Volume 53 — Utah Reports

the District Court of Salt Lake County, Third District; Hon. P. C. Evans, Judge. Action by Mary Wilkin against'D. J. O’Brien, as executor •of the last will and testament of Esther Byrne, deceased. Judgment for plaintiff. Defendant appeals.

<p>1. Appeal and Error — Equitable Proceedings — Review of Evidence. Although the Supreme Court will and it is its duty .in equitable proceedings to review the testimony and determine its weight, much consideration must be given to the trial court's findings, particularly in a case to restrain a nuisance, where the court visited the scene of the alleged nuisance.1 (Page 16.)</p> <p>2. Nuisance — Gas Plants. A gas plant whose odors are disagreeable, and cause persons residing near by to suffer nausea and headache, and which depreciates the value of their homes, constitutes an actionable nuisance, under Comp. Laws 1907, section 3506. (Page 16.)</p> <p>3. Nuisance — Injunction'—Depense—Injury to Dependant. That defendant, a gas company, is engaged in supplying gas-in a large city,- that there is no other present source of a supply of gas, and that damage resulting would be much greater to the gas company than to surrounding inhabitants, are not of themselves sufficient to justify a court in refusing injunctive relief. (Page 17.)</p> <p>4. Nuisance — Injunction—Laches. Where a gas plant was erected in 1906, and emitted offensive odors, and the size of the plant ivas doubled in 1910, at .great expense, plaintiffs, standing by and doing nothing except file written protests with the city officials against the enlargement of the plant, were guilty of laches, and a permanent restraining order should not be granted against the operation of the gas plant, and plaintiffs should be limited to money damages.2 (Page 19.) ■</p> <p>5. Nuisance — Gas Plants — Injunction—Laches. The operation of a gas plant is not a nuisance per se, and persons living in the vicinity in which a gas plant was erected should not be charged with the knowledge, prior to the completion and the operation of the same, that it would be so operated as to cause it to be a nuisance. (Page 19.)</p> <p>6. Equity — Complete Relief. In an equity action, where the prayer is for both ’specific and general relief, the court, having acquired jurisdiction of the parties and the subject-matter, will retain that jurisdiction until justice lias been done, although the equitable relief sought is denied, especially in this state, where there is but one form of civil action.1 (Page 22.)</p> <p>7. Nuisance — Injunction—Denial—Damages. Where fifty-nine persons bring action to restrain as a nuisance the operation of a gas plant and for general relief, each having a separate and individual claim or right of action for. damages growing out of the same trespass on the part of the defendant company, the only separate issue being the amount of compensation due each plaintiff, the court should, on denying equitable relief, allow the plaintiffs to amend, and determine the amount to which each plaintiff is entitled, without requiring them to bring separate actions. (Page 23.)</p> <p>8. Parties — Intervention—Persons Entitled. In an action by property owners to restrain a gas company from maintaining a nuisance, where injunction was denied, any other party similarly situated as the plaintiffs should be allowed to intervene, the action being reduced to one for damages. (Page 24.)</p>

<p>1. Railroads — Doty to Fence Track — Question of Fact — Statute. While courts must declare, as matter of law, that fences cannot be maintained by a railroad company at public road crossing's and at stations and depot grounds, whether a certain space is to be left open, for station grounds, or for the safety and convenience of trainmen in switching, is ordinarily a question for the jury, Comp. Laws 1907, section 456x, as amended by Laws 1913, c. 74-, relating to fencing, being inapplicable.1 (Page 35.)</p> <p>2. Railroads — Duty to Fence Track — Questions of Fact. In action for the killing of a horse which had entered on a railroad company’s right of way, because of failure to fence station grounds, whether defendant ought to have erected a fence over an empty space, forming a pocket between the track and an irrigation canal, was for the jury. (Page 37.)</p> <p>3. Railroads — Duty to Fence Station Grounds — Burden of Proof. In an action for the killing of a horse straying upon a railroad track, on account of failure to fence station grounds, the burden was on defendant to show the extent of space necessary to be kept open for station purposes. (Page 37.)</p> <p>4. Trial — Instructions—Absence of Evidence. In an action against a railroad for killing a horse straying on an unfeneed track, an instruction that, in the absence of evidence of negligence, the jury "need not” consider it, was not erroneous, as making it optional with the jury whether to consider it or not. (Page 38.)</p> <p>5. Evidence — Expert Testimony — Matter in Issue. In an action against a railroad company for killing a horse straying on the track through unfenced station grounds,, expert or opinion evidence, as to the extent of space necessary to leave unfeneed, was inadmissible, the question being for the jury. (Pago 38.)</p>

<p>1. Carriers — Heating Cars. A carrier is only required to heat its cars so as to provide a reasonable degree of comfort for passengers in an ordinary and normal state of health. (Page 49.)</p> <p>2. Carriers — Failure to Heat Cars — Pleading. In an action against a carrier for injuries occasioned by a cold car, the passenger is not required to plead or prove that he is in an ordinary or normal state of health. (Page 49.)</p> <p>3. Carriers — Heating Cars — Degree op Care. A carrier of passengers is bound only to exercise that degree of care in endeavoring to keep its vehicles sufficiently warm which a very cautious and prudent person would exercise under the same or similar circumstances. (Page 49.)</p> <p>4. Carriers — Heating Cars — Care Required. To permit a car to become so cold as to cause a passenger’s feet to freeze constitutes negligence as a matter of law. (Page 52.)</p> <p>5. Evidence — Judicial Notice — Natural Forces — Effect. Courts are required to take judicial notice of all natural forces, the effect of which cannot be ignored, and that no one in ordinary or normal health can freeze his feet, when reasonably clad, unless_ the temperature falls considerably below 82 degrees Fahrenheit. (Page 53.)</p> <p>6. Carriers — Heating Cars — Negligence—Evidence. In an action by a passenger to recover damages for frozen feet, evidence held insufficient to sustain a finding that plaintiff’s feet were frozen while on defendant’s train. (Page 56.)</p> <p>7. Appeal and Error — Reversal—Disposal of Assignments. Under the statutes the Supreme Court on reversal in a case is required to dispose of all of the assignments of error. (Page 57.)</p> <p>8. Carriers — Failure to Heat Cars — Contributory Negligence-Questions for Jury. Whether a passenger is negligent in remaining in a cold car, and in not notifying conductor or making any complaint, is generally a question for the jury. (Page 59.)</p> <p>9. Carriers — Heating Cars — Contributory Negligence — Instructions. In an action by a passenger for damages for frozen feet, where carrier set up failure of plaintiff to complain or notify the conductor that the car was cold, as constituting contributory negligence, it was error to refuse to instruct respecting plaintiff’s duty in such respect. (Page 59.)</p> <p>10.Negligence — Res Ipsa Loquitur. The maxim of res ipsa loquitur does not raise a presumption, but merely an inference of fact, and does not shift the burden of proof, although such an inference may be so strong as not only to justify, but to compel, a finding of negligence.1 (Page 60.)</p>

D. II. Morris, Judge. Action by Alma Peterson against the Eureka Hill Mining Company. Judgment for defendant was entered after opening a default by him. Plaintiff appeals. RESPONDENT’S POINTS. The nncontradicted evidence shows that the springs in question are located upon private ground belonging to the defendant, and form no part of a running or public stream. Under all the authorities they are not subject to appropriation.

