author: ME. JUSTICE HOLLOWAY Me. Justice MilbueN :

text:
    COLEMAN, Respondent, v. PERRY et al., Appellants.
    (No. 1,506.)
    (Submitted March 21, 1903.
    Decided April 6, 1903.)

      Master and Servant — Injury to Employe — Motion for Nonsuit —Question for Jury — Defective Machinery — Assumption of Bish — Instructions—Pleading.
    1. On motion for a nonsuit every fact will be deemed proved which the evidence tends to prove.

      2. Evidence in an action by an employe for injuries received from maehiney held sufficient to warrant tbe submission of plaintiff's case to tbe jury, and that a motion to nonsuit was properly denied.
    3. Whether a laundry mangle is defective is a proper subject for expert evidence.
    4. Code of Civil Procedure, Section 1173, Subdivision 1, authorizes a new trial for any irregularity or abuse of discretion preventing a fair trial. Section 1172 requires that when application is made for such a cause it must be upon affidavits. Held, that the failure to show by affidavit an alleged error of the court in commenting on the probable effect of evidence at the time of its reception precludes its review on appeal.
    5. The question whether the danger of operating a particular laundry mangle is so obvious that an inexperienced employe could not fail to notice and avoid it in exercising ordinary care, is for the jury.
    6. Civil Code, Section 4330, provides that for the breach of an obligation not arising from contract the measure of damages is the amount which will compensate for all the detriment proximately caused thereby, whether it could have been anticipated or not. Held, that an instruction, n an action by an employe, that, if she was injured by defendants’ negligent, she was entitled to recover what would compensate for all damage “proximately caused by the negligence of defendants, whether such damage could be anticipated or not,” was not objectionable for failing to specify by whom the damage need not be anticipated, where there is ho showing in the record that appellants asked for any more definite declaration upon the subject.
    7. The doctrine of assumption of risk has no application to a case where an inexperienced laundry employe is directed to feed a mangle, the work requiring experience, and the employe receiving no instruction, notice, or warning of defects. -
    8. under Code of Civil Procedure, Section 720, requiring a reply only when ■ the answer contains a counterclaim, failure to reply in a personal injury case does not admit allegations of contributory negligence.
    Me. Justice Milbubn dissenting in part.

      Apyeal from District Court, Silver Bow County; John Lmdr

    ActxoN by Elizabeth Coleman against Oliver N. Perry and others. Eromi a judgment in favor of plaintiff and from an order denying a motion for a new trial, defendants appeal.
    Affirmed.

      Messrs. Hamilton & Thresher, for Appellants.
    When all tbe facts upon which the opinion is founded can be ascertained and made intelligible to the court or jury, the opinion of .witnesses is not to be received in evidence. (Sappenfield v. Main St. By. Co., 27 Pae. 590 (Cal.) ; Ferguson v. Huhlle, 97 N. Y. 507.)
    The remarks of the court in the presence of the jury was prer judicial error. (Sappenfield, y. Main St. Byi Ca., 27 Pae. 593 (Cal.) ; Nalley v. Carpet Go., 51 Conn. 524; Morse v. By. Go., 30 Minn. 465; Corcoran v. Peekskill, 108 N. T. 151.)
    An employe knowing the nature of the service to be rendered and being able to foresee or anticipate any danger or injury that may come to him- or her because of such employment, is presumed to have assumed the risk of such employment and can not recover. (Goodwell v. M. C. By. Go., 18 Mont. 298; Ghicago By. Go. r. Boss, 112 TJ. S. 377; 14 Am. & Eng. E'nc. of Law*, page 852; Journecmcc v. Stafford Go., 81 N. W. 259;' Sappenfield v. Main St. By. Go., 21 Pae. 593 ;.DeForest v. Jew-ett, 23 Hun. 490; Bicharás v. Bough, 18 N. W. 785.)
    Conflicting and contradictory instructions upon a material point are misleading to the jury and ground for reversal. (Heil-hromier v. Lloyd, 11 Mont. 307; Flick v. Miming Go., 8 Mont. 305.)
    The trial court correctly stated the law in instruction No. 12. (McAndrews v. By. Go., 15 Mont. 290; 14 Am. & Ehg. Ehcy. of Law, page 852.)
    If the plaintiff knew that the machine in question was out of repair in such a way as to be dangerous to her, and failed to mention the fact to her employers^ and continued to operate it without complaint, she is presumed to have undertaken the risk and cannot now recover. (Bogenschutz v. Smith, 1 S. -W. 578 (Ky.) ; Laving v. By. Go., 49 N. T. 521; Kelly v. By. Go., 29 N. W. 173 (Minn.)

      Mr. Guy L. Beed, Mr. Peter Breen, and Mr. Bobvrt McBride, for Respondent.
    Master is bound to furnish reasonably safe machinery for the use of his servants. (Beach on Negligence, p>. 350; 2 Thompson on Neg. p. 972; Sherman & Redfield, p. 197; Bailey, Masters’ Liability, Chap. II; Johnston v. B. & M. Go., 6 Mont. 178.).
    ■ When one who is known to be an inexperienced person is put to work upon dangerous machinery the employer is bound to give him such instructions as will cause him to fully understand the danger attending the employment and the necessity for care. (Verdelliv. Grays Harbor Commercial Company, 47 Pac. 364; Ingerman v. Moore, 90 Cal. 410, 27 Pac. 306; Jones v. Mining Co., 66 Wis. 277, 28 N. W. 210; Verdelli v. Grays Harbor Commercial Co., Ml Pac. pp. 365-367; Nadeau v. White Biver Lumber Co., 43 N. W. 1138; Neilon v. M. & M. Paper Co., 44 N. W. 774; Wolshi v. Knapp, Stout & Co., 63 N. W. 87; Arizona Lumber Co. v. Mooney, 33 Pae. 590-592; McDougall v. Ashland Sulphite-Fiber Co., 73 N. W. 330.)
    One who is well acquainted with the use of a mechanical appliance is competent to. testify as to whether such an appliance was reasonably adapted for the purpose for which it was. used, and also as to its condition at the time of the accident. (Bailey, Masters’ Liabilities., p. 534 and cases cited; Alabama Connells-ville Coal & Iron Co. v. Pitts., So. Kepi 13, 135; Blogett Paper Co. v. Farmerj 41 N. H. 389.)
    Evidence of similar accidents resulting from the same cause is competent to showi dangerous condition of machine. (Bailey on Masters’ Liabilities, pp-. 515 and 520; Morse, Admix, v. Minneapolis & St. L. B. B., 16 N. W. 358; Quinlan v. Utica, 11 Hun. 217, affirmed, 74 N. T. 603; District of Columbia v. Armes, 107 IT. S. 519.)
    A wrong reason for a correct ruling will not invalidate the ruling. (Brown v. Barnes, 39 Mich. 211; Hayne, New Trial and Appeal, p*. 384, and cases cited.)
    Errors in law are errors in rulings made by the court upon questions presented during the trial. (Hayne, New Trial and Appeal, p. 100.)
    An irregularity of the court is not an error of law, within the meaning of the law. Elrors in law only occur when there are rulings made at the trial upon questions of law. (Hayne, New Trial and Appeal, p>. 29.)
    The statement itself was not the ruling, and if appellant’s contention is correct, that the court did not correctly state the law, it is not an error of law bnt rather an irregularity on the part of the court. (McMirm v. Whelan, 27 Cal. 320.) Our Code has provided that in such case the application for a new trial must be made upon affidavits. (Sections 1171 and 1172, Code of Civil Procedure.)
   ME. JUSTICE HOLLOWAY

delivered the .-pinion of the court.

This action was brought by the plaintiff, Elizabeth Coleman, • against the defendants, as copartners operating the Union Steam Laundry, in. Butte, Montana, to recover damages for personal injuries received by her while at work in that laundry. The plaintiff claims that she was employed to check the laundry when it came in, to fold it after it had passed through the different processes of laundry, and cheek it out again; that on Eebruary 3, 1896, she was directed by one of the defendants to work on the mangle or ironing machine, feeding the fabrics¡ into it; that while engaged in this occupation, without any negligence on her part, her hand was caught, crushed, and burned in the mangle, by reason of which she suffered great personal injury and damages. She further claims that the defendants were guilty of negligence in keeping, for use and permitting to be used an ironing machine which was out of’repair, and in an unsafe condition for operation. The answering defendants deny any negligence on their part, plead contributory negligence on the part of the plaintiff, and set up in their answer that the danger incident to the operation of the mangle was one of the risks of the employment, which the plaintiff assumed when she went to work. Upon the trial of the cause, at the close of the plaintiff’s testimony, the defendants interposed a motion for nonsuit, which was overruled. Among others the court gave instruction No. 2, which is as follows,: “The court instructs the jury .that if the jury find from the evidence that plaintiff has been injured by the negligence of the defendants, substantially as set forth in her complaint, then she is entitled to> recover from the defendants such an amount as will compensate her for all tbe damage proximately caused by the negligence of defendants, whether such damages could be anticipated or not.” The jury returned a verdict in favor of plaintiff for $2,100, and from the judgment and an order denying defendants’ motion for a new trial these appeals are prosecuted.

The contention of the plaintiff was that she was employed to do particular work which would not, in any event, bring her into contact with the laundry machinery; that she had had no' previous experience in laundry work;, that she knew nothing whatever about the machinery; that, as a matter of fact, the mangle in use was out of repair, and in a dangerous condition; that the rollers were not operating evenly; that it was necessary for the person feeding it to place the left hand much nearer the rollers than the right, in order to get the fabrics through; that all of these facts were unknown to her; that there was no guard on the machine to protect the "operator; but, notwithstanding her inexperience, and the fact that she had been employed to do other work, she was directed by one of the copartners on the morning of her injury to feed this mangle; that she was not cautioned, instructed, or notified as to the dangerous character of her employment; and that it was without fault on her part that she received the injury. The evidence offered on her behalf tended to prove this contention, and under the rule, well established, that on motion for a nonsuit every fact will be deemed proved which the evidence tends to prove (State ex rel. Pigott v. Benton, 13 Mont. 306, 34 Pac. 301; Morse v. Granite County Commissioners, 19 Mont. 450, 48 Pac. 745; Cain v. Gold Mt. Mining Co., 27 Mont. 529, 71 Pac. 1004), the evidence should have gone to the jury, and the motion for nonsuit was properly denied.

