author: MR. JUSTICE PIGOTT Mr. Chief Justice Brantly : Mr. Justice Milbubn:

text:
    BEACH et al., Respondents, v. SPOKANE RANCH AND WATER COMPANY, Appellant.
    (No. 1,363.)
    (Submitted April 15, 1901.
    Decided June 3, 1901.)

      Appeal and Error — New Trial — Statement—Striking Out— Appealable Order — Service—Presumption—Plaintiff’s Exceptions — Defendant’s Appeal — Neio Trial.

    1. Under Code of Civil Procedure, Sec. 1722, Snbd. 2, providing that appeals may be taken to the supreme court from any special order made after final judgment, ah order striking out the statement on motion for a new trial is appealable.
    2. Where a statement on motion for a new trial has been allowed and settled by the trial court, the appellate court will presume, in the absence of evidence to the contrary, that it was duly served on the adverse party; but this presumption does not obtain where the statement or bill upon its face shows that the service was made too late, and that seasonable objection to it was interposed upon that ground.
    3. A statement on motion for a new trial which has been settled, certified and filed cannot be stricken from the record or files on the ground that the draft of the statement was not served in time.
    4. Where plaintiff’s bill of exceptions was made up entirely of matters occurring after the entry of final judgment, it was no part of the- judgment roll, and hence would not be considered on defendant’s appeal from an order denying a new trial.
    5. Objections to the settlement of a statement on motion for a new trial must be incorporated in the statement, to form part of the record on appeal from the order denying the new trial.
    6. Where a statement on motion for a new trial was erroneously stricken from the record by the trial court, such proceeding would vitiate the order denying a new trial, since the motion therefor rested on the statement.

      Appeal from District Court, Lewis and Clarke County; Henry C. Smith, Judge.

    Action by Calvin Beacli, an insane person, by Elizur Beach, his guardian, and others, against the Spokane Ranch & Water Company. From an order striking out the statement on motion for a new trial, and from an order denying a new trial, defendant appeals.
    Reversed.

      Messrs. Sanders & Sanders and Messrs. Toole & Bach, for Appellant.

      Messrs. McConnell & McConnell, for Respondents.
   MR. JUSTICE PIGOTT

delivered the opinion of the Court.

Two phases of this cause are reported in 21 Montana at pages 7 and 184 (52 Pac. 560, 53 Pac. 493). It is now here on appeal from an order striking from the file the statement on motion for a new trial, and from an order refusing a new trial, presented by the same record. Judgment for the plaintiffs was entered on July 3, 1897. Thereafter the statement on motion for a new trial was settled, certified as allowed, and filed. On October 15, 1898, the motion for a new trial coming on to' be heard, the plaintiffs orally moved that the statement be stricken out because not served in, time. The two motions, were submitted together. On October 17, 1898, the court granted the motion of the plaintiffs to strike off the statement so settled, certified and filed, and at the same time denied the motion for a new trial. The defendant appeals.

1. When made after entry of final judgment, an order striking out the statement o-n motion for a new trial is an order from which an appeal may be taken. (Subdivision 2 of Section 1722 of the. Code of Civil Procedure; Beach v. Spokane Ranch & Water Co., 21 Mont. 7, 52 Pac. 560; Calderwood v. Peyser, 42 Cal. 110; Sutton v. Symons, 100 Cal. 576, 35 Pac. 158; Symons v. Bunnell, 101 Cal. 223, 35 Pac. 770.) That such an order is appealable is well settled in this jurisdiction and in California, the statute in each prescribing that an appeal lies from any special order made after final judgment.

2. The presumption is raised by the judge’s certificate allowing the statement or bill on motion for a new trial that all the precedent steps were regularly taken (Murray v. Hauser, 21 Mont. 120,53 Pac. 99), and must be indulged in favor of the regularity of official action when the record is silent as to service- or waiver and even where the statement or bill discloses that it was not served within the period prescribed by the statute- and fails to show any enlargement of time. This presumption may be rebutted by the matter contained in the statement itself, ■ — perhaps the accurate expression is that the presumption does not obtain where the statement or bill upon its face shows that the service was made too late and that seasonable objection to it was interposed upon that ground. In the absence of such disclosure, the certified statement or bill raises the conclusive presumption that a draft of the proposed statement, or a copy of the draft, was duly served. (Murray v. Hauser, supra. See Hayne on New Trials & App. p. 402, Sec. 146.)

When a proposed statement or bill on motion for a new trial appeal’s to have been served out of time, the judge to whom it is presented may, unless waiver of default also appears, rightly refuse to settle it. (In re Application of Plume, 23 Mont. 41, 57 Pac. 408.) In such case he may either settle or refuse to settle. If he settles it, his certificate of allowance is not appeal-able. (Henry v. Merguire, 106 Cal. 142, 39 Pac. 599.) His refusal to settle and certify is also nonappealable, as was held in Ayotte v. Thomas, 20 Montana, 223 (50 Pac. 553), which case was commented on in In re Application of Plume, supra; and in Whipple v. Hopkins, 119 California, 349, 51 Pac. 535 (which seems to overrule Stonesifer v. Kilburn, 94 California, 33, 29 Pac. 332), it was held that even an order refusing to. settle is nonappealable. As was declared in Ayotte v. Thomas and in In re Application of Plume, supra, mandamus is the-efficient remedy whereby to test the action of the judge in refusing to settle or certify, and although determination of the question whether mandamus was the remedy did not necessarily arise in the latter case (Harding v. McLaughlin, 23 Mont. 336, 58 Pac. 865), and was not essential to a decision of the former, the correct practice was indicated by each. If the judge is willing to settle the bill or statement, he should, before certifying it, permit to be incorporated into it any objections to the settlement, together with the matter in support of the objections; for example, if the defendant has served his proposed statement on the eleventh day after filing and serving notice •of intention to- move for a new trial, and the plaintiff, before or at the time he offers amendments, objects, or preserves his right to object, to a settlement because of delay in service or to urge the delay as a reason why a new trial should be denied, the objections should be embraced in the statement when settled; if the objection is well taken, a new trial ought to be refused upon the ground that the statement was not served in time; and where the plaintiff does not offer amendments, but objects to a settlement for the reason that the statement was not served in time, and it appears from the proposed statement, or from the facts shown at the settlement, that service was made without the time prescribed by the statute or beyond the time as enlarged by the court or judge or by act or waiver of the plaintiff, the duty devolves upon the defendant, if he would answer the objection, to incorporate into the statement such matter as may exist which will excuse or justify his seeming delay (Wheeler v. Karnes, 125 Cal. 51, 57 Pac. 893), and, unless this be done, the motion for a new trial ought to be denied. Such a statement is part of the record on appeal, and hence, if the strictly proper and technical practice be followed, it will not be stricken out of the transcript filed here, but will be examined in this court to such an extent only as may be necessary to determine that the statement was served out of time. We pause to observe that the loose practice has prevailed in this court of moving to strike from the transcript on appeal parts of properly certified records. Such, motions have frequently been granted, but, while no objection has been made to the practice, and no substantial injury resulted, it is certainly manifest that no part of a certified record on appeal should be eliminated from the transcript. None of the properly authenticated and certified papers authorized on.* required to be furnished to this court upon appeals ought ever to be stricken out when presented in conformity with the rules. Their place is in the record. Their effect is properly a matter for determination upon consideration of the case upon the entire record; for example, the notice of intention to move for a new trial is not one of the papers constituting the judgment roll, nor is it one of the papers described in Sections 11Y 6 and 1Y38 of the Code of Civil Procedure as required to be furnished on appeal from an order granting or denying a new trial, — it is therefore no part of the record on appeal, and hence will be stricken out even if formally certified by copy, as was done in Carr, Ryder & Adams Co. v. Closser, 25 Montana, 149, 63 Pac. 1043; if, however, the notice of intention to move for a new trial be included in a statement or bill of exceptions on motion for a new trial, it is thereby made a constituent part of the record on apjieal, and should not be stricken out even though it may have been served or filed outof time and must be disregarded upon the submission of the case. So with a statement or bill of exceptions used on the hearing of a motion for a new trial; when certified and brought to this court in the regular mode, it is part and parcel of the record on appeal and is entitled sck to remain, although, because of some defect or invalidity, such a failure to contain a specification of the particulars in which the evidence is insufficient, it may not be capable of subserving the purpose for which it was intended or must be disregarded because a draft of the proposed' statement was not served in time.

