author: MR. CHIEF JTJSiTICE BKANTLY

text:
    STATE, Appellant, v. LANDRY, Respondent.
    (No. 1,934.)
    (Submitted November 16, 1903.
    Decided December 4, 1903.)

      Criminal Law — New Trial — Notice of Motion — Settlement of Bill of Exceptions — Extension of Time — Jury—Drawing Panel — Affidavits—Waiver of Objection — View by Jury.

      I.. under tile provisions oí the Renal Code, the notice of motion for a new trial in a criminal case need not state whether the motion will be based upon affidavits or upon a bill of exceptions; the stating therein of the grounds upon which the motion will be made is of itself notice of what will be the basis of the motion.
    2. under Renal Code, Section 2171, the power of a district judge, or a justice of the supreme court, to extend the time for the preparation of bills of exception in criminal cases is not dependent upon consent of the county attorney.
    3. where an order granting a motion for a new trial does not specify the particular ground upon which the motion was granted, it will, on appeal, be sustained, if there is merit in any error assigned.
    4. A jury panel must be drawn in substantial conformity with the requirements of the statute.
    ó. The provisions of the Code of Civil Procedure, governing the drawing of a jury panel, are in their essential particulars mandatory, and, being extended to criminal cases by Section 2000 of the Renal Code, it is error, in a criminal case, to draw the jury from box No. 3, before the emergency contemplated by Section 281, Code of Civil Procedure, has arisen.
    (i. ' Objection to defendant’s affidavits for a new trial because the notary’s name is not attached to the jurat is waived by counsel for the state filing counter affidavits controverting some of the matters alleged in them.
    7. It is ground for new trial that on an inspection by the jury on a trial for theft of a colt bystanders indicate, by their action and laughter, their belief that the colt did not belong to defendant, but to the prosecuting witness.
    5. Allowing the jury on a trial for theft of a colt, under an order for inspection of a mare belonging to defendant, and claimed by him- to be the dam of the colt, to inspect the two and a mare belonging to the prosecuting witness, and claimed by him to be the dam of the colt, and to observe the actions of the colt towards the two mares, is ground for new trial.
    0. Renal Code, Section 2097, providing that the judge may permit the jury to' view the place where the offense was committed, or any other material fact occurred, limits the inspection to inanimate objects.
    10. Where the evidence is conflicting it is within the sound discretion of the trial court to set the verdict aside and grant a new trial.

      Appeal'from District Court, Powell County<; Welling Nap-ton, Judge.

    Felix Laydey was convicted of grand larceny, and from an order granting a new trial tbe state appeals.
    Affirmed.

      Mr. James Donovan, Attorney General, for tbe State.

      Messrs. Nolan & Jjoeb, for Respondent.
   MR. CHIEF JTJSiTICE BKANTLY

delivered tbe opinion of tbe court.

Tbe defendant was convicted by a jury of tbe crime of grand larceny, and was sentenced to a term of one year at bard labor in. tbe state prison. Tbe larceny charged was that of a certain miare, tbe property of one Smelzer.

Ai motion for a new trial was made upon three grounds: (1) That the jury received evidence out of court other than that resulting from a view of the premises and from a view! of the mares which they inspected; (2) that the court misdirected the jury in matters of law, and erred in the decision of questions of law occurring during the course of the trial; and (3) that the verdict was contrary to the law and the evidence.

After consideration the court made an order sustaining the motion. The state has appealed.

Contention is made by the attorney general that the notice of intention was not sufficient to give the court jurisdiction to grant the order, for the reason that it did not state whether the motion would be based upon affidavits or a bill of exceptions. . ’

The procedure to be observed upon motions for new trial in • criminal cases is prescribed by Sections 2190, 2194, of the Penal Code. Section 2194 directs what the contents of the notice shall be. It “must designate the grounds upon which the motion will be^ made,” but there is no requirement that it shall state anything further. The first part of the section declares that, if the motion is made upon any of the grounds mentioned in Subdivisions 2, 3, 4 and 7 of Section 2192, it must be based upon affidavits, otherwise it must be based upon a bill of exceptions. Therefore the grounds stated in the notice are of themselves notice of what, will be the basis of the motion.

The attorney general cites in support of his contention Rutherford v. Talent, 6 Mont. 112, 9 Pac. 886, and Arnold v. Sinclair, 12 Mont. 248, 29 Pac. 1124. These cases are not in point. They are both civil cases, and, so far as they discuss the contents of the notice, they refer to requirements of former provisions of our Code of Civil Procedure which are obsolete: The former refers to the Devised Statutes of 1879, and the latter to the Compiled Statutes of 1887. There is no such requirement in the present Code of Civil Procedure (Section 1173). EVen if there were, it would furnish no guide in criminal cases, in the absence of some other special provision on the subject, which we do not find.

The judgment was pronounced and entered on April 19, 1902. On that day the judge settled a bill embodying exceptions to an order of the court overruling a challenge to the panel of jurors from which the trial jurors were drawn. On April 26th, after the notice of intention was served, the judge made ah order extending’ the time for thirty days from the date of the judgment for the preparation of a bill embodying other matters. On May 16th this time was again extended until May 26th. The bill was presented, upon due notice, to the county attorney, and settled on May 24th — thirty-five days after the entry of judgment. The order of extension in neither case was made by consent of the county attorney. No objection is urged to the action of the court on the bill dated April 19th. But the contention is made that the judge was without power to settle the bill dated May 24th for the reason that the extension of time for thirty-five days was without the consent of the county attorney. Therefore it is said that the motion, so far as it was based upon the bill settled May 24th, should have been denied.

Section 2171 of the Penal Code provides that: “When a party desires to. have the exceptions taken at the trial settled in a bill of exceptions, the draft of the bill must be prepared by him and presented', upon notice of at least two days to the county attorney, to the judge for settlement within ten days after judgment has been rendered against him., unless further time is granted by the judge, or by a justice of the supreme court,” eta The power of the judge or a justice of this court to extend the time for the preparation of bills of exception jn criminal cases is not made by this section to depend upon the consent of the county attorney; nor is there any other provision applicable. Section 1897 of the Code of Civil Procedure applies in terms only to extension of the time within which an act is to be done under the provisions of that Code. The bill was therefore presented and settled in time, and was properly used as a basis for the motion.

Tbe order granting the motion does not specify the particular ground upon which the motion was granted. If, therefore, there is merit in any one of the errors assigned, the action of the couid must be sustained. (State v. Schnepel, 23 Mont. 524, 59 Pac. 927.)

At the commencement of the trial counsel for defendant interposed a challenge to. the panel of jurors on the ground that the names of the persons constituting the panel had not been drawn in the manner required by the statute.

Under the statutes (Sections 243, 263, 265, Code Civ. Proc.) it is the duty of the clerk of the district court to keep three jury boxes, designated as boxes Nos. 1, ,2 and 3. In box No. l'the clerk is required to deposit and keep the ballots containing the names on the jury list prepared byi the jury commissioners for the current year. (Code Civ. Proc Sees. 240-244.) This list comprises the names of the regular jurors. (Id. Sec. 245.) In box No. 2 the clerk must deposit from time to time and keep1 the ballots containing the names of all persons who have served during the year. (Section 263.) Box No. 3 is to contain the names, upon duplicate ballots, of all competent jurors residing in the city or town where the court sits. (Section 265.) Sections 260 to 2.64 direct when and how the drawing shall be conducted. When the order is made by the court directing a panel to be drawn and fixing the required number (Section 260), the clerk proceeds in the presence of .the court to draw from box No. 1 (Section 261). The persons whose names are drawn are then summoned by the sheriff. (Id. Sec. 280.) If there are not sufficient names in box No. 1 to malee up the required list, the drawing must be continued from box No. 2. Besort can be had to box No. 3 only under the circumstances indicated in Section 281.

Upon the trial of the challenge it appeared that, after the calendar had been called to fix the dates for the trial of causes, the court directed the clerk to draw a panel from box No. 3, the reason assigned being that there were only two criminal cases for trial at that term. Thereupon this was done, and the persons whose names were so drawn constituted the panel for the term, and the trial jury was drawn from it. It is alleged that this, action of the court was erroneous, and prejudicial to the defendant. This contention must be sustained.

A party to an action, if he is entitled as a. matter of right to a trial byl jury, is also1 entitled, at the commencement of the trial, to a panel drawn in substantial conformity with the requirements of the statute. This rule has been recognized by this court since the early case of Dupont v. McAdow, 6 Mont. 226, 9 Pac. 925. When that case Was tried, the statute required the panel to consist of twenty-four qualified jurors, and. that when this panel became exhausted, but not before, the court might direct the sheriff to summon, from the body of the county. — and not from bystanders — a panel consisting of qualified persons to furnish the list out of which to' complete the jury. The panel at the commencement of the trial consisted of twenty-three persons only. The challenge of the defendant being overruled, and the jury not having been completed, a special venire was issued. The territorial court held this to be prejudicial error, and directed a new trial. Again, in State ex rel. Root v. McHatton, 10 Mont. 310, 25 Pac. 1046, this court held that a jury panel not drawn in substantial conformity with the statute then in force (Sess. Laws 1889, p. 166) was not a lawful panel, and by mandamus directed the district judge of Silver Bow county to proceed in conformity with the statute.

Section 2000 of the Penal Code provides: “Trial juries for criminal actions are formed in the same manner as trial juries in civil actions.” The provisions of the sections, of the Code of Civil Procedure above cited therefore apply to criminal cases, and, applying the rule laid down in the eases cited, it was error to draw the jury from box No. 3' until the. emergency contemplated by Section 281 had arisen!. The clear import of this provision is that box No. 3 may not be resorted to at all until it has been ascertained that there is not a sufficient number of trial jurors present out of tbe number properly drawn from box No. 1, and that the deficiency cannot be supplied without great delay or expense, for the express statement is;: “If a sufficient number of trial jurors, duly drawn and notified, do not attend or cannot be obtained in the opinion of the courts without great delay or expense to form a jury, the court may,” etc. These conditions must exist in order that the court may exercise its discretion, otherwise the court has; no discretion, but must proceed as directed in Section 262 ; the evident intent and purpose of the legislature being to guaranty to every person a trial by jury called by lot from the whole body of qualified jurors in the county. If these specific provisions may be treated as directory only, and be disregarded by the presiding judge — as is contended byi the attorney general' — then juries might be summoned by one judge by open venire and by another by any particular method which he might prefer, and the result would be an absence of that uniform operation of law relating to the courts of the state contemplated by Section 26 of Article VIII of the Cbnstitution, considered in this connection in State ex rel. Root v. McHatton, supra. “Not every deviation from the law in making a jury list will be cause for challenge to the panel. Many errors are to be overlooked. All' that may reasonably be required is that the commissioners, in selecting the names, in good faith substantially'comply with the law.” (State v. Tighe, 27 Mont. 327, 71 Pac. 3.) So in drawing the list of jurors to serve at any time; there may be irregularities, but a substantial compliance with the law isi necessary in order to meet the constitutional requirement.

