Volume 58 — Oregon Reports

From Multnomah: Earl C. Bronaugh, Judge. On Motion to Dismiss. Statement by Mr. Justice Burnett. The council of the city of Portland caused a portion of East Washington Street in that city to be improved, and thereafter passed an ordinance making a reassessment upon the property benefited thereby, including property of the defendants. The reassessment was made under section 400 of the charter of the city of Portland.

<p>Waters and Water Courses—Water Rights.</p> <p>1. The right to take or divert water from another’s land is an easement.</p> <p>Easements—Construction.</p> <p>2. In determining whether an easement is appurtenant or in gross, courts must consider the terms of the grant, the nature of the right, and the surrounding circumstances, giving effect as far as possible to the legally ascertained intention of the parties, but favoring always a construction as an easement appurtenant.</p> <p>Easements—Construction.</p> <p>3. The rule governing construction of deeds that the rights of the parties must be determined from the language applies to easements, subject to the modification that surrounding circumstances may be considered to ascertain the parties’ intention.</p> <p>Easements—Reservations—Effect.</p> <p>4. In a grant of land for an irrigation ditch, a reservation of right in the grantors to put crossings over the ditch and use water therefrom carved a new estate out of that granted, operating as a regrant or reconveyance of the estate reserved.</p> <p>Deeds—Fee-Simple Estates-—“Heirs.”</p> <p>5. The term “heirs” is not necessary to convey an estate in fee simple.</p> <p>Deeds—-Fee-Simple Estates.</p> <p>6. Under Section 7103, L. O. L., a conveyance is deemed to be of a fee-simple estate, unless a contrary intent appears in express terms, or is necessarily implied by the grant.</p> <p>Easements—Reservations—Construction.</p> <p>7. An indefinite reservation in the grant of an easement may be construed with reference to the acts of the parties in regard to it.</p> <p>Waters and Water Courses—Construction—Nature op Estate.</p> <p>8. A grant of land for an irrigation ditch, subject to the grantor’s right to put crossings over the ditch, and to use water therefrom, conveyed and reserved inheritable estates; the reservation being appurtenant to the land retained by the grantors.</p> <p>Evidence—Testimony Affecting Easements—Admissibility.</p> <p>9. Testimony is admissible to explain a reservation in the grant of an easement, where it is indefinite as to the extent of the right retained.</p> <p>Waters and Water Courses—Construction—Water Rights.</p> <p>10. A reservation in a grant of land for an irrigation ditch of the right to use water therefrom, to the extent of grantors’ “interest,” entitled the grantors to flow through the ditch and to divert therefrom on land retained a quantity of water represented by stock in a water supply company, but the amount could not be increased by subsequent purchase of other stock.</p> <p>Waters and Water Courses—Construction—Water Rights.</p> <p>11. A deed of land by one having the right to divert water as a stockholder in a water supply company, including 28% “inches of water stock,” gave the grantee the right to divert 28% inches of water from a ditch from which the grantor had a right to take water as an easement appurtenant to land, including that conveyed, and gave the grantee the right to use such water anywhere on his land.</p>

From Multnomah: Robert G. Morrow, Judge. Statement by Mr. Justice Eakin. This is an action upon an injunction bond, upon which defendant Dileo is principal, and defendant, the United States Fidelity & Guarantee Company, is surety, filed in a suit brought by Dileo against this plaintiff Gobbi et al. in the superior court of the State of Washington for the county of Wahkiakum.

From Douglas: James W. Hamilton, Judge. Statement by Mr. Justice Bean. This is an action by Lewis N. Smith against the Southern Pacific Co., a corporation, to recover damages for an alleged injury caused by defendant’s negligence. Upon the trial the court directed a verdict in favor of defendant, and entered a judgment thereon, from which plaintiff appeals.

From Columbia: Thomas A. McBride, Judge. Statement by Mr. Chief Justice Eakin.

From Multnomah: William N. Gatens, Judge. Statement by Mr. Justice McBride. This proceeding was an action by Elmer J. Wallace against A. P. Armstrong and the Portland Business College, originally begun in the justice’s court in Portland. The complaint stated two causes of action.

From Columbia: Thomas A. McBride, Judge. Statement by Mr. Justice Burnett.

<p>Appeal and Error—Judgment.</p> <p>1. A party cannot accept the benefits of a judgment or decree and prosecute an appeal therefrom.</p> <p>Appeal and Error—Right to Appeal—Payment of Judgment.</p> <p>2. When a judgment is rendered against a party, his voluntary payment of the sum awarded will not preclude him from maintaining an appeal, unless it appears that the payment was not coerced and was made with a view of settlement.</p> <p>Appeal and Error—Existence of Actual Controversy—Mandamus.</p> <p>3. Where a peremptory writ of mandamus has been awarded, requiring the performance of official duty, a compliance with the command necessarily prevents an appeal, because a reversal would have nothing upon which to operate.</p> <p>Appeal and Error—Objection Below—Necessity—Sufficiency of Complaint.</p> <p>4. The sufficiency of the complaint may be attacked in the appellate court for the first time.</p> <p>Replevin—Allegation of Right to Possession. .</p> <p>5. Where a complaint In an action to recover a piano commenced May 20, 1908, alleged that on the 3d of January preceding the plaintiff was the owner and entitled to the possession, without stating that he was entitled to the possession on May 20, 1908, the complaint failed to state a cause of action.</p>

<p>From Josephine: Hiero K. Hanna, Judge.</p> <p>Statement by Mr. Justice Moore. .</p> <p>This is an action by C. S. Jackson against A. W. Stearns to recover damages resulting from the breach of an agreement. The facts are that plaintiff, an attorney, prepared duplicate copies of a contract wherein it was stipulated that if he could secure a decree quieting the defendant’s title to 320 acres of land, describing the premises, and would advance the court expenses, if so required, the defendant, in consideration thereof, would execute to him a good and sufficient deed to one-half of the real property so obtained. The plaintiff subscribed his name to the writings and sent them by mail to the defendant, and thereupon began in the proper court a suit in which Stearns was plaintiff and the parties asserting title to such lands were defendants, alleging in the complaint that the deed executed to them by Stearns was intended as security for the payment of a debt and praying that the mortgage be canceled. Issue having been joined, plaintiff wrote defendant that the cause had been referred in order" to take the testimony. Upon the receipt of such information, the following letter was written:</p> <p>“Canyonville, Ore., Oct. 26, ’04.</p> <p>“C. S. Jackson,</p> <p>“Dear Sir: I received your letter and agreement, and you did not state whether your would stand good for Ira B. Riddle taking the evidence. If you will pay him I will sign the agreement and send it down. Please let me know as soon as possible. Yours respectfully,</p> <p>“A, W. Stearns.”</p> <p>In reply Jackson wrote, inter alia, as follows:</p> <p>“Yes; I will advance Mr. Kiddle his costs, and please insert it in the contract and return my copy to me.”</p> <p>Stearns did not sign either copy of the contract, but upon the receipt of $300 from the adverse parties, he, without plaintiff’s consent, dismissed the suit. Thereafter this action was commenced, the complaint stating in substance the facts as hereinbefore detailed, and averring that by reason of dismissing such suit plaintiff had been damaged in the sum of $4,500; that he had performed all the conditions of the contract required of him and would have recovered the lands, but was prevented from doing so by the wrongful acts of the defendant; that plaintiff was at all times ready, able, and willing to prosecute such suit to final termination and to recover the lands, the reasonable worth of all of which is $9,000, and the value of the part agreed to be conveyed to plaintiff for his services is $4,500; and “that by reason of defendant’s wrongful acts he has unjustly enriched himself and the plaintiff has suffered great damage and loss in the sum aforesaid, which plaintiff alleges to be reasonable compensation for said services.” Judgment is demanded for the sum of $4,500.</p> <p>The answer admits that plaintiff is an attorney; that defendant retained him to perform the services specified; and that pursuant to such employment plaintiff instituted in the proper court the suit referred to, which defendant caused to be dismissed. All the other averments of the complaint are denied, and for a further defense it is alleged that plaintiff and defendant entered into negotiations with a view of making a contract whereby plaintiff was to receive a deed for the east half of the particular 160 acres described in the complaint; and that no writing or memorandum was ever signed by defendant or by any person on his behalf, respecting such negotiations, in consequence of which the verbal understanding referred to in the complaint as a contract is void.</p> <p>A reply having put in issue the allegations of new matter in the answer the cause was tried, but the jury, failing to agree, were discharged. The parties hereto thereupon stipulated that the testimony taken at that trial, supplemented by the depositions of certain witnesses, should be submitted to the court, which, considering the evidence, found the facts in effect as stated hereinbefore and as a conclusion of law based thereon found, inter alia, as follows: “The contract sued upon is for the conveyance of real property, and in order to be valid it must be shown to have been in writing and signed by the defendant. The evidence failing to show that defendant signed the alleged contract the plaintiff cannot recover in his action” —and from a judgment rendered in accordance therewith the plaintiff appeals.</p>

From Coos: James W. Hamilton, Judge. Statement by Mr. Justice McBride. This is a suit by Martha Davis to have admeasured her dower interest in certain lands in Coos County. Samuel D. Magnes, Emma Magnes, his wife, Henry Sengstacken and Agnes R. Sengstacken, his wife, were made parties defendant, and each answered, claiming title to certain portions of the land mentioned in the complaint, namely, 23.89 acres of tide land, situate on Coos Bay.

From Yamhill: William Galloway, Judge. Statement by Mr. Justice Bean.

From Multnomah: John B. Cleland, Judge. Statement by Mr. Justice Bean. This is an action on a lease by James H. Morton against Paul Wessinger and Henry Wagner, executors of the estate of Henry Weinhard, deceased, and Paul Wessinger and Henry Wagner to recover four months rent for a storeroom in the city of San Francisco.

<p>Evidence—Declarations by Third Persons—Admissibility.</p> <p>1. Under Section 705, L. O. L., making declarations of a third person inadmissible, except when made under a particular relation, and under Section 727, permitting evidence, after proof of a partnership or agency, of the declarations or acts of a partner or agent, it was error to permit brokers suing for a commission to show declarations by third persons without proof of their agency for defendant.</p> <p>Evidence—Secondary Evidence—Preliminary—Proof Required.</p> <p>2. Secondary evidence of a letter was inadmissible where the adversary was not shown to have custody of the original, nor to have been given reasonable notice to produce it, as provided in Sections 712, 782, L. O. L.</p> <p>Appeal and Error—Prejudicial Error—Admission of Evidence.</p> <p>3. In an action by brokers to recover a commission for producing a purchaser, error in admitting secondary evidence of the contents of a letter without laying foundation was not harmless, where the evidence of its contents tended to sustain plaintiffs’ contention that they had produced a ready and willing purchaser.</p> <p>Appeal and Error—Assignments of Error—Sufficiency.</p> <p>4. In an action for a broker’s commission, an assignment of error to an instruction respecting an exclusive contract for the sale of the land mentioned in the complaint is too general to be considered.</p> <p>Trial—Instructions—Objections—Requisites.</p> <p>5. One must point out specifically language in an instruction complained of, so that the trial court can correct it if erroneous; an omnibus objection to the whole charge being insufficient.</p> <p>Broker’s Suit for Commission—Instructions.</p> <p>6. In an action by brokers for commission for procuring a purchaser for land, an instruction on the question of exclusive contract was warranted by evidence tending to show that defendant agreed to wait till a certain day and not to sell without giving notice to plaintiffs.</p>

From Marion: William Galloway, Judge. Statement by Mr. Chief Justice Eakin. This is a suit by Peter Eubin and John Feldmann to enjoin the City of Salem and D. W. Gibson, as marshal of said city, from collecting a street improvement assessment. The issues arise between the answer and reply.