Complaint is made that the witnesses Lewis and Stanhope, for the plaintiff, were each permitted to state, in answer to a hypothetical question, that, in his opinion, the mangle was out of repair. The contention is that, a description of the machine having been given by other witnesses, the jurors were as well qualified to say whether or not the machine was out of order as the witnesses whose opinions were given; or, in other words, that this was not an instance where expert testimony should have been received. We are of the opinion, however, that the evidence was properly admitted. We cannot say, 'as a matter of law, that -the jurors were as competent to pass upon the safety, of the appliances used as men who had special kno wledge, gained from years of experience in handling such machinery. (Lawson, Expert and Opinion Evidence (2d Ed.) 78.) In Lau v. Fletcher, 104 Mich. 295, 62 N. W. 357, the court had under consideration a personal injury case. The undisputed facts were that a circular saw used in a pulpmill having been broken, the employer took another saw, which had a crack in it, had some repairing done on it, put it in place, and, the employe having been injured when this saw broke,' it became a material question as to whether the employer had used reasonable care in providing safe appliances for his employe to use. In support of his contention that he had not been guilty of negligence, the employer offered and had admitted in evidence the opinions of experts to the effect that the saw used was suitable and safe for use, and upon this the supreme court, makes this comment: “We think the testimony was properly admitted. It cannot be said that one unfamiliar with the use of such machines is as competent to judge of their safety and fitness as those experienced and skilled in their use, and who have knowledge of their construction.”

IJpon cross-examination of one of the defendants, plaintiff’s counsel sought to show that soon after plaintiff was injured the defendants undertook to put a guard on the mangle, and in ruling upon an objection ntadé by counsel for defendants, the district court used this language: “I shall allow the testimony sought to be adduced to go to the jury, believing that, if it can be shown that the defendants here realized that the machine in question was defective, and that they sought, within a few days after the injury to this plaintiff, or after the alleged injury, to cure or remedy such defect, for the reason that it would tend to show that at the time of the injury the machine was then defective. The witness may answer the question.” Exception was taken to the language used by the court in the presence of the jury, and it is now urged here that this was prejudicial error. If error was committed, it was because of the irregularity or abuse of discretion, on tire part of the tidal court, in thus freely expressing before the jury an opinion upon the probable effect of evidence. If the language of the court so used constituted error, it is one of the designated causes for which a new trial may be granted. (Section 1171, Subd. 1, Code of Civil Procedure.) However, such error can only be shown by affidavit, otherwise it is not properly in the record or before this court (Section 1172, Code of Civil Procedure); and, as the alleged error was not so saved, consideration of the matter is not prop'erly before this court upon this hearing. In this connection it may be said that we are not asked to pass upon the action of the court in admitting the evidence with reference to which the remarks weie made.

It is further contended on the part of the defendants that the danger of operating this mangle was a risk incident to the employment of the plaintiff, and one which she assumed when she went to work. The question whether or not the dangers of operating this particular machine were so obvious that even an inexperienced person could not fail to notice and avoid them, if exercising ordinary care and prudence, was for the jury’s solution under proper instructions.

Particular complaint is made of instruction No. 2, above'. Under Section 4830 of the Civil Code, which provides : “For the breach of an obligation not arising from contract, the measure of damages, except where otherwise expressly provided by this Code, is the amount which will compensate for all the detriment proximately caused thereby, whether it could have been anticipated or not,” we are of the opinion that the instruction is not open to the objection made to it-. In any event, there is no showing in the record that the defendants asked for any more definite- declaration upon the subject.

There is no dispute in the record that the plaintiff was employed to check and tally tbe articles of laundry, and in the discharge of this duty she did not come in contact with the laundry machinery at all. In view of the plaintiff’s testimony that she knew nothing whatever about the machinery, and the defendant Congdon’s testimony that the feeder of the mangle must know' her business, and that he did not know whether the plaintiff had any knowledge of the machinery or not, and her further testimony that she was directed by Coddington, one of the co-partners, one of the defendants, and the foreman of the laundry, to feed the mangle on the morning of the accident, and that she received no instructions, notice, or warning, it is pertinent to suggest that the rule that employes assume the risks incident to the employment has no application to the facts of this case as found by the general verdict of the jury. In Felton v. Girardy, 43 C. C. A. 439, 104 Fed. 121, the court, after stating, the general rule, said: “But when a servant is ordered by one-having authority over him to do a temporary work beyond the work which he had engaged to- do-, and the superior knows, or ought to know, from all the circumstances of the case, that the work which the subordinate is directed to- do is of a peculiarly dangerous character, and is aware, or under the circumstances shoiild be aware, that the risks and hazards of the work, or the proper mode of doing the work to avoid the incident risks> are not obvious or known and appreciated by the subordinate, by reason of his youth, incapacity, or inexperience, it is the duty of the superior to caution and instruct such disqualified servant sufficiently to enable him to understand the dangers he will encounter, and how to do the work with safety if he exercise due care himself. (Leary v. Railroad Co., 139 Mass. 580, 2 N. E. 115, 52 Am. Rep. 733; Cole v. Railway Co., 11 Wis. 114, 37 N. W. 84, 5 Am. St. Rep. 201.) * * * The principle is that, if an employer knows that the servant will be- exposed to risks and dangers in any labor to which he assigns him, and is aware that the servant is from any cause disqualified to know, appreciate, and avoid such dangers, the dangers not being obvious, the master is guilty of a breach of duty, unless he gives such reasonable cautions and instructions as should reasonably enable the servant exercising due care to do the work with safety to bimself.”

It is further contended that the allegations of contributory negligence contained in the defendants’ answer, being undenied by’ a reply, are admitted. At the time the pleadings were prepared and the issues made up-, Section 720 of the Code of Civil Procedure was in force, and a reply was required only when the answer contained a counterclaim. This section was afterwards amended by Act of the Sixth Legislative Assembly (Laws of 1899, p. 142), but this was long after the issues were made up in this action.

The other particulars to which our attention has been called do not merit special mention.

The evidence is sufficient to sustain the verdict. We find no» error in the record.

The judgment and order appealed from are affirmed.

A -/firmed.

Me. Justice MilbueN :

I dissent. A jury trying a damage suit wherein a woman is trying to recover compensation for injuries to her hand which has been crushed and mutilated by the defendants’ machine, in my opinion, should not be given an instruction such as No: 2 herein. This instruction is not in the language of the Civil Code, Section 4330, quoted by Me. Justice Holloway. If the instruction, like the section of the Code, be ambiguous, in that it does not say in plain language that the defendant, and not the plaintiff, is. referred to as the person who could or could not anticipate the detriment, then it should not have been given. It would not, in my opinion, relieve the situation to say that the section of the Code is as ambiguous as the instruction. The language of the Code is not always, a safe and sure means of conveying thought, or of stating the law to a juror. (State v. Baker, 13 Mont. 160, 32 Pac. 647; State v. Shafer, 26 Mont. 11, 66 Pac. 463; State v. Felker, 27 Mont. 451, 71 Pac. 668.) As was said in tbe Shafer Case: “Jurors are not learned in tbe law. Ordinarily, they have not experience and knowledge sufficient to enable tbem to draw nice distinctions necessary in tbe application of legal principles, and,, unless tbe court comes to tbeir assistance, and declares these-distinctions so that they may understand and apply tbem, they are left to grope in confusion and uncertainty.” Tbe instruction easily could be understood by a juror as meaning that tbe woman could recover even though she could reasonably see tbe danger and anticipate tbe damage; even if the machine was such as was obviously very dangerous, and certain to cripple her if she undertook to operate iti Jurors cannot be expected, comparing all tbe instructions, to resolve all doubts as to what they mean, and to- draw fine distinctions. I think injustice may in many cases be anticipated, if such an instruction be given to twelve men who are asked by a woman to award her compensation for tbe crippling of her band.


source: Caselaw Access Project

author: MB. OOMMISSIO'NEB OLAYBEBG

license: Public Domain

text:
    COLUSA PARROT MINING & SMELTING COMPANY, Appellant, v. BARNARD et al., Respondents.
    (No. 1,786.)
    (Submitted April 2, 1903.
    Decided April 11, 1903.)

      Injunction Pendente Lite — Refusal ■ — ■ Appeal — Admission of' ' Incompetent Evidence — Cross-Examination — Presumptions —Costs.

    1. Upon-an appeal from an order refusing an injunction pendente lite, the-principal question for consideration is whether, upon the evidence introduced at the hearing, the court below manifestly abused its discretion in refusing the injunction.
    2. An admission Of incompetent evidence on the hearing of a motion for an injunction pendente Hie is not ground for reversal in view of the presumption that the court acted only on the competent evidence adduced.
    3. In view of the presumption that the court below did not consider incompe--tent testimony in refusing an injunction pendente lite, improper cross-examination of plaintiff’s witnesses is not ground for reversal, no injury having been shown.
    •4. The power to allow costs is purely statutory, and unless some statutory authority exists for their allowance, an allowance thereof is erroneous.
    5. An allowance to defendant, on the refusal of a motion for an injunction pendente lite, of “all costs,” is erroneous.
    6. Evidence sufficient to authorize a preliminary injunction or its refusal, is not necessarily sufficient to maintain a like decision upon the final trial on the merits.

      Appeal from District Court, Silver Bow County; William Clancy, Judge.

    Suit by the Colusa Parrot Mining & Smelting Company against A. W. Barnard and others. Prom an order refusing an injunction pendente lite, plaintiff appeals.
    Modified.

      Messrs. JRoote & Clark, and Mr. Walter M. Bickford, for Appellant.
    The deed of a corporation, signed by its proper officers and Paving the seal of the corporation, is admissible in evidence without further proof. (Crescent City, etc., Co. v. Simpson, *17 Cal. 286; Bliss v. Kaweah C. <& I. Co-., 65 Cal, 502; Miners' Ditch Co-, v. Zellerbach, 37 Cal. 543; Underhill v.. Santa Barbara, etc., Co., 93 Cal. 300.)
    The exclusion of proper evidence is error, which must result in the reversal of the order of the court refusing to grant the injunction. {Bennett Bros. v. Congdon, 20-Mont. 208.)
    The source of a stream,' cannot be interfered with. The ■springs which supply its waters, or the tributaries which conduct portions' of the same, are a part of the stream, and their, waters before reaching the stream as much a part of it as after the same have commingled with its waters. {Strickleir v. City ■of Colorado- Springs, 26 Pae. 313; Ely v. Ferguson, 27 Pac. 587; Brown v. Ashley, 16 Nev. 317; Cross v. Kitts, 69 Cal. 217; Barneich v. Mercy et al., 68 Pac. 589.)
    If the testimony in the case established that an appropriation ■or location and use of the waters of Silver Bow and Black Tail Deer creeks was made for the purpose of the reduction plant, then the plaintiff was entitled to nse sufficient water to operate it at any time, although the amount necessary at a later period was greater than the amount at an earlier period by reason of' the enlargement of the works, provided, of course, that not more than one thousand inches claimed was used or being used by the plaintiff. (McDonald v. Lamen> 19 Mont. 78; Salazer v. Smart, 12 Mont. 395; Murray v. Tmgley, 20 Mont. 260.)
    Even if the defendants had a riparian right in the waters of' Black Tail D'eer creek, which they have not, they could not be permitted to dam and reservoir the water. (Ferria v. Knipe,. 28 Cal. 340; Barneich'v. Mercy■ et al., 68 Pac. 589.)
    The Parrot Silver & Copper Company is a, corporation. Its. manager had no right or authority to make a verbal lease, or any other kind, without being vested with special delegated authority from the company therefor. {Butte. & Boston Gon. Mining Co. v. Montana. Ore Purchasing Go\, 21 Mont. 539.)
    The appellant has the right to the use of 300 inches of water, the same being necessary for the operation of its reduction plant as it now exists. {McDonald v. Lawmen, 19 Mont. 78; Salazar v. Smart, 12 Mont. 395; Murray v. Tmgley, 20 Mont. 260.)
    Girton and his successors in interest, the respondents herein, have no right by virtue of any claim of appropriation of use of the water for irrigation purposes to any water beyond the water that was used or necessary for use for irrigating purposes on the Girton homestead. {Pnver et al. v. Sioitzer, 21 Mont. 523; Toohey v. Campbell, 24 Mont. 17.)
    The change in use by the respondents deprives the appellant of its right to use the water, and therefore the respondents have no right to interfere with the water in this manner, or to- maintain said dams or reservoirs or to store any water therein. {Go-lumbia M. Go. v. Hotter, 12 Mont. 296; Greeh v. Bozeman W. W. Go., 15 Mont. 128; Gassert v. Noyes, 18 Mont. 220; Last Chance Go. v. Bunkerhill Goi, 49 Eed. 434; Note 8, Vol. 17, p. 504, Am. & Eng. Eney. of Law.)