During the progress of the trial, at the request of the defendant, the jury were permitted by the court to gp, in the charge of the sheriff, to inspect a mare belonging to the defendant, and alleged to be the mother of the one in controversy; the purpose being, presumably, to allow the jury to note the points of resemblance between the two as described by the witnesses. This feature of the trial furnishes the first ground of the motion. In support of it the defendant filed the affidavits of two persons who were present at the time of the inspection. It appears from them- that there were brought out for inspection not only the mare contemplated' by the order, but also the one in controversy, and still another belonging to the prosecuting witness, Smelzer, and alleged by him to be the mother. In the presence of the jury the three mares were turned out, and by the behavior of the younger mare, it is alleged, she indicated a preference for the company of the Smelzer mare. There were present other persons, who, by their laughter and other demonstrations upon the exhibition of the preference of the younger mare for the Smelzer mare, indicated to the jury a belief that the defendant’s claim to the young mare Was overturned by the testimony of the mare herself.

The attorney general insists that these affidavits should not have been considered by the court, because it appears from their face that they had not been sworn to by the subscribing affiants, the notary public having failed to attach his name to the jurat. Whether the affidavits were in fact sworn to or not is of no moment, though at the time the motion was submitted, and upon objection toi a consideration of them, the notary filed his affidavit undertaking in this way to supply the alleged defect. Counsel for the state filed several counter affidavits tacitly admitting all the statements contained in the alleged defective affidavits, except that demonstrations were made by the spectators present at the time of the inspection. Counsel for the state having treated the affidavits as properly sworn to by filing counter affidavits controverting some of the matters alleged in them, they must be held to have waived their right to object to a consideration of them on the ground alleged when the motion came to be heard. They could do> this if they chose, just as a defendant in an ordinary action may wlaive his right to object to a complaint because it is not verified by answering to' the merits. The purpose of the requirement that the pleading must be verified is to secure good faith in the pleader, to confine the litigation to matters1 really in dispute, and thus to avoid false and frivolous issues. (Phillips Code Pleading, Sec. 224; Johnson v. Puritan Mining Co., 19 Mont. 30, 47 Pac. 337.) After the issue is made, it is too late to object. The same principle applies to the formation of issues presented upon affidavits filed in support of a motioin. It does not lie in the mouth of him who. has tendered an issue to object that there is no. such issue. Instead of joining issue upon the affidavits, counsel should have moved to strike them out, thus seasonably calling the attention of the court to the defects in them.

If the court granted the motion on the ground that persons present indicated to the jury by their actions or the sounds uttered a belief as to the ownership: of the younger mare, the order should be affirmed, for we cannot say that the discretion of the court was abused in this regard. Whether these persons intended it or not, the jury, by means of their behavior, received evidence other than that obtained from the inspection and what was cominimi dated to them by sworn witnesses in the court room, and probably determined the merits of the case, in part at least, upon a consideration of such evidence.

The fact that the jury inspected the three animals, while the order referred to one only, and were permitted to. observe their behavior, is not included in the grounds assigned for a new trial in the notice of intention. It was discussed at the hearing, however, and for this, reason we venture to give it some notice. From this source the jury also, received evidence out of court which must have been prejudicial.

In granting the order of inspection the court evidently acted under the authority of Section 2091' of the Penal C'ode, under which a trial judge may permit the jury to. “view the place in which the offense is charged to have been committed, or in which any other material fact occurred.” It will be noted, however, that this section limits the inspection to inanimate objects, which can make no manifestations to the jury, and thus furnish additional and independent facts confirmatory of the testimony of witnesses. Even under this, section the defendant must be present-, and the inspection must be so guarded and hedged about that the jury may not have communicated to them any facts which they may not gain from the inspection alone. They should not be permitted during the inspection to. make experiments, to be used; by tbem as. independent testimony in determining the rights of tbe parties. What they see and leam, though, it may be used in connection with evidence of witnesses heard in the court room, is to enable them| to understand and apply the evidence heard, or to be heard, in the presence of the accused, ■ and in open court. (Ormund v. Granite Mt. Mining Co., 11 Mont. 303, 28 Pac. 289.)

Independently of the considerations already mentioned, the evidence touching the ownership of the animal was exceedingly conflicting. Under such circumstances it was within the sound discretion of the court to set the Verdict aside and grant a new trial under the'third ground alleged in the motion. (Ray v. Cowan, 18 Mont. 259, 44 Pac. 821; Patten v. Hyde, 23 Mont. 23, 57 Pac. 407; Rand v. Kipp, 27 Mont. 138, 69 Pac. 714.)

Objection was made by counsel for defendant that the record furnished to this court by the clerk of the district court is not such as. is required by the statute. T'o obviate this objection, the attorney general submitted a motion for leave to^ amend. In the consideration of the case; we have proceeded upon the theory that the record is, sufficient to, present the questions considered and decided. Some of tire; more important questions presented by the motion arise touching the method which ought to be pursued in having] the record' made up. ini the district court. The provisions of thei Penal Cbde in force at the time the bill of exceptions wasi prepared in this, case (Sections, 2171, 2229), indicating the method by which certain papers, used upon the motion for new trial shall be identified and transmitted to this court, have been supplemented by suitable legislation obviating the objections urged. (Session Laws 1903, p,.. 47.) We have deemed it unnecessary, therefore, to, consider and, determine any of these questions.

The order appealed from is affirmed.

Irmed.


source: Caselaw Access Project

author: MR. JUSTICE! MILBURN

license: Public Domain

text:
    GLAVIN, Respondent, v. LANE, Appellant.
    (No. 1,685.)
    (Submitted October 16, 1903.
    Decided December 4, 1903.)

      Appeal — Jurisdiction of Appellate Court — When Attaches— Authority to Hear and Determine — Record on Appeal— Essential Requisites — Lacle of Judgment Roll — Dismissal of Appeal.

    1. Where a notice oí appeal has been duly filed and served, and a bond has been filed according to law with the clerk oí the district court, that court is ousted of jurisdiction, and jurisdiction over the appeal is in the supreme court.
    2. Although the supreme court has jurisdiction of an appeal after notice and bond have been properly filed and served, yet, under Code of Civil Procedure, Section 1736, providing that on appeal from a final judgment appellant must furnish a copy of the notice, judgment roll, and any bill of exceptions or statement of the case, where the record is defective in any of these particulars, the appeal cannot be heard and determined.

      Appeal from District Court, Yellowstone County; C. H. Loud, Judge.

    ActioN by Mary Glavin against Gib A. Lane. From a judgment for plaintiff, defendant appeals.
    Dismissed.

      Mr. Gib. A. Lame, for Appellant.

      Mr. W. M. Johnston, for Respondent.
   MR. JUSTICE! MILBURN

delivered the opinion of the court.

This appeal is from a judgment in favor of the plaintiff and against the defendant. There is not any judgment roll in the record. In Featherman et al. v. Granite County, 28 Mont. 462, 72 Pac. 972, it is held that under Section 1136 of the Ctode of Civil Procedure, providing that on appeal from a final judgment appellant must furnish the court with a copy of the notice of appeal, judgment roll, any bill of exceptions or statement of the case, the presence of a copy of the judgment roll in the record is jurisdictional, and without it the court cannot consider any question on the appeal. A most important question of practice was passed upon.

In the case now before us on appeal counsel for respondent, relying upon the- Feaiherman Case, above referred to, on the hearing suggested want of jurisdiction for lack of a judgment roll, and moved the court to dismiss the appeal for want of such jurisdiction.

Either the district court or the supreme court has jurisdiction of this appeal, a notice of appeal having been duly filed and served, and a bond on appeal having been properly filed according to law in the office of the clerk of the district court. The district court has not jurisdiction, it having been ousted by the filing of the bond and the filing and serving of the notice of appeal; ergo, the supreme court has jurisdiction. The case is not suspended in the air; the Feaiherman Case is not authority for such a conclusion. This court may have jurisdiction of an appeal, but, perhaps, the record may not be made in manner and form as required by the statutes to which appellate jurisdiction is subject, and wifi eh have been enacted as provided by the Constitution (Article VIII, Sec. 3) ; in such a case the court may not proceed to hear and determine the case on the appeal of which it has jurisdiction. It cannot' do so lawfully. A court has jurisdiction of a cause while a demurrer to the complaint is pending and undetermined, but it may not and cannot try the cause on its merits until after the demurrer has been disposed of. So this court, having jurisdiction of an appeal, may not proceed to- hear and determine the appeal until the essential parts of the record are completely furnished in manner and form declared in the Feaiherman Case to- be necessary.

The appellant in this case had a right at any time to- suggest a diminution of the record, and to ask or force the clerk of the district court to complete the récord. In the per curiam order in the Feaiherman Case this court itself suggested diminution of the record, and offered leave to amend to numerous parties whose causes were pending upon appeal in this: court, but in which the record had not been made in accordance with the provisions! of said Section 1736, in that they had not any judgment roll in them. The appellant has not during the many months that this' appeal has been pending seen fit toi suggest the diminution of the record, or, after the suggestion made by this court in the Featherman Oase in July last, to offer to amend his record, and put before us those papers which, under Section 1736, supra», a,re necessary! for us to have in order that we may examine and determine the ease on appeal.

Therefore the only thing that can be, done in this case is to dismiss this appeal, not because the court has not jurisdiction to entertain it, as suggested by counsel, but because it has not before it the record which is essential under the law before we can pass upon the merits of any of the points raised in the brief of counsel.

In so far as the views expressed in the Featherman Oase conflict, directly or inferentially, with the conclusions herein stated, the -opinion in that case is modified.

Dismissed.