II. M. Stephens, Judge. Action by the Burt & Carlquist Company against C. E. Marks and John Anderson, wherein defendant Anderson filed a cross-complaint. Judgment for defendants. Plaintiff appeals. STATEMENT OF FACTS. On or about September 1, 1912, John Anderson, inter-pleaded defendant and cross-complainant, was the owner of a piece of real estate, consisting of about three acres, situated in Salt Lake County, Utah.

<p>Appeal from the District Court of Utah County, Fourth District; Hon. A. B. Morgan, Judge.</p> <p>Ejectment by Samuel Rieske against John W. Hoover and others.</p> <p>Judgment.for plaintiff. Defendants appeal.</p>

<p>1. Appeal and Error — Judgments Appealable — Necessity op Entry. Where the court verbally ordered nonsuit and dismissal, but no formal judgment of dismissal was entered at the time the appeal was taken, the appeal must be dismissed as' premature, in view • of Comp. Laws 1907, section 3195, requiring the entry of judgments in a judgment book, and section 3197, stating the requisites of the judgment roll. (Page 97.)</p> <p>2. Judgment — Entry—Rights op Parties. If the clerk fails to entér a judgment as required by statute, the parties may secure the proper entry by order of court. (Page 98.)</p> <p>3. Exceptions, Bill op — Time to Pile — Effect op Premature Appeal. Where a party attempted to appeal from a judgment of dismissal before formal judgment was entered, the time to file bill of exceptions began to' run from the date of the formal entry of the judgment, and not from the date of appeal. (Page 99.)</p>

<p>Appeal from the District Court of Salt Lake County, Third District; Hon. J. Louis Brown, Judge.</p> <p>William O. McNair was convicted of murder in the second degree, and he appeals.</p>

<p>Taxation — Exemptions—Building Used foe Charitable Purposes. Where a building owned by a charitable association was in part rented out to stores, the income being used only to keep the building in repair and for charitable and benevolent purposes, the part of the building rented out to the stores was not exempt from taxation, under Const, art. 13, section 3.1</p>

<p>1. Bailkoads — Accident at Crossing — Negligence—Evidence. In. action for death of a bicyclist at a public street crossing, evidence held to justify finding of actionable negligence. (Page 130.)</p> <p>2. Railroads — Crossing Accident- — Degree op Care — Customary Acts. Where neither trainmen, deceased employee, nor any of his coemployees paid any attention to gates at public crossing, even ' when they were down, it. was the duty of those operating trains over the crossing to exercise great care and caution. (Page 131.)</p> <p>3. Railroads — Crossing Accident — Contributory Negligence — Question por Jury. While it is the duty of one about to cross a railroad at a public crossing to keep a vigilant lookout for approaching trains, whether such duty has been met is, except in clear cases, a jury question. (Page 131.)</p> <p>4. Railroads — Crossing Accident — Contributory Negligence — Question por Jury. Whether, under a particular state of facts and circumstances, a traveler about to cross a railroad at a public street crossing may be excused from maintaining a constant lookout in a particular direction is, except in clear cases, a question of fact. (Page 131.)</p> <p>5. Railroads — Crossing Accident — Contributory Negligence — Question por Jury. In action for death of bicyclist at a public street crossing, whether injuries were entirely due to decedent’s own negligence hold, under the evidence, for the jury. (Page 132.)</p> <p>6. Appeal and Error — Conclusions op Jury — Review. Where court on appeal, as triers of fact, might entertain doubts as to whether conduct of deceased in passing in front of defendant’s engine in • going over a public crossing was excusable, it will yield to the judgment of the jury.1 (Page 132.)</p>

<p>1. CONSTITUTIONAL LAW — LEGISLATIVE POWERS — CONSTITUTIONAL LIMITATIONS. Though, state Constitutions are limitations on legislative power respecting subjects expressed in the limitations, existing rights, where otherwise proper subjects of legislation, may be enlarged and augmented. (Page 138.)</p> <p>2. Master and Servantt-Workmen’s Compensation — Validity oe Act. Industrial Commission Act, section 72, providing for election between compensation for death under the act or damages in-law action, and under section 73 for waiver of right to bring law action by application for compensation, is not violative of Const, art. 16, section 5, as abrogating right of an adult to recover damages for death under Comp. Laws 1888, sections 3178, 3179; an adult being capable of making election. (Page. 140.)</p> <p>3. Master and Servant — Workmen’s Compensation — Waiver op Law — Action por Death — Minors. ' An heir who is not sui juris cannot waive his right of action for death by an application for an award, or vice versa, under Industrial Commissions Act, section 73, being incapable in law of making an election. (Pago 140.)</p> <p>4. Master and Servant — Workmen’s Compensation — Validity of Act — -Minors. Industrial Commission Act, in so far as it attempts to limit compensation to minor heirs for death and to enforce a waiver of right to bring law action for the death under section 73, is invalid where death was by employer’s wrongful act, minors having right of action in such case under Comp. Laws 1888, sections 3178, 3179, which cannot be abrogated under Const, art. 16, section 5, but is valid where death was not caused by employer’s negligence or wrongful act. (Page 140.)</p> <p>5. Master and Servant — Workmen’s Compensation — Waiver op Law Action — Minors—Waiver by Mother. Mother by applying for compensation for father’s death does not, under Industrial Commissions Act, section 73, waive minor children’s right to bring law action for damages under Comp. Laws 1888, sections 3178, 3179, whore death was caused by employer’s wrongful act, which right Industrial Commissions Act could not abrogate under Const, art. 16, section 5. (Page 144.)</p> <p>6. Statutes — Partial Invalidity — Workmen’s Compensation. Invalidity of Industrial Commission Act in so far as it attempts to abrogate minor heirs’ right, under Comp. Laws 1888, sections 3178, 3179, to bring action for death caused by employer’s wrongful act, does not affect validity of other provisions, or-validity of the provisions of the act where death was purely accidental. (Page 145.)</p> <p>7. Constitutional Law — Equal Protection op Laws. Under federal Constitution every citizen, regardless of his station or-condition, is entitled to the equal protection of- the law whether it applies to his personal or to his 'property right, and every law violative of such right is invalid. (Page 146.)</p> <p>8. Constitutional Law — Construction Favoring Constitutionality. Statute which is susceptible to different constructions will be given that construction which conforms to tlio Constitution. (Page 146.)</p> <p>9. Jury — Right to Trial by — Workmen’s Compensation Act. In employer’s action under Industrial Commissions Act, employer denying that accident causing death was one arising out of and in course of employment held entitled, under section 87, to a jury trial on such issue. (Page 146.)</p> <p>10. Master and Servant — Workmen’s Compensation — Evidence— Hearsay. Under Industrial Commission Act, section 88, Industrial Commission may consider hearsay evidence, but no material finding can stand, if seasonably assailed, whore based entirely on hearsay . or incompetent evidence. (Page 148.)</p>