      Mr. Peter Breen, and Messrs. McBride & McBride, for Respondents.

      It appears to the respondents -that there is but one question involved in this appeal. D'oes the evidence show’ an abuse of ■discretion by the trial court in making the order Complained of ? If not> then the order of the lower court should be sustained. (.Montana. Ore Purchasing Go. v. B. & B. Gon. Miming Go., 25 Mont. 427; Anaconda G. M. Go. v. Heime-. et al., 27 Mont.)
    A water right can' exist wholly separate and apart from a title to land. (Smith v. Demviff, 24 Mont. 20; Tuohy v. Campbell, 24 Mont. 13.) Where there is nothing to show that the waters of a spring or well are supplied by any defined flowing stream, the presumption will be that they have their source in the ordinary percolation of the waters through the soil. Percolating waters and those whose sources are unknown, belong to the realty •on which they are found. Such a spring belongs to the owner of the land. It is as much his as the earth or minerals beneath the surface, and none of the rules relating to watercourses and ■diversions apply. (Willow GreeJc Irrigation Go. v. Michaelson, 51 L. R. A. 282, citing Bloodgood v. Ayers, IOS N. T. 400; Crescent Min. Go. v. Silver King Min. Go., 17 Utah, 444; Kinney on Irrigation, Sec. 48; Hanson v. McGue, 42 Cal- 303; Southern Pacific P. P. Go. v. Dufour, 95 Cal. 615, s. c. 30 Pac. '783.)
    Water, whether moving or motionless, in the earth is not, in ■the eye of the law, distinct from the earth. (Roth v. Driscoll, 20 Conn. 540; Hanson v. McGue, Ml Cal. 303.)
    Where percolating waters are gathered in a stream running in a definite channel, no- distinction exists between waters so •running under the surface or upon the surface of the land. (Gross y. Kits, 69 Cal. 222.)
    The amount of water which an appropriator is entitled to use —commonly designated as the extent of his appropriation— is a question of fact to be determined by a jury. The right of the prior appropriator in this respect is limited to the amount or extent of his actual appropriation as against subsequent api-propriators and claimants; and he cannot, after their subset •quent rights have attached, by changing the place or nature of bis use, or by enlarging bis works, or otherwise, extend bis claim-, or increase tbe amount of water diverted or used, to tbe prejudice of sucb subsequent parties. (Pomeroy on' Water Sights, See. 85, citing, Nevada Water Company v. Powell, 24 Cal. 109; Ortman v. Dixon, 13 Cal. 33; Atchison v. Peterson, 20 Wallace, 514; MacDonald v. Lannen, 19 Mont. 82; CreeTc v. Bozeman Waterworks Co., 15 Mont. 121; Gassert v. Noyes, 18 Mont. 222; Toohey v. Campbell, 24 Mont 17; Power v. Switzer, 21 Mont. 523; Long on Irrigation, Par. 112, p. 214; West Point Irr. Co. v. Moroni & Mt. Pleasant Irr. Co., 61 Pac. 16; Saint v. Guerrerio, 17 Colo-. 443, s. c. 30 Pae. 335; Hill-man v. Newington, 57 Cal. 56.)
   MB. OOMMISSIO'NEB OLAYBEBG

prepared tbe opinion for tbe court.

This is an appeal from an order refusing to grant an injunction pendente lite restraining respondents from interfering with appellant’s use of tbe waters of Blaektail Deer creek, in Silver Bow county, Montana, to which appellant alleges it has - the prior right.

TJnder tbe former decisions of this court tbe principal question for consideration is whether, upon tbe evidence introduced at the bearing, tbe court below manifestly abused its discretion in refusing tbe injunction applied for. (Craver v. Stapp, 26 Mont. 314, 67 Pac. 937; Nelson v. O'Neal, 1 Mont. 284; Bluebird Mining Co. v. Murray, 9 Mont. 468, 23 Pac. 1022; Klein v. Davis, 11 Mont. 155, 27 Pac. 511; Cotter v. Cotter, 16 Mont. 63, 40 Pac. 63; Anaconda Copper Mining Co. v. Butte & Boston Mining Co., 17 Mont. 519, 43 Pac. 924; Heinze v. Boston & Montana C. C. & S. Mining Co., 20 Mont. 528, 52 Pac. 273; Boston & Montana C. C. & S. Mining Co. v. Montana Ore Purchasing Co., 23 Mont. 557, 59 Pac. 919.)

Tbe evidence submitted to tbe court below in behalf of tbe respective parties was very contradictory, and a review thereof seems unnecessary to this decision. Much competent testimony was introduced and received in behalf of respondents, tending to- show their prior right to and use of the water in question. The weight of such testimony was for the court below. Therefore this court cannot say that the discretion vested in that court was, upon the testimony adduced, manifestly abused.

All the evidence offered by appellant which was excluded by the court was either immaterial in a preliminary hearing like this, cumulative, or offered by the appellant in its case in chief, instead of in rebuttal, as it should have been. At the close of appellant’s case the court overruled a motion' made by counsel for respondents to dismiss the application, thereby, in effect, holding that appellant had made a prima facie case for the injunction sought. Appellant offered no evidence in rebuttal, but was content to rely upon the case it had made in chief.

In answer to' appellant’s contention that much irrelevant and incompetent testimony was admitted at the hearing against the objections of its counsel, it seems sufficient to say that presumably the court did its duty, and based its decision, upon such of the evidence as was competent, and did not consider such as was incompetent or irrelevant. (Montana Ore Purchasing Co. v. Butte & Boston Consol. Mining Co., 25 Mont. 427-432, 65 Pac. 420.)

Counsel for appellant object to the character of (be cross-examination of its witnesses by respondents’ counsel. It must. be remembered that this hearing was before the court upon a motion. The methods of procedure in such eases are largely within the discretion of the court, and will not be interfered with unless injury is shown. None is shown by appellant, and, in view of the presumption above stated, this court will not interfere.

Appellant further assigns error upon the ruling of the court below in allowing costs to respondents. The language of the order complained of is, “And it is further ordered that the said Butte Ice Company and W. McC. White have and recover from the plaintiff all costs accruing upon the said order to show cause.”

The power to allow costs is purely statutory, and therefore, unless some statutory authority' exists for their allowance in matters of this charácter, the allowance made was erroneous. The statutes of Montana allow costs to the prevailing party upon final judgments rendered in certain actions. (Code of Civil Procedure, Section 1851.) By Section 1853 costs are left to the discretion of the court in other actions. This section also provides that no costs shall be allowed in certain instances. Certain other sections of the chapters on costs allow them in certain other proceedings in court, but there is no provision allowing costs upon motions concerning injunctions. In fact, Section 1861, Code of Civil Procedure, by providing that the losing party upon all motions must pay the other $10 “as costs,” precludes the court from allowing any other costs.

Counsel for respondents seek to justify this allowance under the provisions of Section 880 of the Code of Civil Procedure This section provides as follows: “Where an injunction order is granted without notice, and the same is afterwards dissolved upon the application of the party enjoined thereby, the court or judge to whom, the application to dissolve is made, may award as costs of the application against the plaintiff, and in favor of the party applying, such sum as to the court or judge may appear just, not less than ten dollars, nor more than one hundred dollars.” We think the provisions of this section are inapplicable to the present case. The record discloses no application on the part of respondents to dissolve any “injunction order.” Again, in the application of the provisions of this section, the court or judge must fix a definite amount, not less than $10 or more than $100, which he awards “as costs” in favor of the person making the application. No sum is fixed here, but all costs are allowed. It is very apparent from the reading of the order made that the court did not have in mind, and did not intend 1» apply, the provisions of either Sections 880 or 1861, supra, when he made the order appealed from.

We deem it proper to' say that this court does not decide, or even intimate an opinion, as to whether the evidence offered would warrant a decision against the plaintiff on a trial of the ease -oil its merits. The mile is well settled that evidence suffi-eie&t to .authorize a granting of a preliminary injunction oar to warrant the refusal thereof may not be sufficient to maintain a like decision upon a final trial of the action on its merits. (Craver v. Stapp, 26 Mont. 314, 67 Pac. 937; Maloney v. Kinig, 25 Mont. 188, 64 Pac. 351.)

We therefore conclude that the court erred in allowing costs to respondents, and that the order appealed from ought to be modified in that regard -by striking out the provisions for costs, and, as so modified, be affirmed.

Pee Gueiam. — 'For the reasons contained in the foregoing opinion, the order appealed from is affirmed, with the modification suggested.


author: ME. COMMISSIONER POORMAN

text:
    STATE, Respondent, v. HARDEE, Appellant.
    (No. 1,879.)
    (Submitted April 3, 1903.
    Decided April 11, 1903.)

      Homicide — Evidence — Proof of Venue — Homicidal Mono'mania — New Trial — Newly Discovered Evidence — Gumular Uve Evidence.

    1. In a prosecution ior murder, evidence considered, and held to show that ' ■ the crime was committed in the county alleged in the indictment.
    2. In a prosecution for murder, evidence considered, and held to show too much deliberation to be the result of any sudden impuise, and'to be incompatible with the theory that the defendant was afflicted with homicidal monomania.
    3. Where, in a prosecution for murder, the insanity of defendant was placed in issue, in support of which defendant called witnesses who testified, and the facts to be proved by newly discovered evidence were merely cumulative on that issue, and were not such as to make it clearly probable that a different result would. follow another trial, nor was it shown that they could not have been produced on the former trial by the evercise of reasonable diligence, a new trial was properly refused.