<p>From Multnomah: Earl C. Bronaugh, Judge.</p> <p>Statement by Mr. Justice Burnett.</p> <p>In January, 1895, the plaintiff, Frederick Bickel, gave a mortgage to the United States Mortgage & Trust Company for $50,000 on block 32 in the city of Portland, the property in dispute, and afterwards on July 26, 1898, he gave a second mortgage on the same property to Henry Weinhard for $10,000, evidenced by his promissory note of that date. Also on July 26, 1898, he gave another note and second mortgage to Weinhard for $10,000 on the north half of block 9 In Couch’s Addition to the city of Portland. In May, 1900, the United States Mortgage & Trust Company brought suit to foreclose its $50,000 mortgage on the property in dispute, making Weinhard a party defendant as a subsequent mortgagee. Weinhard made no answer to that foreclosure suit, and a decree was rendered therein against Bickel foreclosing the mortgage which he had given to the trust company and against Weinhard barring and foreclosing him from all interest in the property by virtue of his subsequent mortgage. The property was sold on execution under that decree June 80,1900. Prior to that sale and for long afterwards the plaintiff was in financial distress. Even before the foreclosure suit the plaintiff importuned Weinhard either to buy the $50,000 mortgage or loan him the money to pay it, but Weinhard refused and put him off. Under these circumstances, Weinhard attended the execution sale and bought the property for the sum of $55,106.50, being the amount of the decree for the plaintiff in that suit. On July 12, 1900, before the confirmation of that sale, according to the testimony of the plaintiff, he visited Weinhard at his office and said to him: “I heard you have bought the property.” Weinhard answered: “Yes, but I did not buy it for myself. I have got more property now than I care for. I bought it.” Bickel then said: “Now, the law allows me one year to redeem it. What do you say?” To which Weinhard replied: “I will give you three years, or whenever you pay me back the money I will return the property—with five per cent interest.” The testimony shows that the plaintiff and Weinhard had been acquainted on very friendly terms for many years and had loaned money to each other back and forth at different times in the past. The plaintiff fOa.iTnK now as his ground of suit here that he relied on Weinhard’s promise, made no effort to redeem after the sale, and allowed the foreclosure proceeding to go to the execution of the sheriff’s deed, and contends that the deed is an equitable mortgage, from which he brings this suit to redeem the property in dispute. The circuit court dismissed the suit, and plaintiff appeals.</p>

<p>From Union: John W. Knowles, Judge.</p> <p>Statement by Mr. Justice Slater.</p> <p>This is a suit by J. W. Baxter, Jr., against M. F. Davis, Thos. Brasher and Leon Levy constituting the board of directors of School District No. 5, Union County, Oregon. Plaintiff, as a resident taxpayer of School District No. 5 of Union County, brought this suit to enjoin defendants, as the board of directors of that district, from purchasing a block of land for a school house site, and from building a school house thereon for the district. The gist of the suit is the averment that defendants were acting in the premises without authority of law. The facts were stipulated, and the court entered a decree, awarding the injunction. From this the defendants have appealed.</p>

<p>From Multnomah: John B. Cleland, Judge.</p> <p>Statement by Mr. Justice Bean.</p> <p>The defendant, Emma Crawford, was convicted of the crime of larceny from the person, sentenced to the penitentiary for a period of two years, and appeals. Upon the trial defendant testified in her own behalf, and in rebuttal the State, for the purpose of impeaching defendant, over the objection of her counsel, introduced in evidence five certified copies of the record of convictions in Portland’s municipal court for “disorderly conduct,” “visiting an opium joint,” and like offenses on and between May 16, 1906, and January 30, 1909, in violation of Ordinance No. 14,049, for which in each case a fine of $10 was imposed. While these records contain some of the elements of an offense prohibited by statute, they do not show a complete crime under the statute of this State. To their admission in evidence counsel for defendant duly saved an exception, which constitutes the only question raised on this appeal.</p>

From Marion: William Galloway, Judge. Statement by Mr. Justice Bean. This is a suit by Edward A. Dunnigan against Amer Wood and Jacob Ogle, his guardian, to determin the ownership of a strip of land along the entire south line of defendant’s land, 87 links wide at the east and 72 links wide at the west end, containing about five acres; the south line of defendant’s and the north line of plaintiff’s land being a common boundary.

From Multnomah: Calvin U. Gantenbein, Judge. Statement by Mr. Justice Moore. This is an action by D. La Grande against the Portland Public Market & Cold Storage Company, a private corporation, to recover the alleged reasonable value of work and labor, the complaint being in the usual form.

From Washington: Thomas A. McBride, Judge. Statement by Mr. Justice Moore. This is an action by Maud Morback against her husband, J. H. Morback, and W. F. Young, to recover money.

<p>Adjoining Landowners—Lateral Support—Buildings on Land.</p> <p>1. Where land is not in its natural condition, but has a building thereon, the right of lateral support, without regard to negligence, does not extend to the increased weight of the building, and an adjoining landowner will not be liable for removal of such support, but, if in making an excavation in a wrongful, careless, and negligent manner, he endangers the support of the building, injuring the building, he will be liable, though he had given notice to the owner of the building of his intent to excavate.</p> <p>Evidence—Opinion Evidence.</p> <p>2. To the general rule that the opinions of witnesses are not evidence, there are exceptions resting upon clear necessity, rendering them admissible as evidence, when from the nature of the case the facts cannot be stated or described so as to enable those whose duty it is to draw inferences therefrom to form an accurate judgment respecting them, and when no better evidence than such opinions is obtainable.</p> <p>Evidence—Opinion Evidence—Admissibility op Expert Testimony— Discretion op Court.</p> <p>3. The admissibility of expert testimony rests largely in the discretion of the court, which, however, cannot arbitrarily admit or exclude such testimony; the discretion extending only to the application of rules of law governing the admissibility of the testimony.</p> <p>Evidence—Opinion Evidence—-Competency op Expert Testimony.</p> <p>4. Contractors and builders of experience, acquainted with both the premises and the circumstances surrounding the falling of a building, caused by excavations on adjoining premises, are qualified to testify as to what was necessary to be done in making the excavation with safety to the adjoining building, and what was usually done under such circumstances.</p> <p>Evidence — Admissions —■ Settlement op Similar Liability with Others.</p> <p>5. It may be shown that a party claimed to be liable had settled with others in the same position as plaintiff.</p>

From Clackamas: James A. Eakin, Judge. Statement by Mr. Justice McBride. This is a suit by J. C. Bradtl against M. J. Sharkey to quiet the title to certain lands in Clackamas County. The facts disclosed and brought out at the trial are as follows: In January, 1883, Chestina C. Williams, being the owner of a tract of land situated in-Clackamas County, conveyed 160 acres of the northerly portion to H. E. Cross and N. W. Randall, describing the same by metes and bounds.

<p>Equity—Maxims—Doing Equity.</p> <p>1. Where plaintiff seeks equitable relief in having a deed adjudged a mortgage, he must show a willingness to do equity by paying the mortgage debt.</p> <p>Mortgages—Absolute Deed as Mortgage—Action to Declare Nature of Instrument.</p> <p>2. In an equitable action to have a warranty deed decreed a mortgage, where, prior to the execution thereof, plaintiff and defendant's husband had a settlement in which it was agreed that plaintiff owed defendant’s husband $2,000, and that $300 thereof should be paid within two or three days, and $1,700 at any time within 90 days in redemption of the premises, and the deed was made to defendant’s wife only for convenience, and the complaint does not state the amount of the debt se.cured, but merely alleges that the deed was intended as security, and there was no allegation of any mistake or error in the instrument, the plaintiff had a right of redemption, but cannot reform or add terms to the instrument, as it contained all the terms originally intended.</p> <p>Mortgages—Deed as Mortgage—Rule op Construction.</p> <p>3. The courts are inclined to construe a deed a mortgage if, upon the evidence, there is any doubt as to whether it was intended as a conditional sale or a mortgage.</p> <p>Mortgages—Title—Mortgagee.</p> <p>4. A mortgage does not pass the title to the mortgagee, but is only a lien upon the property, the title remaining in the mortgagor, regardless of the form of the instrument, and title does not pass by an absolute deed which is intended as a mortgage.</p> <p>Mortgages—Deeds—Conditional Sale—Evidence.</p> <p>5. Where the expressed consideration of a deed was $2,000, and it was given to secure an indebtedness of $300 payable in three days and $1,700 in 90 days, evidence held to show that the transaction was a mortgage, and not a conditional sale.</p>

<p>Pleading—Form—Conclusions of Law.</p> <p>1. An answer, alleging that at all times and dates herein alleged, and for more than 20 years, defendant was, and is, the adopted daughter and heir at law of the deceased, Is a mere conclusion of law.</p> <p>Pleading—Form—Conclusions op Law—Code Pleading.</p> <p>2. A code pleader must state the facts from which the court may draw the conclusion of law and not the conclusion itself.</p> <p>Adoption—Nature op Proceeding—Statutory.</p> <p>3. Adoption, being a proceeding unknown to the common law, depends upon the statutes of the various states.</p> <p>Evidence—Judicial Notice—Foreign Laws.</p> <p>4. The courts of Oregon cannot take judicial notice of the statutes of other states.</p> <p>Statutes—-Foreign Laws—Pleading—Necessity.</p> <p>5. If a pleader desires to rely upon the statutes of another state, he must set them out, as the court does not take judicial notice of them, especially when in derogation of the common law, and hence one relying upon the adoption statutes of another state must set them out or they are not admissible in evidence.</p> <p>Adoption—Statutes.</p> <p>6. The statutes relating to adoption, being in derogation of the common law, must be strictly followed in all matters.</p> <p>Evidence—Presumptions—Foreign Laws—Testamentary Capacity— Common Law.</p> <p>7. In the absence of evidence or pleading to the contrary, it must be presumed that the common law prevails in Iowa as to testamentary capacity, and hence a married woman who sought to adopt an infant under Code Iowa 1873, §§ 2307-2311, providing that any person competent to make a will may adopt children, must be presumed to lack testamentary capacity, for at common law a married woman could not dispose of real or personal property by will, and hence her execution of adoption articles would be a nullity.</p> <p>Adoption—Declaration—Acknowledgment.</p> <p>8. An instrument of adoption, under Code Iowa 1873, §§ 2307-2311, which required the acknowledgment of the parents in the manner of acknowledgment of deeds, is defective where not acknowledged by a foster father who had previously adopted the infant.</p> <p>Mortgages—Release—Mistake—Evidence—Sufficiency.</p> <p>9. In an action by a married woman against her husband’s estate to set aside the release of a mortgage which she held on his property, there being no intervening interests, evidence held to show that it was released through mistake.</p> <p>Mr. Justice Bean dissenting.</p>

<p>From Jackson: Hiero K. Hanna, Judge.</p> <p>Statement by Mr. Justice Moore.</p> <p>This is a controversy between the Grants Pass Banking & Trust Company, against the Enterprise Mining Company, and by the Condor Water & Power Company against the Enterprise Mining Company and the Grants Pass Banking & Trust Company, as to the validity and priority of a lien. The facts as disclosed at the trial are as follows:</p> <p>A suit was commenced March 12, 1907, by the Grants Pass Banking & Trust Company to foreclose a mortgage of certain mining property executed to it October 19, 1906, by the Enterprise Mining Company to secure the payment of $6,000. The Condor Water & Power Company was made a party defendant; the complaint alleging that it claimed some interest in the premises inferior to plaintiff’s mortgage. That defendant, alone answering, denied that its claim was subordinate to that of the plaintiff, set forth facts tending to show that it had a prior lien on the real property, and thereupon commenced a suit against the Enterprise Mining Company and the Grants Pass Banking & Trust Company, averring that, pursuant to the terms of a written contract entered into with the former, it had supplied between October 31, 1905, and March 1, 1907, certain material and furnished electricity for illumination and for the operation of a quartz mill on the premises amounting to $3,570.28, on account of which $1,527.20 had been paid, leaving due $2,043.08, to secure the payment of which a lien on the land, building, machinery, etc., was filed March 20, 1907. Issues having been joined the suits were consolidated and tried, resulting in a decree foreclosing the mortgage and the lien, but making the latter superior, and plaintiff appeals.</p>

<p>Evidence—Admissions—Transactions by Another for Plaintiff’s Benefit—Letters.</p> <p>1. The plaintiff in an action to recover fees under an employment by defendant to locate defendant on a claim was working with his brother in the matter, and the brother, who was not a party to the suit, made examination of the claim, met defendant with reference to its location, and wrote a letter to parties whom the defendants claimed to have employed, a part of which was material on the question of plaintiff’s employment. Held that, as the plaintiff was seeking a benefit under an arrangement made in part by his brother as his agent or as a party interested in the transaction, the letter was admissible as tending to show defendant’s agreement.</p> <p>Compromise and Settlement—Instructions—Sufficiency.</p> <p>2. In an action to recover fees under an executed agreement to locate the defendant on a claim, where the defendant’s evidence tended to show that he had employed and settled with another party and that such settlement included plaintiff’s claim, with plaintiff’s consent, the court instructed that evidence of such settlement was introduced for the purpose of showing what the facts were in regard to the contract, that, if there was such settlement and plaintiff’s claim was then credited by consent to plaintiff, the finding must be for the defendant and that if the defendant had a settlement with another party, but that the contract was with the plaintiff, the plaintiff would be entitled to recover notwithstanding defendant’s unauthorized settlement, and that the case depended on the question of employment. Hold, that the instructions as to plaintiff’s right of recovery, taken with all the other instructions, were erroneous, since they practically took from the jury the question of payment or settlement by defendant with such other party.</p> <p>Compromise and Settlement—Instructions—Sufficiency.</p> <p>3. In an action to recover for services alleged to have been performed in locating defendant on a claim where the question of settlement by defendant was in issue, and the defendant’s evidence tended to show a settlement with another party employed for that service, the refusal to instruct that if such party acting under the authority of the plaintiff in securing the defendant for location, and had an agreement with defendant for the fees, that payment to such party was payment to the plaintiff, is error, since without it or its substance the question of settlement is not fully submitted to the jury.</p> <p>Appeal and Error—Record—Necessity of Setting Forth Evidence Excluded.</p> <p>4. Where the record does not show what evidence the appellant intended to elicit by an excluded question, the court cannot say that its exclusion was prejudicial.</p>

From Clatsop: James A. Eakin, Judge. Statement by Mr. Justice Burnett. This is a writ of review proceeding by M. J. Kinney, against the city of Astoria.