Motion to reinstate this appeal denied January 16, 1904.


author: MR. JUSTICE MILBURN

text:
    STATE ex rel. MORSE et al., Relators, v. DISTRICT COURT OF THE SEVENTH JUDICIAL DISTRICT et al., Respondents.
    (No. 2,005.)
    (Submitted November 25, 1903.
    Decided December 4, 1903.)

      Contempt of Gourt — Habeas Corpus — Avoidance of Service— Costs — Writ of Supervisory Control.

      T. A chief of police and his subordinates, who, with actual knowledge that a writ of habeas corpus had been issued for a certain prisoner under their control, endeavored to avoid the service and execution of the writ, and aided in delivering the prisoner into the custody of a messenger from the governor of another state, under' extradition process, were guilty of contempt of court.
    2. It is not necessary, before a party can be punished for contempt for interference with, or disobedience of, a writ of habeas corpus, that actual service has been had, if the party actually knows that the writ is in the hands of an officer for service.
    3. In a proceeding for contempt of court, the costs cannot be charged to the contemners.
    4. The writ of supervisory control should be seldom used, and then only in the greatest emergency where palpable injustice has been done and there is no other remedy provided by law.
    Petition by tlie state, on tlie relation of Sydney P. Morse and others, for a, writ of supervisory control to the district court of the Seventh judicial district, in and for the county of Yellowstone, and Hon. Charles H. Loud, judge thereof.

      Mr. O. F. Goddard, for Relators.

      Mr. TP. M. Johnston, and Mr. Fred. 11. Hathhorn, for Respondents.
   MR. JUSTICE MILBURN

delivered the. opinion of the court.

The petitioners herein pray for a writ of supervisory control, to be directed to the district court, commanding' it to vacate and set aside a certain judgment of said court, whereby the petitioners were adjudged guilty of contempt, and ordered to pay certain fines and costs.

On the 14th day of September, 1903, a writ of habeas corpus was duly issued out, of the office of the clerk of the district court, directed to one Sydney E. Morse, and commanding him to have the body of one Carey P. Snyder, alleged to be in prison and unlawfully detained by said Morse, before the Honorable Charles H. Loud, district judge, at 1:80 p. m. the following day. It appears that said Morse was then chief of police in the city of Billings, having under his control a sergeant and other policemen. Said Morse was then also a constable in and for tbe township of Billings. It further appears that said Snyder was in bis custody as constable, being charged with the violation of one of the criminal laws of the state; that the prisoner was confined in the city jail, which was under the sole control of Morse, as chief of police, and of his subordinates; that a.t the time the writ was issued a messenger of the governor of Mis-' souri was en route to Billings from Helena, armed with a warrant of the governor of Montana authorizing him to take said Snyder into his custody under the extradition laws for removal to Missouri; and that the writ of habeas corpus was issued on the evening of the 14th day of September, between 8 and 9 o’clock, two or three hours before the arrival of the train bearing the messenger. ■ Prior to the issuance of the writ of habeas corpus, and soon afterwards, and long before Snyder was delivered to the messenger on the train, the petitioner Harris, “the right arm of the court,” being then and there county attorney of the county of Yellowstone, and at Billings, inquired of the clerk of the court whether the writ had been, issued, and, receiving information that the same had been issued, informed himself of the nature and contents thereof.

Although there was no technical, actual, personal service of the writ upon Morse prior to the removal of the prisoner from the county, by the messenger to whom he was delivered by the police, it must have been apparent to the district court, upon the hearing in, contempt, as it is apparent to us, that all of the relators herein, having knowledge that the writ had been issued, used their utmost endeavor to avoid it, whether directed to Morse or the messenger, and to aid the messenger in carrying away the body of Snyder out of the county in opposition to the order, for the time being, of the district court.

The privilege of the writ of habeas corpus may hot be suspended or obstructed by a chief of police or a county attorney. It is impossible to conceive of a more flagrant act of contempt of court than the unlawful interference with such a writ. Although one or more of the parties disavowed in their testimony any knowledge whatever that the district court had caused the writ to be issued, nevertheless it was for the- court to pass upon tbe credibility of tbe witnesses and the weight of the testimony before it. There is sufficient testimony appearing in the record, which, if believed by the court to be true, warranted it in arriving at the conclusion which it did in the contempt proceedings.

The writ applied for, as this court has said) before, should be seldom used, and then only in the greatest emergency, where palpable injustice has been done arbitrarily and perhaps maliciously, and where there is no other remedy provided by law'. This does not appear to be such a case.

It is not necessary, before a party} can be punished for contempt for interference with or disobedience of a writ of a competent court, that actual service has been made, if the parties actually know that the writ is in the hands, of an officer for service.

The record shows that the court, when it entered its: judgment, wias in doubt as to whether the costs should be charged to the parties found guilty of contempt, but resolved the doubt against such persons, and adjudged them to pay the costs in addition to the several fines. In this the court- erred. There is no provision of law for charging the costs in contempt proceedings to the contemners. (State ex rel. Flynn v. District Court, 21 Mont. 33, GO Pac. 493.) This is not a matter to be remedied in this proceeding. We simply call the attention of the court below to the mistake made as to< the charging of costs against the guilty parties.

The writ is denied and the proceedings dismissed.

Dismissed.


author: MB. JUSTICE. HOLLOWAY,,

text:
    BECK et al., Appellants, v. HOLLAND et al., Respondents.
    (No. 1,627.)
    (Submitted November 19, 1903.
    Decided December 4, 1903.)

      Taxation — Cities — Assessment for Improvements — Basis— Benefit Buie — Frontage Buie — Omission of Certain Property from Levy — Ownership of Alley — Certificate of. Assessment — Presumption—Pleading.
    1. Under the express provisions of Code of Civil Procedure, Section 3266, Subdivision 15, it is presumed, in the absence of any showing* to the contrary, that city officials did not certify an assessment prematurely to the county officials, but performed their duty regularly.
    2. In the absence of fraud, or such gross mistake as to preclude sound .judgment, the determination of a city council as to what property is specially benefited by an improvement ordered is conclusive for the purpose of assessment to pay for it.
    3. The omission from the levy of any property in an improvement district, to which the principle of the assessment applies, invalidates the entire assessment.
    4. Though Comp. St. 1887, Fifth Div., c. 22, Sec. 428, provides for levy on property specially benefited to pay for an improvement, an allegation in the complaint in an action to enjoin a sale for the collection of an assessment that the council adopted the frontage- rule in making the levy is insufficient unless it also states that the benefit to plaintiffs’ property is not proportional to their tax.
    5. One cannot set aside an assessment against him to pay for opening an alley on the ground that the land does not belong to the city, when he claims no right or interest in it.
    On rehearing.
    Affirmed.
    STATEMENT OE TJIE CASE.
    The appeal in this action was heretofore dismissed (28 Mont. 460, 12 Pae. 972), but upon application was reinstated, the appellants! granted leave to- file an amended transcript, and the cause then heard on its merits.
    The action was brought to restrain the countyi treasurer of Silver Bow county from selling certain real estate for alleged delingnent taxes. The complaint alleges that prior to July 12, 1893, the city of Butte attempted to lay out and establish'an alleyway through Mock 31, townsite of Butte, extending from Bark street to Galena, street; that for the purpose of meeting and defraying the expense incident to such improvement the city council, on July 12, 1893, adopted a resolution levying a tax upon certain property in the city of Butte, the city council then determining that the property on which the tax or assessment was. levied was benefited by the opening of the alleyway. After designating the property affected by the levy and the amount of taxes sought to- be collected, the complaint alleges that the city hadi no right or title to the alleyway, the same being owned by private individuals; that in making the levy the city council omitted from the assessment other property situated in the same district and locality as the property assessed, and which property so omitted was benefited by the alleged opening of the alley, and should have 'borne its proportion of the expenses; that the city council adopted a frontage rule of valuation as a basis for determining the taxes to be assessed against tire property; that the lots, or parcels of land upon which the tax was levied were of an unequal depth and area., and the adop^ tion of the frontage rule resulted in omitting from, the assessment certain pieces of property which should have been taxed; that the plaintiffs appeared before the city council sitting as a board of equalization, and objected to such assessment; that on or about August 12, 1893, the city treasurer declared the several amounts, due from) the plaintiffs on account of such assessment delinquent, and certified a list of the names of the owners so assessed, including these plaintiffs, together with a description of the property and the amounts due thereon, to the county clerk of Silver Bow county, witm thereafter delivered the same to the county treasurer; and that the treasurer threatens to sell the property of these plaintiffs to satisfy such delinquent taxes, and, unless restrained, will do so. The prayer) is for an injunction restraining such sale. To this complaint the defendants interposed a general demurrer, which was, sustained, and, the plaintiffs declining to amend, judgment for costs in favor of the defendants was entered, and from that judgment the plaintiffs appeal.

      Mr. B. 8. Thresher, and Messrs. McBride & McBride, for Appellants.
    Whenever am attempt is made, to charge or devest the estate of a. citizen by statutory modes, the proceedings must strictly follow! the steps of the statute, or the attempt will fail. (Smith v. Davis, 30 Oal. 536; Bensley v. Mountain Lake Go., 13 Oal. 306; Curran v. Shattuck, 24 Oal. 427; Stanford v. Worn, 27 C'al. 171; Haskell v. Bartlett et al., 34 Oal. 281; Himmelmann v. Oliver, 34 Oal. 247; Smith v. Gofran, 34 Oal. 310'; Himmel-mann v. Steiner, 38 Cal. 175 ; Dowell v. Portland, 10 Pan 308; Chambers v. Shatterlee, 40 Oal. 524; Himmelmann v. Hoad-ley, 44 Chi. 279; Brock v. Lurning, 89 Cal. 318; Blanchard v. Beideman, 18 Cal. 261; Himmelmann v. Danos, 35 Oal. 448; Hewes v. Beis, 40 Chi. 255; Taylor v. Donner, 31 Gal. 481.)
    The acts of ministerial officers are to be tested by the law which governs them; by the record, as originally made, their acts must stand or fall. (Blackwell on Tax Titles, page 357; Dowell v. Portland, 10 Pac. 311.)
    A property owner has a vested right to be -assessed according to the method of law in force when the work is ordered, and if the levy or assessment is made according to a different method, or under a different law, by which either the amount to be paid, or the time in which payment be made, is different front that of the original law which was in force at the time the work was ordered, the levy or assessment is void and the property owner cannot be required' to1 pay ai levy or assessment so- made. (Oity of Spokane v. Broivne, 36 Pac. 26; City of Cincinnati v. Sea-songood, 21 N. E'. 630; Huston v. McKenna, 22. Oal. 550; Creighton v. Pragg, 21 Oal. 115; Todd v. Laundry, 12 Am. Dec. 480, note.)
    The fact that the city council in making the assessment omitted any lot or part of a lot, that was situated within the district benefited, renders the whole assessment void. (Peovle v. Lynch, 21 Am. Bep'ts. 677.)
    . The frontage rule of assessment is contrary to- Article XII of the Constitution of the state, which provides in substance tbat all property shall be taxed at a uniform rate, according to its value. (McBean v. Chandler, 24 Am. Bep. 308; Kertsen v. Milwaukee, 48 L. B. A. 851.)