It seems to be settled that the mere form of expression or language in which the objection for want of timely service may he couched is unimportant. The objection must clearly appear, but it is sufficient if it appear by unmistakable inference so that the party moving for a new trial may come to the settlement of the statement prepared with matter (if any there be) excusing the delay. (Hayne on New Trials & App. p. 394, Sec. 145.) In Cottle v. Leitch, 43 California, 320, the plaintiff offered an amendment to the defendant’s proposed statement, “without waiving any right to move to deny said motion on the ground that defendant’s statement was not filed in time,” but there was nothing to show that he protested against the settlement; the court held that the objection was sufficient in form and was seasonably interposed, and that the trial court erred in granting* a new trial, saying: “No particular form of reserving the objection, however, is prescribed. It is enough that it is pointed out as an objection upon which the party intends to rely in resisting the motion for a new trial. The phrase here employed, 'without waiving any right to move to deny said motion on the ground that defendant’s statement was not filed in time,’ though somewhat inartificial in expression, must be taken as substantially importing a reservation of the objection that the statement came too late, and the objection as thus pointed out on the record must be considered to have been overruled by the court below in granting the motion foir a new trial.” In Doyle v. Gore, 13 Montana, 471 (34 Pac. 846), the trial court made an order extending the plaintiff’s time for serving the statement for thirty days, “without the consent, advice or stipulation of defendants or their counsel,” and afterwards made other orders, which did not appear toi have been by consent, further extending the tima The statement was certified, and a new trial refused. This court struck the statement from the record on appeal because the time was extended more than thirty days without defendants’ consent, and the natural inference from the opinion is that no objection was made by the defendants other than the one implied by the recital to the effect that the first order was without their: consent; but the record on file in this court shows that the defendants in offering amendments to the proposed statement reserved the right toi object to the granting of a new trial for the reason that the statement was not served within the time prescribed by law, and that such objections together with the matter in support cf them were part of the record on the new-trial motion. In Woodard v. Webster, 20 Montana, 279 (50 Pac. 791), the objections to a statement on motion for a new trial and the matter in support of them were made part of the statement as settled and certified; and in Power v. Lenoir, 22 Montana, 169 (56 Pac. 106), the objections were made part of the statements on motion for a new trial.

It is of course manifest that where the application for a new trial is made upon affidavits and a statement or bill, the latter may have been served in time and the former not, and vice versa. Objections to the untimely service of affidavits must be incorporated into the bill of exceptions containing the affidavits, or the substance of them. Por instance: If a new trial be granted on motion of the plaintiff, the defendant must see to it that his bill of exceptions contains his objections to the consideration of the affidavits, and the plaintiff also must cause to be inserted into the bill whatever he may have shown to excuse his seeming default in making timely service. If a new trial be refused, then the plaintiff must take the bill, into which the defendant will incorporate his objections, together with the matter in support of them, and, if a prima, facie default in the time of service is disclosed, the plaintiff must insert whatever tends to prove that the service was made in time. It may be observed, in passing, that under Sections 1176, 1738 and 1739 of the Code of Civil Procedure, the affidavits need not be presented by a bill if the attorneys certify to the copies furnished on appeal to this court. Unless so certified by the attorneys or included in a bill of exceptions, the affidavits are not part of the record on appeal; this is the inevitable conclusion to be deduced from State ex rel. Pierson v. Millis, 19 Montana, 444 (48 Pac. 773), and Rumney Land & Cattle Co. v. Detroit & Montana Cattle Co,, 19 Montana, 557 (49 Pac. 395).

In the case at- bar the statement on motion for a new trial Avas settled, certified as allowed, and filed. It Avas a record of the district court of the same dignity as a bill of exceptions and performed a like -office. It was the basis of the application for a new trial. It, together with such parts of the judgment roll as were proper to- be considered in determining whether a reexamination of the issues of fact ought to be had, constituted the record upon which the court below was authorized to act. Nothing else could properly be used on the hearing of the motion,. This statement the court below struck out upon the ground that the draft of the proposed statement was not served in time. The court erred. If the statement was out of time as toi service, proper practice required the judge to refuse a settlement, or to settle it and then deny the motion for a new tidal for the reason that timely service had not been made-, — we do not mean to say that the order denying such motion must expressly indicate the ground upon which it is made, for every legitimate intendment will bo indulged in support of the order; but to strike from the record or files the certified statement because not served in time, is always erroneous (Quivey v. Gambert, 32 Cal. 304; Calderwood v. Peyser, supra); Lucas v. City of Marysville, 44 Cal. 210), and necessarily prejudicial to the party moving for a new trial. The question is not an open one in Montana. In Sweeney v. Great Falls & Canada Railway Co., 11 Montana, 34 (27 Pac. 347), this court, quoting from Quivey v. Gambert, and Lucas v. City of Marysville, supra, and from Hayne on New Trials and Appeals, said: “A party moving for a new trial is entitled to a ruling upon his motion upon the basis upon which he presents it, in order that he may have and enjoy unembarrassed his right of appeal to this court. If his notice or statement has not been served or filed within time, that is a good reason why his motion should be denied when finally brought to hearing; but, under the method of procedure prescribed by the Code, it is not intended that the record upon which the motion is made may be first stricken out, and the motion then denied. Such a course is, in effect, a denial of any- hearing upon the motion, and of an appeal to this court where an, appeal is given. If the notice and statement, or either of them, is not filed within time, he [respondent] may safely rely upon such facts as fatal toi the motion, when brought to a hearing. If, however, as is generally the case, there is some doubt as to whether they are within time, and he does not desire to take any risk, he may propose amendments without waiving his right to object that they are not within time, by a simple preface that he does so without prejudice to his right to object at the hearing' to the notice or ■ statement upon those grounds. By so doing he-waives nothing. On the contrary, he preserves all his rights in the'premises. The court will then proceed to settle the statement, and at the hearing pass upon the objections so reserved. If the motion is denied, an appeal can bo taken- to- this court,, where the whole matter can be reviewed upon the- record upon which the court below heard the motion. Such is the plain and obvious course prescribed by the statute, and no deparhme from it can be indulged, without, as we have seen, mischievous if not absurd results. * * In the case of Quivey v. Gambert it was held that it was not good practice to strike from the- files a proposed statement on motion for a new trial upon the ground that the right to move had been waived or lost, but that objections to the right of the moving party to be heard upon the motion should be made at the hearing; and the rule in this respect indicated in that case has since then been followed in this court. * -» * The objection that the proposed statement was not in time must be reserved before proposing amendments; if not, it is waived, and cannot afterwards be made, either on motion to strike out the statement or in any other manner. When reserved, the objection must (if not sustained at the settlement) be incorporated in the settled statement, together with the matter in its support. If it be not so incorporated, the presumption is that the proposed statement was in time, and that all the proceedings in its preparation were regular. This presumption is conclusive; for the statement, when certified and filed like other records, imports absolute verity, and cannot be contradicted or added to by affidavits upon a motion to dismiss, or in any other manner. The objection must therefore be apparent upon the face of the statement itself; and, if so- apparent, it is manifest that it may be urged as a reason why the motion for a new trial should be denied, both in the lower court on the hearing of the motion, and in the supreme court on appeal from the order granting or refusing a new trial. This being the case, the inauguration of a separate line of proceedings by a separate motion to strike out the statement, or a motion to' dismiss the motion for a now trial, is not only utterly useless, but is open to the very gave objection of involving two appeals) before the motion for a new trial can get to the supreme court.” Continuing, the court said: “If it be improper to strike out a statement or to dismiss the motion for a new trial, and if the moving party is entitled to a hearing of his motion, the district court in the case at bar certainly erred in refusing to hear appellant’s motion. The court should have heard any objections that the plaintiff might offer to the proposed statement, and incorporated the same in the statement. A record of the whole matter would have then been preserved for the review of this court on appeal. It appears from this record that the judge below settled the statement.” Upon this point the Sweeney Case is approved in Arnold v. Sinclair, 12 Montana, at page 261 (29 Pac. 1124), and we believe that since the decision in the former case the practice has conformed tot the rule therein announced.