From Coos: John S. Coke, Judge. Statement by Mr. Justice Burnett. This is an action by The Title Guarantee and Abstract Co., a corporation, against Claude Nasburg. The cause originated in a justice’s court in Coos County.

From Multnomah: John B. Cleeand, Judge. Statement by Mr. Chief Justice Eakin. This is an action by Anthony Hardy against Annie Sheedy and John Sheedy.

From Umatilla: Henry J. Bean, Judge. Statement by Mr. Justice Slater. This action was begun by F. V. Martin and Ralph Riggs as partners under the firm name of Riggs & Co. and Riggs & Martin. Prior to the trial in the lower courts Riggs died, and his coplaintiff, Martin, as the sole surviving partner, was substituted.

<p>From Multnomah: John B. Cleland, Judge.</p> <p>Statement by Mr. Justice Burnett.</p> <p>This is an action by S. B. Cobb against Sophia H. Klosterman, John Klosterman, Mary C. Mayer, and E. J. Alex Mayer, for breach of covenant of warranty. From a judgment in favor of plaintiff, the defendants appeal. The facts as disclosed at the trial are as follows:</p> <p>On December 31, 1906, the defendants conveyed certain real property to the plaintiff by a deed containing a covenant that the grantors were seised in fee simple of the real property, and that they and their successors would warrant and forever defend the same against the lawful claims and demands of all persons whomsoever, except certain municipal liens of the city of Portland. In this action upon that covenant the plaintiff alleges, in substance, as a breach thereof that the defendants were not the owners of the real property, but that Elmer Peck, Lloyd Peck, and M. L. Peck were such owners and had sued the plaintiff to quiet their title in the real property, and to prevent his ouster as a result of their suit he had paid for their outstanding claim the sum of $1,000, which defendants had not repaid, and for which sum he demands judgment.</p> <p>The defendants answered, denying the title of the Pecks and the compulsion inducing the plaintiff to buy in their interest. They affirmatively allege that “Elmer Peck and Lloyd Peck are the children and heirs at law of C. W. Peck, deceased, and M. L. Peck is the widow of said C. W. Peck.” The answer further alleges in substance that during the life of C. W. Peck, and while he was the owner of the real property in question, he with his wife, M. L. Peck, executed two mortgages upon the property, the first of date September 5, 1890, to Philippina Wolf, for $1,400, and the second of date August 9, 1892, to B. H. Bowman, for $6,000; that afterwards C. W. Peck died and M. L. Peck, his widow, was appointed as administratrix, in which capacity she continued until the final settlement of the estate August 6, 1896; that on March 30, 1894, Bowman, the second mortgagee, commenced a suit for the foreclosure of his mortgage, making M. L. Peck, in her individual capacity and as administratrix, Elmer Peck, Lloyd Peck, Philippina Wolf, et al., defendants. As to the Pecks the return of the sheriff upon the summons in that suit is as follows:</p> <p>“State of Oregon,</p> <p>“Multnomah County</p> <p>| ] '</p> <p>“I, Penumbra Kelly, sheriff of said state and county, do hereby certify that I served the within summons within said state and county on the 16th day of April, A. D. 1894, on the within named defendants, M. L. Peck and Lloyd Peck, Elmer Peck and M. L. Peck as administratrix of the estate of C. W. Peck, deceased, by delivering a copy thereof, prepared and certified to by me as sheriff to M. L. Peck, Elmer Peck and M. L. Peck as administratrix in person.</p> <p>“Penumbra Kelly,</p> <p>“Sheriff of Multnomah County.</p> <p>“By Elmer S. M. Myer, Deputy.”</p> <p>The answer goes on further to state, in substance, that on June 19, 1894, upon the application of the plaintiff Bowman, the circuit court appointed, as guardian ad litem for Lloyd Peck and Elmer Peck, J. R. Stoddard, who filed an answer for the minors, denying any information sufficient to form a belief as to the allegations of the foreclosure complaint. The answer in the case at bar further recites that Philippina Wolf appeared in the foreclosure suit and set up her mortgage, asking for a decree of foreclosure; that a decree was finally rendered foreclosing both mortgages; that an execution was issued; that the property was sold to one M. A. Stratton for $4,000; that the sale was confirmed; that Stratton assigned his certificate to the First National Bank of East Portland; that on March 13, 1896, the sheriff of Multnomah County executed and delivered to the bank his official deed to the property; that thereupon the bank took possession of the property, claiming title thereto under the sale, and retained its possession until its conveyance afterwards mentioned. The history of the conveyances from that on until it was finally conveyed to the defendants Sophia H. Klosterman and Mary C. Mayer, March 11,1899, is then recited, and it is alleged “that the said possession of said property by each and all of the above-named corporations and persons was open, notorious, exclusive, and under claim and color of title, and hostile to all other persons, and was well known during all of said times to the said M. L. Peck, Elmer Peck, and Lloyd Peck, and was at no time disputed or questioned by them, or any of them, but, on the contrary, the said M. L. Peck, Elmer Peck, and Lloyd Peck acquiesced in and consented to said sheriff’s sale and said taking and holding possession thereunder, and all the claims and acts of the persons claiming title under said sale which are mentioned in this answer, until the bringing of the suit to quiet title mentioned in the complaint herein,” which, it was stipulated, occurred August 28, 1908. The defendants further plead that they and their predecessors have paid sundry taxes on the premises, setting out the amounts, and some street improvement liens, and stated that at the time of filing the suit to quiet title there were valid subsisting street improvement liens on the property aggregating more than $3,000, which are yet unpaid. They further state in substance that the rents and profits of the property are not sufficient to keep up the necessary repairs; that the use and occupation of the property is of no value; and that at the time of the conveyance to plaintiff the property was not worth more than $4,000, and, subject to the street improvement liens, is not now worth more than $5,000.</p> <p>The reply admits the execution of the mortgages and the commencement of the suit to foreclose, but denies that the summons was served upon any of the Pecks. As to the matter in the answer tending to show title by adverse possession up to the suit to quiet title, it denies that the adverse possession was known to or acquiesced in by any of the Pecks, and alleges that Elmer Peck and Lloyd Peck were both minors incapable of consenting to or being bound by such adverse possession. It is stipulated that at the commencement of the suit to quiet title as plaintiffs, August 28, 1908, Lloyd was 21 years and six months of age, and Elmer was under the age of 21 years.</p> <p>This action resulted in a judgment in the circuit court in favor of plaintiff, and the defendant appeals.</p>

<p>Evidence—Hearsay.</p> <p>1. Where one sued for money deposited with him by the finder defended on the ground of payment to the owner, declarations by the claimed owner tending to show that the money was not his were not inadmissible as hearsay, because made in defendant’s absence.</p> <p>Appeal and Error—Review—Order of Proof—Judicial Discretion.</p> <p>2. The order of proof is within the discretion of the trial court, exercise of which will be disturbed oply for abuse.</p> <p>Finding Lost Goods—Burden of Proof—Title.</p> <p>3. In ti-over by a finder of money against his bailee, he was bound to allege and prove some ownership in himself.</p> <p>Finding Lost Goods—Ownership of Property—Pleading and Proof.</p> <p>4. An allegation of ownership of money found admits proof of general or special ownership.</p> <p>Abandonment—Ownership of Property Found.</p> <p>5. Property purposely abandoned by the original owner is restored to the common stock, and becomes the property of him who first discovers and takes it into his possession.</p> <p>Finding Lost Goods—Rights of Finder.</p> <p>6. Lost property becomes the property of the finder, as against every one except the true owner.</p> <p>Abandonment—Evidence—Sufficiency.</p> <p>7. Evidence, in an action to recover money deposited by the finder. held to warrant a finding that it was abandoned, making an instruction on abandonment proper.</p> <p>Finding Lost Goods—Goods Found—Right to.</p> <p>8. One employed to remove goods from a warehouse was entitled to money found by him, not belonging to the employer, as against the employer.</p> <p>Finding. Lost Goods—Right to.</p> <p>9. That a bailee of money was a tenant of the warehouse in which it was found by his employee does not necessarily show title in the bailee as against the employee.</p> <p>Finding Lost Goods—Treasure Trove—Finder's Title.</p> <p>10. Present property of treasure trove is in the finder, as against every one but the true owner, if he is unknown, regardless of where it was found, if it is secreted in the earth or other private place.</p> <p>Finding Lost Goods—Right to Goods—Jury Question.</p> <p>11. In an action by the finder of lost money to recover it from his bailee, whether the money was treasure trove held under the evidence a jury question.</p>

From Wallowa: John W. Knowles, Judge. Statement by Mr. Justice McBride. This is a suit in equity brought by the Oregon Railroad & Navigation Company, a private corporation, against Hector McDonald, and Margaret McDonald, to enjoin defendants from interfering with plaintiff in the construction of its branch line of railway from Elgin to Joseph, where the same crosses defendants’ land in Wallowa County.

From Lane: LAWRENCE T. HARRIS, Judge. Statement by Mr. Justice McBride. This is a suit by J. J. Walton against George L. Moore to quiet his title to lots 3 and 4 and the E. 1/2 of the S. W. % of section 30, township 16 S., range 6 W., in Lane County, Oregon. Defendant answered denying plaintiff’s title, and setting up title in himself.

From Baker: William Smith, Judge. Statement by Mr. Justice McBride. This is an action at law by James Dalton against L. S. Kelsey to recover damages caused by an alleged diversion of irrigating water from a ditch owned in common by plaintiff, defendant, and others, by which unlawful diversion plaintiff claims that his crops for the years 1903, 1904, 1905, and 1908 were destroyed or injured. There is a separate cause of action for each year.