      Mr. Edwin M. Lamb, and Mr. J. L. Templeman, for Be-spondents.
   MB. JUSTICE. HOLLOWAY,,

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

Appellants urge in this court: (1) That the tax was prematurely certified to the county treasurer; (2.) that the omission of certain property, which it is alleged was benefited by the improvement, vitiates, the entire assessment; (3) that the adoption of the frontage' rule of valuation renders the assessment void; and (4) that the assessment is void for the reason that the city did not own the alleywiay at the time the assessment ■was made.

Appellants concede that the validity of the assessment is to be determined by reference to the law in force at the time the improvement was ordered, and this admission disposes of the first contention above; for whether or not the assessment was prematurely certified to the county officials depends upon whether the Act of the Third legislative assembly approved March 7, 1893 (Session Laws 1893, p. 130), the Act of the Sixteenth territorial legislative assembly approved March 14, 1889 (Session Laws 1889, p. 185), or Chapter 22, Fifth Division, Compiled Statutes of 1887, shall govern; and this depends upon the date when the alley was ordered opened, which date the complaint fails to disclose. Not being informed when the improvement was ordered; we are unable to. determine what law was in force when the same was done, and therefore unable to say whether or not the assessment was prematurely certified. In the absence of any showing to the contrary^ it must be presumed that the city officials regularly performed their duty. (Subdivision 15, Section 3266, Code of Civil Procedure.)

It is next contended that the city omitted to assess other property which was situated in the same district and locality, and which was benefited by the improvement.

These special assessments are commonly made according to some standard fixed by the legislature — 'as according to the frontage of the property, its value, its superficial area, or according to the special benefits received by the property affected. The last mile was in force in this state at the time this action was commenced and for many years before. When the method is prescribed, the levy must embrace all the property within the district to which the principle of the assessment applies. (Cooley on Taxation, 1216.) In other words, if the statute or city charter under which the council is operating fixes the limits1 of a district as of all property abutting on the street improved, then no such abutting property can be omitted without invalidating the levy; or, if the statute directs the city council to impose the tax upon such property as the council shall determine is specifically benefited by the improvement, then, in that event, the council having determined what property is specifically benefited, that particular property constitutes the improvement district for that purpose, and the council is not warranted in omitting from the assessment, any of such property.

The complaint in this action does not allege that the council omitted any property which it (the .council) had determined was benefited by the improvement — that is, from the improvement district, which it had created by the exercise of its judgment and discretion; but does allege, in effect, that the district so constituted does not -include other parcels of land which the plaintiffs., if acting as the city council, would have-deemed benefited by the opening of the alley way. ’

It may be that the city council erred in its judgment in determining what property was and what was not benefited by the improvement; but, the legislature having designated the council as the proper body to make the assessment, and having clothed it with a discretion in the matter, and having authorized it to act upon its own judgment — not upon the judgment of some one else — its determination must be conclusive in the absence of allegations of fraud or suck gross mistakes as to preclude tbe exercise of sound judgment. Tliese principies have been so clearly established in this state as to preclude further discussion. (Danforth v. Livingston, 23 Mont. 558, 59 Pac. 916; Cooley on Taxation, 1180, 1260.)

The principal case relied upon by the appellants (People v. Lynch, 51 Cal. 15, 21 Am. Rep. 677) is not in conflict with the views herein expressed. In that case the charter of Sacralmento required the expense of street improvements to be assessed against abutting property. The board of trustees (city council), in making an assessment for a certain street improvement, omitted certain property which, under the very terms of the charter, was liable for a portion of the cost of the improvement, and for that reason the assessment was held void.

Complaint is made that the city council adopted the frontage rule in determining the valuation of the property, and that such rule is inconsistent with our constitutional requirement that all property shall be taxed at a uniforim rate. (Article XII.)

Elven assuming that the constitutional provisions referred to apply to' special assessments for street improvements (and this we do> not decide), still the complaint nowhere alleges as a fact that the benefit conferred on plaintiffs.’ property does not bear the same ratio to the total benefit conferred, as. the tax assessed against their property bears. to> the total tax. Section 428, Chapter 22, Fifth Division, Compiled Statutes of Montana, 1887, provides: “F'or the purpose of payment of expenses> including all damages and costs incurred in taking of private property, and of making any improvement mentioned in the preceding sections, the city council may by resolution levy and assess the whole or any part not less than half of such expenses as a tax upon such property as they shall deterjmine is specifically benefited'thereby.” This provision continued in force until the time of filing this complaint. (Sess. Laws 1889, p: 185; Sess. Laws 1893, p. 130.) If the city council, after considering the matter fully, determined that the respective pieces of property mentioned in plaintiffs’ complaint were specifically benefited by tbe improvement, and- assessed against tbem tbeir respective portions of tbe total tax to be raised, tbe mere fact tbat tbe council made use of tbe frontage rule in reaching sucb conclusion will not vitiate tbe assessment. While there is some conflict in tbe authorities, this is unquestionably tbe better rule, andi tbe one supported by tbe decided weight of authority. (Cooley on Taxation, 1221; President, etc. of D. & H. Canal Co. v. City of Buffalo, 39 App. Div. 333, 56 N. Y. Supp. 976; New Whatcom v. Bellingham Bay Improvement Co., 16 Wash. 131, 47 Pac. 236.)

Finally it is contended tbat tbe levy is void for tbe rea!-. son tbat tbe city bad no title to tbe alleyway at tbe date of tbe assessment. But these plaintiffs make no claim) tbat they, or any of tbem, own tbe ground sought to be used as such- alley, or bad any interest whatever in it, and, as strangers to tbe title, they will not be beard to question tbe title or right of possession of tbe city to tbe property. We are of tbe opinion tbat tbe complaint does not state a cause of action, and tbat tbe demurrer was properly sustained.

Tbe judgment is affirmed.

Affirmed. .

Rehearing denied December 24, 1903.


author: ME- COMMISSIONED CALLAWAY Per Curiam.

text:
    MICHENER, Respondent, v. FRANSHAM, Appellant.
    (No. 1,703.)
    (Submitted November 20, 1903.
    Decided December 8, 1903.)

      Garnishment — Recovery of Money — Burden of Proof — Evidence — Relevancy — Witnesses — Impeachmeni — Trial— Direction of Verdict.

      1. In an action to recover money garnished and withheld from plaintiff, where the answer denied plaintiff’s ownership, but admitted defendant’s refusal to deliver the same to plaintiff, plaintiff could have established a 'prima -facie case by testifying to the ownership of the money, and thereby have cast upon defendant the burden of proving that the money was the property of some person other than plaintiff.
    2. under Code of Civil Procedure, Sections 3379, 3380, providing that a witness may be impeached by evidence of inconsistent statements, testimony of a witness that he had heard another witness state in a conversation that he had made a contract with plaintiff’s brother for certain lumber was' competent to impeach such witness’ testimony that he had contracted with plaintiff for such lumber.
    3. On the issue of the ownership of certain money garnished and in the hands of the sheriff, where plaintiff claimed that he was its owner by virtue of ■ an amount due’ on a contract for the sale of lumber, evidence that plaintiff's brother had been furnished money to purchase the mill from which the lumber to fill the contract was procured, and that plaintiff had expressed his satisfaction with the arrangement, and other evidence relative to such arrangement, was relevant, as tending to show that plaintiff’s . brother furnished the lumber, and was entitled to the pay therefor, and should have been submitted to the jury.
    4. under Code of Civil Procedure, .Section 1104, providing that a verdict may be directed when the case presents “only” questions of law, a verdict should not be otherwise directed.

      Appeal from District Court, Callatin County, Henry C. Smith, Judge.

    ActioN by Tbomas Micbener against W. J. Fransham. The trial court instructed the jury to bring in a verdict for plaintiff. From the judgment rendered upon the verdict of the jury brought in in pursuance of the court’s instruction, and from an order overruling his motion for a new trial, defendant appeals.
    Reversed.

      Mr. John A. Luce, and Mr. George Y. Patten, for Appellant.

      Mr. Eugene B. Hoffman, for Respondent.
    A garnishee cannot be held where his disclosure.showed that he is indebted to the defendant and a third person jointly. {Hawes v. Inhabitants of W., 18 Pick. 451; Stelling v. Young, 161 Mass. 287; Markham v. Farrell, 42 Mich. 74; Singer v. Townsend, 53 Wis. 126.)
    An indebtedness duo a partnership cannot be garnisheed in the hands of a, debtor to pay the separate debt of one partner.
      (Trickett v. Moore, 34 Kan. 755; Winston v. Swing, 34 Am. Dec. 768; 2 Sbinn on Attachment and Garnishment, 579.)
    A personal interest in a firm cannot be reached by garnishment against the property of the firm. (Bertwhistle v. Woodward, 17 Mo. App-. 277; Sweet v. Bead, 12 K. I. 121; Bartlett v. Woodward, 46 Vt. 100.)
    Privity of contract is no longer necessary. Whenever one man has in his hands the money of another which he o-ught to pay over, he is liable in an action for money had and received although he has never seen or heard of the party who has the right. (Hall v. Mansion, 17 Mass. 574.; School District v. Thompson, 51 Neb. 857; Wilson v. Turner, 45 N. El 820; First Nat’l Bank v. Gatton, 172 Ill. 625; Soderberg' v. King County, 45 Pac. 785; Davis v. Pan Handle Bank, 29 S. W'.' 926; City of Salem v. Marion County, 36'Pac. 163; Fisher v. Knight, 61 Fed. 491; Mumford v. Wright, 12 Culo. App. 214.)
   ME- COMMISSIONED CALLAWAY

prepared the opinion for the court.