<p>1. Appeal and Error — Matters Reviewable — Record. Where an appeal is taken npon the judgment roll, and there is no bill of exceptions, the only matter to be considered is whether or not decree is supported by pleadings, findings of fact, and conclusions of law that conform with law. (Page 157.)</p> <p>2. Appeal and Error — Matters Reviewable — Record—Evidence. Where an appeal is taken upon the judgment roll, and there is no bill of exceptions, it must be assumed that the findings of fact are true and supported by the evidence.1 (Page 157.)</p> <p>3. Mines and Minerals — "Mining Operations.” Whore a deed reserved the ores in and under the surface, and the right to carry on mining operations, the court cannot, say, as a matter of law, that the words ‘ ‘ mining operations ’ ’ was confined to subterranean mining or'operations beneath the surface.2- (Page 158.)</p>

<p>Appeal from the District Court of Salt Lake County, Third District; Hon. Geo. G. Armstrong, Judge.</p> <p>Action by Harold Van Cott against Elizabeth Ann Casper. Defendant dying before trial, J. A. Casper was substituted as defendant.</p> <p>Decree for defendant. Plaintiff appeals.</p>

A. W. Agee, Judge. Action by the State' of Utah against Certain Intoxicating Liquors. From a judgment ordering that the liquor be destroyed and their retainers sold at public auction, Joseph Laucirica, who appeared in the action claiming the liquors, appeals.

P. G. Evans, Judge. Action by Mary Josephine Wright against the Intermoun-tain Motorcar Company and C. N. Carruthers. Judgment on verdict for plaintiff against both defendants, and they separately appeal.

<p>1. Mortgages — Deeds Absolute — Evidence. In an action to have a deed absolute declared a mortgage and to have it foreclosed, both parties admitting that the deed was a mortgage, evidence held to sustain a finding that it was intended to secure expenditures that might subsequently be made for the benefit of the property, as well as debts paid at the time. (Page 192.)</p> <p>2. Mortgages — Absolute Deeds — Parol Agreement. A deed absolute in form, executed, and delivered as security under a parol agreement and with the understanding that it shall be so held, will be construed as a mortgage.1 (Page 193.)</p> <p>3. Mortgages — Absolute Deeds — Unliquidated Claims. A deed, when intended as a mortgage, may be given to secure an unliquidated claim to whatever indebtedness may thereafter be contracted between the parties under it. (Page 193.)</p> <p>4. Limitation OB’ Actions — Mortgages—Absolute Deed. Limitations did not run to prevent the bringing of an action to have an absolute deed declared to be a mortgage and foreclosed, where the plaintiff, the'grantee, in pursuance of the terms of the parol agreement and under the deed, continued to pay and discharge the indebtedness against defendant’s property, pay the taxes thereon, and make expenditures for its benefit up to the timé of the commencement of the action. (Page 193.)</p>

J. Z>. Gall, Judge. In the matter of the estate of Alfred Picot, deceased. From an order or judgment requiring Eda M. Picot, ad-ministratrix, to inventory and produce for appraisement, and to have appraised, certain personal property, she appeals.

Original proceedings by writ of certiorari by Mike Devlin to review an order of the district court of Weber County refusing to annul and set aside a judgment in an action by Frances Hawkins against Mike Devlin.