But the plaintiffs insist that this court should consider their bill of exceptions settled on December 28, 1897, showing, as they contend, that in offering the amendments to the proposed statement they reserved the right to object to a settlement and to object to the statement at every stage of the proceedings to be thereafter taken, by reason of the failure to serve it in time, that they did so object before the statement was finally settled, and that the judge overruled the objections and refused the plaintiffs’ request to incorporate them into the statement which wras then in process of settlement, to which the plaintiffs excepted. In answer to this contention we deem it sufficient toi ■say that even if the plaintiffs’ bill of exceptions is, by virtue of Section 1737 of the Code of Civil Procedure, a part of the record to be furnished on appeal from the order striking out the certified statement (a question not necessary to be decided at this time), the order, tested by the principles and rules announced, was erroneous and must be reversed, for “a party moving for a new trial is entitled to a ruling upon his motion upon the basis upon which he presents it, in order that he may have and enjoy unembarrassed his right of appeal to this court,’’ and that the objections contained in the bill of the plaintiffs cannot be considered on appeal from the order1 denying a new trial, unless incorporated into-, and thereby made part of, the statement as settled and certified. The statement and such parts of the judgment roll as are pertinent to the questions raised by the motion, together with copies of the order and notice of appeal, constitute the record on appeal from the order denying a new? trial; since the plaintiffs’ bill of exceptions was made up entirely of matters occurring after the entry of final judgment, it could not be part of the judgment roll as defined by Section 119 G of the Code of Civil Procedure, nor does it seem to be such a bill as is referred to1 in Section 1176, for the bill there prescribed as part of the record on appeal from an order granting or refusing a new trial is the bill taken by the party appealing. Exceptions reserved by the respondent may not be considered. (Sherman v. Nason, 25 Montana, 283,64 Pac. 768), nor w?as it necessary for the plaintiffs to except to the overruling of their objections to the settlement ini order to preserve the benefit of the objections, for the office of the objections and the matter in support of them was to- disclose whether the statement proposed had been seasonably served, — such objections, when overruled, need not be followed by an exception. The statement, if settled, was the only legitimate place for the objections, and unless incorporated therein they form no part of the record on appeal from an order denying a new trial. They must appear upon the face of the certified statement, and it is the duty of the judge to permit them so. to be shown. The order striking out the statement removed the very foundation upon which the motion for a new? trial rested; there was then nothing for the court to do but to deny the motion or to postpone the hearing of it until the supreme court had decided whether the order striking oiut the statement was erroneous. Perhaps it might plausibly be suggested that, although the order striking out the statement should be reversed, the order denying a new trial should be affirmed because there was before the court when the motion was submitted nothing upon which a new trial could be granted; but counsel have not made the suggestion, and we assume that the law does not intend such seemingly absurd and unjust result to be incident to the exercise of the statutory right of appeal from each order. The error committed in striking out the statement was fundamental, and vitiated the. order denying a new trial.

The order striking the statement from the file is reversed, the order denying a new trial is set aside, and the cause is remanded, with directions to restore to the file the statement on motion for a new trial, to1 proceed in conformity with the views expressed in this opinion, and to hear and determine the motion for a new trial.

Reversed and remanded, with directions.

Mr. Chief Justice Brantly :

I concur.

Mr. Justice Milbubn:

I concur. The action of the court below in sustaining one motion and in denying the other was intended, doubtless, to be one act, to-wit, a denial of the motion for a new trial upon the ground that the statement was not filed in time. If the statement was not filed in due time, the intent of the court was correct; but to strike the statement, and then deny the motion because there was no> statement, was to setup, inadvertently, I doubt not, a state of things which technically left the appellant without remedy, if we must hold the court to be correct in its ruling denying the motion for a new trial. To uphold the court under such circumstances would be to declare that-, this court having held that the remedy for error in striking a statement is by appeal, to appeal is futile in every sucli case. The decision in this case should not be understood as establishing precedent, but merely as the law of this case under the peculiar circumstances thereof, — not liable to arise again; the parties having by the record and their briefs practically submitted as the only question: Can a court make an appealable order striking the statement on motion, and then, in effect, refuse to consider the motion for a new trial because it has stricken the statement^ thus forcing the losing party toi two appeals, neither of which can eventually avail the appellant if the court was in error when striking the statement? There is no wrong without a remedy, and in the absence of statute, rule or precedent to govern this court in the matter, I concur in the conclusion reached by Mr. Justice Pigott as just, although it appears to me that the rule, so far as it directs the court to hear the motion on new trial, would be more appropriate in mandamus than on appeal.


source: Caselaw Access Project

author: MR. JUSTICE PIGOTT

license: Public Domain

text:
    BEACH et al., Respondents, v. SPOKANE RANCH AND WATER COMPANY, Appellant.
    (No. 1,311.)
    (Submitted April 15, 1901.
    Decided June 3, 1901.)

      Water Rights — Diversion — Injunction— Complaint — Proper and Necessary Parties — Demurrer—Jurisdiction—Bill of Particulars — Discretion — Appeal — Record — Evidence- - Failure to Preserve — Findings—Revieto.
    1. Tlie district court being a superior court of general jurisdiction, want of jurisdiction must affirmatively appear, to overthrow the presumption that the court had jurisdiction of the subject-matter of the action.
    2. Property owners having the right to divert the waters of a creek for irrigation purposes may join in a suit to restrain a third person from diminishing the volume of water to the use of which they are entitled.
    3. Where the complaint in a suit to restrain defendant from diverting the waters of a creek does not show that plaintiffs had not brought in all the claimants of such waters, the objection that there was a defect of parties cannot be takeñ by demurrer.

      4. Where property owners having the right to divert waters from a creok seek to restrain a diversion therefrom by a third person, all the property owners using such waters are not necessary parties, and hence allegations to that effect in defendant’s answer were properly stricken out.
    5. A complaint in an action to restrain defendant from diverting waters to the use of which plaintiffs were entitled alleged the dates and amounts of the appropriations made by the predecessors in interest of the plaintiffs, the actual and continuous use of the waters, and the usual matters in complaints of like character. Held not demurrable for failing to deraign plaintiff’s respective titles.
    6. Refusal to order a bill of particulars to be furnished is not error, unless abuse of discretion is shown.
    7. Where allegations touching laches, the statute of limitations, and estoppel were denied by the replication, but the evidence was not preserved in the record, the trial court’s finding on these questions will not be disturbed on appeal.

      Appeal from District Court, Lewis and Clarice County; Henry C. Smith, Judge.

    Action by Calvin Beach, an insane person, by Elizur Beach, his guardian, and others, against the Spokane Banch & Water Company. Erom a judgment for plaintiffs, defendant appeals.
    Affirmed.

      Messrs. Sanders & Sanders and Messrs. Toole & Bach, for Appellant.

      Messrs. McConnell & McConnell, for Respondents.
   MR. JUSTICE PIGOTT

delivered the opinion of the Court.

Three aspects of this cause are reported in 21 Montana, at pages 7 and 184, and ante, page 367 (52 Pac. 560, 53 Pac. 495, 65 Pac. 106).

McClellan creek, from which the defendant diverts water, empties into Prickly Pear creek at a point above the places where the plaintiffs divert the waters used by them. The plaintiffs are owners in severalty of divers parcels of land and of the water rights used thereon, and by this action sought a decree declaring that their rights to the use of the waters of Prickly Pear creek are prior and superior to the right of the defendant to use the waters of McClellan creek, and perpetually enjoining the defendant from diverting any of the waters of the tributary stream until the rights of the plaintiffs shall have been first satisfied. The relative priorities among the plaintiffs themselves were also sought to1 be established. The court found that all the water rights asserted by the plaintiffs, except one right owned by Harlow and Whitney, were superior to the right of the defendant, and that the plaintiffs were entitled to an injunction as prayed for. The relative rights of the respective plaintiffs inter sese were also determined, but, as such determination in no wise concerns the defendant, it will not be further noticed. Judgment was entered in accordance with the findings) and the defendant prosecutes the present appeal.

1. A demurrer to the complaint was overruled, and this is specified as error. The first ground of demurrer was that the court had no jurisdiction of the subject of the action. With respect to this ground of demurrer it is enough to say that the district court is a superior court of general jurisdiction, and, unless want of jurisdiction of the subject-matter affirmatively appears, the presumption • must be indulged that it possesses jurisdiction. Inspection of the face of the complaint does not disclose lack of jurisdiction. We pass the objection that the complaint fails to state facts sufficient to constitute a cause of action with the remark that this ground is not mentioned in that part of defendant’s brief devoted to the argument, and seems to' be untenable.

