of repairman to whom defendant took the car twelve days after the accident was not error; being both remote in time and corroborative of undisputed testimony. (Page 602.)</p> <p>3. Highways — Collisions—Actions foe Injuries — Instbuctions. In action for injuries in highway collision, instruction that negligence is the failure to do what a reasonably prudent person would ordinarily have done under the circumstances, or doing what such person would not have done, and that in considering the question who was negligent the jury should test it by the definition of negligence, and take into account all facts and circumstances developed, though not well worded, was not erroneous.. (Page 603.)</p> <p>4. Teial — Question foe Juey — Weight of Negative Testimony. The weight of negative testimony of witnesses as to giving warning signals ordinarily is for the jury; but when physical conditions and attending circumstances render it highly improbable that they could hear, the rule is otherwise. (Page 604.)</p> <p>5. Highways — Collisions—Negligence. In action for injuries in collision on highway between motorcycle and automobile, auto-moble driver was not liable for negligence, if any, in permitting brakes to become deficient where, when the danger was discovered, the collision could not have been averted, regardless of the character of the brakes, or even had he reversed the power. (Page 606.)</p> <p>6. i Highways — Collisions — Contbibutoby Negligence — Evidence. / Where plaintiff was a passenger on the rear of the motorcycle, I which the driver rode on the wrong side of the highway at a I high speed without protest from plaintiff, and in turning out \ for a team they were injured, plaintiff was contributorily negligent, and could not recover from the owner of the automobile which they then struck.1 (Page 608.)</p>

<p>1. Adveesb Possession — Hostile Possession — Sufficiency. Where J., the purchaser of the north half of a lot, took possession of a strip which he believed to be such north half and constructed a dwelling house thereon, but about the time he moved away a purchaser of the south half of the lot took actual possession of such strip, collected rent from the tenants, made substantial and valuable improvements, erected a fence, and paid all water taxes and all taxes, general and special, assessed against the land and the improvements for thirteen years, the owners of the north half being assessed with no improvements, he acquired title by adverse possession, as his conduct was not only consistent with the theory that he owned such strip, but inconsistent with the theory that his occupation was that of a trespasser or as agent of the owners of the north half. (Page 620.) ■</p> <p>2. Boundaries — Evidence—Weight and Sufficiency. In an action involving a dispute as to the boundary between the north and south halves of lot 2 in a block of four lots numbered from the south, which contained more land than that shown on the official plat of the city, wherein defendant, owning lot 1 and the south half of lot 2, claimed that the surplus was a part of the street bounding the block on the south as originally surveyed and platted, evidence held to support findings in favor of defendant’s claim as to the location of the line, and to show that plaintiffs thereby received the land they bought.1 ' (Page 622.)</p> <p>3. Municipal Corporations — Vacation of Portion of Street — Persons'Prejudiced. The city hid not exceed or abuse its power to the prejudice of plaintiffs by waiving whatever title or right it had to such surplus. (Page 624.)</p> <p>4. Costs — Statutory Provisions — Strict Construction. As costs were not recoverable at common law and the right to costs is purely statutory, statutes authorizing them are strictly construed.2 (Page 625.)</p> <p>5. Costs — Cost Bill — Time for Filing and Serving. Under Comp. Laws 1907, Sec. 3350, providing that the party in whose favor judgment is rendered and who claims his costs must deliver to the clerk and serve upon the adverse party within five days after the verdict or notice of decision of the court or referee a memorandum of the items of his costs and necessary disbursements, the filing and service of the cost bill before the entry of the finding and decree was not a substantial compliance with the statute, and the cost bill should have been stricken.1 (Page 626.)</p>