<p>1. Carriers — Trespassers—Railroad Duty — Guards. In action for injuries while stealing ride under passenger ear, instruction that railroad was not required to station men along track to prevent, plaintiff and companions from boarding train and attempting to go beneath ears held warranted by pleadings. (Page 220.)</p> <p>2. Carriers — Trespassers. Persons who board train without authority are trespassers. (Page 220.)</p> <p>3. Carriers — Trespassers—Railroad’s Duty. Railroad owes no duty to persons on train without authority until their presence is actually discovered, and then only to abstain from willfully or wantonly injuring them, and to use ordinary care to avoid injuring, them after discovering them in perilous position. (Page 220.)</p> <p>4. Carriers — Trespassers—Duty op Railroad — Discovery by Trainmen. Railroad is under no duty to discover presence of trespassers on train. (Page 220.)</p> <p>5. Negligence — Proximate Cause. Regardless of degree of negligence, plaintiff cannot recover where defendant’s negligence was not the proximate canse of the injury. (Page 221.)</p> <p>6. Carriers — Injury to Trespasser — Ejection—Proximate Cause. Trespasser suing for injuries from falling under wheels while stealing ride under passenger car could not recover on ground that railroad emplo3rce negligently ordered him to jump off while train was moving, unless such order was cause of trespasser’s attempt to leave train. (Page 221.)</p> <p>7. Carriers — Injury to Trespasser — Burden of Proof. Trespasser suing railroad for injuries when ordered to get off car has burden of proving railroad’s negligence, and that such negligence was proximate cause of injury. (Pago 222.)</p> <p>8. Carriers — Injury to Trespasser — Instruction. In trespasser’s action for injuries, instruction that negligence of employees not engaged in movement of particular train was not imputable to railroad was not objectionable on ground that employee not so engaged ordered plaintiff off train, whore evidence failed to show that such order, if given, was proximate cause of trespasser’s injury, and trespasser’s own instructions were based on theory that the order was given by a brakeman of particular train. (Page 224.)</p> <p>9. Appeal and Error — Review—Harmless Error — Instructions. In trespasser’s action against railroad for injuries, instruction that negligence of employees not engaged in movement of particular train was not imputable to railroad was not prejudicial to trespasser, where there was no evidence of negligence of employee not working on such train. (Page 224.)</p> <p>10. Carriers — Injury to Trespasser — Variance. Trespasser, basing action against railroad for injuries on threats forcing him to leave train, cannot recover on theory that railroad was at fault in not stopping train the moment some employee standing beside train saw trespasser start to go under it. (Page 224.)</p> <p>11. Carriers — Injury to Trespasser — Order to Leave Car — Liability of Railroad. Trespasser discovered by trainmen while endeavoring to get position to ride in under ear, and ordered by trainmen to leave car, cannot recover for injuries sustained while attempting, after car had started moving, to leave car in obedience to order, where order was not accompanied by threats of personal violence sufficient to cause him to loso self-control. (Page 224.)</p> <p>12. Carriers — Trespasser—Railroad’s Duty — Equipment of Train. Railroad owed trespasser-stealing ride no duty to equip its train in such a way that the rear engine would have control over the automatic air brakes, nor to so equip train that stop signals given by train air whistle could be passed directly to lead engine. (Page 225.)</p> <p>13. Appeal and Error — ■ Review — Harmless Error — Instruction. Instruction stating law correctly, and relating to subject-matter of which there was more or less evidence,'was not prejudicial, though not within issues made by pleadings. (Page 225.)</p> <p>14. Trial — Instruction. Refusal of requested instructions covered by other instructions given was not error. (Page 225.)</p> <p>15. Witnesses — Examination — Negligence. In negligence action, defendant’s witness testifying to circumstances of accident, as related to him by plaintiff shortly after accident, without including in statement of circumstances as detailed by plaintiff the acts upon which claim of negligence was based, could properly be asked upon completing statement, if plaintiff had said anything further as to how injury occurred. (Page 225.)</p> <p>16. Witnesses — Leading Questions — Discretion. Whether witness should bo permitted to answer loading or suggestive questions is discretionary with coui't. (Page 225.)</p>

<p>1. Assault and Battery — Exemplary Damages — Jury Question. In action for assault and battery, it was error to refuse a requested instruction as to exemplary damages, and to instruct that the jury was not to consider that question.1 (Page 228.)</p> <p>.2. Assault and Battery — Sufficiency of Evidence. Evidence held to show commission of assault and battery. (Page 228.)</p> <p>3. Assault and Battery — Bight to Recover Nominal Damages. In action for assault and battery, where the assault and battery was conclusively proven, plaintiff was entitled at least to nominal damages. (Page 228.)</p> <p>4. Assault and Battery — Elements op Damages. The victim of assault and battery was entitled to have considered, on the question of damages, the shame, humiliation, loss of reputation,' and injury to personal feelings growing out of the assault and battery. (Page 228.)</p>

Washington County, Fifth District; Hon. Geo. F. Goodwin, Presiding Judge. Action by Julia E. Graham against the Hidden Lake Copper Company, wherein the Bank of St. George was made a garnishee. Judgment dismissing the garnishment proceedings. Plaintiff appeals.

A. B. Morgan, Judge. Action by Lewis B. Gappmayer and others, by their guardian ad litem, Julies Anderson, and another, against Walter Wilkenson and others. Judgment for defendants. Plaintiffs appeal.

Appeal fr.om the District Court of Weber County, Second District; Hon. A. W. Agee, Judge. Action by William Stam, an infant, by Evert Neutéboom, his guardian, against the Ogden Packing & Provision Company. Judgment for plaintiff and denial of new trial. Defendant appeals.

<p>Appeal from tbe District Court of Weber County, Second District; Hon. A. E. P-ratt, Judge.</p> <p>Action by C. F. Roberson and others against William H. Draney and others.</p> <p>Judgment for-plaintiffs. Defendants appeal.</p>

<p>1. ATTORNEY AND CLIENT-ACTION FOR PEES-PLEADING. Complaint in attorney's action for fees held sufficient. (Pago 285.)</p> <p>2. Continuance — Diligence—Effect of Withdrawal oe Attorney. Where defendant’s attorney had spent a week in preparing the ease, denial of continuance for defendant to procure other counsel to aid. him held not an abuse of discretion.1 (Page 285.)</p> <p>3. Continuance — Withdrawal op Attorney — “Cease to Act as Such. ’ ’ Trial court did not abuse its discretion in proceeding with trial after defendant’s counsel, at defendant’s order, withdrew from the case; for Comp. Laws 1907, section 119, providing that when an attorney dies, or is removed or suspended, or “ceases to act as such,” the party employing him must, before further proceedings are had against him, be required by written notice to appoint another attorney or appear in person, does not apply where an attorney merely withdraws from the case, and does not wholly cease the practice of law. (Page 288.) .</p> <p>4. Attorney and Client — Duties op Attorney. While counsel represents clients, they are also officers of the court, and as such are always bound to aid in the orderly and expeditious administration of justice, but they must not resort to strategy in courts of justice. (Page 291.)</p> <p>5. Appeal and Error — Harmless Error — Oral Instructions. Though Comp. Laws 1907, section 3147, subd. 4, requiring written instructions except on consent of both parties, is mandatory, yet where the instructions are in the record on appeal, and they correctly state the law, and the objecting party is not prejudiced, the error in giving oral instructions is not fatal. (Page 292.)</p> <p>6. Appeal and Error — New Trial — Scope op Review — Oral Instruction. Objection that instructions were given orally cannot be raised for the first time on motion for new trial, nor can the error be reviewed unless objection is made at the time the instrue- - tions are given, and an exception is duly taken. (Page 293.)</p> <p>7. Appeal and Error — Objections in Lower Court — Oral Instructions. Since under Comp. Laws 1907, section 3147, subd. 4, the right of having written instructions may be waived, where a party or his attornejr voluntarily and without cause absent themselves from the trial they cannot complain on appeal that the instructions were oral. (Page 293.)</p> <p>8. Appeal and Error — Invited Error. As a party may never avail himself of invited error, he cannot, to secure continuance, order his counsel to leave the courtroom, and afterwards complain- that instructions given wore oral, and that such instructions were not assented'to by his counsel; for, had counsel been present, the error might have been avoided. (Page 294.)</p> <p>9. Appeal and Error — Preservation op Exceptions — Voluntary Absence prom Court. Comp. Laws 1907, section 3283, making order or decision in the absence of party automatically excepted to, cannot be availed of by a party who, to secure continuance, voluntarily absented himself and ordered his counsel to withdraw from the ease. (Page 294.)</p> <p>10. Appeal and Error — Preservation op Exceptions — Voluntary Absence prom Court — ‘1 Order or Decision. ’ ’ The giving of oral instructions to the jury is not an "order or decision” which is deemed excepted to by express provision of Comp. Laws 1907, section 3283. (Page 294.)</p> <p>On Application for Rehearing.</p> <p>11. Appeal and Error — Scope—Brief. Matters in the appellant’s brief wholly outside of the record on appeal cannot be considered by the court for any purpose, since the power of review is strictly limited to the record on appeal. (Page 296.)</p> <p>12. Appeal and Error — Scope op Review — Denial op Continuance. On appeal from an order denying a continuance, the court can only determine as a matter of law whether there has been an abuse of ■ discretion, but cannot exercise original jurisdiction. (Page 297.)</p>