2. Another ground of the demurrer was that several causes of action had been improperly united, in that the plaintiffs’ causes of action were several and not joint. Counsel argue that because the complaint alleges ownership in severalty of the lands which they desire to irrigate, and rights in severalty to the use of the waters of Prickly Pear creek, the plaintiffs have no common interest in the subject of the action or in-the relief granted. But we think it is manifest that the plaintiffs have a community of interest both in the subject of the action and in obtaining the relief demanded, and hence properly united. In reacting this conclusion tbe provisions of Section 1891 of the Civil Code, if applicable, need not be invoked. While persons may not, in tbe absence of a statute permitting it, join as plaintiffs in an action for damages unless there is a community of interest in respect of the injury suffered (as was practically declared in Miles v. Du Bey, 15 Montana, 340, 39 Pac. 313), the rale'is and always has been that those having a common interest in the subject of the action and in preventing the defendant from doing that which will cause injury to them severally, may join as plaintiffs in a suit the object of which is to restrain him. In so far as the question of misjoinder of plaintiffs and improper union of causes is involved and the defendant is concerned, the subject of the action as stated by the complaint in the present case may be defined to be the alleged' right .of the plaintiffs as against the defendant to have the waters of Prickly Pear and McClellan creeks, to the extent of their appropriations, flow to their respective headgates or points of diversion, — in other words, the right to restrain the defendant from depriving the plaintiffs of the use of the waters claimed by them. The object of the action is to obtain the injunction, — the ultimate relief sought. The cause of action is the threatened wrong, — the anticipated invasion of the right. Though without community of interest in the resulting injuries, they would be commonly affected by the defendant’s diversion of the waters. They were alike, or commonly, interested in preventing the defendant from diminishing the volume of water to the use of which they were entitled, and might treat the wrong threatened by the defendant as a single cause of action,, though each could maintain a suit in his own behalf alone. Two or more several owners of mills propelled by water are (to adopt the language of Section 76 of Bliss on Code Pleading) “interested in preventing an obstruction above that shall interfere -with the down-flow of the water, and may unite to restrain or abate it as a nuisance; but they cannot hence unite in an action for damages, for, as to the injury suffered, there is no community of interest. There is no more a common interest than though a carrier had at one time carelessly destroyed property belonging to different persons or the lives of different passengers. The abatement or prevention of the nuisance involves but a single judgment, in obtaining which all the mill owners are interested, and by which they are all benefited; but, to enable them to unite in an action for their several damages, there must be some connection, — something in which they have a common interest.” The same principle governed and was declared in Foreman v. Boyle, 88 California, 290 (26 Pac. 94) ; Belknap v. Trimble, 3 Paige, 577; Emery v. Erskine, 66 Barbour, 9; Peck v. Elder, 3 Sandford, 126; Tate v. Railroad Co., 10 Indiana, 174 (71 Am. Dec. 309); and Taylor v. Bay City Street Railway Co., 80 Michigan, 77 (45 N. W. 335), — and seems to have received general recognition; indeed, it is so clearly correct that the citation of cases in its support is hardly necessary.

3. It was also stated as a ground of demurrer that there was a defect of parties in that the plaintiffs had not brought into court all the claimants of the water of Prickly Pear and McClellan creeks, to the end that the waters might be properly distributed according to the several rights of each. The matter of the objection does not appear upon the face of the complaint, and hence could not be presented by demurrer. The answer, however, alleged that other persons were interested in the waters of Prickly Pear and McClellan creeks and were necessary parties to'the determination of the rights of the plaintiffs and defendant; but it did not state facts sufficient to show that such other persons were necessary parties, and these allegations were stricken out. In this there was no error. The statute does not íequire all persons whot take water from the same source or stream to be made parties before a judgment may be rendered fixing the rights among the parties before the court. Counsel for the defendant fail to distinguish between the absence of necessary parties and the absence of those persons who are merely proper parties. “Defect of parties” means the absence of one or more of the necessary parties.

4. The next ground of demurrer is that the complaint is uncertain in that it omitted to describe definitely the particular appropriations under which the plaintiffs claimed, — in short, the defendant insists that the plaintiffs, should have deraigned their several titles. We think the complaint is not subject to the objection. It alleges the dates and amounts of the appropriations made by the predecessors in interest of the plaintiffs, the actual and continuous use of the waters, and such other matters as are usually stated in complaints of like character, and we perceive no legal necessity for the plaintiffs further to particularize-the genesis and continuity of their titles.

5. The defendant applied, upon affidavits, for a bill of particulars describing the lands alleged in the complaint to be owned by the respective plaintiffs, and stating who were the original appropriators of the several water rights asserted by the plaintiffs. If it be conceded that bills of particulars may be ordered to be furnished in actions where equitable relief only can be granted, it is nevertheless within the sound discretion of the court whether such a bill will be required, and unless an abuse of the discretion is shown it cannot be said that the court erred in refusing the application. It does not appear that in the present instance there was an abuse of discretion.

6. The defendant pleaded laches on the part of the plaintiffs in asserting their rights to the use of the waters, interposed the defense of adverse user by the defendant of the water in dispute for the period prescribed by the statute of limitations, and pleaded or attempted to plead an estoppel. The allegations touching laches, the statute of limitations, and estoppel, are denied by the replication. The court found against each of these pleas, and since the evidence is not preserved in the record ive are unable to consider the question whether it was sufficient to justify the findings, even if such inquiry may be made on appeal from a judgment. We are restricted to the inquiry whether the findings support1 the judgment; that they do, does not admit of doubt.

The other matters of which the defendant complains do not require special mention. We discover no prejudicial error in the judgment roll.

The judgment is affirmed.

Affirmed.

      “Sec. 1891. In any action hereafter commenced for the protection of rights acquired to water under the laws of this state, the plaintiff may make any or all persons who have diverted water from the same stream or souce parties to such action, and the court may in one judgment settle the relative priorities and rights of all the parties to such action. When damages are claimed for the wrongful diversion of water in any such action, the same may be assessed and apportioned by the jury in their verdicts, and judgment thereon may be entered for or against one or more of several plaintiffs, or for or against one or more of several defendants, and may determine the ultimate rights of the parties between themselves. In any action concerning joint water rights, or joint rights in water ditches, unless partition of the same is asked by parties to the action, the court shall hear and determine such controversy as if the same were several as well as joint.”


author: MR. JUSTICE MILBURN

text:
    WALTER, Appellant, v. MITCHELL, Respondent.
    (No. 1,317.)
    (Submitted April 15, 1901.
    Decided June 3, 1901.)

      Insane Persons — Injuries— Asylums-, — Negligence—Pleading.
    Under Code of Civil Procedure, Sec. 745, providing tliat, in pleading a judgment of a court, it may be stated to have been duly given or made, a complaint alleging that an insane person was “so declared by a court of competent jurisdiction,” and “was duly committed to the insane asylum,” does not show the duty of the keeper of the asylum to receive and keep such person, under Political Code, Sec. 2808, providing that the insane person, together with the order of the judge and certificate of the physicians, must be delivered to the keeper of the asylum, since the allegation does not show the name of the court or that any order was made or delivered to the keeper.

      Appeal from District Court, Deer Lodge County; Theo. Brantly, Judge.

    Action by Martha Walter against A. H. Mitchell for negligently causing the death of her husband. Judgment for defendant. Plaintiff appeals.
    Affirmed.

      Mr. J. H. Myers and Messrs. Rodgers & Rodgers, for Appellant.

      Mr. T. J. Walsh, Mr. William H. DeWitt and Mr. Edward Scharnikow, for Respondent.
   MR. JUSTICE MILBURN

delivered the. opinion of the Court.

This cause is an appeal from a judgment, and on motion to dismiss on the ground that the action has abated by reason of the death of the defendant.

The case came before the district court on demurrer to the amended complaint on! the ground of want of substance. The demurrer was sustained, and plaintiff elected to abide her complaint. Judgment was thereupon rendered for the defendant. Since the appeal the defendant has died and his executrix has been substituted.

We shall not consider the motion, to dismiss. It is apparent that the court was right in its ruling on the demurrer, and the judgment must be sustained.

Several reasons are set forth by defendant’s counsel why the complaint does not state a cause of action. It will be sufficient to pass upon one ground only.

It is attempted to charge the defendant with responsibility for the death of the husband of plaintiff; the law invoked being Section 519 of the Code of Civil Procedure: “When the death of one person, not being a minor, is caused by the wrongful act or neglect of another, his heirs or personal representatives may maintain an action for damages against the person causing the death, or, if such person be employed by another person who is responsible for his conduct, then also against such other person. In every áction under this and the preceding section such damages may be given as under all the circumstances of the case may be just.”

It is averred in the plaintiff’s pleading that defendant, being charged by the terms of his contract with the state of Montana with, the duty of keeping, caring for, maintaining, properly treating and restraining at the insane asylum at Warm Springs, Montana, all persons adjudged insane within the state, one James Roads was, on the 19th day of March, 1896, while the defendant was charged with the duty aforesaid, “an insane person, and so insane and deranged in mind as to be dangerous to life, persons and property, and was on said day so declared by a court of competent jurisdiction within the state of Montana to be an insane person, and sufficiently deranged in his mind to endanger life, person and property, and was duly committed to the said insane asylum at Warm Springs, ini the county of Deer Lodge, state, of Montana, and was so an inmate thereof at the time said Mitchell and Mussigbrod undertook and entered into said contract, and was committed and came into' their hands as am insane person, and under their contract they undertook to keep, provide for, maintain and restrain said Roads at said insane asylum at Warm Springs, county of Deer Lodges state of Montana.”

To establish, prima facie, the duty of the defendant to keep the alleged insane person in his custody, and mot to permit him to be at large, it was necessary to allege, or state facts to- show, that the insane person was turned over to the defendant under a commitment such as the law required, from a competent tribunal, stating the name and style of the court, and that the person had been found insane and a proper subject for commitment.