      Appeal from District Court, Valley County; John, W. Tat-tan, Judge.

    William EL Haejoee was convicted of murder. From a judgment sentencing bim to death, and from an order denying him a new trial, he appeals.
    Affirmed.

      Mr. George E. Hurd, and Messrs. Nolan & Loeb, for Appellant.
    If there is any evidence to establish the venue .and the question arises as to its sufficiency, it cannot be considered upon an appeal from the judgment, but where there is no evidence its absence becomes a question of law and is reviewable upon such an appeal. (Penal Code, Section 2321; Emerson v. Eldorado Ditch Co.; 18 Mont. 247; Withers v. Kemper, 25 Mont 432.)
    In criminal prosecutions the venue is a jurisdictional fact and must be proved. (Brooks v. State, 120 Ala. 386; Forehand v. State, 53 Ark. 46; Moore v. People, 150 Ill. 405; Harlan v. State, 134 Ind. 339; State v. Young, 99 Mo. 284; Early v. Com., 93 Va. 765.)
    The proof of venue must affirmatively appear from the record on appeal. (Hite v. State, 9 Yerger, 357; Terry v. State, 22 Tex. App. 679.)
    When a bill of exceptions purports to set out all the evidence and the venue is not established, judgment will be reversed. (People v. Griffith, 122 Cal. 212; Cathom v. State, 63 Ala. 157; Harrison v. State, 3 Tex. App’. 558.)
    • The affidavits as to newly discovered evidence are uncontra-dieted. Under the peculiar conditions of this case the affidavits disclose a meritorious.case where the application for a new trial upon this ground should be favorably considered. (Thompson on Trials, Sec. 2762; State v. Brooks, 23 Mont. 146; Anderson v. State, 43 Conn. 514; Dennis v. State, 103 Ind. 142.

      Mr. James Donovan, Attorney General, for the State.
    A new trial will not be granted on the grounds of newly discovered evidence unless sucb evidence is material and would be likely to .change the result, if the motion were allowed. (Territory v. Bryson, 9 Mont.. 42, 22 Pac. 147; People v. De-masters, 109 Cal. 608; Shafer v. fWillis, 124 Cal. 36; People v. Warren, 130 Cal. 683; Danis v. State, 51 Neb. 360; Lin-scoit v. Insurance Go., 88 Me. 497; Smith v. State, 143 Ind. 685.)
    If the new evidence is cumulative, a new trial will not be granted. (Morse v. Swan, 2 Mont. 307; People v. Kloss, 115 Cal. 567; 1 Bish. New Criminal Procedure^ Sec. 1279; Nor-follc v. tTohnaTcin, 94 Va. 285; Sisler v. Shaffer, 43 W. Va. 769; Condan v. Mead, 172 Ill. 13; AlTbright v. Hanna, 103 la. 98; People v. Brittan, 118 Cal. 469; Kuhlman v. Burns, 117 Cal. 409; Niosi v. Umpire Steam Laundry, 117 Cal. 257.)
    A person seeking a new trial on the ground of newly discovered evidence must show that he could not have discovered the evidence and produced it on the trial by any reasonable diligence on his part. Strict proof must be made on this point, and facts, not conclusions, stated in the moving affidavits from which the court may draw the conclusion that due diligence was used. (Bradley v. Norris, 67 Minn. 48; Lnleens v. Garret, 2 Kans. App. 722; Butter v. Vassault, 40 Cal. 74; People v. Ghing LLing Chang, 74 Cal. 389; People v. Urquidas', 96 Cal. 239.)
    The moving party must show hy his own affidavit that the new evidence was not known to him at the time.of the trial. Upon that question the affidavits of other persons. are not sufficient. (Arnold v. Shaggs, 35 Cal. 684.)
    An application.for a new trial on the ground of newly discovered evidence should be regarded with distrust and disfavor. (People v. Howard, 74 Cal. 547; People v. Sutton, 73 Cal. 243; Tibet v. Tom Sue, 125 Cal. 544.)
    And a party who relies upon that ground must make a strong case, both in respect to diligence on his part in preparing for the trial, and as to the truth and materiality of the newly discovered evidence, and that, too, by the best evidence obtainable, and if be fails in either respect bis motion must be denied. {People v. Freeman, 92 Cal. 359.)
    Tbe granting of a new trial on tbis ground is lai'gely a matter of discretion, tbe exercise of wbicb will not be disturbed by tbe appellate court except in tbe case of an abuse clearly disclosed by tbe record. (O’Rourke.r. Vennekobl, 104 Oal. 254; Hemtz v. Cooper, 104 Cal. 668; People v. Pushing, 130 Cal. 449; People v. Mitchell, 129 Cal. 584.)
   ME. COMMISSIONER POORMAN

prepared tbe opinion for tbe court.

On tbe 26tb day of September, 1901, an information was filed against tbe defendant in Valley county, charging him with tbe crime of murder in the first degree* for killing Charles Snearly in that county.

Tbe defendant was apprehended and arrested on or about tbe 11th day of September, and placed in jail at the county seat of said county on or about tbe 12th day of tbe same month, where be remained continuously until tbe time of bis trial. On November 27, 1901, counsel for tbe defense called tbe attention of tbe trial court to tbe fact that tbe defendant was, in bis judgment, mentally incompetent to furnish bis counsel with any of tbe facts necessary in tbe preparation of bis defense. Tbe court thereupon made an order requesting that Drs. Hoyt, Clay, Meminger, and Atkinson, four regularly licensed and practicing physicians in said county, examine tbe defendant as to bis sanity. This examination was made on tbe 28th day of November, and the physicians SQ' appointed reported ix> tbe court that they found the defendant physically broken down from the use of morphine and opium, but that be was at tbe time of said examination mentally sound. Tbe trial was then proceeded with, tbe defense being insanity; it being sought to be shown that tbe defendant’s mental derangement took the form, of homicidal monomania. A verdict of guilty of murder in the first degree was rendered. Judgment sentencing defendant to death was entered. .The motion was then made for a new trial on the ground of newly discovered evidence, which motion was overruled. From this judgment, and from the order overruling the motion for 'a new trial, the defendant appeals.

Two assignments of error are contained in the record: First, that the record fails to show that the offense was committed in Valley county; second, that the court erred in refusing to grant a new trial on the ground of newly discovered evidence.

1. The record before us contains all the evidence in the cause. On the first assignment of error, we find these material facts established: Mrs. Ali.ce Smith, a witness- on behalf of the state, testifies: “I am the wife of T. P. Smith, called ‘Doc Smith.’ My residence is about eighteen or twenty miles north of Culbertson, in this county and state. I was at home at my house on the 9th of September of this year, and know the defendant, William El Hardee. I know Charles. Snearly.” The witness then proceeds to relate the circumstances of the killing, which occurred there on the evening, of that day. She further says that she started to Culbertson that evening with the men who were taking the deceased in, and continued with them1 until she met her husband, when she came back home with him. Fred Wagar, another witness on the part of the state, testifies: “My home is in North D'akota. The early part of last September I was in the state of Montana, on Doe Smith’s ranch, near Culbertson, in this county.” The witness then proceeds to detail the circumstances of - the killing as it occurred there at Smith’s place on the 9th day of September. J. P. Smith testifies: “My name is J. P. Smith. I live fifteen miles from Culbertson. Mrs. Smith, a witness in this case, is my wife. . I live north of Culbertson, in Valley county, state of Montana. On or about the 9th of September of this year I was at Culbertson. I went home that night or the next morning. On the way home I met the wagon bringing Snearly into town. I went on home, and my wife did also. * * * When I got home that night I don’t think I went into- that west bedroom. I think I went in first next morning. I think Mr. Ford was with me. There was a whole lot of blood in there.” The defendant also testifies, after repeatedly stating that he was at Doc Smith’s ranch: “I had trouble with Snearly. I killed him. I do not know when I killed him. I killed him because he jumped onto'-me, I guess, at Doe’s.” This testimony clearly establishes the fact that this homicide was committed at the ranch of J. P. Smith, in Valley county, Montana.

2. The defendant’s contention that he is entitled to a new trial on the ground of newly discovered evidence, establishing the. fact that he was insane at the'time of the commission of this offense, calls for a brief review of the actions of the defendant at the time of, and subsequent to', the killing. It appears from the testimony: that the defendant and the deceased came to' the ranch of Mr. Smith some time in August, 1901, and, after remaining there several days, went away. They returned there on the morning of the 9th of September. The defendant’s first inquiry of Mrs. Smith was whether the deceased had said anything to her about their trip. The defendant then told Mrs. Smith that they had been out after some horses, and were driving them to market; that they had been without food for some time; that he had shot a chicken; and that the boy (referring to the deceased, who- was about 1Y years of age) was pretty hungry, and insisted upon stopping to cook the chicken; that the defendant insisted upon continuing their drive of the horses until 12 o’clock, but that, at the instance of Snearly, they stopped and cooked the chicken, and while they were doing it the horses got away from them. This made the defendant very angry, and he threatened to kill Snearly, and stated that he did not kill him at that time because the boy begged so hard, and he thought he would wait until he got where he could have a decent burial. That in the afternoon of September 9th the defendant, the deceased, and one Jackson went hunting, returning to Mr. Smith’s place in the evening. That the deceased then busied himself with cleaning and oiling a revolver, and, after he had finished, rubbed his oily hands through tbe hair of tbe defendant. ¶ Tbis did not appear to anger tbe defendant at tbe time, and soon after tbe defendant, who was sitting down, got np, took tbe revolver from where tbe deceased bad laid it, carried it out into tbe kitchen, and laid it down. Tbe revolver was unloaded. The deceased and defendant then went into tbe bedroom, where they apparently had some disagreement. Tbe defendant soon come out in a hurried manner, rushed into the kitchen, picked up< tbe pistol, and, on bis way back to tbe bedroom, picked up a double-barreled shotgun. Passing into tbe room where tbe deceased was standing, be threw the pistol on tbe floor at tbe feet of. tbe deceased, and said, “Pick it up, if you have any nerve,” and almost immediately fired one barrel of tbe shotgun at tbe der ceased, inflicting tbe wound from which deceased died on Sep^ tember 11, 1901. Defendant remained there for some little time, and every few minutes would ask tbe deceased if be wanted tbe other barrel, and said to tbe deceased, “I promised tbis to you.” Tbe deceased replied, “Tes; but I did not think you would do it,” when defendant said, “You ought to know that I am a man of my word. You found out that I was.” A little later, when those present proposed taking tbe wounded man to Culbertson, tbe defendant objected, and said, “You bad better not take him until tbe coroner comes,” but afterwards gave his consent. Snearly repeatedly called for morphine, and •defendant finally gave him some that be bad with him; and afterwards, when Snearly asked for more morphine, be gave a spoonful of it to Mrs. Smith, told her to give it to Snearly, and said, “That will fix him, sure.” Defendant tiren ordered tbe men who were present to saddle up tbe best horse Doc (meaning Smith) bad, which defendant then mounted and rode away, following tbe wagon in which they were conveying Snearly for some distance. Prior to leaving tbe Smith residence be asked one of tbe men if Snearly was shot bad, and on being informed that be was, and that be could not live, defendant said: “That is good enough for me. If I thought be was not killed, I would shoot him again.” After Snearly had been placed in the wagon, be asked to liave bis boots removed. Tbe defendant then remarked: “That is good enough for me. He is gufr-shot, and will die before we get him to town.” The next night after the killing, defendant, while at the house of Mr. Olson, heard Mr. MacDonald, who had just come from. Culbertson, remark that the boy (meaning the deceased) was dead, or not expected to live. Defendant immediately asked: “Did the boy say anything; — tell anything?” On being informed that he had not, he expressed his satisfaction, and said he hoped that he would live. Defendant was taken to jail, and, being addicted to the use of opium, was placed under the care of the county physician. Since the defendant has been in jail he has frequently talked to the sheriff about the killing of Snearly, and expressed himself as being very sorry, and about “feeling very badly” on account of-it. On the trial of the case1, the defendant, in speaking of deceased, says: “I have seen him down there lots of times in the jail. He has been there lots of times, and I have seen him once in a while. I saw him two or three days ago, and last night he just came there and looked in and went away. I told him to get away.” Further •on the defendant, in testifying, says: “Since I have been in jail I have thought about this Snearly matter a great deal. I dream about it every night. I see Snearly in my dreams. He won’t talk to me. I talk to him, sometimes.”