<p>Mechanics ' Liens — Liability to Materialman — Failure of Owner Exact Bond from Builder. Under Laws 1915, c. 91, a son, owner of land, who agreed with father that latter should cause to be erected thereon, in return for use of land for indefinite period, a building worth from $1,000 to $1,100, was under duty to obtain from builder, or to require his father to obtain, bond securing payment for material furnished, in default of which he himself was personally liable to materialmen.</p>

<p>Appeal from the District Court of Salt Lake County, Third District; Hon. Wm. H. Bramel, Judge.</p> <p>Action by Theo. C. Brooks against George Q. Cannon Association.</p> <p>Judgment for plaintiff. Defendant appeals.</p>

<p>Appeal from tbe District Court of Tooele County, Third District; IIon. T. D. Lewis, Judge.</p> <p>'Action by Walter M. Stookey against Charles J. Green.</p> <p>Judgment for defendant. Plaintiff appeals.</p>

H. N. Hayes, Judge. Action by G-. F. Summers against the Provo Foundry & Machine Company and another. Before the submission of the case, the action was dismissed as to the unnamed defendant. Verdict against defendant named, and it appeals..

<p>1. Appeal and Error — Review—Findings—Equity Case. In equity cases the Supreme Court, if in its judgment the findings and judgment of lower court are clearly against the evidence upon any material issue, will malre its own findings or direct what they should be as to that issue.1 (Page 331.)</p> <p>2. Waters and Water Courses — Appropriation—Apportionment op Water. Where lower owner having land that is adapted for general farming purposes, but unproductive without irrigation, has from time to time increased the amount of water used for irrigation purposes, and where upper owner whose predecessors used some of the water prior to its use by lower owner’s predecessors has land that is adapted mainly for grazing, but some of which can be used for pasturage and production of hay, upper owner held t entitled to use of water one-fifth of the time. (Page 331.)</p> <p>3. WATERS AND WATER COURSES — APPORTIONMENT-RESTRICTION OP Use to Certain Territory. In giving upper owners use of water every fifth day, its use should not be restricted to certain land • where all land sloped so that part of water used would find its way back into creek. (Page 331.)</p> <p>4. Waters and Water Courses — Quantity — Rights op Upper User. Where there are two water rights upon a stream, one above the other, and where water becomes diminished during certain period of year, so that it will not flow down and reach the lower user, the upper user may use all of it during such period. (Page 333.)</p> <p>5. Appeal and Error — Harmless Error — Incompetent Evidence. Judgment rendered after trial by court without jury will not be reversed for admission of incompetent evidence, where there is sufficient competent evidence to sustain the finding.2 (Page 334.)</p> <p>6. Waters and Water Courses — Use op Water — Damages. In lower owner’s action against upper owner to quiet title to certain water, where upper and lower owners were entitled to use of water a portion of time, court improperly awarded lower owner damages for upper owner’s use of the water. (Page 334.)</p> <p>7. Costs — Appeal—Substantial Modification op Judgment. Where appellate court modifies judgment in favor of appellant in material and substantial particulars, respondent will ordinarily be required to pay costs on appeal. (Page 335.)</p> <p>8. Costs — Appeal—Modification op Judgment. Where lower owner was forced to bring action against upper owner, or surrender his rights to use of any of the water, each party will be required to pay his own costs on upper owner’s appeal, though judgment was modified in substantial particulars in favor of upper owner. (Page 335.)</p>

Wm. H. Bramel, Judge. Action by the Baker Lumber Company against the A. A. Clark Company, the Sevier School District of Sevier County, Utah, the Merchants’ Bank, and others, in which Thomas Boardman intervenes. From judgment rendered, defendant Merchants’ Bank appeals, and from part of the judgment, the defendant school district appeals, and plaintiff cross-appeals.

<p>Application by Frank Moyle for prohibition against the Board of County Commissioners of Salt Lake County, and C. F. Stillman and others as members of the Board of County Commissioners of Salt Lake County.</p>

In the matter of the estate of John F. Smith, deceased. There was an order vacating a final decree .of distribution, and an order overruling a petition of John D. Smith, claiming to bo sole heir of the deceased, and R. A. Moyes, as administrator, and Emory A. Smith bring certiorari to review proceedings against Hon. A. W. Agee, as Judge of the District Court of Weber County.

Wm. H. Bramel, Judge. Action by Mike Miller against the Utah Consolidated Mining Company and others. Motion for nonsuit was granted as to the unnamed defendants, and from the judgment for plaintiff against it the named defendant appeals.

J. D. Call, Judge. • In the matter of the estate of Samuel Schenk, deceased. On petition of testator’s widow for summary administration of the estate, praying the same to be set apart to her as a homestead right after payment of the debts and expenses of administration. From judgment denying her application, and dismissing the petition, the widow appeals.