Section 2308 of the Political Code, in force at the time of the alleged commitment, is as follows: “The insane person, together with the order of the judge and certificate of the physicians, must be delivered to the sheriff of the county, and by him must be delivered to the officer in charge of the insane asylum.” When the officer in charge of the insane asylum has the insane person thus turned over to him, and has received the order of the judge and the certain certificate of the physicians, he stands charged with the duty to keep the insane person in his custody, and to care for, maintain and treat him as provicled in the contract, presumably made in conformance with the law, and so to> do until the person is lawfully discharged from the asylum.

The only allegation in the complaint as to the manner of the entry of Roads into the asylum is, the language heretofore set forth, being the same substantially in each of the two counts of the amended complaint. There is not anything stated in the amended complaint which even tends to show that the officer in charge of the insane asylum ever was required by any tribunal of this state to receive or keep in his custody the man Roads. There is only one way to charge the officer with s,uch duty, and that is to turn the insane person over to him under the order of a competent tribunal; and the order should show on its face that it was issued and made by a competent tribunal. There is nothing'in the pleading to1 show that any such order, good or bad, was ever made by any judge, or ever received or brought to the notice of the defendant. It cannot be inferred from the amended complaint that any district judge in the state, under the law then in force, ever made any order that Roads.“be confined in the insane asylum.” (Section 2307 of the Political Code of 1895.) The only reference to the court is in the statement that on a certain day in March, 1896, Roads was declared insane, etc., “by a court of competent jurisdiction within the state of Montana.” In pleading a judgment or other determination of a court, officer or board, it is not necessary to state the facts conferring jurisdiction, but such judgment or determination may be stated to have been duly given or made. (Section 745, Code of Civil Procedure.) The name of the court certainly must appear, and words equivalent to “duly given or made,” in referring to the judgment, if a judgment is relied on, must be used. (Harmon v. Comstock Horse & Cattle Co., 9 Mont. 243, 23 Pac. 470.) “Declared by a court of competent jurisdiction within the state of Montana” is nor a phrase informing this court of the style and character of the tribunal which it can judicially notice as competent. To connect such a phrase with the words “was duly committed” by the conjunction “and” is not to make a statement from which we can notice or properly infer that the officer received Hoads upon a commitment of a court of this state, acting in the matter within its jurisdiction and directing" that he be confined in the asylum, or that there was any order by any judge ever given or made, or by the officer ever had or received.

There is nothing in the pleading to show that the officer was ever charged with the duty of confining Hoads. The court below did not err in sustaining the demurrer.

It is not intended that from anything said in this opinion it is to be inferred that, if the insane person was regularly committed, and was, allowed to go at large as alleged, the defendant would be liable, under said section 579, in damages for the death of plaintiff’s husband by the hand of the insane man allowed to go at large, as claimed by plaintiff. We do not decide this point.

Judgment affirmed.

Mr. Chiee Justice Brantly, having tried the case in the court below, takes no part in the foregoing decision.

Motion for rehearing denied July 2, 1901.


author: MR. CHIEF JUSTICE BRANTLY,

text:
    ROBINSON, Respondent, v. MILLS, Appellant.
    (No. 1,271.)
    (Submitted February 28, 1901.
    Decided June 7, 1901.)

      Municipal Corporations — Excavation in Streets — Nuisance— Failure to Fill Excavation — Negligence—Liability of Person Making Excavation — Liability of Receiver — Permission to Sue Receiver — Necessity—Instructions—Notice.
    1. One who creates or maintains a nuisance in a street is 'liable to a passenger who, being himself without negligence, is injured thereby.
    2. An unauthorized excavation of a city street is a nuisance per se.

      3. Tlie failure to replace a city street in its former safe condition after the purpose of an authorized excavation has been accomplished constitutes a nuisance.
    4. Under Political Code, Sec. 4800, Subd. 73, requiring a city street excavated by the permission of the city authorities to be placed in as good condition as formerly existed by the person making the excavation, a water company authorized to make an excavation is negligent in failing to use the highest degree of care to fill the excavation in such a manner that it will not be rendered dangerous by the action of rain, frost, etc.
    5. Under Political Code, Sec. 4800, Subd. 73, a water company authorized to make an excavation is liable to an individual for injuries received through its negligence in failing in its duty to restore the street to its former safe condition.
    •6. A receiver of a water company, 'appointed after the excavation has been filled, but before the occurrence of an accident resulting from its negligence in making the fill, is liable for sueh injuries, though he has no notice of the defect, since the appointment cast on him the duty of repairing the street, and he is presumed to have knowledge of the defect.
    7. Under 23 U. S. Stat. 435, Sec. 3, authorizing suits against federal receivers without the consent of the appointing court in respect to any act of the receiver in carrying on the business, an action may be brought without consent against the receiver of a water company, who continues its business, for his failure to • put a street in a safe conuition, though it was excavated and defectively filled by the company before his appointment.
    8. An instruction, in an action for injuries received by reason of the defective filling of an excavation in a city street by a water company authorized to make the excavation, and required by Political Code, Sec. 4800, Subd. 73, to place the street in as good condition as before the excavation, that it is incumbent on the company to restore the street to as good condition as before the excavation, is not erroneous on the ground that the exact restoration of the street is impossible, but is to be construed as only requiring its restoration to its former safe condition.
    9. An instruction, in an action for injuries received by reason of the defective „ filling of an excavation in a city street by a water company authorized to make the excavation, that it is liable for injuries resulting from its failure to put the street in its former condition, as required by Political Code, Sec. 4800, Subd. 73, is not erroneous in imposing the liability of an insurer, when considered in connection with other instructions only requiring the exercise of the highest degree of care.
    10. Where instructions are upon a material point, and are in conflict, a new trial will be granted, unless it also appears that the appellant has suffered no prejudice.
    11. Where conflicting instructions are upon an immaterial point, and it is not reasonably apparent that the jury have been misled, a new trial will not be granted.
    12. Where a receiver is «appointed for a water company which has negligently failed to properly fill an excavation made in the street, and suit is brought against the receiver for an injury resulting therefrom, after his appointment, error in contradictory instructions, some of which state his liability as dependent on notice and others as being absolute, does not authorize the reversal of a judgment for plaintiff, since the liability is not dependent on notice, and it is immaterial whether the question of notice was considered by the jury.
    13. Where a receiver of a water company continues employees of the company who have formerly made and negligently filled an excavation in the street, and who attempt to remedy the defect after his appointment, their knowledge of the defect, or of facts sufficient to impart notice thereof, constitutes notice to the receiver.

      Appeal from District Court, Lewis and Clarice County; 8. II. Mclntire, Judge.

    Action by Lou M. Robinson against J ames H. Mills, as receiver of the Helena Consolidated Water Company. From a judgment in favor of the plaintiff, and from an order denying a motion for a new trial, the defendant appeals.
    Affirmed.
    Statement oe the (Ase.’
    Action for damages caused by a defect in a street in the city of Helena. The plaintiff alleges in her complaint that the Helena Consolidated Water Company, under authority of an ordinance of the city of Helena approved January 15, 1890, granting to the company a franchise for that purpose, was engaged in supplying water to the city and its inhabitants until March 16, 189G; that under its said franchise it had the right to lay pipes and mains through all the streets of the city, and for this purpose to make excavations in the streets, provided that it was the duty of the company, under the law and the ordinance, to restore the streets in every instance to the same safe condition in which they were before any such excavations were made; that up to March 16, 1897, the company had maintained a pipe or main under and through Eleventh avenue, one of the streets of the city; that a short time prior to that date it had made an excavation in that street near its intersection with Raleigh street, which it had thereafter only partially filled; that this excavation was negligently allowed to remain unfilled, so that the street was not again put in as good condition as when the excavation was made; that on March 16, 1897, in a suit pending in the Hnited States circuit court for the district of Montana, the defendant was by the court appointed receiver for the corporation, and authorized to false possession of all the property and effects belonging to it, and to continue its business; that the defendant entered upon the discharge of his duties under the order, and continued the business as directed therein; that, notwithstanding his duty in that behalf, the defendant neglected to fill the excavation aforesaid until May 24, 1897, though the unsafe condition of it was well known to him, or should have been well known to him if he had exercised reasonable diligence to ascertain its condition; that on the date last mentioned the defendant, through his agents and servants, cast dirt and soil into the excavation, so that it appeared to be filled up, but that the work was so negligently done that a hole or space was left'underneath the surface of the street, by means of which the street was rendered dangerous; that on the evening of May 24, 1897, the plaintiff, without knowledge of the unsafe condition of the street, and svithout negligence on her part, drove her carriage over the same; that the horse which she was driving broke through the surface of the street over the hole or space, and thereupon became flightened and ran; that the carriage in which the plaintiff was riding was drawn against a fire plug near by, overturned and demolished, and by reason thereof plaintiff was thrown violently to the ground, cut about the head and face, and seriously hurt internally; that from these injuries she continues to suffer and be sick and sore and lame; and that by reason thereof, and the destruction of her carriage, she has suffered damages in the sum of $2,000.
    The defendant, admitting that the Helena Consolidated Water Company made the excavation in question in the conduct of its business, denies any negligence or omission of duty in the premises by the company by reason of which the street ivas rendered or left defective or dangerous. He denies any negligence or omission on his part after he took charge of the property and business of the company, and alleges that, if any defect. in the street existed by reason of any default of duty on the part of the company, the same ivas not known to- him, and could not, by reasonable diligence on his part, have become known to him, so that he was burdened with any duty to> the plaintiff because of his continuance of the business of the company under his trust. ITe also alleges contributory negligence on the part of the plaintiff.
    This appeal is from a judgment in favor of the plaintiff for $1,250 and' from an order denying the defendant’s motion for a new trial.