This action was commenced by the plaintiff to recover of the defendant the.sum of $136.65, alleged to> be unlawfully withheld from the plaintiff by the defendant.

The complaint alleges that the defendant was at all of the times therein mentioned sheriff of Gallatin county, Montana; that on or about the 15th day of August, 1899, one Ira D'e Long commenced an action against the plaintiff and one Bert Miche-ner; that in said action a unit of attachment was issued, whereby the defendant garnished $136.65 in the hands of one Yree-land belonging to- the plaintiff; that Vreeland made answer to the garnishment, and prior to the commencement of this action paid the sheriff the said sum; that thereafter, on February 17, 1900, the action was dismissed as to plaintiff, and judgment was rendered against Bert Michener; that the0money so attached was the sole property of the plaintiff; that since February 17, 1900, no action has been pending' against the plaintiff; that prior to the commencement of this action the plaintiff demanded the said money of the defendant, who refused to deliver it, but, on the contrary, unlawfully and wrongfully -withheld the same, and has ever since so withheld it. The defendant filed an answer, in which he denied plaintiff’s ownership of the money, and admitted that he refused and still refuses to deliver the same to plaintiff, or any one for him.

The controversy is, to whom does the attached npney belong ? TJpon the admissions in defendant’s answer plaintiff could have made out a prima facie case by testifying to the ownership of the money as alleged in his complaint, and the burden of proof then would have been upon defendant to establish that the money .was the property of some person other than the plaintiff. (Gallick v. Bordeaux, 22 Mont. 470, 56 Pac. 961; Reynolds v. Fitzpatrick, 28 Mont. 170, 72 Pac. 510.) Instead of following the course just indicated, plaintiff undertook to show how he became the owner of the money, and chiefly by witnesses other than himself. It seems that the money was due plaintiff or his brother, Bert Michener, or plaintiff and his brother jointly, on account of lumber furnished for the construction of a bridge for the county across the West Gallatin river. On behalf of the plaintiff one Thorpe testified that he, as surveyor of Gallatin county, had contracted with plaintiff for certain lumber for said bridge, and that he (Thorpe) thereafter substituted one Vreeland in his stead. During his. cross examination Thorpe testified as follows: “I don’t just remember when I had a conversation with Mi’. De Long in the presence of Mr. Brassfield in my oífice. I did not, in a conversation with Mr. De Long and Mr. A. G. Brassfield in my office in Bozeman, Gallatin county, in August, 1889, tell him (De Long) that my dealing in regard to this contract had been with Bert Michener.” Vreeland, who took Thorpe’s place in the construction of the bridge, ratified the contract Thorpe had made with plaintiff, but said he was undecided as to which one of the Micheners furnished the lumber. He paid the money due thereon to the sheriff. In his return to the sheriff upon the garnishment he made this statement : “I hereby acknowledge that I have in my possession $136.65 owed by me to tlie sawmill on the West Gallatin river of material by the Micbener Brothers. This amount is in full of all demands of said Michener Brothers on date of September 8, 1899, the date of your service of garnishment. * * * The Michener Brothers above referred to are Thomas Michener and Bert Michener, the defendants in an action wherein Ira De Long was plaintiff and Thomas and Bert Michener were defendants.”

The plaintiff testified that he furnished the lumber to Vree-land, but was not completely paid for it; that he had no other contract with Vreeland, and the latter did not owe him any money other than upon1 such contract for lumber.

The defendant undertook to prove that the money was not the property of plaintiff. To this end he endeavored ■ to show that the sawmill was run by Bert Michener, and the contract for the lumber was made with him. Ira De Long, a witness for defendant, testified that in pursuance of a contract made with Bert Michener he advanced the latter certain money to enable him to get possession of the sawmill from which the lumber was afterwards furnished Vreeland. The arrangement was that De Long was to have his pay out of the proceeds of the ■ mill. As he. said: “I was to get the first money, or the first lumber sawed, whichever it was. * * * I never received sufficient' to reimburse me for what I advanced there at that time. At tlie time this lumber was being sawed there, I saw Thomas Michener working around the mill. He told me, the first time I saw him after I got the mill from Mr. Fletcher, right down here where the old La Clede stands, that he was glad that I helped Bert at the mill, and was satisfied with what Bert agreed to do with me.” He also testified: “I heard Mr.. Thorpe’s testimony this morning as to what he told me in August, 1899, with reference to building that bridge up there. That conversation [was] in his office in this city. In the month of August, 1899, in the presence of A. G. Brassfield, he told me it was Bert Michener who made this arrangement for the lumber that went into the West Gallatin bridge.”

Plaintiff moved to strike out all of De Long’s testimony upon tbe following grounds: “It is immaterial and irrelevant to the issues in this case; tha,t it does not tend to show the contract that was entered into, and to which and out of which grew the obligation for which this money was paid; nor does it tend in any manner to show to whom or under what circumstances this money was due, or who is the owner or claimant of it.” The court' sustained the motion. Thereupon defendant offered to prove by the testimony of one Fletcher “that the mill in question, and which sawed the lumber delivered to F. W. Vreeland, and whiehl was used by him in the building of the West Gallatin bridge, and for which the money in question is sought to be recovered, was in the possession of this witness, and that it was taken out of his hands or possession by Ira De Long, who paid the money due upon it for repairs under a contract that the first sawing of lumber of that mill was to be delivered to Mr. De Long until he should be paid the money which he was to advance to this witness, and the expenses of running the mill until he should be fully paid; and that the mill in question was part of this mill, and that the arrangement was made with Bert Miehener.”

Plaintiff objected to the introduction of this proof for the reasons given upon the motion- to strike out De Long’s testimony, and the court sustained the objection. Thereupon the court instructed the jury to find for plaintiff. Defendant preserved his exceptions in a bill duly settled and allowed, and thereupon moved for a new trial, which was denied. The defendant appeals from the judgment. This brings up the bill of exceptions containing the evidence, and the various errors assigned.

The evidence of De Long concerning the conversation with Thorpe in Brassfield’s presence was clearly competent and relevant testimony, and tended directly to contradict Thorpe’s testimony to the effect that he made the contract with plaintiff. That the court committed error in striking out this testimony is too plain to admit of argument. (Code of Civil Procedure, Secs. 3379, 3380.) Tbe testimony of De Long and Fletcher should have been submitted to the jury. It tended strongly to show that Bert Michener, and not plaintiff, was the persori who furnished the lumber, and therefore was entitled to the pay therefor. It also tended to show1 that plaintiff knew of the agreement between De Long and Bert Michener, and ratified the transaction between them. These were questions of fact strongly bearing upon the issue in controversy. The court should direct a verdict when the case presents only questions of law, but not otherwise. (Code of Civil Procedure, Sec. 1104.) This court said in Cain v. Gold Mountain Mining Co. 27 Mont. 529, 71 Pac. 1004: “The rule is well established That no cause should ever be withdrawn fromi the jury unless the conclusion from the facts necessarily follows, as a matter of law, that no recovery could be had upon any1 view which could reasonably be drawn from the facts which the evidence tends to establish.’ ”

For the foregoing reasons we are of the opinion that the judgment should be reversed, and] the cause remanded for a new trial.

Per Curiam.

For the reasons given in the foregoing opinion, the judgment is reversed, and the cause' is remanded for a new trial.

Me. Justice Holloway, being disqualified, takes, no part in this decision.


author:
MR. • COMMISSIONER OLAiYBERO
      Per Curiam.-

text:
    CAMPBELL, Appellant, v. FLANNERY et al., Respondents.
    (No. 1,856.)
    (Submitted November 16, 1903.
    Decided December 8, 1903.)

      Temporary< Injunction — Application to Dissolve — Use of Affidavits — Surface Water — Natural Water Course — Flowage— Accustomed Channel — Bights of Upper Proprietor — Bights of Lower Proprietor.

      1. Under Code of Civil Procedure, Section 878, where defendant’s motion to dissolve a temporary injunction is based on the complaint alone, plaintiff has no right' to file an affidavit in support of the complaint.
    2. To justify granting a preliminary injunction, the plaintiff’s right must be certain as to the law and facts.
    3. Owners of land along a natural water course are entitled to have its waters flow down upon, and depart from, their land in the accustomed channel.
    4. The allegations of a complaint upon which a temporary injunction was granted enjoining defendants from permitting certain water to flow down upon the land of plaintiff, examined, and held to be insufficient to entitle plaintiff to the injunction, whether said water was a natural water course or surface water..

      Appeal from District Court, Gallatin County; IT. L. Holloway, Judge.

    Suit by N. Si Campbell against William and Ida B. Flan-nery. From an order dissolving a temporary injunction, plaintiff appeals.
    Affirmed.

      Messrs. McConnell & McConnell, for Appellant.

      Mr. Eugene B. Hojfman, for Respondents.
   MR. • COMMISSIONER OLAiYBERO

prepared the opinion for the court.

This is an appeal from an order dissolving a, temporary injunction which had been granted upon, a complaint without notice.

The motion to dissolve was based solely upon the summons and complaint. It was heard on behalf of defendant at the date fixed in the notice, but, upon the written request of plaintiff's counsel, they were granted further time to be heard. Subsequently they submitted a, written argument against the motion, and presented an affidavit in support of the complaint. No affidavits were filed byi the defendant on the motion to dissolve.

Section 878, Code of Civil Procedure, provides: -“The application [to dissolve] may be made upon the complaint and affidavit on which the injunction order was granted, or upon affidavit on part- of defendant wdth or without the answer. If the application be made upon affidavits on part of defendant, but' not otherwise, the plaintiff may oppose the same by affidavits or oral testimony in addition to those on which the injunction order was granted.” Under this statute, there being no affidavit filed with the motion to dissolve, plaintiff had no right to file the affidavit above referred to, and the court could not have considered it upon a motion to dissolve. Therefore the only question on this appeal is, does the complaint state facts sufficient to warrant the granting of an injunction?

It is a fundamental principle of the law of injunctions that the plaintiff must show a clear right. Spelling says: “To jusr tify granting a preliminary injunction, the plaintiff’s right must be certain, as to the law and facts. In passing upon the facts of each ease> it is the right and duty of the court or judge to require a- full disclosure of all the facts; and, if it is apparent' that such disclosure has not been made, relief should be refused.” (1 Spelling on Injunctions, Sec. 20.)