The circumstances and facts attending this homicide show too much deliberation to' be the result of any sudden impulse, "but appear, rather, to be the result of anger occasioned by the deceased causing the defendant to lose the horses, and a fear on the part of defendant that the deceased might make some remark relative to some past transaction. This is evident from the solicitude of the defendant as to whether or not the deceased had “said anything — told anything.” The fact that the defendant has evidently been brooding over this affair, and has •expressed himself as very sorry that he had killed Snearly, is ■not compatible with the theory that the defendant was at the time of the killing afflicted with homicidal monomania. The testimony of the physicians on this point is to the effect that if-a man is a homicidal monomaniac, and in that condition hills.another, he would not afterwards be sorry or grieve over his act. It is further in evidence that Dr. Hoyt saw and examined' the defendant within .three or four days after the commission of the homicide, and that the defendant has been in his care at all times since; that he has never been able to. détect any signs of insanity about defendant. Defendant was. further-examined by four physicians the day prior to< his trialj who-reported that he was at that time mentally sound. It is further-stated in the testimony of the physicians that, if defendant had been the victim of mania or of insanity in any of its forms, it would not have, passed away in the interval between the killing and the time when he was placed under the care, of Dr. Hoyt. Sheriff Griffith also .testified that during the time that the defendant has been in his care he has detected no. signs, of insanity, that the defendant has been at all times able, to converse upon matters, and that it was only when placed upon the-witness stand to give testimony- in this ease that his memory-failed him. Mr. and Mrs. J. P. Smith also testified that they knew the defendant — had known him for some time prior to the homicide; that he had frequently been about, their home; that they had never thought him insane, nor detected signs of' insanity about him. One of the physicians testified that at the-examination on the 28th of November the defendant appeared to be afflicted with melancholia, which fact is. also a refutation of the homicidal maniac theory, for it is a part of the evidence-of the physicians that melancholia is. a. milder form of insanity, and that a person afflicted with homicidal monomania would not afterwards pass into a condition of melancholy.

The facts which defendant wishes to- prove by his newly discovered evidence are cumulative, tending to prove the allegations of mental incapacity, which became- an issue on the trial, and in support of which defendant called witnesses who- testified, and are not such as to make it clearly probable that a different result would follow another trial; nor does it appear-that the testimony could not have been produced upon the former trial by the exercise of reasonable; diligence, for the testimony produced upon the former trial shows that the defendant was mentally capable at all times from the day when he shot Charles Snearly until the time of his trial of giving his counsel all the required information necessary in the preparation of his defense. (Territory v. Bryson, 9 Mont. 32, 22 Pac. 147; State v. Brooks, 23 Mont. 146, 57 Pac. 1038.)

It appears from the record that the defendant had a fair and impartial trial, that he was ably defended, and that the court did not in any manner abuse its discretion in overruling the motion for a new trial.

We therefore recommend that the judgment and order appealed from be affirmed.

Per Curiam. — Por the reasons stated in the foregoing opinion, the judgment and order are affirmed.

Mr. Justice MilburN did not hear the argument in this case, and therefore takes no part in this decision.


author: MB. COMMISSIONER CALLAWAY

text:
    LESS, Respondent, v. CITY OF BUTTE, Appellant.
    (No. 1,508.)
    (Submitted April 3, 1903.
    Decided April 11, 1903.)

      Municipal Corporations — Streets — Establishing Grades Damages to Property — Compensation—Constitution—Emir neni Domain.

      1. Section 14 of Article III of the Constitution is both mandatory and prohibitory, and it is also self-executing.
    2. Obiter: The constitution (Article III, Section 14) does not authorize a remedy for every diminution in the value of property that is caused by public improvements; the damages for which compensation is to be made being a damage to the property itself, and not including mere infringement of the owner’s personal pleasure or enjoyment.
    -3. under Constitution, Article III, Section 14, declaring that private property shall not be “taken'or damaged” for public use without just compensation, a landowner is entitled to compensation for damages owing to the grading of a street on which his property abuts, in accordance with a grade fixed by city, notwithstanding the fact that such grade is the first one.ever fixed.

      Appeal from District Court> Silver Bow County; John Lindsay, Judge.

    ActioN by Andrew Less against the city of Butte. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    STATEMENT OE THE CASE BY THE COMMISSIONER ¥hO Prepared ti-ie Opinion.
    On June 8, 1881, the owners of the ground included in the present Leggatt & Foster addition to the city of Butte' platted the same in lots and blocks, with intervening streets, and filed ■a plat thereof .with the county clerk of Silver Bow county, Montana. East Broadway street, designated upon the plat, is an extension of Broadway street in said city. On March 25, 1893, this addition-was regularly annexed to the city of Butte, and East Broadway was dedicated to the city as a public street. Some time in the year 1893 the plaintiff became the owner of lot 9 in block 4, fronting on East Broadway in said addition, built upon his lot a two^story house, and made other improvements thereon, relying upon the grade of the street as it then •existed,. and in conformity to the street as the same was then traveled and used.
    By an ordinance passed and approved July 17, 1895, a grade line was established along Broadway street, across- and over the Leggatt & Foster addition, and in front of the lot owned by plaintiff. The grade thus established was the first and only grade established by the corporate authority of the -city upon the street in front of the lot of plaintiff. Thereafter, -on April 21, 1897, the city council passed a resolution ordering Broadway street excavated and graded from the east side of Oklahoma avenue -to the east side of Gaylord street, in front of plaintiff’s property, to said grade line.
    The city did not agree, or attempt to agree, with the plain* tiff, upon the amount of damages which he would sustain to his premises on account of such change of grade and excavation, and did not pay or tender to plaintiff anything on account thereof, and did not appoint any freeholders to make an ap-praisement of the damages or of the benefits which would result to the plaintiff’s premises by reason of the change of grade and excavation of the street; but pursuant to said resolution the city did, during the summer of the year 18 97, proceed to grade and excavate the street so as to make the same conform to the grade line so established as aforesaid. The street in front of plaintiff’s premises was thus graded and excavated to1 the depth of about seven feet, and the sidewalk in front of the plaintiff’s house was located at about the same depth, in order to conform to the street as graded.
    The plaintiff then presented his claim to'the city council, demanding $500 damages because of the grading and excavation mentioned, but the city refused to pay the same, or any part thereof.' The plaintiff thereupon began this suit. The case was tried upon an agreed statement of facts and upon oral testimony. At the conclusion of plaintiff’s case the defendant moved the court for a nonsuit upon the ground “that the grade on Broadway street adjoining the property of the plaintiff was the first and only grade ever established on Broadway street, and under the laws of Montana in force .at the time the city of Butte had a right to1 establish said grade to reduce the street in conformity to- the grade established, and is not liable to the1 plaintiff by reason of any damages that he may have sustained by reason of the first establishment of the grade.”
    The court overruled the motion, and gave judgment for plaintiff in the sum of $500, as prayed for in his complaint. From this judgment the defendant appeals.

      Mr. Edwin M. Lamb, for Appellant

      Tbe -establishment of a grade and the changa of grade from the natural grade to such established grade is not within the meaning of Section 4940 of the Political Code. (Section 4800, Political Code; Gardnier v. Town of Johnston, 12 Atl. •891; Aldrich v. Aldermen of Providence, 12 P. I. 241.)
    The establishment of a grade line and the change of the .grade of a street to conform thereto; which lessens the value of .abutting property, is not such damage by the public to private property as comes within the meaning of Section 14 of Article III of the Constitution. (Dillon on Municipal Corporations, ,4th Ed., Secs. 995a, 995b, 995c; Gallender v. March, 1 Pick. 431; City of Denver v. Bayer (Colo-.), 2 Pac. 7; City of Denver v. Vernia (Colo.), 8 Pac. 659; Bigney v. City of Chicago, 102 Ill. 80; Reardon v. City of Ban Francisco (Cal.), 6 Pac. '326; The Julia Building Association v. Bell Tel. Co., 88 Mo. 274.)