      Messrs. Clayberg & Gunn and Mr. William Wallace, for Appellant.

      Mr. T. J. Walsh, for Respondent.
   MR. CHIEF JUSTICE BRANTLY,

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

1. When plaintiff had concluded the introduction of evidence, counsel for the defendant moved the court to direct a verdict in his favor on the ground that the complaint did not state a cause of action against him, for the reasons that the duty, if any, to remedy any defect in the street occasioned-by the excavation therein by the water company, was a duty owing to the city of Helena, and to no one else, and that there was no duty resting upon the defendant to remedy such defect. The court overruled the motion, and defendant assigns error.

Subsection 73 of Section 4800 of the Political Code provides: “The city or town council has power: To permit the use of streets and alleys of the city or town for the purpose of laying' down gas, water and other mains, but no excavation must be made for such purpose without the permission of the council, and the streets and alleys must be placed in as good condition by the person making the excavation as they were before the excavation was made, and the mains laid down, and in default thereof the council may order the same to be done at the expense of such person.”

The argument of counsel upon the first ground of motion is that under the statutes of Montana governing the organization of cities, and from which they derive their powers, exclusive, jurisdiction over and the right to control the streets and alleys rests with the city; that the council may, under the provision quoted, grant permission to a water company to make such excavations in the street as the nature of its business requires, but that the primary duty to- the public to properly fill such excavations and res (re the streets to' their former condition is cast in each instance upon the city, and not upon the corporation acting under such permission or license. In other words, however much such a corporation may be g'uilty of neglig’emce and disregard of its obligation to the city under the license, it is not liable to the passenger upon the street for any injury resulting from such neglect of duty. If, therefore, a person injured has any recourse, it is against the city, which alone is liable, and the corporation which has caused the injury suffers no other penalty or liability than that of having the street restored at its expense. As conclusive of this contention, counsel cite among other cases: City of Rochester v. Campbell, 123 N. Y. 405, 25 N. E. 937; Taylor v. Railroad Co., 45 Mich. 74, 7 N. W. 728, 40 Am. Rep. 457; City of Keokuk v. Independent Dist, of Keokuk, 53 Iowa 352, 36 Am. Repts. 226, 5 N. W. 503; City of Hartford v. Talcott, 48 Conn 525, 40 Am. Rep. 189; Hill v. City of Fond du Lac, 56 Wis. 242, 14 N. W. 25; Kirby v. Boylston Market Association, 14 Gray 249, 74 Am. Dec. 682; City of St. Louis v. Connecticut Mut. Life Ins. Co., 107 Mo. 92, 28 Am. St. Rep. 402, 17 S. W. 637. In City of Rochester v. Campbell it appeal's that the charter of the city imposed upon the owners of lots the duty of keeping in repair the adjoining sidewalks, and to clear away therefrom all snow and ice or other obstructions. In case of default on part of the owner, the city authorities, after notice to’ him, could have the repairs or other work done at his expense. The sidewalk adjoining defendant’s premises had fallen into disrepair, and by reason of this condition a passenger was injured. The city, having been compelled to pay a judgment for damages, sought to fix liability upon the defendant for the amount so paid. It was held that the city could not recover. This conclusion was based upon the theory that the primary obligation to keep the streets in order rested with the city; that the obligation cast upon the abutting lot owner was subservient to that resting upon the city, to be performed or neglected, at the pleasure of the city authorities; and that it was inconsistent with this power of exclusive control in the city and its resultant primary duty to suppose a primary duty cast upon the defendant also. The principle of this case is supported by the other cases cited, and by the current of authority, but it has no application here. Under the common law m> duty rested upon the lot owner to keep the adjoining streets or sidewalks 6 in repair. In every case where this duty is cast upon the owner it is by virtue of a provision of the charter or an ordinance of the city under its charter powers, and the liability arising from neglect is to the city, and not to the public. It is equally as well settled by the current of authority that one who creates or maintains a nuisance in a street is liable to a passenger who, being himself without negligence, is injured thereby. (2 Dill. Mun. Corp. Sec. 1032; City of Rochester v. Campbell, and other cases cited; Village of Port Jervis v. First Nat. Bank of Port Jervis 96 N. Y. 550; 15 Am. & Eng. Enc. Law (2d Ed.) 433; Webster v. City of Beaver Dam (C. C.) 84 Fed. 280; Toutloff v. City of Green Bay, 91 Wis. 490, 65 N. W. 168.) This principle was recognized by this court in Camion v. Leíais, 18 Mont. 402, 45 Pac. 572, where it Avas held that the defendant Avas liable for injuries to a passenger who fell into a cellar Avay of the defendant, left open in the sidewalk upon a street in the city of Butte. A clear distinction exists as to the relations of the parties to the public in the two cases, and their resultant duties are based upon Avholly different considerations.

An unauthorized excavation or other obstruction in a street is a public nuisance per se. None the less does one made by permission of the city, or under authority of a license or contract, become a nuisance, if it is left unguarded during the progress of the work, or if the street is not restored to its original condition when the purpose of the excavation has been accomplished. In the latter case the doing of a lawful thing in an unlawful way makes it a nuisance, in the same way as - if it Avere a nuisance in the beginning.

Under the section of the statute quoted, the city council had the power to- grant to the water company the right to lay its pipes and mains. This carried with it the obligation to keep them in repair. Without permission thus granted by the city, every excavation in the street would have been a nuisance in the first instance, and the company would have been liable for any injury caused by it, without reference to the question of negligence. Acting under the permission granted, -it would become guilty of maintaining a public nuisance if it negligently left an opening unguarded, or if, at the end of the work, it left the street in such condition that it was then unsafe, or would become so by the operation of natural causes, — such as the effect of rains or frost upon the earth. The obligation assumed by the water company was, therefore, carefully to guard the work during its progress, and to restore the street when the work was ended, so far as human foresight could go, to as safe a condition as that in which it found it at the time the excavation was begun. In support of these views we cite: Drew v. River Co., 6 Car. &.P. 754; Johnson v. Friel, 50 N. Y. 679; Dillon v. Gaslight Co., 1 McArthur, 626; Southern Exp. Co. v. Texarkana Water Co., 54 Ark. 131, 15 S. W. 361; Reeves v. Larkin, 19 Mo. 192; McMahon v. Railroad Co., 75 N. Y. 235; City of Brooklyn v. Brooklyn City R. Co., N. Y. 475, 7 Am. Rep. 469. In Johnson v. Friel, supra, the language of the court is: “It was not enough that defendant left the work in a proper and safe condition for the time, but it was his duty to anticipate and provide for the natural effect of rains upon earth excavated and replaced, to see that during and after the rain it was in proper and safe condition, or that safeguards were placed about it, or watchmen kept near it, or such measure of prudent forethought adopted to prevent damage to the traveling public.”

If the injury complained of here had occurred before the water company surrendered its property to the receiver, it is idle to. say that the water company would not have been liable. In the light of the principles stated, it was its duty not only to restore the street to the condition in which it found it, but also thereafter to anticipate and guard against the effect of natural causes which would probably operate to render it again dangerous because of the -fact that the earth had been disturbed by the company’s necessary work.

Substituting the water company as defendant in place of the receiver, the allegations in the complaint are sufficient to state a cause of action against it.