<p>From Washington : Thos. A. McBride, Judge.</p> <p>Statement by Mr. Chief Justice Eakin.</p> <p>This is a suit by A. W. Anthony against The Hillsboro Gold Mining Company, a corporation, wherein plaintiff alleges that he is the owner of 1,000 shares of stock in the defendant corporation and prays for a decree establishing such ownership. The facts as disclosed at the trial, are as follows:</p> <p>On February 3, 1903, the defendant was duly incorporated, with a capital stock of $6,000, divided into 6,000 shares of the par value of $1.00 each. The stock was subscribed as follows: J. W. Shute, 3,000 shares; A. C. Shute, 1,000; W. D. Hare, 500; A. W. Anthony, 1,000; J. C. Hare, 500. J. W. Shute, J. C. Hare and A. W. Anthony were chosen directors; J. W. Shute, president; and A. C. Shute, secretary and treasurer. Plaintiff alleges that, during the year 1903, he paid for his stock in full, namely $200, by delivering to the corporation an option to purchase a mine and $800 in services performed; that defendant refused to deliver to him his stock, and on the contrary attempted to sell it for non-paid assessment thereon, and has excluded him from participation in the affairs of the corporation. He asks that he be adjudged to be a stockholder in defendant corporation, and that it be required to issue to him his stock.</p> <p>Defendant denies that plaintiff has paid for his stock, except the $200, and states that on May 1, 1904, it duly levied an 80 per cent assessment on the stock of the corporation; that in default of such payment by plaintiff his 1,000 shares were on July 5, 1904, sold for $800 to Geo. R. Bagley, in the manner provided by the by-laws of the company. Defendant also alleges that plaintiff shall be and is estopped to maintain this suit for the reason that on November 20, 1903, he refused to pay the balance due on his stock ($800), and declared to the officers of the company that he would neither pay it nor have anything further to do with the corporation, its stock, officers, or stockholders; that he did not expect to own the stock of defendant; and that he abandoned any interest, right, or claim to such stock. Defendant and its officers, relying upon those statements and believing them to be true, paid and advanced on behalf of the company $9,800, with which to acquire the mining property—$5,795 for its development, and $1,500 for other purchases of mining property.</p> <p>The allegations of the answer are denied by the reply. The cause was referred to C. E. Runyon to take and report the testimony and state his conclusion of fact and law, which he did, and made findings in favor of defendant. At the time of reference, counsel for plaintiff objected to the referee making the findings, and also objected to the findings when filed, and asked the court to ignore them. The court overruled plaintiff’s objections and approved the findings of the referee, except No. 16, which was to the effect that the sale of the stock for nonpayment of assessment was duly made, and rendered a decree thereon, dismissing plaintiff’s suit, from which he appeals.</p>

From Multnomah: Calvin U. Gantenbein, Judge. Statement by Me. Chief Justice Eakin. This is a suit by Mary Folkenberg against James B. Folkenberg for divorce, on the ground of cruel and inhuman treatment. From a decree of dismissal, plaintiff appeals.

From Marion: George H. Burnett, Judge.- Statement by Mr. Justice McBride. This is an action by S. J. Burroughs against The Curtiss Lumber Company to recover damages for an injury received by plaintiff while he was at work as an oiler on defendant’s sawmill.

From Multnomah: William; N. Gatens, Judge. Statement by Mr. Chief Justice Eakin. By authority of an act of the legislative asembly of date November 25, 1885 (Sp. Sess.

From Multnomah: William N. Gatens, Judge. Statement by Mr. Justice McBride. This is an action by Ed. R. Stocklen, doing business as the Yale Market & Grocery Company, against M. E. Barrett and wife. The facts are as follows: Stocklen, who is a dealer in groceries and meat, brought an action in the justice’s court to recover from defendants the sum of $55.25, which he alleged to be the reasonable value of goods, wares, and merchandise sold by him to defendants.

From Multnomah: JOHN B. Cleland, Judge. Statement by Me. Justice McBeide. This is an action by the Baldwin Sheep & Land Company against the Columbia Southern Railway Company, a corporation, and the Oregon Railway & Navigation Company, to recover damages in the sum of $446.74 and interest, as an overcharge caused by the alleged misquotation of a freight rate by one of defendants’ agents on a shipment of sheep from Shaniko, Oregon, to Rawlins, Wyoming, in June, 1905.

From Multnomah: John B. Cleland, Judge. Statement by Mr. Justice Burnett. The plaintiff, Blanche McN. Moore, complains of J. L. Fowler, T. S. McDaniel, Hiram H. Cole, George Peterson, J. J. Fitzgerald, and George J. Cameron, charging them with trespass upon her inclosure in pursuance of a conspiracy among them.

From Columbia: Thomas A. McBride, Judge. Statement by Mr. Chief Justice Eakin. This is a suit by the Crane Company against M. Ellis, the Adamant Company, Nottingham & Company and W. A. Currie to foreclose certain mechanics liens. From a decree in favor of plaintiff, defendant M. Ellis appeals.

From Linn: William Galloway, Judge. Statement by Mr. Justice McBride. This is a suit by the Calapooia Lumber Company, a corporation, against H. W. Rice, as administrator of the estate of James N. Rice, substituted for the said J. N. Rice, and George Finley. The facts are as follows: In 1903 plaintiff had in contemplation the erection of a sawmill on the Calapooia River and also a dam to be used in connection therewith.

<p>Appeal and Error — Transcript — Curing Defects — Supplying Omitted Papers.</p> <p>1. Section 553, B. & C. Comp., requires appellant to file a transcript containing copies of the decree appealed from, etc.; and Section 554 provides that, when it appears by affidavit that the transcript filed is incomplete, the Supreme Court may rule the clerk of the trial court to certify as to the alleged omission, and, if papers have been omitted to transmit a copy thereof to the Supreme Court. Held, that a copy of the decree unintentionally omitted from the transcript can be supplied on application, by directing- the clerk of the trial court to send up a certified copy thereof.</p> <p>Injunction—Equitable Estoppel.</p> <p>2. An irrigation company maintaining ditches on the sides of city streets was seasonably notified of an ordinance providing for the improvement of the streets and permitting it to apply for plans, if it desired to continue the use of the ditches, but it made no request for plans. The president of the company, at a conference with the city council, protested against the destruction of any of its ditches. Held, that a delay of two months in suing to enjoin interference with its ditches during the construction of the improvement by the city under the ordinance did not equitably estop the company; it not deriving any benefit from the improvements.</p> <p>Municipal Corporations — Public Improvements — Ordinance — Validity.</p> <p>3. An ordinance providing for a public improvement at the cost of the immediate property benefited, or at the expense of the owner of the property, must specify the general character and extent of the improvement, and where the ordinance is so uncertain as not to be susceptible of performance, the ordinance is inadequate.</p> <p>Municipal Corporations—Public Improvements—Power to Make.</p> <p>4. The power of a city to make public improvements must be found in the charter conferring the right, either by express grant or by necessary implication.</p> <p>Municipal Corporations—Powers—Delegation of Authority.</p> <p>5. The power of a city to make public improvements cannot be delegated when it involves the exercise of discretion and judgment, unless permission to do so is expressly granted.</p> <p>Municipal Corporations—Powers—Delegation op Authority.</p> <p>6. Baker City charter (Sp. Laws 1903, p. 547), providing that when it shall be deemed expedient to change an existing street, a resolution must be adopted directing the city engineer to make a survey of the proposed alteration, draw a plat thereof, and submit a written report, which declaration, if considered satisfactory by the council, shall be adopted by ordinance, does not permit the city to delegate the power to determine the nature or extent of any contemplated improvement, except that the engineer, in pursuance of a resolution demanding information as a basis for an ordinance, must report on the question of the advisability of the proposed change; and an ordinance requiring an owner of irrigation ditches in streets to be improved to apply for plans to be prepared by the city engineer, and declaring that a failure of the owner of the ditches to agree to pay the cost of the contemplated changes shall amount to an abandonment of the right to occupy any part of the streets, is invalid, as delegating power to determine plans for the ditches, and the failure of an owner of ditches to demand plans, or to covenant to pay the cost of making the alterations, does not relieve the council from the necessity of adopting an ordinance prescribing generally the kind and size of the pipe or other means considered requisite, and directing the manner of laying it.</p> <p>Dedication—Conveyances—Highways.</p> <p>7. A conveyance by a proprietor of a town site of lots therein, with reference to an existing plat thereof indicating streets as a boundary, is an irrevocable parol dedication of the streets when no express grant thereof to the public has been made, notwithstanding Section 5338, B. & C. Comp., declaring that no covenant shall be implied in any conveyance of real estate.</p> <p>Dedication—Conveyances—Highways.</p> <p>8. Where the federal government resurveyed a town site laid out by an individual on government land, and then sold lots as represented on the map, disclosing lots, blocks, and streets, and the sales were made by officers acting within their authority, the streets were dedicated to a public use, and as long as they were employed for that purpose, they could not become the property of an individual, and no right to interfere with the streets could thereafter be secured from the federal government.</p> <p>Dedication—Highways.</p> <p>9. Where an owner laid out an addition to a town site without noting on the plat of the survey drainage ditches previously dug on the land, he thereby acknowledged that he did not propose to interfere with the streets indicated on the plat in any manner inconsistent with the use thereof by the p\iblie, and his act disclosed an intention to assert merely a license by sufferance to employ the water for irrigation in his addition.</p> <p>Municipal Corporations — Streets — Obstructions — Legislative Authority.</p> <p>10. In the absence of constitutional inhibition, the legislature may authorize obstructions in the streets of a municipality which, without such sanction, may become nuisances, but statutes of that kind must be strictly construed.</p> <p>Municipal Corporations ■— Control op Streets ■— Charter Provisions.</p> <p>11. Under Baker City charter (Sp. Laws 1874, p. 151), as originally enacted and as re-enacted by Sp. Laws 1878, p. 192, empowering the board of trustees to remove all obstructions from highways, provided that they shall not interfere with existing improvements within the lines of the streets, the trustees may not interfere with existing drainage ditches on the sides of streets; but the charter does not grant any right to maintain such ditches, but merely recognizes a mere license, revocable at the pleasure of the legislature, and the maintenance of the ditches cannot, while the charter provisions are in force, ripen into title by prescription, because the city may not interfere with them.</p> <p>Municipal Corporations—Powers—Regulation op Streets.</p> <p>12. Where a city charter empowers a regulation of the use of streets, the grant is not limited to the mere right to put the streets in order for travel or to keep them in repair, hut also authorizes the laying of pipes for gas, water, and other public conveniences.</p> <p>Municipal Corporations—Powers—Regulation op Streets.</p> <p>13. Baker City charter (Sp. Laws 1874, p. 151), as amended by Sp. Laws 1878, p. 192, and Sp. Laws 1882, p. 87, defining the powers of the municipal authorities over the streets of the city, does not, either expressly or by necessary implication, authorize the municipal authorities to permit the construction of drainage ditches in any of the streets, and an ordinance granting such a concession is a nullity, and no right is secured thereby.</p> <p>Estoppel—Equitable Estoppel—Municipal Corporations.</p> <p>14. No estoppel arises from an act of a municipal corporation or its officers done in violation of, or without authority of, law even though money has been expended on the faith of the act.</p> <p>Municipal Corporations—Rowers—Regulation op Streets.</p> <p>15. Under Baker City charter (Sp. Laws 1903, p. 609) subd. 59, authorizing the city council to regulate, provide for, and prohibit the construction, building, use, or operation of irrigating ditches, on any of the streets of the city, and to provide for the removal of the same, the city council may make such reasonable regulations by ordinance for conducting water along the streets as may be reasonably necessary, and when that has been done an irrigation company maintaining irrigation ditches along the streets must comply therewith.</p> <p>Constitutional Law—Police Power—Property Subject to.</p> <p>16. All property is subject to the exercise of the state’s police power.</p> <p>Constitutional Law—Police Power—Surrender op Power.</p> <p>17. The police power of the state is a sovereign prerogaitve which cannot be alienated or ultimately surrendered, because it is essential to the existence and self-preservation of the state.</p> <p>Constitutional Law—Police Power—Delegation op Power.</p> <p>18. The police power of the state may in part be delegated to, and exercised by, a municipal corporation, which has the power to preserve the health, protect the morals, and promote the safety of its citizens.</p> <p>Corporations—Police Regulations.</p> <p>19. A corporation impressed with the performance of a public duty is subject to police regulations, requiring it to make such reasonable changes in its mode of the use of streets as may be demanded by public necessity.</p> <p>Corporations—Police Regulations.</p> <p>20. A corporation furnishing water generally for irrigation only when there is a surplus in its ditches after supplying the needs of its stockholders is impressed with a public character, and holds its property subject to an exercise of the police power of the state to a greater degree than a private person.</p>

<p>Mechanics-’ Liens—Proceedings to Perfect—Notice.</p> <p>1. A notice of lion for materials furnished for the erection of a building “which is intended for and is a sawmill” is sufficient to include a boiler house, about 60 feet from the main building, from which steam was conveyed to the engine by a steam pipe, and which was connected by a sawdust conveyor which carried the fuel to the furnaces.</p> <p>Mechanics’ Liens—Proceedings to Perfect—Effect of Defect in Claim.</p> <p>2. A notice of claim of lien for lumber furnished for the erection of buildings, -which designates buildings not owned nor erected by the company against which the lien was claimed, is misleading and void as to a mortgagee of the true owner.</p>