In this case the only right which, the plaintiff claims was invaded is the right to use the bed of Cottonwood creek, which passes through his land, for agricultural purposes. - This right is set forth in the complaint in the following language: “That for the purpose of irrigating the aforesaid tracts of land, which are arid and need irrigation,' a certain ditch was constructed for the purpose' of conducting the waters of the East Gallatin river to and upon, said tracts of land; that said ditch is known as the ‘Flannery Ditch’; that it conducts the water by means of an artificial ditch, constructed to the bed of a certain creek, known as ‘Cottonwood Creek,’ and the water is thence con1 ducted for a distance of between one-fourth and one-half of a mile, when the water is taken out of said creek bed by means of an artificial ditch, which said latter ditch conducts the water along and adj acent to the south end of the plaintiff’s ranch, and also- the south end 'of the ranch of the defendant; that the said Cottonwood creek bed continues from the point where the last artificial ditch taps it, in a diagonal course across the lands-above described of the plaintiff, about three-fourths of a mile; that said Cottonwood creek is dry the greater portion of the year, and only flows water in tlie spring, when tbe early spring-rains fall, and tbe snows melt in tbe mountains, wbicb are only a few miles distant; that ever since tbe year 1893 tbe aforesaid artificial ditcb, and tbe laterals taken out of the same, have been, and are now, amply sufficient to1 carry all tbe water that flows in tbe said Cottonwood creek, so that a portion of said creek bed wbicb traverses, as aforesaid, tbe plaintiff’s lands, has not been subjected to tbe flow of any Water since the! year 1893; that plaintiff has plowed and leveled said creek bed and cultivated the same ever since tbe year 1898; that tbe bed of said creek is gravel, and that tbe plaintiff has hauled • and put soil upon it to a sufficient depth to raise valuable crops of grain, and that tbe same is now sowed in grain; that said creek bed is on an average of about two rods in width, and that tbe reclamation of tbe same, and its conversion into cultivated land, as above described, has added, greatly to tbe value of plaintiff’s ranch; that tbe recent rains and tbe melting, of tbe snow in tbe mountains have caused a large volume of water to flow down the Cottonwood creek and enter tbe said Flannery ditcb, as above described; that this volume of water is between three hundred and four hundred inches of water, miner’s measure.”

Does tbe complaint contain allegations sufficient to clearly establish this right? We think not. Tbe right claimed would depend somewhat upon tbe character of tbe waters of Cottonwood creek, as to whether they were mere surface waters, or tbe waters of a natural water course. We are tentatively of tbe opinion that the allegations of tbe complaint fix the character of these waters as waters of a natural water course, but inasmuch as it appeared at tbe bearing of this appeal that plaintiff bad filed an amended complaint, wbicb is not before tbe court, and as tbe real character of the waters depends entirely upon tbe existence of facts, we do not feel disposed to decide upon this appeal that they are tbe waters of a natural water course. We are satisfied, however, that it makes no difference in this case whether such waters were mere surface waters, or tbe waters of a natural water course. If Cottonwood ctreek was a natural water course, tben tbe landed proprietors along its banks above tbe plaintiff’s land are entitled to have its waters flow down the stream from their lands as they were accustomed to flow, and plaintiff could .only acquire the right to prevent such flow by tbe granting of that right to Mm by such proprietors, by a contract with them concerning such right, or by a prescriptive right obtained against them. So far as the allegations of this complaint are concerned, the defendants anay be landed proprietors on the banks -of Cottonwood creek above the lands of plaintiff. There is no allegation to the com trary. The mere allegation that they are in possession of certain lands joining plaintiff in n¡o way tends to contradict the fact that they may be owners of other lands along the banks of Cottonwood creek above the lands of plaintiff.

Plaintiff does not allege that defendants have ever granted, to him, or contracted with him concerning, the right claimed; nor does he allege that he: has obtained this right by prescription against them. True, he had the unquestionable right to change the course of Cottonwood creek on his own, land, hut he would be compelled, as to parties on the creek below him, to' return its. waters to. the accustomed channel before it departed from his lands. There is no allegation in tire complaint that plaintiff has done this, or that he bases his claimed right on the existence of any such facts. He rests his rights solely upon the allegation that some one constructed a ditch to. carry the waters of the East Gallatin river to Cbttonwood; creek, used the bed of that creek for a distance, and then diverted “the water” from this by means of another ditch. The plaintiff does not even allege that it was the intent of the owner of this ditch to divert from Cottonwood creek any waters save those which had been turned into, its channel. This would he the extent of their rights under the law, in the absence, at least, of a showing that they had appropriated some of the waters' of Cottonwood creek. (Paige v. Rocky Ford Canal & Irrigating Co., 83 Cal. 84, 21 Pac. 1102, 23 Pac. 875; Long on Irrigation, Sec. 43; Kinney on Irrigation, Sec. 246.)

Of course, the landed proprietors above plaintiff along the banks of Cottonwood creek would have no right to control the flowage of the water of that creek after they: departed from their lands, but they have a clear right to have the waters of the creek depart from their lands in their accustomed channel.

The complaint does not show, except, perhaps, by way of inference, that the owners of this ditch ever attempted to>, or even allowed, the waters of Cottonwood creek to be conveyed through the Flannery ditch. The only allegation we find in the complaint in this regard is as follows: “That ever: since the year 1893 the aforesaid artificial ditch and the laterals taken out of the same have been and are now amply sufficient to carry all the water that flows down said Cottonwood creek, so, that a portion of said creek bed which, traverses, as aforesaid, the plaintiff’s lands, has not been subjected to, the flow of any water since the year 1893.” Again, whether a dam had been constructed across Cottoniwood creek at a point where the ditch departs therefrom is not directly alleged, but such fact is left entirely to an inference which might arise from the subsequent allegations that defendants removed said dam. Therefore, if Cbttonwood creek was a natural water course, plaintiff has alleged no facts which give him any right to cultivate that part of its bed upon his own land, a,n(d prevent the proprietors along the banks of the stream above from allowing the waters of the stream to flow from: their lands in their accustomed channel.

But suppose it was merely a passageway for surface water. TJnder the civil law the proprietor above is entitled to an easement over plaintiff’s land for the flowage of the surface water from his, land, which could not be interfered with or enjoined. This rule of the civil law has been adopted in California and many other states. (Gould on Waters, Sec. 266.)

Under the doctrine of the common law, no such easement exists; and plaintiff might have prevented the flow of the surface water from the lands of his, neighbors over his own lands by the erection of dams, dikes or levees. But such erection would have to be constructed upon his, own land, in absence of a showing on bis part of the right to erect them on the lands of another. Under the conpnon law, “surface water is the enemy of all mankind,” and each landowner has a right to protect his own land therefrom. There is no claim in the complaint that the plaintiff has attempted, by the erection of dikes, dams or levees upon his own land, to prevent the natural flowage of the surface water from the lands of adjacent proprietors. Neither has he shown the erection of such structures upon the lands of another, or any right to erect the same on such lands.

So that plaintiff has shown no right to the use of the bed of . this creek for agricultural purposes which would entitle him to enjoin the defendants from permitting the waters of Cottonwood creek to flow down its accustomed channel to the lands of plaintiff, and therefore there could be no invasion of any right which could be enjoined.

The complaint contains certain other allegations concerning the existence of the so-called Penwell ditch, which, as alleged, the Flannery ditch crosses after its departure froml Cottonwood creek. We deem these allegations entirely immaterial, and shall not consider the same, because, if plaintiff has not shown a right to have the waters of Cottonwood creek flow into the Flannery ditch at the point of its departure from the creek, he certainly wtould. have no light to insist that these waters should have been carried off by the Penwell or any ditch crossing the Flannery ditch beyond the point of its departure from the creek.

Many other objections to the sufficiency of the complaint, might be suggested, but the above would seem to. be ample to. show that there was no error in the order appealed from.

It must be remembered that this opinion is based solely upon the allegations of the complaint, and nothing herein contained should be construed as applying to any amended complaint which states facts not alleged in the complaint under consideration.

We therefore advise 'that the order appealed from be affirmed.

Per Curiam.-

For tbe reasons stated in tbe foregoing opinion, tbe order appealed from is affirmed.

Mr. Justice Holloway, being disqualified, takes no part in this decision.'


author: MR COMMISSIONER CALLAWAY Pee, CubiaM.

text:
    HOAR, Appellant, v. HENNESSY et al., Respondents.
    (No. 1,698.)
    (Submitted October 20, 1903.
    Decided December 10, 1903.)

      Adjoining Land Owners — Boundary Line — Verbal Agreement —Division Fences — Location,— Encroachment — Burden of Proof — Instructions—Harmless Error.

    1. Plaintiff cannot complain of instructions taking tbe defense of adverse possession from tbe jury.
    2. where a boundary line between adjoining properties is disputed, tbe proprietors, by verbal agreement, may fix a line, which, if established and acted upon by them, will be enforced and recognized by tbe courts.
    3. At common law, in the absence of an agreement, an adjoining owner has no right to build his fence beyond his own land.
    4. ■ Civil Code, Section 1301, providing that coterminous owners are mutually bound to maintain the fences between them, unless one chooses to let his land lie without fencing, in which case, if he afterwards incloses it, he must refund to the other a just proportion of the value at that time of any division fence made by the latter, contemplates that the fence shall lie one-half on the land of each owner, each contributing his share to its erection and maintenance, and the ground upon which it stands; and thus the fence may stand on the land of each without any agreement.
    5. Political Code, c. 13, Sections 3250-3259, amended by Act March 10, 1901 (Sess. Laws 1901, p. 139), relative to legal fences, prescribing what are such fences, and defining the duty to maintain and repair partition fences, do not affect the right of an adjoining owner to build a division fence partly on the other’s land.
    6. The 'burden is on an adjoining owner to show that a division fence built partly on his land by Ms neighbor is unreasonable for the purpose intended.
    7. A division fence erected on a boundary line agreed upon between the adjoining proprietors is properly erected, under Civil Code, Section 1301, providing that coterminous owners are mutually bound to fence their properties.
    8. In ejectment, where the court charged- to find for defendant if the fence and stone wall about which the controversy arose were erected “on the line agreed upon” between the parties, plaintiff was not prejudiced by the later use of the indefinite phrase, “if a portion of the fence” rested on the lot of each, etc., where plaintiff failed to show any encroachment, and the jury, from their verdict, evidently found that the wall was lawfully built — • equally on the lot of each.