      Messrs. McHafton & Cotter, for Despondent. _
    Section 14 of Article III of the Constitution changes the common law, gives a right which did not exist at common law, is self-executing, and entitles the plaintiff in this case to ret--cover. (Reardon v. Ban Francisco, 66 Cal. 492; Eachus v. Los Angeles C. Ry., 103 Cal. 614, 37 Pac. 750; Holland v. U. P. Ry. Co., 14 Fed. 394; Blanchard v. Kansas City¡; 16 Fed. 444; McElroy v. Kansas City, 21 Fed. 257; Rigney v. City of Chicago, 102 Ill. 64; Chicago v. Taylor, 125 IT. S. 161; Har-man v. City of Omaha, 23 N. W. 503; Henderson v. McLean, 39 L. P. A. 345; Smith v. Kansas City Ry. Co., 98 Mo. 20; Bheedy v. Kansas City Cable Go., 94 Mo. 575; Beoríes v. City ■of Lead, 73 N. W. 101, 39 L. P. A. 345; Brown v. City of Beattie, 31 Pae. 313; Lewis v. City of Beattie, 32 Pac. 786; 6 A. & Ei Ency..of Law, 544, Note 2; Davis, v. Mo. Pac., 119 Mo. 180, 24 S. W. 777, see authorities cited p-. 779; Hiclcman v. City of Kansas, 120 Mo. 110, 23 L. P. A. 658, and cases -cited; Groff v. Philadelphia, 150 Pa. 594; New Brighton v. United Presby. Church, 96 Pa. 331; Wirth v. City of Bpring-

      field, 78 Mo; 107; Cityi of Elgin, v. Eaton, 83 Ill. 535;Bartlett v. Tarrytown, 52 Hun. (N. T.) 38; McCall v. Saratoga Spgs., 56 Hun. (N. T.) 630, 121 N. Y. 704, "affirming 29 N. Y. SB. 699-; In re Church of Our Lady of Mercy, 22 N. Y. SB. 967, 10 N. Y. Supp; 683; Ft. Wortb v. Howard, 3 Tex Civ. App. 537, 22 S'. W. 1059; O’Brien v. Philadelphia, 150 Pa. 589; Jones v. Borough of Bangor, 144 Pa.. St. 638; City of Bloom-ington v. Pollock, 141 Ill. 351, 31 N. E. 146; Blair v. Charleston, 35 L. B. A. 852.)
   MB. COMMISSIONER CALLAWAY

By the common law municipal corporations were not held liable for consequential damages resulting to property owners by reason of changes in street grades; The municipal authorities might change or alter the grades of public thoroughfares at will, and the adjoining owners had no redress. It was considered that, public improvements being for the good of the body politic, and always being in contemplation, the individual purchased his city, or town property charged with knowledge that changes might be made as required by public necessity and convenience. So, too, when one platted a townsite, and dedicated certain portions thereof to the public for streets, he and his grantees were presumed to contemplate the changes which would necessarily result from public improvements. The rule damnum absque injuria was held to apply to all such cases, unless the injuiy could be shown to have resulted from the negligent or improper manner in which the work was done. Such is the doctrine asserted in Callender v. Marsh, 1 Pick. 418, and other cases cited by appellant.

The framers of our Constitution abrogated this harsh rule by Section 14, Article III, which reads as follows: “Private property shall not be taken or damaged for public use without just compensation having first been made to, or paid into court for the owner.” It seems very clear to us that this section was drafted in tbe broad language stated for the express purpose of preventing an unjust or arbitrary exercise of tbe power of eminent domain. It overturns tbe doctrine that one owning city or town property must continually live in dread of tbe changing whims of successive boards of aldermen. Constitutions which provide that “private property shall not be taken for public use without just compensation” are but declaratory of the common law., and contemplate the physical taking of property only. Under constitutions which provide that property shall not be "''taken or damaged” it is, universally held that “it is not necessary that there be any physical invasion of the individual’s, property for public use to entitle him to compensation.” (Root v. Butte, Anaconda & Pacific Ry. Co., 20 Mont. 354, 51 Pac. 155, and cases cited.) The owner of a city lot has “a kind of property in the public street for the purpose of giving to such land facilities of light, of air, and of access from such street.” (Bohm v. Metropolitan El. Ry. Co., 129 N. Y. 576, 29 N. E. 802, 14 L. R. A. 344.) “These easements are property, protected by the constitution from being taken or damaged without just compensation.” (Root v. Butte, Anaconda & Pacific Ry. Co., supra; Chicago v. Taylor, 125 U. S. 161, 8 Sup. Ct. 820, 31 L. Ed. 638; Eachus v. Los Angeles Consol. El. Ry. Co., 103 Cal. 614, 31 Pac. 750, 42 Am. St. Rep. 149; Rigney v. City of Chicago, 102 Ill. 64; Brown v. City of Seattle, 5 Wash. 35, 31 Pac. 313; Lewis v. City of Seattle, 5 Wash. 741, 32 Pac. 794; Hickman v. City of Kansas, 120 Mo. 110, 25 S. W. 225, 23 L. R. A. 658, 41 Am. St. Rep. 684; City of Fort Worth v. Howard, 3 Tex. Civ. App. 537, 22 S. W. 1059; Harmon v. City of Omaha, 17 Neb. 548, 23 N. W. 503, 52 Am. Rep. 420; Schaller v. City of Omaha, 23 Neb. 325, 36 N. W. 533.) Moreover, it may frequently occur that “the consequential damage may impose a more serious loss upon the owner than a temporary spoliation or invasion of the property.” (City of Atlanta v. Green, 67 Ga. 386.)

But the appellant insists that it should not be held liable in this action for the reasons stated in its motion for a nonsuit.

The first point is that the appellant cannot be held liable because the grade complained,of is “the first and only grade ever established on Broadway street.” The constitution does not distinguish between the first grade and subsequent ones. It provides against the damage occasioned in either case. (Searle v. City of Lead, 10 South Dakota, 312, 73 N. W. 101, 39 L. R. A. 345; City of Bloomington v. Pollock, 141 Ill. 346, 31 N. E. 146; Eachus v. Los Angeles Consol. El. Ry. Co., 103 Cal. 614, 37 Pac. 150, 42 Am. St. Rep. 149.) The mischief toi be remedied may be greatest in the first instance. (McCall v. Village of Saratoga Springs (Sup.), 9 N. Y. Supp. 170; Id., 121 N. Y. 704, 24 N. E. 1100.) The first grade of Broadway street was that provided by nature, and the alteration-made by appellant was as much a change of grade as if the change had been made from a grade previously established by the authorities. (Hendrick’s Appeal, 103 Pa. 358; O'Brien v. Philadelphia, 150 Pa. St. 589, 24 Atl. 1041, 30 Am. St. Rep. 832; McCall v. Village of Saratoga Springs (Sup.), 9 N. Y. Supp. 110; Id., 121 N. Y. 104, 24 N. E. 1100; Blair v. City of Charleston, 43 West Va. 62, 26 S. E. 341, 35 L. R. A. 852, 64 Am. St. Rep. 837.)

As to whether the appellant isi liable “under1 the laws (statutes) of Montana in force at the time” is wholly immaterial. Section 14, Article III, of the Constitution, is both mandatory and prohibitory. It is self-executing, and requires no legislation to rouse it from dormancy. (Searle v. City of Lead, 10 South Dakota, 312, 73 N. W. 101, 39 L. R. A. 345; Hickman v. City of Kansas, 120 Mo. 110, 25 S. W. 225, 23 L. R. A. 658, 41 Am. St. Rep. 684; Harmon v. City of Omaha, 11 Neb. 548, 23 N. W. 503, 52 Am. Rep. 420.)

While it is doubtless true that the constitution does not authorize a remedy for every diminution in the value of property which is caused by publici improvement, the damages for which compensation is to be made being a damage to the property itself, and not including mere infringement of the owner’s personal pleasure or enjoyment (Eachus v. Los Angeles Consol. El. Ry. Co., supra), in the case at bar it is practically conceded that respondent is entitled to damages' in the amount of the judgment rendered provided the appellant is liable at all.

We think the operation of this section of the constitution ought not to be restricted. The declarations of constitutions are placed therein to be obeyed, and are not to be “frittered away by construction.” In McElroy v. Kansas City (C. C.), 21 Fed. 257, Mr. Justice Brewer, in passing upon a similar constitutional provision, said: “I think, too1, in thet.e days of enormous property aggregation, where the power of eminent domain is pressed to such an extent, and when the urgency of so-called public improvements rests as a constant menace upon the sacredness of private property, no duty is more imperative than that of the strict enforcement of these constitutional provisions intended to protect every man in the possession of his own. * * * Such constitutional guaranty needs no legislative support, and is beyond legislative destruction.”

We are of the opinion that the judgment ought to be affirmed.

Pee Cueiam. — For the reasons stated in the foregoing opinion, the judgment is affirmed.


author: Pee. Cueiam.

text:
    HOLLAND, Respondent, v. CITY OF BUTTE, Appellant.
    (No. 1,509.)
    (Submitted April 3, 1903.
    Decided April 11, 1903.)

      Municipal Oorporaiions — Streets—Changing Grade — Damages.
    Judgment affirmed upon the authority ot Less y. City of Butte, ante, 27.

      Appeal from District Court, Silver Beau Gounty; John Lindsay, Judge.

      ActioN by Michael B. Holland against tbe city of Butte, Montana. From- a judgment in favor of plaintiff, defendant appeals.
    Affirmed.

      Mr. E. M. Lamb, for Appellant.

      Messrs. McHatton & Gotter, for ^Respondent.
   Pee. Cueiam.

As agreed in open court by counsel for appellant and respondent, practically tbe same questions are involved in tbis case as in tbe case of Less v. City of Butte, decided tbis day. Therefore, on tbe authority of tbe last mentioned case, tbe judgment' of tbe district court is affirmed.


author: Pee, Cubiam.

text:
    O’DONNELL et al., Respondents, v. CITY OF BUTTE, Appellant.
    (No. 1,511.)
    (Submitted April 3, 1903.
    Decided April 11, 1903.)

      Municipal Corporations — Streets—Changing Grade; — Damages.
    Judgment affirmed upon tbe authority of Less v. City of Butte, ante, 27.

      Appeal from District Court, Silver Bow County; John Lindsay, Judge.

    Action by William O’Donnell and another against tbe city of Butte, Montana. From a judgment in favor of plaintiffs, defendant appeals.
    Affirmed.

      Mr. E. M. Lamb, for Appellant.

      Messrs. McHatton & Cotter, for Respondents.
   Pee, Cubiam.

As agreed in open, conrt by counsel for appellant and respondents, practically the same questions are involved in this case as in the case of Less v. Gity of Butte, decided this day. Therefore, on the authority of the last mentioned case', the judgment of the district court is affirmed.


author: Pee Cubiam.

text:
    HANLEY, Respondent, v. CITY OF BUTTE, Appellant.
    (No. 1,520.)
    (Submitted April 3, 1903.
    Decided April 11, 1903.)

      Municipal Corporations — Streets—Changing Grade — Damages.
    Judgment affirmed upon the authority of Less v. City of Butte, ante, 27.

      Appeal from District Court, Silver Bow■ County; William Clancy, Judge.

    Action by Annie Hanley against the city of Butte, Montana. From a judgment in favor of plaintiff, defendant appeals.
    Affirmed.

      Mr. Jü. M. Lamb, for Appellant.

      Messrs. McHatton & Cotter, for Respondent.
   Pee Cubiam.

As agreed in open court by counsel for appellant and respondent, practically the same questions are involved in this case as in the case of Less v. City of Butte, decided this day. Therefore, on the authority of the last mentioned case, the judgment of the district court is affirmed.


author: MR. CHIEE JUSTICE BRANTLY

text:
    SNELL, Plaintiff, v. WELCH et al., Defendants.
    (No. 1,941.)
    (Submitted April 23, 1903.
    Decided April 24, 1903.)