<p>Municipal Corporations—Creation—General Laws—Organization op Corporations—Provisions Construed as Directory.</p> <p>1. Laws 1909, c. 39, relating to the incorporation of ports, and by section 8 requiring that the commissioners appointed by the Governor shall meet on the fifth day after their appointment at a place designated by the Governor and organize as a board, is directory in its provisions, and where four of the five commissioners meet at the specified place and time and effect a temporary organization, and two days later at a different place effect a permanent organization, there is a substantial compliance with the statute.</p> <p>Municipal Corporations—Creation—Statute—Validity.</p> <p>2. Laws 1909, c. 39, entitled, “An act to provide for incorporation under general law of ports in counties bordering upon bays or rivers * * and to provide for the manner of incorporating such ports, and defining the powers of ports so incorporated, and declaring an emergency,” is constitutional.</p> <p>Statutes—Time op Taking Effect—Emergency -Clause Not Necessary to Set Out Facts Authorizing Emergency.</p> <p>3. Section 28, Article IV, Constitution of Oregon, provides that no act shall take effect until 90 days from the end of the session at which it was passed, “except in case of emergency, which emergency shall be declared in the preamble or in the body of the law,” and as modified by the amendment to Section 1, Article IV, the use of the emergency clause is confined to laws necessary for the preservation of the public peace, health, or safety. Laws 1909, c. 39, declares by section 10, “it is hereby adjudged and declared that existing conditions are such that it is necessary for the immediate preservation of the public peace, health or safety; therefore an emergency is hereby declared to exist, and this act shall take effect 4 * after its approval by the Governor.” Held, that the legislature has the exclusive power ;o declare an emergency without setting out the facts creating the emergency.</p> <p>Statutes—-Validity—Approval of Executive.</p> <p>4. Section 13, Article V, Constitution of Oregon, provides that every bill passed by the legislature shall be presented to the Governor for signature, but that, if he does not approve it, he shall return it with his objections to the House where it originated, and that any bill not returned within five days shall be a law without his signature, unless a general adjournment shall prevent its return. The act to provide for the incorporation of ports in counties (Laws 1909, c. 39) declaring, by Section 10, an emergency, and that the act should take effect upon approval by the Governor, was not returned by the Governor within five days, but was filed without his approval with the Secretary of State before a general adjournment. Held,, that the process of making it a law was complete when the Governor did not return it to the House whence it originated within five days from the date it was presented to him, and that all its provisions, including the emergency clause, became effective at the end of the five days.</p> <p>Evidence—Judicial Notice—Official Proceedings and Acts—Return of Bill by Governor.</p> <p>5. Under Section 729, L. O. L., the court must take judicial notice that an act of the legislature was presented to the Governor, and that he did not return it within five days to the house in which it originated.</p> <p>Municipal Corporations—Officers—Constitutional and Statutory Provisions—Term of Office — Commissioners of Incorporated Ports.</p> <p>6. Laws 1909, c. 39, § 8, providing that two of the five commissioners of an incorporated port shall hold office until the 1st of January following the succeeding general election, and that the remaining three shall hold office until the 1st of January following the second general election, does not violate Section 2, Article XV, of the Constitution of Oregon, limiting tenure of officers created by the legislature to four years, as that section must be read in connection with Section 12, Article II, which provides that an appointment pro tempore shall not be reckoned as a part of a term, and under which the appointment of the commissioners for the first term was a pro tempore appointment.</p> <p>Municipal Corporations—Constitutional and Statutory Provisions —Commissioners of Incorporated Ports—"Officers."</p> <p>7. The commissioners of incorporated ports appointed under Laws 1909, c. 39, § 8, who are vested with the power and authority given to corporations organized under the act, are mere agents for the performance of certain duties defined by the act, and are not “officers” within the meaning _ of Section 2, Article XV, of the Constitution of Oregon, limiting the tenure of officers appointed by the legislature to four years.</p> <p>Municipal Corporations—Incorporation—Elections.</p> <p>8. Laws 1909, c. 39, § 3, providing that the judges and clerks of election shall return the canvass of the special election for the proposed incorporation of a port to the county clerk, is directory, and a return of the canvass by one of the judges or clerks in accordance with the general election law (Section 3328, L. O. L.) is a sufficient compliance with the requirement as to the return.</p> <p>Municipal Corporations—Return and Canvass — Certificate and Proclamation of Ejection—Conclusiveness.</p> <p>9. Where the notices of a special election under Laws 1909, c. 39, relating to the organization of incorporated ports, are required to be given as in eases of general elections, in accordance with Section 3307, L. O. L., but there is no requirement of a return by the clerks of election,' certifying performance of the duty of posting notices, the county court’s proclamation of the result as shown by the return, and establishment of a port as a municipal corporation, is largely ministerial, and in view of the fact that plaintiffs took no action until long after the proclamation of the result, and that it had no direct effect on their property rights, is conclusive as against collateral attack.</p> <p>Officers—Injunction—Municipal Officers.</p> <p>10. Injunction will not lie to determine whether commissioners of incorporated ports under Laws 1909, c. 39, rightfully hold such ofiices.</p> <p>Officers—Injunction—Scope of Remedy—Remedy by Quo Warranto.</p> <p>11. Section 366, L. O. L„ providing that an action at law may be maintained in the name of the State, upon an information of the prosecuting attorney, or upon the relation of the private party against the person offending, when any person shall usurp or unlawfully hold any public office, or any office in a corporation, either public or private, created under the authority of the State, or when persons act as a corporation without being duly incorporated, affords an adequate remedy at law to determine whether commissioners of incorporated ports appointed under Laws Or. 1909, c. 39, have title to their offices; and hence a suit in equity for an injunction will not lie.</p> <p>Officers—De Facto Officers—Color of Title—Commissioners of Incorporated Ports.</p> <p>12. Where an election has been held on petition under the provisions of Laws 1909, c. 39, relating to the organization of incorporated ports, and the return has been certified to the county court, and it has declared the result and proclaimed the organization of the port, and commissioners are thereupon appointed by the Governor, who organize and assume to act as a board, such commissioners are de facto officers whose acts have color of authority.</p>

<p>From Multnomah: William N. Gatens, Judge.</p> <p>Statement by Mr. Justice McBride.</p> <p>This is a suit by John P. Sharkey Company, a corporation, against the City of Portland, M. J. Connelley, and Messrs. Scott & McDougal, to restrain the defendants from wrongfully removing earth from an excavation being made in the improvement of Franklin Street in the city of Portland, and to compel defendants to account for and pay the value of earth which plaintiff claims has been already unlawfully converted.</p> <p>The complaint, which is too voluminous for insertion here, alleges in substance, that W. Scott and T. McDougal, defendants, are partners, doing business under the firm name of Scott & McDougal; that plaintiff, during all times mentioned in the complaint, was the owner in equity of all of blocks 23 and 24 in Waverleigh Heights, in the city of Portland; that Franklin Street, between Thirty-first and Thirty-third streets, lies between blocks 23 and 24; that the John P. Sharkey Company is the owner in equity of all the dirt in such street, and of the title to such street, subject only to the easement for street purposes for the benefit of the public therein; that the city of Portland has let a contract to excavate Franklin Street, between Thirty-first and Thirty-third streets, lying opposite and between blocks 23 and 24, Waverleigh Heights, to the established grade, and also to lay artificial stone sidewalks and curbs; that such contract was let to M. J. Connelley, defendant, who sublet it to defendants Scott & McDougal; that they are, and have been during all the times mentioned herein, fulfilling the same; that the contract provides that the contractor shall make the excavation at an agreed price, but it is silent as to where he shall deposit the earth so excavated; that the city of Portland has provided a district, composed of property belonging to plaintiff, to pay for the excavation, because such property will be specially and peculiarly benefited by the improvement, and that defendants are attempting to make the excavation at the expense and charge of plaintiff’s property only; that plaintiff is the equitable owner, not only of blocks 23 and 24 in Waverleigh Heights, but of the soil in Franklin Street between those blocks, and it has in no way disposed of its ownership in the soil; that plaintiff has heretofore requested and demanded of defendants, and each of them, that they deposit the soil belonging to plaintiff which has been excavated out of Franklin Street between blocks 23 and 24, Waverleigh Heights, upon block 24 thereof, so that plaintiff will not be deprived of its use and will receive the benefit of the contract; that plaintiff has offered the most reasonable and inexpensive place for defendants to deposit the earth, on block 24, Waverleigh Heights; that plaintiff, as an equitable owner of the property, claims the benefit of the excavated soil for the filling of its adjacent property; that the defendants, and each of them, are unlawfully claiming the right to take the earth belonging to plaintiff, and excavated out of Franklin Street between Thirty-first and Thirty-third streets, and divert it to their own use; that defendants, and each of them, have refused and continue to refuse to deposit the soil so excavated upon block 24, as requested by plaintiff; that there is still a large amount of earth to be excavated out of Franklin Street between Thirty-first and Thirty-third streets, and unless enjoined by this court defendants will continue to excavate the same and divert it elsewhere, to the irreparable injury of plaintiff; that defendants by these acts destroying plaintiff’s estate in the real property, in violation of law, and diverting it to their own use; that when the dirt is so taken and diverted there will be no adequate and complete remedy at law for the estimation of damages of the premises; that defendants are proceeding under a claim that they are authorized so to do by the city of Portland; that plaintiff has no plain, speedy, or adequate remedy at law; that defendants, by their acts and proceedings are taking the property of plaintiff in violation of law, of the State Constitution, and of the Constitution of the United States; that plaintiff is unable to state how much earth has been removed from Franklin Street between Thirty-first and Thirty-third streets, and prays the court that the defendants be required “to acquire and state the amount of earth and other material heretofore removed by the defendants and converted to their own use from Franklin Street between Thirty-first and Thirty-third streets.”</p> <p>The defendants appeared separately and demurred to the complaint as not stating facts sufficient to constitute a cause of suit, and, the demurrer being overruled, they filed separate answers, admitting the formal allegations of the complaint, but denying the portions above set out, except as stated in their further answer. The further answer alleges that, on April 24, 1907, plaintiff’s predecessor in interest in Waverleigh addition filed a petition with the city auditor for the grading and improvement of several designated streets in that addition, including Franklin Street, and that thereafter, in pursuance of an ordinance passed for that purpose, the city advertised for bids for such improvement, and that the contract for a portion of the improvement of Franklin Street was let to M. J. Connelley & Company. Then follow the following allegations:</p> <p>“That between said 24th day of April, 1907, and the time of the commencement of this suit, the city of Portland enacted resolutions, ordinances, and proceedings for the improvement of a large number of other streets in said Waverleigh Heights Addition, and being the larger portion of said streets above mentioned, the improvement of which was petitioned for by said H. W. Lemcke Company, predecessors of the plaintiff herein, and contracts were awarded by the city of Portland for the improvement of said divers streets and portions thereof in said Waverleigh Heights Addition, and said improvement of Franklin Street between and adjacent to blocks 17, 18, 28, 24, 31 and 32, Waverleigh Heights, and the improvement of said other streets in said addition which had been petitioned for by said H. W. Lemcke Company, and for which contracts had been awarded, were being conducted and carried on as a general improvement of streets in said Waverleigh Heights and in the vicinity of said Franklin Street, and all the earth which has been excavated and to be excavated out of said Franklin Street under the contract between the defendant contractors and the city of Portland, not necessary for or required in the improvement of said Franklin Street, is used and to be used by the defendant contractors and the city of Portland in said other streets being improved and to be improved under said general plan of improvement of the streets in said Waverleigh Heights Addition. That it is necessary for said defendant, the city of Portland, to use all of said earth so excavated and to be excavated from said Franklin Street, in said general plan of improvement of said streets in Wavefleigh Heights, and that the defendant, the city of Portland, appropriated said earth for said purpose, and the same is not being used for any other purpose, but is being used by the city of Portland and the defendant contractors for such purpose only. That said the city of Portland through its executive board advertised for and received bids for the improvement of said Franklin Street on the 10th day of April, 1908, that the said bids were advertised according to law and provided that it would receive said bids for said improvement in accordance with the ordinance providing for the time and manner of the same and the plans and specifications of the city engineer therefor, and the plaintiff herein had full knowledge of all the acts and proceedings had and taken by the defendant, the city of Portland, in the matter of said improvement and made no objection to the awarding of said contract for the same, and the plaintiff was aware and had full knowledge of the fact that the earth so to be taken from said Franklin Street in the improvement thereof, had been appropriated by and did belong to the defendant, the city of Portland. That the defendant contractor, M. J. Connelley, at the time of submitting his bid for the improvement of said Franklin Street, based the said bid on the ownership of the earth of said street having been appropriated by the defendant, the city of Portland, and owned by it, and that other streets in the vicinity of said Franklin Street were about to be improved under a general plan therefor, and that the earth so to be taken from said Franklin Street could be and was to be used in the improvement of said streets in the vicinity of said Franklin Street. That his bid for said improvement was made much lower by reason of his said knowledge that said earth could and was to be used in the improvement of said streets in the vicinity of Franklin Street, and said bid was for an amount much lower than the same could have otherwise have been made without loss to the defendant contractors, all of which facts were and are known to the plaintiff herein, and unless these defendant contractors are permitted to use said earth they will be subjected to and will suffer a great financial loss in the carrying out of said contract with the city of Portland, and that, by reason of the bid of said contractors having been placed at said reduced amount, the assessment for said improvement as to the property benefited thereby will be greatly reduced.”</p> <p>Plaintiff’s reply denied the new matter set up in defendants’ answer. Upon the trial a decree was rendered against defendants, restraining them from further converting the earth claimed by plaintiff, and fixing plaintiff’s damages for that already converted at $2,500. Defendants appeal.</p>

From Multnomah: Calvin U. Gantenbein, Judge. Statement by Mr. Justice Bean.

