fer or carried it out, for it abandoned the condemnation proceedings. The single case cited by counsel in support of the admission of the evidence is one in which one or more of the owners expressly told another person to "go ahead" and make a certain sale, thus establishing agency. This is a far different case from the one at bar as to agency.

The alleged error of the court in overruling defendant's objection to the question put to Condon as to instructions given him by Sweeney with respect to making the deed, and as to Sweeney having told Condon not to waive any damages, need not be considered, for the reason that there is nothing in the deed as to waiver of the damages sued for, and, further, this matter of waiver has been sufficiently covered herein.

Defendant objected to any evidence as to the value of the property for town-site purposes, on the ground that the property could not be considered as platted property or platted into lots, for the reason that it was not in fact platted, and that Madison street was not in fact extended through it at that time, and that the property was not capable of being platted and sold, owing to the fact that plaintiff did not then have title to it, as appears from the evidence, and that "plaintiff's right was only then a location notice upon which a receiver's receipt had not yet been issued," and that it was not the proper method of arriving at the value of the land to consider it in the light suggested by this question. The court overruled the objection. It does not appear that it was necessary for the city to extend Madison street in order that the land could be platted for town-site purposes. Why could not the owner have dedicated a street?

Witnesses who knew the property, and were familiar with the uses to which it could be put, could give their opinions as to the market value, and respondent was prop erly allowed to introduce evidence to prove the value of the land for town-lot purposes. He had the right to make such proof wheth er he had platted it or built upon it or not. The question was not to what use the land had been put. The owner has a right to obtain the market value of the land, based up on its availability for the most valuable purposes for which it could be used, whether or not he so used it. Railroad Co. v. Warren, 6 Mont., at page 284, 12 Pac. 641, and cases cited; Railway Co. v. Forbis, 15 Mont. 452, 39 Pac. 571. Mining claims are real estate. Hardware Co. v. Frank, 25 Mont. —, 65 Pac. 1. From the evidence it appears that the federal government patented the land to plaintiff after an entry made in December, 1891, location having been made on January 1, 1891. The jury probably took into consideration the fact that plaintiff had not "proven up," but that he had "earned" the land, and had a right to a patent, as appears in evidence from the fact that the government Issued the patent, which could not lawfully

have issued if the owner had not earned it at least as early as November 1, 1891. Besides, he was the owner of the mining claim.-real estate, "property," in every sense of the word, against all the world, while he was in possession, complying with the law, and performing the conditions precedent to the obtaining of his patent. He had the right to quit, but no one had the right to trespass upon or interfere with his possession, use, or enjoyment of the premises, except by due process of law.

Having considered carefully the reasoning of present counsel for appellant in his brief bearing upon the question as to whether or not plaintiff waived his constitutional rights, and that the complaint in this cause does not state a cause of action, we must agree, without further remarks, with the former counsel for respondent, that the complaint does state a cause of action, and that the order was void, as we have hereinbefore stated. The errors herein declared were prejudicial to defendant, and the order denying the motion for a new trial and the judgment must be reversed. Reversed and remanded.

BRANTLY, C. J., concurs.

PIGOTT, J. (concurring). I am inclined to the opinion that evidence of an offer to buy, made in good faith, is admissible in favor of the owner of property as tending to prove its value; but the testimony of the plaintiff and Condon touching supposed offers of purchase by the right of way agent was, I think, both hearsay and immaterial. The agent was not acting for himself, but assumed to speak for the defendant. There was nothing tending to show authority in him to make any offer in defendant's behalf, and hence it did not appear that either offer was bona fide. Not being satisfied that the error in admitting it was without prejudice, I concur in the reversal. I dissent from the holding that the plaintiff owed to the defendant the legal duty to mitigate damages or lessen the amount thereof by abating or removing the nuisance existing on the land of another. As to the sufficiency of the complaint: No attack, by demurrer or otherwise, was made upon it in the court below, where the case was tried upon the theory that a cause of action was stated. The opening brief of counsel for the defendant confessed its sufficiency, and expressly admitted that the order under which the defendant entered upon plaintiff's property was void, and not until the oral argument in this court did the defendant suggest that the order was only voidable. Under these circumstances, I am of the opinion that the allegations of the complaint and the evidence should be liberally construed, and every reasonable intendment indulged in favor of the plaintiff. So regard. ing the complaint and the evidence, I think the former states a cause of action, and the latter supports it.

(25 Mont. 497)

HELENA & L. SMELTING & REDUCTION CO. v. LYNCH et al.