<p>1. Appeal and Error — Review—Findings op Fact. Where findings of fact are based upon records of former proceedings in the district court, there can be no question concerning the facts. (Page 401.)</p> <p>2. Judgment — Default Judgment — Ministerial Act — Evidence. Under Comp. Laws 1907, section 3179,' subd. 1, providing for default judgment in actions on contract for money or damages only where no answer, demurrer, or motion has been filed, the act of entering default judgment is ministerial, and that the court which heard no evidence directed the judgment is immaterial.1 (Page 401.)</p> <p>3. Judgment — Default—Verification of Complaint. The direction in Comp. Laws 1907, section 3179, subd. 1, providing for default judgment in certain actions, that, i‘if the complaint shall not have been verified, it must be verified before the judgment is entered,” is mandatory. (Page 401.)</p> <p>4. Judgment — Default — Verification of Complaint — Waiver. Comp. Laws 1907, section 3180, providing that any of the formalities of section 3179 relating to entry of default judgment, if not insisted upon at the proper time, shall be deemed waived, dpes not apply to the verification of the complaint, which is not a mere formality. (Page'404.)</p> <p>5. Judgment — Default—Invalidity—Effect. A judgment entered by default upon an unverified complaint is in legal- effect as though" no judgment had been entered, and the case remains pending, and the court may at any time set aside and expunge such judgment. (Page 404.)</p> <p>6. Judgment — Default — Vacation — Amendment of Pleading— Verification. Where default judgment is expunged for invalidity for failure to. verify the complaint, plaintiff may, on notice to defendant, be permitted to amend the complaint by adding the verification. (Page 404.)</p> <p>7. Judgment — Validity—Amendment of Complaint — Verification. Where a default judgment has been set aside for failure to verify the complaint, and plaintiff is permitted to amend by adding the verification without serving "notice thereof upon the defendant, and judgment is then entered, such judgment is void, and the action remains pending. (Page 404.)</p> <p>8. Limitation of Actions — Effect of Action Pending. Where an action was begun within the period of limitation, and invalid default judgments therein entered were set aside, the action remained ponding and the statute did not run. (Page 404.)</p> <p>On Application for Rehearing.</p> <p>9. Appeal and Error — Review—Judgment Roll — Default Judgment. A judgment roll including a record showing that no answer, demurrer, or ihotion was hied by defendants conclusively shows their default, and the judgment is presumed to have been made by default. (Page 406.)</p>

<p>1. Municipal Corporations — Claims for Damages — Presenting Claim to City — Sufficiency of Notice. A letter advising the mayor and city council of, and demanding payment for, damages alleged to he due to the city’s negligence in releasing water from a reservoir, and statement made to the hoard of puhlie works personally and hy letter demanding payment, were insufficient to comply with Comp. Laws 1907, section 312, requiring claims for damages due to city’s negligence to he filed with the city council within thirty days stating the time and describing the place where the injury occurred.1 (Page 409.)</p> <p>2. Municipal Corporations — Notice op Claims — Board op Public Works — Power. Since, under Coinp. Laws 1907, section 286, stating the powers of the board of public works, such board has no power to consider or settle damage claims for the city’s negligence, notice of claims served on .the board of public works was not binding upon the city. (Page 412.)</p> <p>3. Municipal Corporations — Contracts—Construction — Unusual Damages. Where contractor agreed to build a conduit and at his own expense to construct a flume to care for the water during construction, and "repair any and all damages caused by high water or from any other cause or source,” he did not undertake to repair damages caused by the negligence of the city in permitting the reservoir waters suddenly to flow down the stream bed. (Page 412.)</p>

<p>1. Trial — “Findings or Fact” — Sufficiency. A mere conclusion that the evidence is insufficient to authorize relief does not constitute a finding of fact, although it is so called by the court. (Page 419.)</p> <p>2. Trial — -Defective Findings — Effect. Where purported finding of fact is a mere conclusion that the evidence is insufficient to authorize relief, the legal effect thereof is the same as though court had sustained a general demurrer to the complaint and had dismissed the action. (Page 419.)</p> <p>3. Eminent Domain — Uses-—Mining—Statutes. Comp. Laws 1907, section 3588, as amended by Laws 1909, c. 47, enumerating the purposes for which the right of eminent domain may be exercised, and section 3590, specifying property subject to condemnation, construed to make mining a public use that can be furthered by right of eminent domain. (Page 421.)</p> <p>4. .Eminent Domain — Tunnels—Joint Use. Owner of mining claim may condemn right to joint use of a tunnel for purpose of transporting ore, where tunnel is not being used to full capacity by owner; Comp. Laws 1907, section 3588, subd. 6, as amended by Laws 1909, c. 47, granting power to condemn right of way for tunnel purposes, and section 3590, subd. 5, providing that such right of way shall bo subject to a limited use in common with the owner. (Pago 421.)</p> <p>5. Eminent Domain — Delegation of Power — Construction of Statutes. A statute granting the right of eminent domain for a particular purpose must be liberally construed in furtherance of such purpose. (Page 422.)</p> <p>6. Eminent Domain — Property Subject to Appropriation — Joint Use — Statutes. Comp. Laws 1907, section 3590, subd. 3, providing that property can only be condemned for a more necessary public use than the one for which it is already appropriated, refers to proceedings to dispossess owner of the property and deprive him of its use, and does not preclude condemnation of joint use of tunnel not to interfere with use thereof by owner/ (Page 423.)</p> <p>7.' Eminent Domain — Joint Use — Compensation. Whore property is condemned for purpose of a joint use, compensation will be determined by the court according to rules of equity, whore the parties cannot agree thereon. (I)age 424.)</p> <p>8. Eminent Domain — Joint Use — Regulations. Where property is condemned for purpose of joint use, and the parties cannot agree upon manner and extent thereof, regulations concerning such use will be made by the court in accordance with rules of equity. (Page 424.)</p> <p>9. Eminent Domain — Property Subject to Appropriation — Easement. One easement may be superimposed on another easement through condemnation.1 (Page 426.)</p> <p>10. Eminent Domain — Burden op Proof — Condemnation of Land. Where the use of property is sought to be acquired by proceedings other than the exercise of power of eminent domain, the burden of proving that the use is a public use, and is necessary in the particular ease, is upon condomner. (Page 426.)</p> <p>11. Eminent Domain — Joint Dse — -Necessity—Evidence. In condemnation proceedings by mine owner to condemn right to joint use of a tunnel, evidence that the cost of construction of separate tunnel by eondemner would be too great to permit of successful development of tho mine held, prima facie evidence of the necessity for such joint use. (Page 428.)</p> <p>CORFMAN and MeCARTY, JJ. Dissenting.</p>

<p>Appeal from the District Court of Salt Lake County, Third District; Hon. C. W. Morse, Judge.</p> <p>Action by Matthew MeB. Thomson against Charles Reynolds and Mary Atkinson.</p> <p>Judgment for plaintiff. Defendants appeal.</p>