      9. The remainder of the instruction, that if the board fence erected by defendant on the wall was so situated as to inclose the land upon which the stone wall rested, belonging to plaintiff, they should find for plaintiff to that extent, though subject to criticism, was favorable to plaintiff.

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

    ActioN by William. T. Hoar against J. B. Hennessy and Mike Hennessy. From a judgment for defendants, and from ■ an order denying a new trial, plaintiff appeals.
    Affirmed.

      Mr. C. D. Tillinghast, and Messrs. Mediation & Cotter, for Ajppellant.
    A verbal agreement between conterminous proprietors of land establishing a line between their respective estates, and that such line shall become the division line, is invalid. (Compiled Statutes of 1887, Fifth Div., Sec. 217; Civil Code, 1895, Sec. 2185, Subdiv. 4; Sharp v. Blanlcenship, 67 Cal. 441, 443; Moritz v. Lavelle, 77 Cal. 10 ; Barr v. O'Donnell, 76 Cal. 469 ; .White v. Hapeman, 43 Mich. 267, 38 Am. Hep-. 178.)
    Where the defendant relies upon an equitable title he must set it upi in a.court of equity. (ffwasey v. Adair, 88 Cal. 179, 25 Pac. 1119; Chambers v. Jones, 17 Mont. 156.)
    There is no- allegation in the pleadings that the plaintiff deceived or intended to deceive any of. the defendants herein, or that they were, in fact, deceived; and without some deceit there is no estoppel. (Davis v. Davis, 26 Cal. 38, 40, 41; Vfatson v, Sutro, 86 Cal. 500; Griffith v. Brown, 76 Gal. 260; 11 Eincy. of Law, p. 420; Brant v. Virginia, etc. Co., 93 H. S-. 2-26; Lalce Superior, etc. Co. v. Cunningham, 44 Fed. 833.)
    Where an estoppel relates to the title of real property it is essential to the application of the doctrine that the party claiming to’ have been influenced by the conduct or declarations of another was himself not only destitute ‘of knowledge of the true state of the title, but also of any convenient and available means of acquiring such knowledge, and where the condition of the title is known to- both parties, or both have the same means of ascertaining the truth, there is no estoppel. (Brant v. Virginia, etc. Go., 93 TJ. S. 226, L. E:. 927; Lake Superior, etc. 'Co. v. Cunningham, 44 Eed. 843; First Nat’l Bank v. Marshall, etc. Bank, 83 Eed. 725, 734, 735; The John Shillito Co. v. M’Clung, 51 Fed. 868, 876,- Sturms. Boker, 150 H. S. 310, L. E. 1093-1102.)

      Mr. J. B. Iiealy, for Respondents.
   MR COMMISSIONER CALLAWAY

prepared the opinion for the court.

Appellant brought this action against respondents to recover possession of a strip of ground about one foot in width and 100 feet in length, lying along the southerly edge of his lot, alleging that the respondents have built a stone wall and fence thereon. Respondent J. B. Hennessy interposed two defenses to the action: Eirst, that he is the own'er of the land in controversy, by virtue of his adverse possession thereof for a period of five years prior to July 1, 1895; and, second, that he built the stone wall and fence upon a line agreed upon as a boundary line between himself and appellant in the latter part of the year 1891.

Appellant and respondent J. B. Hennessy are the owners of contiguous lots, the southerly line of appellant’s lot being the northerly line of respondent’s. The lots are portions of the Banker lode, in Silver Bow county, and face upon Montana street, which runs northerly and southerly in the city of Butte. The parties purchased from, the same grantors; respondent’s deed being dated May 31, 1890, and appellant’s October 20, 1890. Shortly after purchasing his lot, appellant erected a house thereon, and a little later respondent built his house.

About November, 1891, respondent, being desirous of dividing his land from that of appellant by a fence, procured the assistance of a surveyor to locate correctly the dividing line. The survey was made by one McDonald, who drove stakes at the east and west ends of the line located. According to the testimony of Mike Hennessy, wbo acted as agent for bis father, J. B. Hennessy, this line was pointed out to appellant, who.in turn showed Mike Hennessy wbat be claimed to be tbe dividing line, it being about three inches farther south than the McDonald line; but appellant said the difference did not matter, and it was then agreed that the McDonald line should be adopted as the boundary, and the fence was built thereon. Appellant denied that he ever agreed upon any line as a boundary, and said that he always protested that respondent was encroaching upon him. The first fence was a tvto-rail fence, which extended from the northeasterly corner of respondent’s lot to a point opposite the northeasterly corner of his house, a distance of about 60 feet. The lots are 100' feet deep. The two-rail fence was replaced in 1896 by a board fence erected upon the same line as; that occupied by the first fence. In December, 1899, respondent commenced to erpct a stone wall in place of the board fence, which was being crushed by the weight which came against it from appellant’s lot. Appellant’s lot is higher than it was originally, while respondent has excavated his, making it lower. Respondent deemed a stone wall necessary to protect his lot, and commenced to erect it. Appellant objected to’ the construction of the wall, saying that the respondent was encroaching upon him, but the latter contended that the wall was being built directly “on the line.”

The stone wall is about sixty feet in length, and upon this is erected a board fence, which, after leaving the wall, continues to the street line on the west. Prior to' the construction of this wall and fence the space between the two' houses was open. This space has been used by appellant as a passageway to and from the rear part of his lot, and wasi of great convenience to him. The distance between the houses is about four feet. Three surveyors have endeavored to locate the true boundary line between these lots, but no two' of them agree. McD'onald surveyed it prior to the construction of each of the three fences mentioned, and all of his surveys agree, according to respondent’s testimony. Respondent contends that at all times since the agreement made in 1891, and until he commenced to build the stone wall, both parties recognized the McDonald line as the boundary, acted on, it, and have made their improvements with reference to it. This appellant denies. Shortly after respondent had completed the stone wall and fence, appellant began this suit, making J. B. TIennessy and Mike Iiennessy defendants. At the trial there was evidence corroborating the contentions of each side. The jury, found for the defendants upon all the issues,, and judgment was entered for them on the verdict. Thereupon appellant moved for a new trial, which was denied. From, the order denying his motion for a new trial, and from the judgment, he prosecutes this appeal.

Several errors are assigned:

Appellant took exception to a number of questions propounded to witnesses, by respondents’ counsel, but upon examination we find no érror in the rulings of the court thereon.

By the instructions given, the court practically took the question of adverse' possession from the jury. Instruction No. 3, complained of by appellant, contributed to this effect. If this was error, appellant certainly cannot complain of it.

3. Appellant contends that'a verbal agreement between coterminous proprietors of land establishing a line between their respective estates, and that such a line shall become a division line, is invalid, as being within the statute of frauds. This depends altogether upon, the circumstances. In Galbraith v. Lunsford, 87 Tenn. 89, 1 L. R. A. 522, 9 S. W. 365, the court said: “If, with full knowledge of the true line, another be fixed by verbal agreement, such agreement is within the statute frauds, and consequently void; but, where there is doubt or ignorance as to the true locality of the line, a parol agreement fixing the line Between adjoining.owners is not within the statute, and, where satisfactorily, established, will be enforced by the courts, notwithstanding it may afterwards be demonstrated that the agreed line was erroneously fixed; and such adjustment may be shown as well by circumstances and- recognition, as by direct evidence of a formal agreement, where parties have acted thereon. Houston’s Heirs v. Matthews, 1 Yerg. 116; Gilchrist v. McGee, 9 Yerg. 458; Merriwether v. Larmon, 3 Sneed, 451; Lewallen v. Overton, 9 Humph. 76 ; Rogers v. White, 1 Sneed, 69; Riggs v. Parker’s Lessee, Meigs, 49 ; Yar-borough v. Abernathy, Id. 420.” And see Idaho Land Co. v. Parsons, 3 Idaho, 450, 31 Pac. 791; Dembitz on. Land Titles, Sec. 8.

“It is well settled that where the owners of contiguous lots by parol agreement mutually establish a dividing line, and thereafter use and occupy their respective tracts according to it for any period of time, such agreement is not within the statute of frauds, and it cannot afterwards be controverted by the parties or their successors in interest. White v. Spreckels, 75 Cal. 610, 17 Pac. 715; Helm v. Wilson, 76 Cal. 485, 18 Pac. 604; Blair v. Smith, 16 Mo. 273; Orr v. Hadley, 36 N. H. 575; Laverty v. Moore, 32 Barb. 347; Houston v. Sneed, 15 Tex. 307. It is the policy of the law te give stability to such an agreement, because it is the most satisfactory way of determining, the true boundary, and tends to prevent litigation. Houston’s Heirs v. Matthews, 1 Yerg. 118; Fisher v. Bennehoff, 121 Ill. 435, 13 N. E. 150.” (Cavanaugh v. Jackson, 91 Cal. 580, 27 Pac. 931.) The above quotations state the law applicable *to this case.

4. Instruction No. 6 is as follows: ’ “The jury are instructed that if you1 find from the evidence, that, at the time the plaintiff anid defendant went into possession of the adjoining lots of land), referred to in the evidence herein, they agreed up [upon] a boundary, line, even though this line was. different from the line shown by the surveyor, and were ignorant of the true survey line, and tbat this line is the one whereon the fence and stone wall are erected, and if you also' find that each party, in making improvements on his premises; acted with reference to said agreed boundary line, and built in accordance therewith,' then and in such event you will find your verdict against the plaintiff and in favor of the defendant. But if the jury find from the evidence that the said stone wall was constructed upon a line agreed upon by the plaintiff and defendant, and a portion, thereof rested upon land belonging to tbe lot of each, and that the board fence constructed by, the defendant upon the stone wall is so situated as to inclose the land; upon which the stone wall rests1, belonging to plaintiff, then the jury should find for the plaintiff to the extent of his land so inclosed by the superstructure or board fence erected on the stone wall.”

In discussing this instruction, we are confronted with the question whether, under our statute, a division fence may stand upon the land of adjoining owners, in the absence of an agreement between- them-. At common law, in the absence of such an agreement, one adjoining owner had no right to build his fence beyond his own land. (Warren v. Sabin, 1 Lans. 19.)

Our Section 1301, Civil C'ode> reads as follows-: “Co-ter-minous owners are mutually bound equally to- maintain: (1) The boundaries and monuments between them. (2) The fences between them, unless one of them chooses to- let his land lie without fencing, in which case, if he afterwards encloses it, he must refund to the other a just proportion of the value, at that time, of any division fence made by the latter.”