(Supreme Court of Montana. July 22, 1901.) MINES AND MINERALS-DITCHES AND FLUMES -RIGHT OF WAY-INSTRUCTIONS-DAMAGES.

1. Where, in a proceeding to condemn a right of way, plaintiff alleges title in defendant, a contention that the verdict for damages was not supported by the evidence, because there was no evidence that defendant's title was valid, cannot be considered.

2. In a proceeding to condemn a right of way, the verdict assessing the damages will not be set aside, the evidence being conflicting, and there being sufficient to support the verdict.

3. The fact that the jury found the land taken in condemnation proceedings of greater value than that fixed by the commissioners, and the incidental damages to be $1,100, whereas the commiss oners adjudged there were none, does not indicate that the jury were influenced by passion and prejudice justifying interference with the verdict.

4. Under Code Civ. Proc. § 1080, subd. 7, requiring a party desiring special instructions to reduce them to writing, and to request the court to so instruct, alleged errors in omitting to charge on certain points will not be considered in the absence of such a request.

5. In condemnation proceedings for a right of way over mining claims, it was not necessary to define the word "prospect," as used in an instruction, since the term is well understood in all mining districts of the West.

6. In condemnation proceedings for a right of way for a ditch and flume over mining claims, an instruction, contrary to Civ. Code, $§ 1897-1899, that the right of defendant to the use of any water. in the ditch was dependent on an agreement between the parties, was harmless error where there was no evidence to which the instructions could apply.

Appeal from district court, Jefferson county; M. H. Parker, Judge.

Proceeding by the Helena & Livingston Smelting & Reduction Company against John Lynch and another to condemn a right of way for a ditch and flume. From the judgment assessing the damages, the plaintiff appeals. Affirmed.

Cullen, Day & Cullen, for appellant. McHatton & Cotter, for respondents.

BRANTLY, C. J. Proceeding to condemn a right of way for a ditch and flume over the Pine Tree and Katie Lynch lode claims, situate in Jefferson county. The extent of the area sought to be appropriated is a strip of land 4 feet in width and 1,421.6 feet in length upon the Pine Tree lode, and 777.5 feet in length upon the Katie Lynch lode. In the order of condemnation the district court appointed three commissioners to appraise the value of the land taken, and to assess the damages. After duly qualifying, the commissioners inspected the premises, heard the allegations and evidence of the parties, and thereupon reported in writing their findings, fixing the value of the way over both claims at $200, and declaring that there were no incidental damages. The defendants, being dissatisfied with the award, appealed to the district court, under the provisions of section 2224 of the Code of Civil

Procedure, and thereafter, upon a trial in the court, a verdict was returned in their favor, fixing the value of the way over the Katie Lynch lode at $100, with incidental damages of $300, and over the Pine Tree lode at $150, with incidental damages of $800. The jury further found that neither of the claims would be benefited by the ditch and flume. From the judgment entered upon the verdict, and from an order denying a new trial, plaintiff has appealed.

1. Counsel for plaintiff have entered into an elaborate argument to demonstrate that the evidence is insufficient to justify a verdict for more than nominal damages. They insist, first, that there is no evidence that the title of defendants is founded upon valid locations under the laws of the United States. The title of the claims was not an issue in the case. In order to maintain this proceeding at all, it was incumbent upon the plaintiff to allege and show title in defendants. Acting upon this theory, and in order to give the district court jurisdiction to entertain its application, the plaintiff alleged in its complaint that defendants were the owners of the claims, and that they had refused to come to an agreement with it by which it might acquire the proposed right of way by the payment of adequate compensation. Defendants, admitting their ownership, and that plaintiff was entitled to a right of way, contested the amount of damages only. Therefore an inquiry into the validity of the title would have been wholly foreign to the issue before the court, and would have shed no light upon the question of value. In the second place, counsel insist that the evidence fails to show that the claims have any value by reason of mineral deposits actually shown to exist therein sufficient in quantity and quality to warrant the expenditure of time and capital in their development. It is true, the evidence discloses that the claims were, when this proceeding was begun, mere prospects, without sufficient development to have more than a speculative value. Nevertheless, their condition was fully shown to the jury, and there was some evidence from which the jury were warranted in finding that they were of sufficient apparent value to justify further development. The evidence further tended to show that the points at which this work could be done most cheaply and conveniently were at the points of discovery, and that the permanent location of the flume and ditch upon the claims would entail much additional cost and inconvenience in the prosecution of development work. The only value a newly-located mining claim has is usually prospective. No person can look beneath the surface, and tell its worth; nor can he say from a superficial examination that it is or is not of value. determining what is its value, its situation and surroundings must be taken into account, and from these, in connection with what actually appears in the superficial open