<p>From Yamhill: William Galloway, Judge.</p> <p>Statement by Me. Justice Bean.</p> <p>This is a suit' brought by David Stout against M. Michelbook to restrain a trespass, involving the proper location of the dividing line between the lands of plaintiff and defendant, and, from a decree in favor of the latter dismissing the complaint, plaintiff appeals. Plaintiff is the owner in fee simple of the following described land:</p> <p>“Beginning at a point on section line 22 chains and 35 links south of the northwest corner of section 17, in township 4 south, range 4 west, in Yamhill County, State of Oregon, running thence south, 85 deg. east, 26 chains and 25 links, to the west line of the donation land claim of John G. Baker; thence south, 37 chains and 64 links, to the southeast corner of the donation land claim of Madison Shadden; thence west, 25 chains and 90 links, to section line; thence north, 39 chains and 91 links, to the place of beginning, containing 98.41 acres.”</p> <p>Defendant is the owner in fee simple of land adjoining that of plaintiff on the east, described as “a portion of the donation land claim of John G. Baker and Catherine Baker, his wife, claim No. 48, notification No. 1,214, in township 4 south, of range 4 west, of the Willamette meridian, in the county of Yamhill, and State of Oregon, beginning at the southwest corner of said donation land claim; thence east along the south boundary line of said claim, 14.07 chains, to a galvanized iron pipe 86"x2" set in ground. Thence running north, 50.13 chains, to an iron pipe Ii/2"x30" set in center of county road; thence running north, 84 deg. 19' west, along the center of said county road, 14.20 chains, to an iron pipe 1*4"xl3" set in center of said county road on the west boundary line of said donation land claim; thence south along the west boundary line of said donation land claim 51.41 chains to the place of beginning, containing 71.59 acres, more or less.” Plaintiff claims the true dividing line to be an old fence, and asserts title, by prescription, to the land up to such fence. Defendant claims the division to be that portion of the west line of the John G. Baker donation land claim No. 48, above described. Defendant purchased his land on April 24, 1908. He alleges that the boundary line is in dispute, and prays to have the same established.</p>

<p>Appeal and Error — Dismissal — Want of Actual Controversy — Expiration of Term of Office.</p> <p>In a proceeding by mandamus, requiring a county judge to render a verified statement to the county auditor of the amount due him for services each month since July, 1906, and to set out in detail the time he was absent from his office during that period other than on official business, as required by Section 3059, L. O. L., or to show cause why he should not do so, it appeared, on appeal from a dismissal of the cause, that the judge had resigned his office in May, 1910. Held, that as the controversy was at an end, and the conditions had so changed that any judgment rendered upon the appeal could not be made effective, the court would dismiss the appeal.</p>

From Multnomah: William N. Gatens, Judge. Statement by Mr. Justice McBride. This is an action by Robert T. Stewart against the Portland Railway, Light & Power Co., a corporation, to recover damages for an injury inflicted by a street car on defendant’s railway colliding with an express wagon owned and driven by plaintiff, whereby the wagon was broken, one of plaintiff’s horses killed, and plaintiff wounded and bruised.

<p>From Tillamook: George H. Burnett, Judge.</p> <p>Statement by Mr. Justice McBride.</p> <p>This is a suit brought by George Tone and Alice J. Tone, husband and wife, to enjoin defendant from interfering with plaintiffs in diverting water from defendant’s pipe line, and involves the construction of a deed from plaintiff’s grantor to defendant, the material part of which is as follows:</p> <p>“That we, Henry Lowry and Cora Lowry, his wife, of Tillamook County, State of Oregon, for the consideration of the sum of one dollar to us in hand paid, the receipt whereof is hereby acknowledged, and of the covenants and agreements hereinafter expressed, have given and granted unto Tillamook City, Oregon, a perpetual right of way over and across, and an easement in, the land hereinafter described, for the purpose of clearing, trenching for, laying, constructing, maintaining, operating, and repairing a pipe line for a water system for said Tillamook City; said land being described as follows, to wit: A strip of land twenty feet wide, across the S. E. 14 of the N. E. 14 of section 6 township two south range nine west of the Willamette meridian in Oregon, where the survey for the proposed Tillamook City water system has been made, or where the pipe line of said system may eventually be laid. To have and to hold the same unto the said Tillamook City, Oregon, for the uses and purposes herein set out. The said Tillamook City, Oregon, hereby covenants to and with the grantors herein, that they are to have the free use of water from said pipe line when the same shall have been completed, upon the compliance of the grantors with the following covenants: The said grantors, their heirs, executors, administrators, and assigns, hereby covenant to and with the said Tillamook City, that its officers, agents, or employees may at any and all times when necessary or convenient to do so, go over or upon said described strip of land, and to do and perform any and all acts necessary or convenient to the carrying into effect the purposes for which this grant is made; that neither they nor any or either of them shall disturb, injure, molest, or in any manner interfere with any pipe line or material for laying, maintaining, operating or repairing the same, in, over or upon said described premises, and that in the use of water from said pipe line when so laid, they and each of them shall be governed by, and comply with, all of the covenants of this grant, and also all of the rules, by-laws, ordinances and regulations, that may hereafter from time to time be made or adopted by the said city or its proper officers, for the management, government, operation or control of any water system installed or operated by said city, as far as the same may be applicable, provided that the use of water from said pipe line shall be restricted to a pipe not larger than one-half inch in diameter, and not more than two pipes.”</p> <p>Submitted on briefs without argument under the proviso of Rule 16 of the Supreme Court, 50' Or. 580 (91 Pac. VIII).</p>

<p>From Multnomah: William N. Gatens, Judge.</p> <p>Statement by Mr. Justice Moore.</p> <p>This is an action by John T. Brooks against the Northern Pacific Railway Company, to recover damages for the delay occasioned by defendant’s failure promptly to transport trunks and their contents. The complaint states, in effect, that defendant is a corporation engaged as a common carrier for hire between the places here-, inafter named; that on or about April 8, 1908, plaintiff purchased from defendant a ticket entitling him to a passage over its lines of railway from Forsythe, Mont., to Billings, in that state, from whence he had a ticket over such line to Butte, Mont.; that on April 8, 1908, at Forsythe, he “paid to the defendant the necessary and proper charge required by defendant for transporting two sample trunks containing shoes and belonging to said plaintiff, and requested the agent of said defendant to check the said trunks containing said samples for transportation by next train from Forsythe, Mont., to Butte, Mont., but that said agent carelessly and negligently checked the said trunks for transportation to Billings”; that during all the times herein mentioned plaintiff was a traveling salesman for the Brockton Co-operative Shoe Company, journeying at his own expense and receiving as compensation a commission on his sales; that he arrived at Butte on the morning of April 9, 1908, but in consequence of the defendant’s negligence in checking his trunks they did not reach that city until late in the day of April 11, 1908, and could not be used in his business until the following morning; that his employment required of him a solicitation of business' from patrons by exhibiting samples of shoes which he carried in such trunks, and by reason by their nonarrival at Butte for three days he was deprived of their use for that period; that during that time he incurred expenses of board, lodging, etc., to the amount of $16, and his services were reasonably worth $20 a day, or $60; and that in consequence of such negligence he had been damaged to the extent of $76, for which sum judgment was demanded. The answer admitted the incorporation of the defendant and the business in which it is engaged, but denied all other averments of the complaint. The cause was tried without a jury, and findings of fact and of law were made consistent with the averments of the complaint, except that plaintiff was deprived of the use of trunks and samples only 2í/¿ days and his expenses during that time were at the rate of $5.00 a day, and, having rendered a judgment against defendant for the sum of $62.50, it appeals.</p>

From Coos: James W. Hamilton, Judge. Statement by Mr. Chief Justice Eakin. This is an action of replevin by L. D. Pettyjohn and T. Nicols, partners doing business under the firm name and style of Pettyjohn & Nicols, against the Oregon Coal & Navigation Company, a corporation. From a judgment of the circuit court for plaintiffs, on appeal from a like judgment in justice’s court, defendant appeals.

<p>Criminal Law—Trial—Separation op Jury.</p> <p>1. Under the provision of Section 137, L. O. L., it is discretionary with the court to allow the jury to separate during the trial.</p> <p>Criminal Law—Appeal—Necessity op Exceptions.</p> <p>2. Defendant not having objected or excepted to the court’s failure at the noon recess and the adjournment for the day to admonish the jury not to converse about the case, or to its telling the jury they would be permitted to read the newspapers containing accounts of such trial, the procedure of the court in such respects cannot be considered on appeal.</p> <p>Criminal Law—Evidence—Res Gestae—Embezzlement—Ownership op Property.</p> <p>3. Testimony on a prosecution of an officer of a bank for embezzlement, that witness and defendant were incorporators of the bank, and gave their notes for $25,000 each for stock for which they subscribed, is admissible as part of the res gestae or history of the transaction, tending to prove the essential allegation that the bank owned said note of defendant, which was one of those mentioned in the indictment.</p> <p>Embezzlement—Evidence—Value op Property.</p> <p>4. A commercial agency statement of defendant’s financial condition, furnished by him at the time he gave his note to a bank, which is in the nature of a declaration by him on the subject of his wealth, is on his prosecution for subsequently embezzling it admissible, as material to make the necessary proof of value of the note.</p> <p>Embezzlement—Taking op Various Kinds op Property.</p> <p>5. The taking of various kinds of property may constitute but a single offense of embezzlement, depending on the time and circumstances thereof.</p> <p>Criminal Law—Reception op Evidence—Election.</p> <p>6. To require the prosecution to elect whether it will rely for conviction on embezzlement of money or notes, where the alleged duplicity does not appear on the face of the indictment, but only in the evidence, is purely in the discretion of the trial court.</p> <p>Indictment—Defects Cured by Verdict—Duplicity.</p> <p>7. Any duplicity in an indictment charging embezzlement of notes and of money is cured by a verdict finding defendant guilty of embezzling the notes; this being in effect an acquittal of embezzlement of the money.</p> <p>Indictment—Matters of Description—Surplusage.</p> <p>8. A “promissory note” being by that name, made a subject of larceny by Section 1947, L. O. L., and it being sufficient in charging a statutory crime to use the words of the statute defining the offense, it is unnecessary for the indictment for embezzlement of promissory notes to allege that the grand jury cannot give a more particular description; and such allegation, being made, may be disregarded as surplusage.</p> <p>Witnesses—Cross-Examination—Contradiction.</p> <p>9. The state on cross-examination of defendant may exhibit to him, and interrogate him on, an advertisement, of which as an officer of the bank he was the producing cause, containing a statement of the condition of a bank; it being his published statement of the matter therein set forth, and tending to contradict his testimony in chief as to the cash account of the bank.</p> <p>Witnesses—Contradiction—Evidence—Advertisement.</p> <p>10. An advertisement in a newspaper, published with defendant’s approval, and just as it was typewritten at his direction, and not the typewritten copy prepared for the printer, is the original for purpose of exhibition to defendant and cross-examination of him thereon to contradict his testimony in chief.</p> <p>Criminal Law—New Trial—Matters Affecting Jury.</p> <p>11. That some one tried to bribe a juror, and that he, on bringing to the court’s attention this fact, which was kept from the other jurors, was cautioned by the court not to allow it to affect in any manner his judgment or consideration of the case, does not call for a new trial; there being nothing to show that the reaction from the offer disturbed his equilibrium as a fair-minded juror.</p> <p>Criminal Law—New Trial—Misconduct of Juror—Discretion.</p> <p>12. The allowance or refusal of a new trial for misconduct of a juror is discretionary with the trial court, and not to be disturbed except for manifest abuse of discretion.</p>

From Multnomah: William N. Gatens, Judge. Statement Per Curiam. This is a suit for divorce by Annie P. Chambers against Robert Chambers, upon the grounds of cruel and inhuman treatment rendering life burdensome. Defendant answered, denying the facts averred as constituting the ground for divorce, and alleges that plaintiff has been guilty of cruel and inhuman treatment toward him, rendering his life burdensome, and asks for affirmative relief.