<p>1. Appeal and Error — Review—Weight oe Evidence. Supreme Court cannot .pass upon the weight of the evidence. (Page 462.)</p> <p>2. Master and Servant — Methods oe Wore — Master’s Duty. Though master is not required to use any particular method, and does not insure the safety of his employees in adopting any particular method, it is his duty to use only such methods as are reasonably safe. . (Page 462.)</p> <p>3. Master and Servant — Appliances—Duty oe Master. The tools and appliances adopted by the master must be reasonably safe to do the work required of them. (Page 462.)</p> <p>4. Master and Servant — Injury to Employee — Methods oe Work —Knowledge oe Method by Employee. The fact that employee who was injured while assisting in moving a three or four ton machine had full knowledge of the method employed in moving the machine is not, standing alone, sufficient to absolve employer from responsibility for injury. (Page 462.)</p> <p>5. Master and Servant — Injury to Employee — Safety op Methods Employed — Jury Question. In employee’s action for injuries sustained in assisting in the moving of a heavy machine, whether the method used by employer in moving the machine was reasonably safe under all the circumstances was question of fact for jury. (Page 462.)</p> <p>6. Master and Servant — Injury to'Employee — Method oe Work-Assumption oe Risk. An employee assisting in moving a three or four ton machine did not, as a matter of law, appreciate the danger of his work and assume the risk thereof merely because the method adopted by employer in moving machine was open and obvious to him. (Page 462.)</p> <p>7. Master and Servant — Injury to Servant — Use of Simple Appliances. In employee’s action for injuries, the use of simple tools or appliances under certain circumstances furnishes a broader scope for the application of the various affirmative defenses ordinarily available to the master. (Page 464.)</p> <p>S. Master and Servant — Employer’s Duty — Delegation—Appliances. Employer’s duty of furnishing reasonably safe appliances cannot be delegated to an agent or servant so as to enable employer to escape responsibility for an injury to an employee. (Page 466.)</p> <p>9. Master and Servant — Injury to Employee — Instructions. In employee’s action for injuries sustained in assisting in moving a heavy machine, a requested instruction that employer would not be liable if it had furnished safe implements was properly refused; the employer having additional duty of adopting reasonably safe method of using such appliances. (Page 467.)</p> <p>10. Evidence — X-Ray Photographs — Illustrating Physician’s Testimony. In personal injury action radiographs or X-ray photographs were properly admitted in evidence for .purpose of being used by doctors in illustrating their testimony; such evidence affording jury a fuller and clearer understanding of doctor’s testimony. (Page 467.)</p>

Geo. F. Goodwin, Judge. Suit by John F. Shafer against John D. Killpack, Jr., James S. W. Frame and wife, and others to foreclose a mort- Judgment for plaintiff. Defendant James S. W. Frame and wife appeal.

<p>1. Jury — Demand for Jury Trial — Time—Demand. Under Comp. Laws 1907, section 3129, providing that a jury trial must be demanded by written notice to the clerk before the ease is set for trial or within a reasonable time thereafter or orally when the case is set, it is too late to demand a jury trial when the case is called. (Page 478.)</p> <p>2. Appeal and Error — Reservation of Exceptions — Jury Trial — • Waiver. In the absence of a record showing a timely demand for a jury trial and a refusal and exception, the right to jury trial will be held to have been waived.1 (Page 478.)</p> <p>3. Jury — Right to Jury Trial — Equitable Issues. Where plaintiff sued for money converted and to foreclose mortgage, and defendant counterclaimed, denying the validity of mortgage, it was not error to deny a jury trial, equitable issues being raised, since the findings would be only advisory.2 (Page 478.)</p> <p>4. Pleading — Bill of Particulars — Suit for Money Converted. A defendant sued for the misappropriation of funds is not entitled to a bill of particulars as provided for by Comp. Laws 1907, section 2988. (Page 479.)</p> <p>5. Principal and Surety — Liability of Surety — Misappropriation of Punds. In a suit against an officer of a corporation and his surety for misappropriation of funds, rent paid to defendant for plaintiff’s benefit, but not received by it, cannot be included in the judgment against the surety; it never having become plaintiff’s propertjL (Page 480.)</p> <p>6. Principal and Surety — Misappropriation of Punds — Evidence. In a suit against a corporation’s officer and his surety for misappropriation of funds, evidence held insufficient to show defendant’s liability for taxes charged against him. (Page 481.)</p> <p>7. Principal and Surety — Misappropriation of Punds — Bank Deposits. In a suit against a corporation’s officer and his surety for misappropriation of funds, a check paid by plaintiff’s debtor and indorsed by defendant and deposited to his personal account is a proper charge. (Page 482.)</p> <p>8. Principal and Surety- — Misappropriation of Funds — Items Chargeable. In an action against a corporation’s officer for misappropriation of funds which he claimed was due on his salary, such item is properly charged where salary was only to be paid when the business of the company would justify it. (Page 483.)</p> <p>9. Appeal and Error — Review—Harmless Error. In an action against a corporation’s officer and Ms surety for misappropriation of funds, the admission of incompetent and irrelevant testimony is harmless where there is ample competent and relevant testimony to support the findings. (Page 484.)</p> <p>10. Appeal and Error — Review—Presumptions. On review it will be presumed that the trial court, when there is material and competent evidence in the record to support its findings, considered such testimony only.3 (Page 484.)</p> <p>11. Deeds — Execution—Blank Deeds. A blank deed executed and 'acknowledged does not convey title to realty, description to which has subsequently been supplied, under Comp. Laws 1907, section 1974, providing that the conveyance of realty must be in writing and subscribed by the grantor. (Page 484.)</p> <p>12. Estoppel — Validity op Conveyance — Evidence. In a suit to foreclose a mortgage, evidence Held not to show an estoppel on defendant to deny the validity of the mortgage by acquiescence therein. (Page 486.)</p> <p>13. Estoppel — Knowledge—Bight to. In a suit against a corporation’s officer to foreclose a mortgage given as security for funds plaintiff cannot urge that defendant is estopped to deny validity of the mortgage; all the circumstances being known to it. (Page 486.)</p> <p>14. Mortgages — Judgment—Lien por Expenses. Where a mortgagee under an invalid mortgage paid taxes and interest on a prior in-cumbrance, the property will not be released from the lien for the taxes and interest in a suit against the mortgagor for misappropriation of funds. (Page 486.)</p> <p>15. Appeal and Error — Bribes—Abandonment op Error. Cross-errors not discussed in the brief of cross-appellant will be considered to be abandoned.4 (Page 487.)</p>

Wm. H. Bramel, Judge. In the matter of the estate of Allen G. Campbell, deceased. From a judgment of the district court in favor of Mrs. Marietta T. Stanley for a partial distribution of the assets of said estate, Eleanor Campbell O’Kelly, executrix, appeals.