In

ings or croppings of mineral-bearing rock upon the surface with the opinions of those experienced in mining, a conclusion must be reached. This was the theory of the defendants in the trial of this case, and, though there was a sharp conflict in the statements of fact and opinions of the various witnesses, we would not feel justified in saying that the jury were wrong in finding as they did. This statement is especially applicable to the amounts fixed by the jury as incidental damages. There was a great deal of evidence upon the subject of the additional expense which the defendants would have to bear in order to protect the ditch and flume from injury during exploration. The owners of such claims are entitled to work them according to what, in their own judgment, and that of other experienced miners, is the cheapest and most approved plan, and thus to demonstrate whether or not a mine in fact exists therein. An interference with this plan by the appropriation of a right of way, or the imposition of any other servitude upon the claim, may or may not, according to circumstances, cast an additional burden of expense upon the owner, which may be considered by the jury in awarding damages. In this connection the jury found that the additional burden cast upon the defendants by the presence of the flume and ditch upon their property amounted to the sums fixed by them as incidental damages. While, under the evidence, the total amount might have been much smaller, or even nothing, yet it also might have been found to be much larger. That this court has no power to interfere in such a case is too well settled to require a citation of authorities.

2. It is said by counsel that, though the conclusion may be justified, upon the whole of the evidence, that defendants are entitled to some compensation, the amount fixed by the jury is so grossly in excess of what was awarded as a fair amount by the commissioners, and shown by the evidence to be fair and just, that the jury must have been influenced by passion and prejudice. What we have already said disposes of this contention. While it is true that the jury found the value of the land taken greater than that fixed by the commissioners, and the incidental damages to be $1,100, whereas the commissioners found none, nevertheless the judgment of the commissioners was not the standard by which the jury were to be governed, but the evidence submitted at the trial. The fact that the latter found the land of a greater value than did the former, and that there were incidental damages, though the former judged that there were none, does not of itself indicate passion and prejudice, but may fairly be taken as an indication that the latter had before them facts for consideration which were not brought to the attention of the commissioners, or considered by them. Courts are reluctant to interfere with verdicts of juries, and will not do so, on the

ground of excessive damages given under the influence of passion and prejudice, unless it is apparent that their feelings of passion and prejudice have entered into and influenced their decision. Where it is apparent that this is the case, a new trial should be granted, unless it is also apparent that the verdict is otherwise correct, and the ends of justice will be fully served by requiring the successful party to remit the excess. In the latter case, however, it should appear that upon the facts the successful party is clearly, and as a matter of law, entitled to a verdict in some amount, and that the prejudice and passion of the jury have gone no further than to lead them to swell the amount of damages; otherwise, all their deliberations must be deemed to have been permeated by their feelings, and the decision as a whole the result of passion, rather than of their calm, deliberate judgment. There is, as we have seen, evidence to support the findings of the jury of incidental damages in substantial, instead of merely nominal, sums, and under it these sums might have been greater. The findings may, therefore, fairly be said to be within the purview of the evidence, and not founded upon extrinsic considerations. Under these conditions we do not feel that we should adopt a different view from that entertained by the district court in overruling the motion for a new trial on the ground in question.

3. Counsel criticise the instructions submitted to the jury in several particulars,— among others, in that the court omitted to tell them that the value of the area taken for the way was dependent upon the actual value of the claims as mining claims, the evidence showing that they had no value for other purposes; in that it failed to submit to them the question whether the claims were of sufficient value to "warrant a prudent person in expending money thereon with a reasonable expectation of developing" valuable mines therein; and in that special instructions were not submitted on these points touching the Katie Lynch claim, and also upon the question whether the defendants expected to develop it. The evidence was all directed towards an effort to show the value of the claims as mining claims, and not for any other purpose, and it was made apparent thereby that, if the claims had any value whatever, it was dependent upon the probability that upon development they would prove of value as mines. The court submitted instructions generally informing the jury how to proceed in order to find the amount of compensation to which the defendants might be entitled under the proof. Though they were not told in terms that, if the claims had no value as mining claims, the damages should be fixed at a nominal sum only, they could not possibly have been misled to adopt any standard of value other than the one plaintiff contends should have guided them. They were told