From Wasco: William L. Bradshaw. Judge, Statement Per Curiam. This is a suit by A. J. Dufur and Mary Dufur against W. F. Nelson, trustee, and the Great Southern Eailroad Company, a corporation, in which, on motion of plaintiffs, the Great Southern Land Company, was made a party defendant, to set aside certain deeds made by the plaintiffs to defendant Nelson, and by him to the Great Southern Land Company. From a decree in favor of plaintiffs, defendants appeal.

From Multnomah: John B. Cleland, Judge. Statement by Mr. Justice Bean. Ths is an action by M. C. Harrison against A. H. Birrell upon two accounts stated for premiums on marine insurance, written by plaintiff at the instance and request of defendant.

From Marion: William Galloway, Judge. Statement by Mr. Justice McBride. This is a suit by Charles A. Gray to restrain the Capital National Bank of Salem from transferring upon its books and returning to persons claiming to own the same, certain shares of stock in the defendant bank.

From Grant: George E. Davis, Judge. Statement by Mr. Justice Burnett. Joseph H. Caseday was jointly indicted with Emmett Shields, Earl Shields, Albert Green, and Ben Hinton for the premeditated murder of Oliver Snyder. The better to comprehend the situation it is proper to state that Canyon City, the county seat, is located near the center of Grant County.

From Josephine: Hiero K. Hanna, Judge. Statement by Mr. Justice Burnett. This is an action by W. T. Turnham against the Calumet & Oregon Mining Company.

<p>From Lane: Lawrence T. Harris, Judge.</p> <p>This is a suit by E. F. McBee against the Town of Springfield, a municipal corporation, B. F. Keeney, as Assessor of Lane County, Oregon; E. U. Lee, as County Clerk of Lane County, Oregon, and H. L. Brown, as Sheriff of Lane County, Oregon, to restrain the collection of certain municipal taxes on lands of plaintiff. From a decree dismissing the suit, plaintiff appeals.</p>

<p>From Multnomah: Jonn B. CLELAND, Judge.</p> <p>Statement by Mr. Justice Burnett.</p> <p>This is an action by Joseph C. Hall against N. C. Olson, for compensation for procuring a purchaser for defendant’s land.</p> <p>The plaintiff alleges that on August 14, 1908, the defendant employed him to effect a sale of 320 acres of timber land in Marion County at the price of $18,000, warranting that the land had thereon 40,000,000 feet of merchantable timber and agreeing to pay the plaintiff $1,000 for his services in bringing about the sale, no specific time being fixed for completing the transaction; and that within ten days thereafter plaintiff did negotiate a sale of the property upon condition that the premises contain that amount of timber, to be determined by scaling it, and requested the defendant to allow the purchasers, naming them, to cruise the land for that- purpose. The complaint also states that it was “agreed between this plaintiff and defendant that the purchasers thereof should have the privilege of having said timber examined and scaled, so as to determine the amount of timber thereon.” However, there is no testimony to support this agreement as a condition of the contract between plaintiff and defendant. It is further charged that the purchasers obtained by the plaintiff were ready, able, arid willing to purchase and pay for the land; that when plaintiff requested defendant to allow them to scale the timber he refused to do so and declined to make the sale; that by the terms of the contract between the parties the commission of $1,000 became due and payable from defendant to plaintiff as soon as the sale’ was consummated; and that when the defendant declined to complete the sale the plaintiff demanded from him payment of said commission, which was refused.</p> <p>The answer tenders the general issue to every allegation of the complaint, except as to defendant’s title to the land, and states in effect that the contract was made August 14, 1908, and provided that if the sale was concluded at $18,000 and the money realized thereon by the seventeenth of that month, but not thereafter, the defendant would pay the plaintiff $1,000 as commission, but that plaintiff did not procure a purchaser within the time or on the terms stipulated.</p> <p>The reply traverses the time limit and the alleged failure to produce a purchaser, as mentioned in the answer. From a judgment on a verdict of $1,000 for plaintiff, the defendant appeals.</p>

From Multnomah: William N. Gatens, Judge. This is a suit by Marshall-Wells Hardware Co. against Multnomah County and R. L. Stevens, sheriff of said county, to enjoin the collection of a tax levied and assessed upon certain personal property of plaintiff. From a decree in favor of defendants, plaintiff appeals.

<p>Navigable Waters—Use op Shores—Public Easements—Acquisition.</p> <p>1. The public cannot acquire a prescriptive right to use private property bordering on navigable water as a public landing to receive and discharge passengers and freight.</p> <p>Adverse Possession—Requisites.</p> <p>2. To acquire title by adverse possession the possession must be hostile, under a claim of right, actual, open, notorious, exclusive, and continuous.</p> <p>Ferries—Landing—Prescription.</p> <p>3. Where the owners of a ferry for a long time landed upon a riparian owner’s land during the several months of high water, and were more or less interrupted, sometimes by fences, and sometimes by the stage of the water, there is nothing to show that this was other than a permissive use, which might be revoked.</p> <p>Injunction—Subjects op Protection — Real Property — Constant Trespass.</p> <p>4. Where the owners of a ferry line constantly trespassed on the property of a riparian owner and threatened to continue it, the owner may obtain an injunction to prevent the repeated trespasses which would culminate in the establishment of an easement.</p>

From Multnomah: John B. Cleland, Judge. Statement by Mr. Justice McBride. This is an action by H. C. Browne & Co. against the J. P. Sharkey Co. The facts as disclosed at the trial are as follows: On September 4, 1908, defendant, entered into a contract with Lewis M. Head by the terms of which Head was to print and furnish to defendant 10,000 booklets, descriptive of Council Crest, an addition to the city of Portland, which defendant was preparing to place upon the market.

<p>From Marion: William Galloway, Judge.</p> <p>Statement by Mr. Chief Justice Eakin.</p> <p>This is a proceeding by writ of review by R. S. Cookinham and W. A. Thacher against John EL Lewis, H. L. Holgate and F. M. Saxton, comprising the Board of Control of the State of Oregon, and O. C. Finkelnburg, trustee. The facts as brought out at the trial are as follows:</p> <p>On March 10, 1909, plaintiffs filed with the State Engineer, John H. Lewis, an application for a permit to make an appropriation of 370 second feet of the waters of Powder River in Baker and Union counties, for 120 days, making 88,060 acre feet, to be diverted in section 26, township 6 S., range 40 E., W. M., for the purposes of power and domestic use and to irrigate 30,000 acres of land in township 7 S., ranges 40 and 42 E., township 8 S., ranges 41, 42, and 43 E., and township 9 S., ranges 42 and 43 E., and to construct a storage reservoir to impound the waters of Powder River in Thief Valley with a capacity of 60,000 acre feet, at an estimated cost of $500,000. On March 31, 1909, at 8 A. M., they filed a supplemental application for an additional quantity of water for irrigation upon certain lands, some of which were included in the former application. On the same day at 4:30 P. M., O. C. Finkelnburg, trustee, filed an application with the State Engineer for a permit to construct a storage reservoir in Thief Valley for the storage of waters of Powder River for irrigation, the dam therefor to be in section 26, township 6 S., range 40 E., at an estimated cost of $200,000. Thereupon, on April 12, 1909, the State Engineer, being of the opinion that the proposed use in each case would be a menace to the safety and welfare of the public, referred such applications, by letter, to the Board of Control, with this statement:</p> <p>“The proposed use in each of the following cases are a menace to the safety and welfare of the public. * * Prior to the examination of these applications, and on March 30, 1909, the vacant and unappropriated lands included in the area described in those applications were withdrawn from entry under the public land laws of the United States by the Secretary of the Interior for irrigation by the State under the Carey Act, or by the United States under the reclamation act. * * Such withdrawal was made at the request of the State Land Board, by order dated March 23, 1909.”</p> <p>On September 11, 1909, after a full hearing, the Board of Control directed the State Engineer to refuse the applications of the party or parties not securing final contract with the Desert Land Board for the reclamation of said lands; and that he approve the application of the party securing such a contract. Plaintiffs, on December 20, 1909, filed a petition in the circuit court for Marion County, State of Oregon, for a writ of review, reciting in full the facts above mentioned and the writ was duly issued the same day. The return to the writ contains the transcript of the proceeding before the Board of Control, together with a full transcript of the evidence produced before the board. At the hearing upon the return, the circuit court sustained the writ and directed the dismissal of the proceeding before the Board of Control, for the reason, that it had no jurisdiction of the proceeding, and defendants appeal therefrom to this court.</p>

From Multnomah: Earl C. Bronaugh, Judge. Statement by Mr. Justice McBride. This is an action by Edward Plinkiewisch, administrator of the estate of Otto Brandes, deceased, against the Portland Railway, Light & Power Company, a corporation. The facts as disclosed at the trial are as follows: Plaintiff’s intestate was struck and killed by one of defendant’s street cars, and this is an action to recover damages sustained by his estate by reason of such accident.

From Multnomah: William N. Gatens, Judge. Statement by Mr. Justice McBride. This is a suit by the Alaska Plumbing Company, a corporation, against Willie E. Bingham, Ralph R. Cone and Joseph Brouillat. The facts are as follows: On August 15, 1908, Ralph R. Cone entered into an executory contract with defendant Mrs. Willie E. Bingham for the purchase of a house and two lots in Brainard, Multnomah County.

From Polk: William Galloway, Judge. Statement by Mr. Justice McBride. This is a suit by E. C. Kirkpatrick to restrain the City of Dallas and T. A. Odom, city marshal, from levying upon and selling plaintiff’s real property for the collection of an alleged delinquent assessment.

<p>From Malheur: George E. Davis, Judge.</p> <p>Statement by Mr. Chief Justice Eakin.</p> <p>Plaintiff alleges that it is the owner of 3,037 inches of water, miner’s measurement, under six-inch pressure, of the waters of Malheur River, diverted therefrom at a point in section 21, township 18 S., range 41 E., W. meridian, in Malheur County, Oregon; that such right was acquired on July 12, 1881, for irrigation of lands of the plaintiff’s stockholders in sections 20, 19, 17, and 18, township 18 S., range 46 E., and sections 23 and 24, township 18 S., range 45 E., which is prior in time and superior in right to any diversion by defendants; that defendants, without right, divert water by means of a ditch and dam from the river at a point in section 3, township 19 S., range 43 E., above plaintiff’s point of diversion, in large quantities, which deprives plaintiff of the amount of water to which it is entitled, to its great injury and damage; and that they threaten to, and unless restrained will continue to, wrongfully divert the same. Plaintiff also alleges that it prosecuted the suit of the Nevada Ditch Company v. Bennett, 30 Or. 59 (45 Pac. 472: 60 Am. St. Rep. 777), to final decree, establishing its rights, above mentioned, as dating from July 12, 1881, and fixing its amount of diversion at 2,000 inches of water, final decree therein having been entered June 29, 1896. Plaintiff asks that it be adjudged to be the owner of 3,037 inches of water prior and superior to defendants, and that they be enjoined from preventing the flow of that amount of water to the head of plaintiff’s ditch.</p> <p>The defendants deny that plaintiff is the owner of the water right alleged, or that it dates from July 12, 1881, or that it has acquired a right to 3,037 inches thereof, or any othér amount prior to the defendant, and allege that the predecessor in interest of defendant company, J. B. McLaughlin, in February, 1881, entered upon the channel of Malheur River in section 3, township 19 S., range 43 E., the same being at that time unoccupied government land, and posted a notice of a water right thereon, claiming 5,000 inches; that they thereupon commenced the construction of the ditch, and thereby diverted 2,500 inches of water, which diversion was completed during the year 1883, for irrigation upon the S. i/¿ of section 6, and upon section 8, township 19 S., range 44 E., and sections 2 and 12, township 19 S., range 43 E., which, at that time, were government lands. J. B. McLaughlin, S. P. Stacey, and others occupied portions of these lands, and they anticipated the immediate settlement of parts thereof by others, including these defendants, and their predecessors in interest; large portions of the lands lying under the contemplated ditch and subject to irrigation therefrom, such ditch being known as the “McLaughlin ditch.” Defendants further allege that the ditch and appropriation thereby is prior in time and right to any claim by plaintiff, that defendants’ rights in the McLaughlin ditch or those of their predecessors in interest were not involved in the suit of Nevada Ditch Co. v. Bennett, 30 Or. 59 (45 Pac. 472: 60 Am. St. Rep. 777), and therefore they are not bound thereby.</p> <p>The testimony was taken before a referee from which the court found that defendants have a prior right to 1,000 inches of water, and rendered a decree accordingly. Plaintiff appealed therefrom, and defendants also appeal from that part of the decree which limits their right to 1,100 inches of water.</p>