      Supreme Court — Original Jurisdiction — Propriety of Exercise —Injunction—Constitutionality of School Text-Book Laiv.

    The supreme court will not entertain an original proceeding to test, by an injunction to restrain the state text-boob commission from advertising for bids, the constitutionality of a statute relating to a uniform system of text-boobs, and requiring the boobs contracted for to bear “union labelsno pressing necessity appearing for a speedy determination of the question, the court calendar being three years in arrears, and the matter being one which should ordinarily, and in the first instance, be submitted' to the district court; especially where it is apparent that the interests of the public, so far as they are involved, may be as well protected if the parties are left to pursue the usual course.
    ORIGINAL suit by Charles H. Snell against W. W. Welch, state superintendent of public instruction, and others, constituting the state text-book commission.
    Dismissed.

      Mr. Edward Horsley, Mr. Robert B. Smith, and Mr. E. A. Carleton, for Plaintiff.

      Mr. James Donovan, Attorney General, for Defendants.
   MR. CHIEE JUSTICE BRANTLY

delivered the opinion of the court

This action was brought by complaint filed in this court to obtain an- injunction to> restrain the defendant W. W. Welch, superintendent of public instruction of the state, and the said Welch and the other defendants as the state text-book commission, created by an Act of the Eighth Legislative Assémbly known as “Senate Bill 54” (Chapter CXXII, Laws of 1903), from proceeding to advertise for bids for contracts to supply a uniform system of text-books for use in the public schools of the state, as authorized and required by the provisions of the said Act. The court, upon application, permitted the complaint to be filed, reseawing for consideration the question whether the circumstances were such as required it toi assume jurisdiction of the cause in the first instance.

The action involves the constitutionality of a provision in Section 13 of the Act requiring all books contracted for by the commission to bear “union labels,” — that is, to be published by firms entitled to use and using the label of the printers’ union. After consideration, the court concludes that no urgent necessity is shown to exist why it should entertain the action in the first instance. The calendar of this court is much in arrears. In the absence of some pressing necessity, we do not think we should postpone other causes which have been awaiting decision —some of them for as much as three years — in order to permit parties to reach a speedy decision upon a matter which should ordinarily, and in the first instance, be submitted to the district court. This is especially true of cases like the present, when it is apparent that the interests'of the public^ so far as they are involved, may be protected as well if the parties are left to pursue the usual course.

The action is therefore dismissed.

Dismissed.


author: MR CHIEF JUSTICE BRANTLY

text:
    MANTLE, Respondent, v. LARGEY, Appellant.
    (No. 1,793.)
    (Submitted April 11, 1903.
    Decided April 27, 1903.)

      Appeal — Reversal of Order for Neta Trial — Stipulation—Effect.

    Where, after an appeal from an order granting a new trial, the parties, in pursuance of a settlement which they have reached, file a stipulation reguest-ing a .reversal of the order, that disposition of the ease will be made (when there is no question as to the district court’s jurisdiction in the case), though it is not apparent that, upon an examination of the record, affirmance might not be proper.
    Mb. Justice Milbukn dissenting.

      Appeal from District Court, Silver Boiu County; E. IF. Harney, Judge.

    Suit by Lee Mantle against Lulu F. Largey, administratrix of tlie estate of P. A. Largey, deceased. Prom an order granting plaintiff a new trial after judgment for defendant, defendant appeals.
    Reversed.

      Mr. Bernard Noon, Messrs. McBride & McBride, and Messrs. Forbis & Evans, for Appellant.

      Mr. Franh W. Haslcins, Messrs. Boots & Clarh, and Messrs. Mediation & Cotter, for Respondent.
   MR CHIEF JUSTICE BRANTLY

delivered the opinion of the court.

This action was brought for the purpose of obtaining a decree in favor of plaintiff declaring the defendant, Patrick A. Largey, a trustee for plaintiff of a one-sixteentli interest in the Speculator quartz lode mining claim, situate in Silver Bow; county, and requiring the defendant to1 execute to the plaintiff a deed for that interest, and to- render an accounting for a one-sixteenth interest in the ores extracted from the property by the defendant. After the institution of the suit the defendant died, and Lulu F. Largey was substituted in his place, as his administratrix: The judgment in the court below was for defendant. Subsequently, on motion of the plaintiff, the court entered an order granting plaintiff a new trial. Thereupon defendant appealed.

The parties to' the action have filed in this court a stipulation wherein it is set forth that they have settled their differences and controversies by a compromise of all matters involved; that they desire the order from which the appeal is taken' reversed, so that the judgment of the district court may stand as rendered ; that remitMur be issued at once; and that this disposition of the appeal is desired because it is in accordance with the terms of the compromise and settlement made by the parties'. This court is asked to malee the order according to the terms of the stipulation. When the stipulation was filed, and counsel moved for the order, we entertained doubt as to' whether this court could, with propriety, reverse the action of the district court upon an agreement of the parties, without an examination of the record, and a determination that the action of that court was in fact erroneous. Upon consideration, however, we deem it the duty of the court, so far as it may, when there is no question as to its jurisdiction in the particular case- to assist parties to settle their controversies by removing any obstruction which may stand in the way of such settlement. This cause involves title to valuable mining property, and, as the settlement between the parties contemplates the existence of a valid and subsisting judgment in favor of defendant, we think that the .order desired may be made with propriety, though it is not apparent that the plaintiff would not, upon examination of the record, be found entitled to an affirmance of the order.

It is therefore adjudged that the action of the district court in the premises be reversed, and that the cause be remanded, with directions to that court to vacate the order granting a new trial, and that it permit the judgment in favor of defendant to stand as rendered.

Reversed and remanded.

MR. Justice MilburN: I dissent.


author: Per Curiam.

text:
    LARKIN et al., Respondents, v. BUTTE & BOSTON CONSOLIDATED MINING CO. et al., Appellants.
    (No. 1,530.)
    (Submitted April 15, 1903.
    Decided April 27, 1903.)

      Appeal — Briefs—Huleé of Supreme Court — Affirrhance.
    where appellants’ brief fails wholly to comply with Subdivision 3 of Rule K of the Supreme Court, the judgment appealed from will be affirmed.

      Appeal from, District Court, Silver Bow■ County; William ■Clancy, Judge.

    ActioN by Clara A. Larkin and another against the Butte & Boston Consolidated Mining Company and others. Erom an order appointing a receiver, defendants appeal.
    Affirmed.

      Messrs. Forhis & Evans, for Appellant.

      Mr. Charles B. Leonard, and Messrs. Cullen, Day & Cullen, for Respondents.
   Per Curiam.

The brief filed by the appellants in this action fails in every particular to comply with Subdivision 3 of Rfule X of this court, and, upon the authority of Casey v. Thieviege, 27 Mont. 516, 70 Pac. 755, and cases cited, the order appealed from is affirmed.

Affirmed.


author: MR. CHIEF JUSTICE BRANTLT

text:
    KNOBB, Respondent, v. REED et al., Appellants.
    (No. 1,534.)
    (Submitted April 10, 1903.
    Decided April 27, 1903.)

      Appeal — Briefs—Buies of'Supreme Court.

    1. under Supreme Court Rule X, Subdivisions 4 and 5, in tbe absence of consent by bis adversary or an order of tbe court based upon a sufficient showing of some reason wby tbe rule should be relaxed, counsel for respondent (when in default under tbe rule) may not file a brief or appear and argue orally tbe questions presented by tbe appeal, unless by express request of the court, — and a brief filed in violation of the rule will be stricken from the files.
    2. under Supreme Court Rule X, Section 3, an appellant’s brief referring to-tbe complaint, with citation of page and marginal number, but to no other matter which would aid the court in examining the points in controversy, is not a compliance with the rule, and necessitates an affirmanaee. of the-judgment.

      Appeal from. District Court', Lewis and Clarke County; S. E.. Mclntire, Judge.

    Action by Eli Knobb against Williami Reed and others. Erom a judgment for plaintiff, and an order denying a new trial, defendants appeal.
    Affirmed.

      Messrs. Stranahan & Stranahan, for Appellants.

      Mr. B. B. Purcell, and Mr. T. J. Walsh, for Respondent.
   MR. CHIEF JUSTICE BRANTLT

delivered the opinion of the court.

Erom the imperfect statement contained in appellants’ brief' this action appears to be one in conversion, by which the plaintiff seeks to recover from the defendants the value of certain mares and a stallion, together with one-half of their increase-during the years from 1891 to 1898, inclusive. It appears that the animals were taken charge of by the defendants in 1891,. at the request of one Seymour, their owner, under an agreement that they were to be bred and cared for by the defendants, the latter being allowed to retain one-half of the increase as their compensation. Thereafter the plaintiff became the owner by purchase of the interest of Seymour. In August, 1898, the plaintiff demanded from the defendants a delivery of the property toi himself under the terms of the' arrangement made by Seymour. This the defendants refused, asserting title in themselves. TJpon a trial, verdict and judgment were for plaintiff. These appeals are from the judgment and an order denying a new trial.

1. The transcript was filed in this court on March 19, 1900. Appellants’ brief was filed on May 18, 1900. The respondent made no appearance, nor did he file his brief until March 21, 1903, a few days before the hearing. This was done without the consent of counsel for appellants1.' At the hearing counsel for respondent appeared, and, though objection was made, requested the court that he might be heard. The request was denied, there being no' offer to show why the brief had not been filed in conformity with the rule.

Subdivision 4 of Hule X provides that counsel for respondent shall file with the clerk of this court seven copies of his brief, and serve a copy upon counsel for appellant within thirty days after appellant’s brief shall have been served upon him. Subdivision 5 provides that, when respondent is in default under this rule, he shall not be heard except upon consent of his adversary or by request of the court. In the absence of consent by his adversary, or an order of the court based upon a showing by affidavit or otherwise of some reason why the rule should be relaxed, counsel may not file a brief, or appear and argue orally the questions presented by the appeal, unless by express request of the court. The rule was promulgated for the purpose of requiring counsel to prepare their cases for hearing in ample time-before they are set for that purpose, and also to- insure ample notice to opposing counsel of the points upon which it is- intended to- rely. The fact that the calendar of eases pending in this court is in arrears a,t the present time makes no difference-in the application of the rale, for, if obedience to it were not enforced, the result would be much confusion and misunderstanding between counsel and the court touching the orderly •submission and determination of causes. This cause was set for hearing on April 10th by an order entered on March 7 th. The brief was filed fourteen days after the order was made. Under like circumstances in many oases the appellant would be deprived of the opportunity to prepare and file a reply brief, or else the submission of the cause would be delayed in order to furnish such opportunity, the only reason therefor being that the respondent had neglected the plain requirements of the rule. Nor good reasons made to appear, the rule may be relaxed; but, when no such reason is made to1 appear, the penalty must- be ■exacted. The brief of the respondent is therefore ordered stricken from the files.