distinctly that the "actual value of the property sought to be appropriated" should be the measure of compensation for all property taken, and this standard they were clearly told should be applied to each claim. Under the statute in this state applicable to civil cases (Code Civ. Proc. § 1080, subd. 9; Acts 1897, p. 241), the court is required to instruct the jury in all matters of law which it thinks necessary for their information in rendering a verdict. Under subdivision 7 of the same section, the party desiring special instructions upon any particular subject must reduce them to writing, and deliver them to the court with a request that they be given. Unless this be done, the losing party will not be heard to complain that the instructions are not sufficiently specific, provided the court has correctly stated the law applicable to the facts of the case. Hayne, New Trial, 120; State v. Broadbent, 19 Mont. 467, 48 Pac. 775; Territory v. Manton, 8 Mont. 108, 19 Pac. 387; Mulligan v. Railway Co., 19 Mont. 135, 47 Pac. 795; 2 Thomp. Trials, 2341. So far as the record advises us, the plaintiff did not request specific instructions in the particulars mentioned. It therefore cannot complain that the trial court did not more fully state the law.

It is said by counsel that the court erred in failing to inform the jury as to what is necessary to be done in order to make a valid location of mining claims, and also in failing to define for them the word "prospect," as used in one paragraph of the instructions. What has already been said as to the other criticisms applies with equal force to these. Furthermore, the validity of the locations under which defendants claim did not and does not arise in this case. What has been said in the first paragraph of this opinion disposes of this contention. It may also be said that it was not necessary for the court-at least in the absence of a specific request thereforto define the word "prospect." This is a term the signification of which is well understood in all the mining districts of the West, and the trial court was justified in assuming that the jury understood it without specific definition.

In paragraph 9 of the instructions the court told the jury "that, under the law, defendants will not have the right to use the water flowing in the ditch or flume across the claims belonging to plaintiff without an agreement or understanding with plaintiff concerning the use of the same, and the evidence does not disclose that such agreement or arrangement can be made." It is said that this instruction is prejudicially erroneous, in that under the statute (Civ. Code, §§ 1897-1899) the defendants have the right to the use of any surplus water which the plaintiff may have in its ditch or flume, independently of any contract therefor, and that under these provisions the plaintiff had the right to have submitted to the jury the question whether the construction of the ditch

and flume upon the claims would prove of benefit to them, by furnishing a convenient source of water supply, of which defendants could avail themselves in prosecuting the work of development. The instruction is erroneous in saying that the right of defendants to the use of any water was dependent upon an agreement between them and plaintiff. Under the statute, supra, if the plaintiff should at any time have surplus water, and the defendants should desire to use it, they could avail themselves of it, even over the objection of plaintiff, by a compliance with the terms of the statute. There was no evidence before the court, however, to which the instruction could apply. It was not shown that the plaintiff at the time of the trial had, or ever would have, any surplus water available for defendants' use, by contract or otherwise. The jury, therefore, could not have found that the flume and ditch would, for the reason stated, be of any benefit to the defendants' property. For this reason the instruction should not have been given, but, under the evidence submitted, no harm could result from the exclusion of the whole matter from the consideration of the jury, which, in effect, the instruction complained of does. The judgment and order appealed from are affirmed. Affirmed.

PIGOTT and MILBURN, JJ., concur.

(11 Okl. 75) PATTERSON v. WILLSON et al. (Supreme Court of Oklahoma. July 6, 1901.) PUBLIC LANDS-VALIDITY OF ENTRY.

The undisputed facts in this case show that Patterson entered Oklahoma about the 25th of February, 1889, and remained therein until March 28, 1889; that during a portion of that period he was encamped in the vicinity of the land in controversy, and while there formed the intention of taking and entering a tract of land in that immediate neighborhood; that he was in said territory without license or authority to either enter or remain there, and that he left said territory on March 28, 1889, and remained outside of the borders until 12 o'clock noon, April 22, 1889. Held, that under the provisions of the act of congress of March 2, 1889, which, among other things, provides that, "until said lands are opened for settlement by proclamation of the president, no person shall be permitted to enter upon and occupy the same, and no person violating this provision shall ever be permitted to enter any of said lands or acquire any right thereto," the plaintiff was disqualified from making a valid homestead entry and acquiring any title to said land, and that the court therefore properly sustained the demurrer to the petition on the ground that the plaintiff's petition did not state facts sufficient to constitute a cause of action.

(Syllabus by the Court.)

Error from district court, Oklahoma county; before Justice C. F. Irwin.

Action by Charles A. Patterson against William H. Willson and others. Judgment for defendants, and plaintiff brings error. Affirmed.