<p>1. Witnesses — Privileged Communications — Physicians. While plaintiff, in personal injury action, testified that, when signing an alleged release, he was "bothered with chloroform” administered two days before in an operation, it was improper, under Comp. Laws 1907, Section 3414, as amended by Laws 1911, c. 109, as to privileged communications, to sustain objections to questions asked his physician by defendant as to how long plaintiff was under the anaesthetic, and whether, on the date of signing, he was still under effects of the anaesthetic. (Page 527.)</p> <p>2. Appeal and Error — Harmless Error. Exclusion of testimony of physician in personal injury case was not prejudicial where, during the further examination of the physician as an expert, the identical information was obtained and appellant received the benefit thereof. (Page 529.)</p> <p>3. Trial — Instruction—Evidence—"Clear, Cogent, and Convincing.” Where a release set up as defense in a personal injury case was sought to be avoided for fraud in procuring it, an instruction that evidence of fraud must be "clear, cogent, and convincing” denoted something more than a mere preponderance of evidence. (Page 531.)</p> <p>4. Release — Instructions. In personal injury case, defense being a release, a requested instruction that before the jury could disregard the release on the grounds of false and fraudulent representations it should, find that plaintiff himself was not negligent in failing to have the release read to Mm, held properly refused as inapplicable to the facts. (Page 533.)</p> <p>5. Release — Instructions. In personal injury case, defense being a release, a requested instruction that, in addition to finding the release was procured by fraudulent representations, the jury must find defendant was guilty of fraud in preventing plaintiff from having the release read to him before he signed it, held properly refused as inapplicable to the facts.1 (Page 533.)</p> <p>6. Master and Servant — Duty to Inspect. Where plaintiff was not engaged in his ordinary occupation as timberman when injured, but had been sent into the main drift, a completed apartment, and the work he was doing there did not tend to make the place dangerous, his duty to inspect did not arise. (Page 535.)</p>

<p>Chattel Mortgages — Foreclosure—Venue. An action for foreclosure of a chattel mortgage given as security for notes payable in county of mortgagor’s residence, if paid at maturity, and, if not then paid, payable in S. county, may be commenced in the district court of S. county, although no part of the mortgaged property is in S. county; the applicable statute being Comp. Laws 1907, Section 2931, rather than sections 2928, 152, or 3498.'</p>

<p>1. INSURANCE — Accident Insurance — Notice of Injury and Loss— Waiver — Evidence. Undisputed evidence of conduct and course of procedure of insurer’s agents, duly authorized to adjust insured’s claim, held to indicate conclusively that noncompliance with "agreements” as to written notice of loss within ten days, and proof of loss within ninety days was waived by insurer. (Page 546.)</p> <p>2. Insurance — Accident Insurance — Statement in Application-Breach — Waiver—Evidence. Undisputed evidence of conduct and course of procedure of insurer’s agents duly authorized to adjust insured’s claim held to indicate conclusively that alleged breach of warranty concerning statements in the application for accident policy, was waived by insurer. (Page 546.)</p> <p>3. Insurance — Accident Insurance — Waiver of Conditions — -Evidence. Evidence that insured called by telephone local office of company shortly after accident, later called at local office and had a conversation with agent, who promised to look after insured’s interests, and that insured at such time made a payment on the premium, was admissible on question whether company waived written notice of accident and loss, and alleged breach of warranty concerning statements in application. (Page 547.)</p> <p>4. Evidence — Offer of Compromise. Letters of company, acknowledging receipt of insured’s letters in regard to accident and loss, and advising him with respect to his claim, and blanks, receipts, and check inclosed in such letters, were not evidence of compromise, although printed receipt inclosed read, ‘ ‘ In full compromise, payment, satisfaction,” etc., and were admissible. (Page 548.)</p> <p>5. Insurance — Accident — Evidence — -Admissibility. In action against accident insurer for injury sustained on train, testimony of trainmen as to whether any complaint was made to them by any one at time of accident was properly rejected. (Page 551.)</p> <p>6. Appeal and Error — Assignment op Error — Sufficiency op Evidence. Court on appeal will not review evidence, where there is no compliance with Comp. Laws 1907, Section 3284, and rule 26 33 Utah, XIII, 97 Pac. x, requiring particulars wherein evidence is insufficient to be specified.1 (Page 551.)</p> <p>On Petition for Rehearing-.</p> <p>7. Appeal and Error — Assignment op Error — Sufficiency op Evidence. When appellant contends there is no evidence, assignment is sufficient, because of manifest inability to specify particulars; but, where appellant concedes there is some evidence, particulars wherein it is insufficient must be specified. (Page 555.)</p>

G. W. Morse, Judge. Suit by the Progress Company against Salt Lake City and others to quiet title in water rights. From the decree plaintiff appeals.

<p>1. Master and Servant — Contract or Employment — Contract— ‘'Net Profits.” The term “net profits” in a contract providing plaintiff should receive “10 per cent, of the net profits accruing” on any business he closed for the defendant company, means the “net profits” on the contracts or work plaintiff obtained, and the expense of operating defendants’ general business must not be considered in determining compensation. (Page 581.)</p> <p>2. Appeal and Error — Review—Evidence—Weight and Sufficiency —Law Case. There being substantial evidence in the record to support the court’s findings in a law case, the appellate court will not review the evidence to determine its weight. (Pago 582.)</p>

<p>Officers — Increase of Salary of County Officers. Under Comp. Laws 1907, Sections 2057, 2058, the board of county commissioners cannot increase the salaries of county officers during their term of office.</p>

Original proceeding in prohibition by Georgia B. Hartley against the State Road Commission and Simon Bamberger and others, as members thereof. On demurrer of the Attorney General to the petition.

Geo. G. Armstrong, Judge. Suit by Priscilla IT. Nilson against James C. Hamilton and others for partition. Decree for plaintiff. Defendants, other than those admitted interest of plaintiff, appeal.

A. B. Morgan, Judge. Action by S. A. Bivans and others against the Utah Lake Land, Water & Power Company and others, wherein George 0. Churchill and others intervened. From an order or decree granting motion to vacate awards of arbitrators, all plaintiffs and interveners deeming themselves prejudiced appeal, and defendants and a receiver also appeal from certain parts of the order or decree confirming the settlement made. STATEMENT OF FACTS.