2. But, notwithstanding respondent is in default and cannot have his brief considered, the merits of these appeals1 cannot be examined, because appellants’ brief wholly fails to comply with the requirements of Subdivision a of Section 3 of Bule X. The statement or abstract required by the rule contains no references to the transcript in such a way that the pleadings, evidence, orders, and judgment may be readily found. It contains reference to the complaint, with citation of page and marginal number, but to no other matter which would aid the court' in examining the points in controversy. Under the rulings heretofore made in many cases, the judgment and order must be affirmed. It is so ordered.

Affirmed.


author: ME. CHIEF JUSTICE: BEANTLY,

text:
    PHILLIPS et al., Appellants, v. COBURN et al., Respondents.
    (No. 1,515.)
    (Submitted April 6, 1903.
    Decided April 27, 1903.)

      Water Rights — Evidence—Appeal—Opinion of Trial Court— Findings — Insufficiency of Evidence — Specifications of Particulars — Conflicting Evidence.

    1. On appeal tbe opinion of the lower court has no place in the record and. cannot be looted to for any purpose, and a contention that it shows that the court did not consider certain evidence which was admitted without objection cannot be entertained.
    2. In an action to enjoin defendants from diverting certain waters claimed by plaintiffs for irrigation purposes, the parties stipulated that no question should be made as to the titles of the respective parties to the lands described in the pleadings, and in connection with which the water claimed • by each was to be used. Held, that evidence that defendants’ premises were located upon an Indian reservation, which they could not lawfully occupy, was inadmissible.
    3. In aD action involving the priority of appropriations of certain water rights plaintiffs contended that the appropriation made by their predecessor in interest was made in July of a certain year, and the court found that the appropriation was made in October of that year. Held that, notwithstanding this finding, evidence of declarations made by plaintiffs’ predecessor in interest, tending to show that in August of the year in question they had made no appropriation, was admissible under Code of Civil Procedure, Section 3125.
    4. where the specifications of particulars wherein the evidence is alleged to be insufficient to support the findings do not meet the requirements of Section 1173, Code of Civil Procedure, they will be disregarded.
    5. where the evidence is conflicting, findings of fact of the district court are-conclusive on appeal.

      Appeal from District Court, Chotean County; Dudley Du Bose, Judge.

    Action by Benjamin D. Phillips and others against Robert J. Cobum and another. From a judgment for defendants, and from an order denying a motion for a new trial, plaintiffs appeal.
    Affirmed.
    STATEMENT OP THE CASE.
    Action by plaintiffs for a perpetual injunction to restrain the defendants from diverting the waters of Big Beaver or Warm Springs creek, in Oboteau county. Tbe plaintiffs allege a prior right to tbe free and unobstructed use of 2,000 inches of said waters for agricultural purposes upon lands owned by them, and particularly described in tbe complaint. This claim is based upon two -appropriations — one of 1,000 inches, alleged to have been made by plaintiffs Sieben. and Ester on August 2, 1889 ; and tbe other made by John T. Mercer and Henry Mar•■shall, tbe predecessors of plaintiffs, on July 8, 1889 — both of which rights are now held in common by all the plaintiffs. It is alleged that defendants were engaged at the commencement •of the action in diverting the waters so that they did not reach the heads of the plaintiffs’ ditch.es> and threatened to. continue to so divert them, so that plaintiffs were and would be prevented from using them to irrigate their growing crops of grain and grasses, thus suffering irreparable injury. The defendants deny all the material allegations contained in the complaint, and then, by way of counterclaim, set up a right in themselves to the free and unobstructed use of the waters to the extent of 100 inches undea- an appropriation of them made by themselves on July 30, 1889, followed immediately by diversion and continued use of them thereafter for agricultural purposes upon lands owned and -occupied by the defendants. Their answer concludes with a prayer that they be decreed to have a prior right to the extent ■of 100 inches, and for general relief. There was issue upon the ■counterclaim by replication.
    At the beginning of. the'trial the parties entered into- the following stipulation: “It is agreed in this ease that no question 'is made or will be urged as to. the titles of the respective parties plaintiff and defendant to the lands described and mentioned In the pleadings herein, and the various denials, in that regard are hereby withdrawn, it being the intention of the parties hereto to have determined only the respective rights of the parties 'hereto to the water and water right asserted by them,, respectively, and to the quantity of water which their respective ditches ■were capable of carrying when first used. The conveyances of the titles of the respective parties to the waters in question from their predecessors in interest axe not denied, and the denials in that regard are also withdrawn.”
    Upon the evidence submitted the district court found that the defendants actually diverted the waters to the extent- claimed by them on August 11, 1889, and thereafter continuously used them for agricultural purposes; that Sieben and Ester diverted them to the extent of 500 inches on September 25, 1889; that the Mercer and Marshall diversion to the extent of 300 inches was completed on October 1, 1889; and that, as a matter of law, the parties were entitled to the use of them in the order indicated by these dates* and to the extent of their respective appropriations. A judgment was entered accordingly. From the judgment and order denying them a new trial, plaintiffs have appealed.

      Messrs. Toole & Bach, for Appellants.
    Cited: Revised Statutes, U. S., Sections 2339, 2340; Buttz v. N. P. By., 119 IT. S. 55; Barden v. N. P. By. Go., 145 IT. S. 535; McPadden v. M. V. M. Go97 Fed. 670.

      Mr. H. G. Mclntvre, and Mr. Fletcher Maddox, for Respondents.
    Respondents’ title is at least good against every person except the government. (First Nafl Bcmk v. Boberts, 9 Mont. 373; Natomm W. & M. Go. v. Clarlcm, 14 C'al. 544; California S. T. Co. v. Alta T. Go., 22 Cal. 430; Union W. Go. v. Murphy F. F. Go., 22 Cal. 630.)
    The issue as to whether respondents’ ditch was upon the Indian’ reservation was an immaterial one; when the appropriation was made it was upon the public domain, and there can be no doubt of the right to appropriate water flowing through the public domain. {Lehi Irr. Go. v. Moyle (Utah), 9 Pac. 875; Kaylor v. Campbell (Oregon), 11 P’ae. 301; Smith v. Denwiff (Mont.), 60- Pac. 398.)

      Findings are only necessary upon material issues. (Knowles v. Leale, 64 Cal. 377; Louvall v. Gudley, 70' Cal. 507; Malone v. County of Del Norte, 77 Cal. 217.)
    Even if this was a material issue, the failure of the court to find thereon is Hot reversible error, inasmuch as appellants presented no request for such findings. (Code of Civil Procedure, Sec. 1114; Haggin v. Saile,, 23 Mont. 375; Gallagher v. Cornelius, 23 Mont. 27; Currie v. Mont. Cent. By. Co., 60 Pae. 989; Noland v. Bull (Oregon), 33 Pae. 983'; Dutertre v. Shal-lenberger (Nev.), 34 Pac. 449; Bank of California, v. Dyer (Cal.), 44 Pac. 534; Larimer & W. I. Co. v. Wyatt (Colo), 48 Pac. 528.)
   ME. CHIEF JUSTICE: BEANTLY,

after stating the case, delivered the opinion of the court.

1. Contention is made by counsel for appellants that the district court erred in excluding certain evidence tending to show that the defendants’ ditch and premises are upon- the Fort Belknap Indian reservation. This contention proceeds upon the theory that, if it were made to appear that defendants’ ditch and lands are within the limits of the reservation, this fact would necessitate a finding that defendants are not entitled to the use of any of the waters in controversy, because they could not lawfully occupy any portion of the reservation, or make an appropriation of waters thereon. • The record discloses that the evidence was offered by the plaintiffs, and admitted without objection. Presumably, it was considered by the court soi far as it was pertinent to any question involved in. the case. Counsel say, however, that the memorandum opinion of the court filed with the clerk and incorporated in the récord shows- that the court expressly excluded this evidence in making up the findings, and refer to the memorandum as the basis upon which to predicate this assignment of error. The opinion of the court has no place in the record, and cannot be looked to for any purpose. (Cornish et al. v. Floyd-Jones, 26 Mont. 153, 66 Pac. 838; Menard v. Mortana Central Ry. Co., 22 Mont. 340, 56 Pan. 592; Butte & Boston Mining Co. v. Societe Anonyme des Mines de Lexington, 23 Mont 177, 58 Pac. 111, 75 Am. St. Rep. 505.) It is, therefore, not apparent from the record, to which alone this court may look, that the plaintiffs were prejudiced by the trial court in refusing to give such weight to the evidence in question as it deserved: We do not wish, however, to be understood by anything here said as holding that the evidence was competent, and should have been considered. Under the stipulation above referred to, an inquiry into the title by which the defendants hold their lands wasi not pertinent to the case. Whether the right of defendants to the use of the water through a ditch which was taken out upon the reservation could thus be attacked in a collateral way, or whether this was a question exclusively between defendants and the federal government, we do not undertake to decide, because it is not properly before us.

2. It is argued that the court erred to the prejudice of the plaintiffs in admitting evidence of declarations by Marshall and Mercer, the predecessors of plaintiffs, in disparagement of their right to the use of any of the waters of Warm Springs creek under the appropriation alleged to have been made by them on July 8, 1889, and prior to their conveyance to> plaintiffs. The evidence tended to show that early in August, 1889, they had some conversation with certain of the witnesses who testified at the hearing, and at that time stated that they desired “to take up’’ a water right, and asked for information as to how they should proceed. The argument is that, inasmuch as the court found that their appropriation was made on October 1, 1889, their declarations made in August could not be regarded as in disparagement of their title, because they could not then have been in possession of the property about which they were speaking. There is no merit in this contention. The plaintiffs claimed through Marshall and Mercer under an alleged appropriation by them in July, and continuous possession and use by them until they conveyed to plaintiffs. They offered evidence tending to support this claim'. This being so> plaintiffs could not effectively resist the introduction of their declarations made subsequent to that date, which tended to show that their claim was unfounded. The evidence falls clearly within the rule declared by Section 3125 of the Code of Civil Procedure, and was admissible. Its admissibility and probative character was not affected by the finding of the court that the appropriation was in fact made at a later date than that claimed. Presumably, these very declarations in a measure influenced the court in finding as it did. According to the plaintiffs'’ contention, they should have been held admissible only after conclusive proof that the appropriation had been made by Mercer and Marshall .as alleged.

3. The point is made that the evidence is insufficient to support the findings. The specifications of particulars wherein the evidence is alleged to be insufficient da not meet the requirements of the statute (Section 1113, Code of Civil Procedure), but are subject to the same infirmity as those criticised in Cain v. Gold Mountain Mining Co., 27 Mont. 529, 71 Pac. 1004, and eases cited. We find, however, from such examination as we have been able to make of the evidence, unassisted by suitable specifications, that it is conflicting upon all the issues involved. We must, therefore, accept the judgment of the district court thereon as conclusive.

. The judgment and order are affirmed.