It appears from the record in this case that on May 4, 1889, one Samuel W. Ball made homestead entry No. 937 on lots 1 and 2 and the S. 1⁄2 of the N. E. 4 of section 6, township 11 N., range 2 W.; that on May 15, 1889, Patterson filed an affidavit of contest against said entry, alleging that Ball was in the Oklahoma country between March 23d and 12 o'clock noon, April 22, 1889, and that Patterson was the first actual settler upon said land. A hearing was had before the local land office, but before trial Patterson dismissed that part of the contest that alleged Ball's presence in the territory prior to 12 o'clock noon, April 22, 1889. The local land office found that Patterson had sustained his charge of prior settlement, but found that he was disqualified to enter the tract embraced in Ball's homestead entry, for the reasons that he had entered Oklahoma territory about the 25th of February, 1889, and had remained there until March 28, 1889; that during a portion of that time he was encamped in the vicinity of the tract of land in controversy, and that, while encamped there, he formed the intention of taking a tract of land in that immediate neighborhood; that he had no license from any one in authority to enter said territory, or to remain there; and that, leaving said territory about March 28, 1889, he remained outside until 12 o'clock noon, April 22, 1889, when he entered with the rest of those entering at that time, and on the afternoon of that day settled on the tract in controversy. Upon these facts the local land office recommended that the contest of Patterson be dismissed, and Ball's homestead entry held intact. From this decision Patterson appealed to the commissioner of the general land office. Pending that appeal, on June 26, 1891, Ball relinquished his entry, and William H. Willson made homestead entry No. 594 for said tract of land on the same day. The commissioner of the general land office found the facts substantially the same as the local land office, with the additional finding that Patterson went into the territory, as stated, to find his son, who was supposed to be in the Cherokee Strip; and that while there, having a team, he was engaged in moving other campers; that he determined while there to enter the land as soon as it was opened to settlement, but had not fixed upon any particular tract. The commissioner of the general land office reversed the decision of the local land office, and held that Patterson was a qualified entryman. From this decision an appeal was taken to the secretary of the interior, who reversed the decision of the commissioner of the general land office, sustained the findings of the local land office, and found from the evidence that Patterson was disqualified to acquire title to said land as a homestead claimant, and awarded said land to William H. Willson. Subsequently a patent was issued by the United States to Willson for said

land. J. B. Montgomery and A. C. Thorne claim a certain interest in and to said land by virtue of a mortgage which was executed by Willson to them. Patterson filed his petition in the district court of Oklahoma county against the defendants in error, in which he alleged the foregoing facts, and sought to have a resulting trust declared in his favor as against Willson, and prayed that Willson be decreed to hold the legal title to said tract of land in trust for the use and benefit of Patterson, and that the defendants Montgomery and Thorne be devested of any liens they may have upon said land, and for costs of this action. To this petition the defendants demurred on the ground that it did not state facts sufficient to constitute a cause of action. The court sustained the demurrer to said petition, and, the plaintiff having elected to stand upon said petition, judgment was rendered for the defendants at the cost of the plaintiff. From this judgment the plaintiff appeals.

Keaton & Kearful, for plaintiff in error. A. B. Hammer, for defendants in error.

HAINER, J. (after stating the facts). The undisputed facts in this case show that Patterson entered Oklahoma about the 25th of February, 1889, and remained therein until March 28, 1889; that during a portion of that period he was encamped in the vicinity of the land in controversy, and while there formed the intention of taking and entering a tract of land in that immediate neighborhood; that he was in said territory without license or authority to either enter or remain there, and that he left said territory on March 28, 1889, and remained outside of the borders until 12 o'clock noon, April 22, 1889. Upon these uncontroverted facts the secretary of the interior found that Patterson was disqualified from making a valid homestead entry and acquiring any title to said land. We think the ruling of the secretary of the interior was correct. The language of the act of March 2, 1889, is clear and unmistakable in its terms. It provides: "Until said lands are opened for settlement by proclamation of the president, no person shall be permitted to enter upon and occupy the same, and no person violating this provision shall ever be permitted to enter any of said lands or acquire any right thereto." There is no exception to this. The rule in regard to the interpretation of a statute is well settled that, where the words and language used in the act are free from doubt and ambiguity, and express clearly, plainly, and distinctly the intent of the lawmaking power, there is no occasion to resort to other means of interpretation. It is never permissible to interpret that which has no need of interpretation. The language of the statute itself furnishes the best means of its own interpretation. In 23 Am. & Eng. Enc. Law, p. 298, the rule is thus stated: "If