The argument upon the second ground of the motion is that, as the receiver did not cause the defect in the street, he cannot be held liable, no matter what liability may attach to the water company. It is undoubtedly the rule that a receiver cannot 'be held liable for an injury occasioned by a wrong or neglecc of duty by the corporation whose property has subsequently been placed in his hands. A receiver is the arm of the court; the property is placed in his hands for safekeeping pending the litigation; but if under the direction of the court he continues the business of the corporation, his duty and liability begins from the date at which he assumes control and begins his operations. He is substituted for the corporation, and from that moment he assumes toward the public the duties and liabilities of the corporation. If the property is out of repair, and a due regard for public safety requires it to be put in repair, the duty is cast upon him, and for the neglect of such duty he becomes liable to any person injured by such neglecc. Undoubtedly the ordinance granting the franchise to the water company to lay pipes and mains in the streets of the city was in the nature of a contract between the company and the city, the consideration of which on the part of the company was that the company would in each instance restore the streets to the condition in which it found them. In receiving the franchise it undertook to perform the resultant duty to the city of restoring the streets. (People v. Chicago & A. Railroad Co., 67 Ill. 118 ; Village of Port Jervis v. First Nat. Bank of Port Jervis, supra.) A failure on its part in this duty to the city necessarily resulted in the creation of a nuisance. The assumption of the business of the company by the receiver carried with it the assumption also of all the duties owed by the water company to the city as well as. to the public. If the excavation in question in this case had not been properly repaired at the time the receiver assumed charge of the property, then the obligation devolved upon the receiver, he having succeeded to the exclusive control and management of the property and business, to restore the street and thus perform his duty toward the city and protect the public against injury. The duty of the corporation to the public was a continuing one, and the receiver, as successor in title of the water company, was bound to remedy the defect caused by the water company. (Vaughan v. Railway Co., 72 Hun, 471, 25 N. Y. Supp. 246.) It cannot be. said that the receiver could operate the property under the franchise of the company and still not be subject to any of the obligations of the company. The receiver was bound to know the condition of the property. He was bound to know of the ordinary operation of the laws of nature, and was therefore presumed to have knowledge that the defect existed in the street at the time he assumed possession of the property. The complaint, while not a model of pleading in so far as it attempts to charge the receiver, states facts from which the inference of duty on his part must necessarily arise. This is especially true under the circumstances of this case, the defendant having proceeded to trial without any seasonable attack upon the pleading, and having treated it as sufficient.

2. The court having refused to direct a verdict on the grounds just discussed, counsel then moved for a dismissal of the action on the ground that it did not appear either from the allegations in the complaint or from the evidence that the plaintiff had first obtained from the Hnited States circuit court leave to sue its receiver. Counsel argue that, as an attempt is made in this case to hold the receiver for a wrong done by the water-company, and not “in respect to any act or transaction of his in carrying on the business connected with” the property of the company, permission to bring the action should have been obtained. This contention proceeds upon the same theory as that involved in the second ground of the former motion. Of course the lower court should have sustained this motion, as well as the former, if it became apparent' during the progress of the case that the injury complained of could not be chargeable to any act or omission on the part of the receiver. The receiver could not be held for any wrong done by the company,, and in the absence of sufficient allegation and proof to show that the injury complained of by the plaintiff was the.result, of a violation or neglect of duty by him, the action could not be-maintained against him either with or without permission from the court appointing him. As we have seen, however, the complaint states, prima facie, a cause of action against him for his-, neglect of duty in connection with the management of the business in his hands, and therefore a case is presented which falls, clearly within the provision of the statute (25 U. S. Stat. 435,, Sec. 3) authorizing suits to be brought against a federal receiver without leave from the appointing court. (Meyer v. Harris, 32 Vroom 83, 38 Atl. 690; Stoltz v. Railroad Co., 104 Wis. 47, 80 N. W. 68; McNulta v. Lochridge, 141 U. S. 327,. 12 Sup. Ct. 11, 35 L. Ed. 796; Texas & P. Railroad Co. v. Johnson, 151 U. S. 81, 14 Sup. Ct. 250, 38 L. Ed. 81.) The-section of the statute cited, which is the same as Section 3 of the Act of Congress of March 3, 1887 (24 U. S. Stat. 553), was construed in McNulta v. Lochridge, supra, and it was there held to apply not only to causes of action arising out of the conduct of the receiver himself or that of his agents, but. also to those arising out of the conduct of his predecessor.

3. Counsel further contend that even if it be- conceded that the receiver was properly made defendant, instead of the water-company, the court erred to his prejudice in several of the instructions submitted to the jury.

It appears from the evidence that on or about December 21, 1896, one of the mains of the water company on Eleventh avenue near its intersection with Ealeigh street had sprung a leak. The company, having been notified, sent workmen to repair it. To do- so it was necessary to excavate a trench down to the main and about seven feet along the- street. The main was near the sidewalk. At that season the weather was cold, and as fast as the clirt, wet by the escaping water, was thrown out it froze hard. When the repairs were completed the trench was refilled ■with the frozen dirt, which had to be broken up into lumps. It wras not possible at that time to replace all the dirt, its condition and that of the weather rendering tamping or puddling impracticable. As one of the witnesses says: “We filled the hole, * * * and rounded it up, arching it a little.” So it remained without further attention until “some time in the spring,” when, the foreman of the company went to see the condition of it. The earth was not then thawed. Later, in March, one of the employees of the company examined the trench, and finding it somewhat settled threw in the dirt left at the sides. Later again this same employee was. notified by the city street ■commissioner of the depression at that point. He thereupon hauled some dirt and threw it into the excavation. There was some evidence tending to■ show that on the day of the accident an employee of the company again leveled up the trench. There was also evidence tending to show that it was not unusual, when such a trench had been filled as was this one, for the dirt to form into a crust at the top, which not settling with the body of the dirt in the trench, concealed a cavity beneath, so that when the weight of a team came upon it it would break through. This was shown to be a condition in this instance in addition to the depression at tlie surface, and the breaking through this crust by plaintiff’s horse was the occasion of the accident. The plaintiff stated that she saw as she drove by the place earlier in the evening that some one had recently filled the trench, and for that reason did not take care to avoid the ¡ilace as she was returning home, when the accident occurred. The receiver was appointed on March 16, and at once entered upon the discharge of his duties. He did not give his personal attention to the repairing of pipes, but left this duty to the foreman and other employees of the company whom he retained in his service.

Upon these facts the court submitted to the jury, among other 'instructions, the following, in substance:

(1) That under the ordinance of ;the city of Helena the water company had the right to make excavations in the streets of that city for the purpose of laying down or repairing pipes, but that it must, within a reasonable time after having opened the street, restore it to as good condition as it was before, and if it failed to do so, and any person was injured in consequence, the water company became liable for any damages he may have suffered.

(2) That the defendant receiver had the same right to- open the streets, and was under the same obligation to restore them to their former condition within a reasonable time; and that it was further his duty, in case the water company had before he became receiver opened the streets at any place, and had not restored them to as good condition as they were before, to put them, at the places so opened, in as good condition as they were before, provided he knew, or by the exercise of reasonable diligence ought to have known, that such street had been at any place left in a defective condition.

(3) That it was not necessary, in order that the plaintiff recover in this action, that it appear that the defendant had, or ought to have had, personal knowledge of the defect claimed to have existed in the street; but if the agent or servant of the defendant, as receiver, who was charged with the duty of restoring the street to' its former condition in case it needed work of that character, knew, or in the exercise of reasonable diligence ought to have known, of the defective condition of the street, the law imputes knowledge of the condition of the street to the defendant, and in such case the plaintiff may recover.

(4) That it was the duty of the defendant himself to acquire knowledge, so far as the same could be acquired in the exercise of reasonable diligence, of any defects in the street occasioned by the water company, or to depute some agent or servant to do so; and if in the exercise of reasonable diligence such agent or servant ought to have known of the defect, then the defendant as receiver became liable to any person having suffered any injuries in consequence of such defect, if, within a reasonable time after its discovery by such agent, the defect is not remedied.

(5) That, though the water company was authorized under the ordinance to make excavations in the streets, yet if it did so it was bound at its peril, so far as .human foresight could provide, to restore it to a safe condition, and that it would be liable for all injuries which might ensue and that could have been prevented by the exercise of the very highest degree of watchfulness and care; and that upon the defendant taking possession of the property of the water company it was his duty to exercise, either by bimself or by his servants, the highest degree of watchfulness and care, with a view of informing himself of any dangerous places in the streets occasioned by excavations made by the water company, and if, in the exercise of such high degree of watchfulness and care, the defendant, as receiver, either personally or through his agents,_ had or ought to have learned of any dangerous place in the streets so made, it was his duty to exercise the highest degree of care and caution to' restore the same to the condition they were in before the excavations were made.