<p>J jANDLORD AND TENANT-LEASE-RIGHT TO SUBLET.</p> <p>J. A lease of premises, including three occupancies for a monthly rental in gross, executed to R. March 13, 1909, provided that the lessee will occupy the premises for saloon purposes only, and will not assign the lease, or his interest therein, without the written consent of the lessor, and that the terms of the tenants in possession of the premises expire March 31, 1909, and that, ii the tenants fail to give possession on that date, the term on which the premises are leased shall commence when the lessor shall recover possession of the premises. Held, that the lease prohibited R. from making any lease except for saloon purposes, and then only with the written consent of his lessor and M., one of the tenants of the lessor, claiming as subtenant of R., under a lease executed before R. had obtained possession, who does not show a compliance with the conditions, has no rights to the premises as against the original lessor.</p> <p>Landlord and Tenant—Rights of Lessor—Estoppel.</p> <p>2. The original lessor did not, by recognizing R. as lessee and accepting rent from him before other tenants had vacated the premises, waive the stipulation that the tenancy was not to begin until possession was obtained, so as to preclude him from maintaining forcible entry and detainer against M., the sublessee.</p>

<p>Appeal and Error—Review op Facts—Conclusiveness op Findings.</p> <p>1. Findings of the court in a cause tried without a jury have the force and effect of a verdict, and cannot be disturbed where there is any competent evidence to support them.</p> <p>Trover and Conversion—Measure op Damages.</p> <p>2. The measure of damages in trover, where plaintiff neither alleges nor shows special damage, is the value of the property at the time of the conversion with interest to the trial.</p> <p>Trover and Conversion—Complaint—Allegations as to Damage— Special Damage.</p> <p>3. Where a complaint in trover for the conversion of a horse and wagon does not allege special damage on account of the owner’s loss of their use from the time of taking, such damages are not recoverable.</p> <p>Trover and Conversion—Actions—Evidence—Extent op Damage.</p> <p>4. In an action for conversion, evidence of the value of the property within a reasonable time both prior and subsequent to the conversion is admissible to show its value at the time of the conversion.</p>

From Marion: William Galloway, Judge. Statement by Mr. Justice Bean. This is a suit by Fred Dose against the Bank of Wood-burn and J. M. Poorman to have a bill of sale and a deed declared to be mortgages, and to require defendants to convey to plaintiff the property therein described.

From Gilliam: William L. Bradshaw, Judge. Statement by Mr. Justice Burnett. This is an action by C. F. Armstrong against A. S. Hollen.

From Union: John W. Knowles, Judge. Statement by Mr. Justice Moore. This action is based on the factory inspection act (Section 5040 et seq., L. O. L.), and was instituted by Joseph M. Wills against the George Palmer Lumber Company, a corporation, to recover damages for a personal injury. The defendant owns and operates a box factory, a part of the machinery of which consists of a circular saw projecting three inches above the surface of a table.

<p>From Morrow: Henry J. Bean, Judge.</p> <p>Statement by Mr. Justice Burnett. '</p> <p>The defendant herein, E. C. Maddock, was indicted by the grand jury of Morrow County for selling intoxicating liquor in violation of the local option law. He pleaded not guilty. The case was tried by the court without a jury, in pursuance of a stipulation which recited certain facts, leaving the court to pronounce judgment thereon. By the stipulation, it was agreed, in substance, that the facts alleged in' the indictment are true; but the defendant contends that the acts narrated therein are not violative of any statute of the State, for the reason that the county court of Morrow County never made any valid order prohibiting the sale of liquor in the county. The stipulation further states that an entry was made in the commissioners’ journal of that county, on June 12, 1908, that being the eleventh day after the general election held on the first Monday in that month, and at the time fixed by law for holding a special session of the county court, which order recites that, upon a canvass of the votes on the question of prohibition of the sale of intoxicating liquors for beverage purposes in the entire county of Morrow, there appeared to be 709 votes for and 469 against prohibition, whereupon the court ordered that the sale of intoxicating liquors within the entire county be and the same is hereby, absolutely prohibited, except for the purposes and under the regulations specified in the local option law. It was conceded that all acts and requirements pertaining to the local option election were regular and as required by law, and were all duly performed, except the making of the order of prohibition. It was agreed that the May term of the county court adjourned finally May 7, 1908; that no term was appointed by the court itself, or the judge thereof, for the month of June; that, as appears by the journals of the county court, no business of any kind was transacted in the court until June 4, 1908, and, except some orders in probate, no other business appears on the journal, until the entry of the order in question on June 12, 1908. The parties apparently treated this stipulation as a special verdict under the provisions of Section 1548, L. O. L., and took the judgment of the court as to the legal effect of the facts thus agreed upon. The court determined upon the stipulation that the defendant was guilty as charged in the indictment, and fined him $100, from which judgment he appeals.</p>

<p>Deeds—Construction—Inducement to Contract—Abutting Streets.</p> <p>1. A deed to a lot described by reference to a map prepared by the grantor implies a representation to the purchaser as an inducement to purchase that a street shown by the map and furnishing the only outlet has been dedicated, though the map is not recorded and the street line is not indicated thereon.</p> <p>Dedication—Nature—Parol—Streets.</p> <p>2. A street can be dedicated by parol.</p> <p>Dedication—Essentials—Intent to Dedicate.</p> <p>3. The public or individuals can rely on a landowner’s conduct as indicating intent to dedicate a strip as a street, regardless of his actual intent.</p> <p>Dedication—Evidence—Character.</p> <p>4. Intent to dedicate can be established by any class of satisfactory evidence, including presumptive evidence.</p> <p>Dedication—Presumptions—Rebuttal.</p> <p>5. Presumption of dedication arising from a landowner’s conduct is rebuttable, except where its . overthrow would operate as a fraud upon innocent parties.</p>

From Douglas: James W. Hamilton, Judge. Statement by Mr. Chief Justice Eakin. This is an action by A. M. Gallagher against W. J. Kelliher and - Sawyer in ejectment.

From Columbia: Thomas A. McBride, Judge. Statement by Mr. Chief Justice Eakin. John Daly, this defendant, commenced an action in ejectment against this plaintiff, Newton J. Parker, to recover the E. y.% of the S. E.14, section 27, township 5 N., range 4 W., W. M., in Columbia County.

From Union: JOHN W. Knowles, Judge. Statement by Mr. Justice McBride.

From Multnomah: John B. Cleland, Judge. Statement by Mr. Chief Justice Eakin. This is an action by Milton W. Smith against J. C. Bayer and Peter Hobkirk on a promissory note given by defendants to the Concordia Loan & Trust Company, of Kansas City, Mo., bearing date of January 30, 1896, in the sum of $290, with interest at 10 per cent, and containing a provision for attorney’s fees in case of action thereon.

<p>From Union: Henry J. Bean, Judge.</p> <p>Statement by Mr. Justice McBride.</p> <p>This is a suit by Anna Oliver to restrain Fred Synhorst as street commissioner of the City of La Grande, from removing plaintiff’s fence, and destroying certain shrubs and trees upon lands inclosed by plaintiff, under the claim that such premises are situated upon a public street in the City of La Grande. The contentions of the parties are fully set forth in Oliver v. Synhorst, 48 Or. 292 (86 Pac. 376: 7 L. R. A. [N. S.] 243), and will not be re-stated here.</p> <p>Statement by Mr. Justice Burnett.</p> <p>The pleadings and the law of this case were settled by the decision of this court reported at 48 Or. 292 (86 Pac. 376: 7 L. R. A. [N. S.] 243). Much of the complaint had been stricken out on motion in the circuit court, and the propriety of that ruling was the only question considered here on the first appeal. The effect of our decision on that appeal was to reinstate the matter thus excluded and allow the plaintiff to prove the same, if she could, at a new trial in the court below. The second hearing in that court resulted in a decree dismissing the suit, and on the second appeal in an opinion by Mr. Justice McBride (109 Pac. 762) the disposition of the case by the circuit court was affirmed. A rehearing in this court having been granted, we have listened to exhaustive arguments on the facts and have carefully studied the testimony reported in the record, and it remains to determine anew whether the complaint is substantially proven.</p> <p>Affirmed.</p> <p>Decision Approved on Rehearing.</p>

<p>Mortgages—Release—Reinstatement.</p> <p>1. A purchaser of incumbered land contracted to purchase before the mortgage was released. He did not pay any part of the price after the release on the faith thereof. The mortgage was released by mistake. Held, that the mortgagee was entitled to a reinstatement of the mortgage as against the purchaser.</p> <p>Mortgages—Construction—Apportionment op Mortgage Debt.</p> <p>2. A mortgage of 400 acres, stipulating that, in case the mortgagor shall sell any part thereof and turn over, to the mortgagee, cash! or notes received from the purchaser, such an amount per acre as is agreed to by both parties, not to exceed an average on the whole tract of $23.75 per acre, the mortgagee will relinquish from the mortgage the part so sold, makes an apportionment of the mortgage so that a lien of $23.75 of the principal thereof is created on each acre of the land in the mortgage, and a purchaser of a parcel, who pays at least $23.75 per acre, is entitled to a discharge of the mortgage on the part purchased.</p> <p>Mortgages—Construction—Apportionment op Mortgage Debt.</p> <p>3. An agreement by a mortgagee for the apportionment of the debt is valid and enforceable on a strict compliance with the conditions thereof, and the right inures to the benefit of a grantee of a part of the mortgaged land, though not to a purchaser of the premises at an execution sale.</p> <p>Mortgages—Construction—Apportionment op Mortgage Debt.</p> <p>4. Where a mortgage contains no stipulation for the apportionment of the debt, and the debt secured is not in any way apportioned, and the mortgagor with the knowledge of the mortgagee sells a part of the premises to a third person and receives payment thereof, the mortgagee must not release any part of the property remaining, and, where he does so, the purchaser may insist on a credit on the mortgage of a sum equal to the value of the property released.</p> <p>Mortgages—Construction—Apportionment op Mortgage Debt.</p> <p>5. Where a mortgagor and his assigns have a right under the mortgage, on the payment of a specified sum per acre, to have any part of the mortgaged premises released, each purchaser from the mortgagor buys subject to that provision, and, where he fails to procure a release from the mortgagee of the part purchased according to the conditions of the mortgage, no part of the money paid for other portions may be applied toward a discharge of the mortgage debt pro tanto, as against the part purchased by him.</p> <p>Mortgages—Construction—-Apportionment op Mortgage Debt.</p> <p>6. Where a mortgage securing a note hearing interest from its date provided for a release of any part of the mortgaged premises on the payment of a specified sum, the mortgagee was not required to release a part on the payment of the specified sum without interest from the date of the note.</p> <p>Appeal and Error—Findings—Review.</p> <p>7. Where the evidence is not in the record, the court on appeal will not review the findings, but they will stand.</p> <p>Appeal and Error—Disposition op Case on Appeal.</p> <p>8. Where it does not appear, either from the record on appeal or from the briefs or arguments of counsel, that a different state of facts would he made from those found by the trial court if the case was remanded, the Supreme Court will not remand the case, hut will render the proper judgment.</p> <p>Vendor and Purchaser—Forfeiture op Rights of Purchaser— Obligation op Vendor.</p> <p>9. The failure of a purchaser to pay the price on the date fixed in the contract does not produce a forfeiture unless time is of the essence; hut the vendor must tender a deed and demand performance.</p> <p>Mortgages—Apportionment—Liability op Respective Purchasers.</p> <p>10. Where a mortgage apportioned the debt, parcels purchased should not he burdened with the principal of or interest on the mortgage debt apportioned to other parcels.</p>