The words “mutually bound to maintain * * * the fences- between them” necessarily suggest that the burden must rest equally upon each, and this burden includes one-half of the ground upon which the fences shall rest. The section would be clearer if it read, “Oo-terminous owners are mutually bound to erect and maintain.” The word “maintain” ordinarily means to- preserve something which is already in existence, but when we consider that, by the use of the words “unless one of them chooses to let his land lie without fencing,” the statute applies to- lands- not fenced, we readily see that it is comprehensive enough, in the light- of the subject-matter, to include the érection as well as the maintenance of fences. This statute, when'passed, was intended to- apply to conditions where lands were largely unfenced. The phrase “unless one of them chooses to let his land lie without fencing” means that one is not bound to maintain a division fence with his neighbor — he may allow bis land to lie open if be chooses — yet, if be afterward inclose bis own premises, be must then refund to Ms neighbor a just proportion of the value of the division fence “at the time.” The words “at the time” evidently mean at the time be joins his neighbor. The words “division fence,” of course, mean that the fence is to be one dividing the contiguous property. Now, if the co-tenuinous- owners are mutually bound equally to maintain the fences between them:, and the burden should be equally upon each, it necessarily follows that the fence should rest equally upon the land of each. If it were otherwise, A. might build a division fence entirely upon Ms own ground, but directly at- the line. B., his adjoining owner, occupying lands then unfenced, might afterward conclude to fence his land. He could thereupon inclose the three sides theretofore unfenced, build directly to his line, and upi to the fence of A. He thus would have the benefit of A.’s fence, without paying anything, therefor, while the statute provides that he must pay his just proportionate value of the division fence; but, should he be allowed to pay his proportionate share of the value of A.’s superstructure, he would enjoy not only one-half of the fence situated wholly upon the land of A., but also the benefit of a double portion of A.’s ground, while yielding no ground himself. One who purchases land does so contemplating that some one else may inclose the adjoining land. It is therefore manifest that the statute contemplates' that the division fence shall be one-half upon the land of each owner, and that each shall equally contribute his share to the erection and maintenance thereof, as well as the ground upon which it stands.

Chief Justice Shaw, in Newell v. Hill, 2 Metc. (Mass.) 180, thus speaks upon this subject: “In, the first place, it is to be considered that the division fence (i. e., the whole of the division fence) is made for their mutual and equal benefit; an'd' therefore, upon the plainest principles of equity, the expense as well as cost of building, as of land to build upon, must be borne by them equally. * * * If it is to be, in all respects, for tbeir common benefit and at their common expense, it follows that it is at their equal expense of land, as well as cost of building. As every species of fence must take some land, and cannot stand on a mathematical line, and as there is no reason why it should stand more on the land of one than the other, it follows, as a necessary consequence, that it is to stand equally on the land of both, or one-half on each. It is one of the cases where equality is equity. It is the common case where a burden is toi be borne, a. duty to be performed, or an expense incurred by. two or more persons, and no law imposes a larger proportion on one than the other, it is to be borne equally. It is then asked, if one can take the land of another equally with his own, to build fence upon, how much may he take? What kind of fence may he build? Shall it be a wide wall, a broad canal, or how otherwise ? We think the answer is. obvious, and is attended with no more uncertainty than many other legal rights. It must be a reasonable quantity, and that is to be determined by a just regal'd to the proper accomplishment of the purpose which both parties have in view, and in which they have a common interest. * * * A given quantity of land might well be regarded as reasonable in one ciase which would not be so in the other.” (Pettigrew v. Lancy, 48 Mo. 380; Higgins v. Kingsley, 82 Hun. 150, 31 N. Y. Supp. 100.)

We have examined Chapter XIII, Sections 3250-3259, inclusive, Political Code, amended by Act approved March 16, 1901 (Sess. Laws 1901, p. 139 et seq.), and finfi that such sections, if applicable to this case at all, den not conflict with the views herein expressed.

In the case at bar it .appears that, appellant’s land being considerably higher than respondent’s, it is necessary that some fence of a substantial nature.be erected in order to keep the land of appellant from, encroaching upon that of respondent, and also to prevent undesirable drainage from appellant’s, land upon respondent’s.

It is not contended by appellant that the fence erected is unreasonable for the purpose intenlded. If it is, the burden being upon bim to show it, which he has failed to do, he will not be heard to make any complaint in that respect now.

The court evidently had in mind the correct theory upon the law applicable to agreed boundary lines, and, in the first part of the instruction, properly told the jury that, if the fence and stone wall are erected upon such agreed boundary line, they should find for the defendant. If they are erected “on the boundary line” agreed upon, they a,re properly erected, under the rule above announced.

We must not lose sight of the .fact that the court used the phrase “whereon the fence and stone wall are erected.” The stone 'wall extended in a westerly direction from the northeasterly corner of respondent’s lot but sixty feet. Upon this wall the board fence was erected, and this fence continued in its course westerly to the line of the street. The fence, and not the 'stone wall, is that which divides the space between the two houses, and is that which destroys the passageway, so appellant contends. The board fence, therefore, is the .principal cause of contention. Continuing, the court said, “If the jury -find from the .evidence that the stone wall was constructed upon a line agreed upon by the plaintiff and defendant, and a portion thereof rested upon land belonging to the lot of each,” etc. The court should not have used the. indefinite phrase “a portion thereof,” but-we-cannot see .that any harm resulted from it. If the stone wall was built.upon the line,.a portion of it should rest upon the lot of each.. -Lawfully).-the wall should rest equally upon the lot of each; and. w.e must presume it was lawfully built, in the light of the jury’s verdict. The burden was upon plaintiff to--show; that his land was. encroached upon. He failed to show it to the satisfaction of the jury. The jury evidently found the wall, as well as .the,fence between the houses to be iipon the agreed boundary line. The remainder of the instruction, while not worthy, of .approval, is favorable to plaintiff. The jury were told that if “the hoard fence constructed by the defendant upon.the stone wall is SO' situated as to inclose, the land .upon which the stone .wall rests,, belonging to plaintiff, tben the jury should find for the plaintiff to the extent of his land so. inclosed by. the superstructure or board fence erected on the stone wall.” The jury found that.the fence upon the wall did not inclose any land of plaintiff upon which the wall rested. They impliedly found it to be directly upon the line. — or directly above the line — which' amounts to the same thing — where it should be. It is thus apparent that as the jury found the board fence between the houses, as well as the stone wall, to be upon the agreed boundary line, the instruction did not prejudice the plaintiff.

For the foregoing reasons, we are of the opinion that the judgment and order should be affirmed.

Pee, CubiaM.

For the reasons given in the foregoing opinion, the judgment and order appealed from) are affirmed. .


author: MR. COMMISSIONER CLAYBERG Pee OubiaM.

text:
    GREENE, Respondent, v. ROWAN et al., Appellants.
    (No. 1,733,)
    (Submitted December 9, 1903.
    Decided December 10, 1903.)

      Judgment on: the Pleadings ■— Betting Aside — Discretion— Appeal.

    The power conferred by Code of Civil Procedure, Section 774, on the court to relieve a party from a Judgment, etc., taken against bim through Ms mistake, inadvertence, surprise, or excusable neglect, is discretionary, and its exercise will not be revised except for an* abuse thereof.

      Appeal'from District Court, Silver Bow County j-William Clancy, Judge. ■■
    Action by Flora El Greene against Thomas Rowan and Nicholas Hughes.. From an order setting aside a judgment for defendants, they appeal.
    Affirmed.

      Mr. J. E. 'Healy, for Appellants.

      Messrs.'Boole & Clarke-, and Messrs. Busch & Kremer, for Respondent.
   MR. COMMISSIONER CLAYBERG

prepared tbe opinion for tbe court.

Tbis is an appeal from an order made by tbe court below setting aside a judgment on motion made pursuant to Section 174 of tbe Code of Civil Procedure, wbicb said judgment bad been entered upon a motion for judgment on tbe pleadings.

It appears from, tbe transcript that tbe attorneys for plaintiff took some proceedings to dismiss tbe case prior to1 or about tbe time when tbe motion for judgment on the pleadings was heard, and, relying on tbis action being effective, did not appear upon tbe argument of tbe motion. Counsel for appellants says that tbe proceedings taken by plaintiff’s attorneys to dismiss tbe case were not effectual, because tbe defendants’ costs were not paid) or tendered; that tbe court did right in hearing tbe motion for judgment on tbe pleadings, and committed error in setting it aside. Counsel for respondent claim that- whether tbe suit was actually dismissed or not by tbe action of plaintiff’s attorneys is entirely immaterial, as tbe application to set tbe judgment aside was made under Section 774 of tbe Code of Civil Procedure, and tbe court, in tbe exercise of tbe discretion vested in it by tbis section, decided to' set tbe judgment aside upon tbe payment of costs, wbicb tbe order appealed from recites were immediately paid.

There is no doubt but that the law is well settled that, tbe court below having beard tbe motion to set aside tbe judgment, and having exercised tbe discretion vested in it by Section 774, tbis court will not interfere with that decision unless tbe discretion of the court below was grossly abused, and that such abuse must be disclosed by tbe record. We cannot say that tbis record discloses such abuse.

We adopt tlie following language of this court used in .tbe case of Eakins v. Kemper, 21 Mont. 160, 164, 53 Pac. 312: “From the earliest decisions of this court, thirty years ago, down to the very, latest, the principle has been established that it is within the legal discretion of ai trial court to set aside or to refuse to set aside a default and judgment thereon, and that, unless it appears that there has been an abuse of such discretion, it is the duty of this court to sustain, the district court. This was laid down in Loeb v. Schmith, 1 Mont. 87, and has been followed in Whiteside v. Logan, 7 Mont. 373, 17 Pac. 34; Heardt v. McAllister, 9 Mont. 405, 24 Pac. 263; Jensen v. Barbour, 12 Mont. 566, 31 Pac. 592; Mantle v. Largey, 17 Mont. 479, 43 Pac. 633; and Butte Butchering Co. v. Clarke, 19 Mont. 306, 48 Pac. 303.”

We advise that the order appealed from be affirmed.

Pee OubiaM.

For'the reasons stated in the foregoing opinion, the order appealed from is affirmed.