It is said in criticism of the first paragraph of these instructions that it is physically impossible to so fill an excavation in a street as to restore the earth to its former condition. We do not think that as a matter of law this is true. It may he that under some.circumstances of season'and locality the statement would hold good, but ordinarily it would not. The ordinance was not introduced in evidence, but it is admitted in tbe answer that the complaint sets it out according to its substance. We presume therefore that it enjoins no greater burden than does the section of the statute quoted, which authorizes it. In any event the statute declares the duty of the company to he to place the streets in as good condition as they were before the excavation was made. Construed according to its obvious meaning, it requires the streets to he restored to their former safe condition. To s.ay that tbey must be put in identically tbe same condition would indeed require the performance of an impossibility, for nothing short of divine power could do this. Barring natural difficulties at certain seasons interfering with an immediate permanent restoration, we can see no insuperable difficulty in the way of restoring the streets to1 a safe condition; and, as we have seen, duty in this connection also requires attention to the operation of well-known natural causes, and imposes the burden of guarding against their effect upon earth disturbed and rejdaced. Standing alone, and without an implied construction placed upon it by the other paragraphs of the instruction, such as paragraph 5, it might seem to impose upon the company and the defendant the duties and liabilities of an insurer; but, in the light of this latter and other instructions implying that safety to the public is the object to be accomplished, the jury could not. reasonably have been misled as to its meaning. These remarks also dispose of the contention that this paragraph is in conflict with paragraph 5, in that the first makes the defendant an insurer while the latter only requires him to use the highest degree of watchfulness and care, and to guard against injury so far as human foresight can go. As Hvo have seen, however, the first paragraph is in the language of the statute, and, presumably, of the ordinance, while the latter gives this language the construction which it is evident the legislature intended it to! have; for we cannot admit that this body intended to constitute the water company an insurer against every possible injury. The terms “safe condition” and “good condition” are used interchangeably. From this point of view there is no conflict. We think paragraph 5 states correctly the degree of care which it was incumbent upon the company and the receiver to exercise. Our views on this point have already been stated in considering the complaint in the first paragraph of this opinion. In addition to the authorities there cited in support of these views, we cite also: Chicago v. Robbins, 2 Black, 418, 17 L. Ed. 298; Homan v. Stanley, 66 Pa. St. 464, 5 Am. Rep. 389; McCamus v. Gaslight Co., 40 Barb. 380; Nelson v. Godfrey, 12 Ill. 20; Baumeister v. Markham, 101 Ky. 122, 39 S. W. 844; and Wood on Nuisances, Sec. 273. Mr. Wood, in the section cited, states the rule as follows: “Excavations made by authority must be properly guarded, and every means adopted for protection of public. So, where a person has been authorized to make excavations in a street by the proper authorities, or to' make coal openings or cellar flap, he is bound at his peril, so far as human foresight can provide against accident, to keep them in a safe condition; to keep them properly guarded; to have them properly constructed and securely fastened; and is liable for all injuries that ensue that could have been prevented by the exercise of the very highest degree of watchfulness and care.”

The same criticism upon paragraphs 2, 3, and 4 is disposed of by the remarks just made upon paragraph 1.

Complaint is also made that paragraphs 2, 3, and 4 are in direct conflict with paragraph 5, in that the former state the correct rule as to the degree of cafe to be exercised by the receiver to discover the condition of streets after assuming control of the water plant, while the latter is altogether erroneous. That the conflict exists is clear, and it is impossible to reconcile it; but it does not therefore follow that the' defendant is entitled to a new trial. The rule is recognized by this court that where the instructions are upon a material point* and are in conflict, a new trial will be granted, unless it also appears that the defendant has suffered no prejudice. (State v. Rolla, 21 Mont. 582, 55 Pac. 528; Heilbronner v. Lloyd, 17 Mont. 299, 42 Pac. 853.) If, however, the conflicting instructions are upon an immaterial point, and it is not reasonably apparent that the jury have been misled, a new trial will not be granted. In our opinion it is not a material question in this case whether the receiver had notice of the condition of Eleventh avenue at the time of the accident. It is not sought to hold him personally liable for any act of willful neglect, but merely to hold him, as the successor of the water company, for an omission of duty in his trustee capacity. At the time he entered upon the discharge of his duties the defect in the street existed. He took the franchise of the company and its property, and continued its operations. The duty to restore the street was a continuing one. The company was, by the order appointing him, stripped of its power and resources and was unable to perforin tbe duties wbicli primarily appertained to it. Tbe street at tbe time was in sucb a condition as to be a public nuisance, or to become one as soon as tbe frost disappeared; and, as it would bave been tbe duty of tbe company to foresee and provide against wbat would almost certainly occur, so it was bis duty to use tbe same precaution, because be was substituted for tbe company, witb all tbe duties and responsibilities wbicli would bave appertained to it bad be not been appointed. We do not see bow, under City of Rochester v. Campbell, supra, be could bave escaped liability to tbe city bad it been compelled to answer for tbe accident; indeed, certain propositions assumed in tbat case to-be settled law would bold liim liable to> the; city. Mucb less,under tbe principle of Vaughan v. Railway Co. and .Johnson v. Friel, supra, can be escape liability to a passenger under tbe plea tbat be bad no notice of tli© situation, brought about by natural causes, after bis appointment. lie cannot be beard to say tbat an omission of duty on bis part should -be brought to bis notice before be could be held to> answer for it. (Elliott on Railways, Sec. 1112; Texas & Pac. Railway Co. v. Geiger, 79 Tex. 13, 15 S. W. 214; Bonner v. Mayfield, 82 Tex. 234, 18 S. W. 305.) Erom this view of tbe easei tbe instructions, complained of were not material, and though conflicting- are not ground for a new trial. It is clear tbat tbe jury could not bave been misled by them, for it is unimportant whether they considered the question of notice at all. Assuming, however, tbat notice to the receiver was necessary, tbe evidence stated warranted tbe finding tbat be bad such notice, or should bave bad it; for it is clear tbat bis employees bad notice, and more than once attempted to repair tbe defect. They knew tbat tbe excavation had been made. They knew tbat the earth bad not; all been returned to tbe excavation. Some of their various attempts to remedy the defect were made after tbe appointment of tbe receiver. Knowledge of these employees was, notice to him of tbe existence of a condition which, under some circumstances, would become a menace to1 the public. Tbe fact that :all tlie earth, had not been replaced, and the subsidence of the ¡surface, were a warning that there was possible danger; and it uvas imperative that the defect be sought out and remedied. .Notice of the apparent condition carried with it notice of the •actual condition, — that is, that the earth had been disturbed ■during the frost season, and a dangerous condition ivas likely ■to intervene ; and the duty owed to the public required the exercise of the utmost diligence to guard against injury. So it is •that it does not matter which rule of diligence ivas applied by ■the jury. They were justified in finding that the receiver ivas put upon notice of the condition, which through his neglect .resulted in the injury of which the plaintiff complains.

It is urged by appellant that only reasonable or ordinary ■diligence should be required of the company, or the defendant receiver, to guard against injury caused, by defects, in the street such as the one in question; and counsel cite King v. Miles City Irrigating Ditch Co., 16 Mont. 463, 41 Pac. 431, 50 Am. St. Rep. 506; Hopkins v. Butte & Montana Commercial Co., 13 Mont. 223, 33 Pac. 817, 40 Am. St. Rep. 438, and Sweeney v. City of Butte, 15 Mont. 274, 39 Pac. 286. But all of these cases are easily distinguishable in fact and principle from the present case. In King v. Miles City Irrigating Ditch Co. the question involved was the degree of care required of a ditch owner to keep his ditch in repair so as to prevent the water from breaking over and overflowing his neighbor’s land. It was held that the defendant was not an insurer, but should be held to the ■exercise of ordinary care in the management of his ditch. Hopkins v. Butte & Montana Commercial Co., was an action for •damages against defendant resulting from an overflow of water •occasioned by a jam of logs which he was engaged in floating -down a stream through plaintiff’s ranch to its mill. It was held that the defendant ivas engaged in a lawful business, and that it was bound to use ordinary care only to prevent injury to the lands of the plaintiff during the pursuit of its business. The principle of these cases does not apply to the present case, for the reason that the water company lias no right to make any ■excavation in the streets except upon permission of the city council, and then only upon condition that they be restored after a reasonable time to as good condition as they were in before. A failure to restore the streets rendered the company guilty of maintaining a nuisance; therefore it should be held at least to the highest degree of care in the performance of this ■condition. The last case cited by counsel (Sweeney v. City of Butte) ivas an action against the city of Butte for damages ■caused by plaintiff’s falling into' a cellar under a sidewalk through defective and dangerous trapdoors set in the sidewalk. It was held that under such circumstances the city authorities were bound to use all reasonable care to see that the person so permitted to occupy the sidewalk kept it properly guarded and protected, so that passengers would suffer no injury; and that., under the facts of the case, the defendant was properly held liable for the injury. None of these cases is authority for the position assumed by appellant in this case. The rule of diligence applied in this latter case is the ordinary rule by which municipal corporations are held liable for failure to keep streets in a reasonably safe condition for the protection of the public.

Several other questions were presented in the argument, but the alleged errors upon which they are based are not of sufficient merit to demand notice.

Let the judgment and order denying the motion for a new trial be affirmed.

Affirmed.

Motion for rehearing denied July 1, 1901.