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he claims the right to purchase. Page v. Action by the Astoria Exchange Company Hobbs, 27 Cal. 483; Quinn V. Kenyon, 38 against Charles W. Shively to determine ri. Cal. 499; Schiefferly v. Tapia (Cal.) 8 Pac. parian rights. Judgment for plaintiff. De 878; Stewart v. Altstock, 22 Or. 182, 29 Pac. fendant appeals. Affirmed. 653. Counsel for appellant, however, stoutly

Sidney Dell, for appellant. contends that a full compliance with the laws regulating the purchase of tide lands was

PER CURIAM. The facts of this case are conceded by the board, and that, having en

similar in all their controlling features to the tered an order upon its minutes accepting

case of Bowlby v. Shively, decided by this the application of plaintiff, and by a like or

court June 18, 1892 (22 Or. 410, 30 Pac. 154), der offered to sell the lands to him at the

and affirmed on writ of error by the supreme price fixed, and to convey the same by a

court of the United States (see Shively v. quitclaim deed, “without prejudice to the

Bowlby, 14 Sup. Ct. 548). After a most care rights of any person," it is estopped from de

ful consideration of the case at bar, we are manding the performance of the conditions

satisfied that all the points and principles of precedent; and further, that by these acts

law arising therein were involved and ably It had exercised its discretion, and, the ex

and exhaustively considered in the case of ecution of the deed being a duty in its nature

Bowlby v. Shively, supra, and fully and commerely ministerial, it ought now to be re

prehensively settled. We must therefore re quired by the court to execute the same. But

gard the decision of the latter case as decisive this contention is not tenable, because the

of this. The complaint herein was filed upon sale was incomplete until the deed was made

the same date as that of Bowlby v. Shively, and delivered; and hence, if the board saw fit

and the issues, so far as they were concluded, to recede from its acts on account of the plain

were formulated about the same time. The tiff not having complied with some of the

Bowlby Case was first brought on for hearstatutory requirements, it is believed there

ing as a test case upon the assumption that exists no reason why it should not exercise

the same conclusion must necessarily be such power, and with hold the deed until such

reached in both cases, but now it is claimed requirements were observed. The board sus

that this case contains other points for our pended the execution of the deeds until the

consideration not passed upon in that. With applicant should show that the lands were

this contention we are unable to concur. It actually tide lands, and that no previous deed

could accomplish no good purpose for us at therefor had been issued by the state. Such

this time to reconsider the doctrine of that an act was undoubtedly within its discre

case, as the reasoning and conclusions reachtion, for, if the lands were not tide lands, or

ed are in full accord with the present views the state had formerly executed deeds to the

of the court. Hence the judgment of the court same lands, it was the duty of the board to

below is affirmed. withhold the deeds required by plaintiff. The inquiry is judicial in its nature, and one which the board had a perfect right to make.

(27 Or. 53) Nor did it waive the right to make such in

STATE V. MALONEY et al. quiry, or a further investigation, by the ac

(Supreme Court of Oregon. March 4, 1895.) ceptance of plaintiff's offer, and the entry of

LARCENY-INSTRUCTIONS. an order in its minutes directing the execu

On trial of two persons for larceny ot tion of a deed. These acts of the board be.

a horse, it appeared that defendants had pos. ing discretionary, its directions and decisions session of the horse a couple of days after he will not be reviewed by the courts. Corpe

was stolen. There was evidence of conflicting 8. Brooks, 8 Or. 222. These considerations

statements by one of the defendants as to how

he obtained the horse. Hold, that it was error sustain the conclusions of the court below, to charge that, if defendants had made conand the judgment is therefore affirmed. flicting statements as to the possession of the

animal, such fact might be considered as tend.

ing to show that their possession was unlawful. (27 Or. 104)

Appeal from circuit court, Wasco county; ASTORIA EXCH. CO. v. SIIVELY."

W. L. Bradshaw, Judge. (Supreme Court of Oregon. March 4, 1895.)

Daniel Maloney and Charles Snelling were

convicted of larceny, and they appeal. Re NAVIGABLE WATERS-DONATION CLAIM-Consti

versed. TUTIONAL LAW. A donation land claim bounded by the E. B. Dufur, for appellants. Geo. E. Columbia river includes no title or right in the

Chamberlain, Atty. Gen., for the State. land below high-water mark; and the statutes of Oregon providing for the sale of such lands to private parties, and giving the riparian pro. BEAN, C. J. The defendants were tried prietors the first right to purchase (Laws 1872, and convicted upon an indictment against p. 129; Laws 1874, p. 76), are a constitutional

them for the larceny of a horse, the propand legal exercise by the state of Oregon of its dominion over the lands under navigable wa- erty of one Michael Doyle, and from the ters. Shively v. Bowlby, 14 Sup. Ct. 548, fol- | judgment thereon bring this appeal. The lowed.

evidence tended to show that the horse was Appeal from circuit court, Clatsop county; stolen from the pasture of the owner, a few E. J. Taylor, Judge.

miles from The Dalles, sometime between For opinion on rehearing, see 40 Pac. 92.

Friday evening and Monday morning, and the latter exclusively for the jury. In this was found in the possession of the defend- case any contradiction or discrepancy in the ants on the following Wednesday evening. various statements made by Maloney as to At the trial evidence on the part of the state how he acquired possession of the property was given, showing that the defendant Ma- was competent evidence to be weighed by loney stated, in explanation of his possession the jury, along with all the other evidence of the property, that he bought it and an- in the case, in determining his gui or inother horse from an Indian on Monday morn- nocence, but it was error in the court to ing, between 10 and 11 o'clock, giving in ex- instruct them that it tended to show guilt or change therefor three ponies and ten dollars unlawful possession. The inference, if any, in money,-eight dollars of his own, and two to be drawn from such evidence, and the dollars borrowed from his codefendant. An weight to be given to it, was for the jury; affidavit made by Maloney on his prelim- and the court could not, by way of instrucinary examination was also submitted in tion, tell them that any particular inference evidence, in which it is stated that he pur- was warranted from such testimony. False chased the horse from an Indian, giving or contradictory statements do not, as a matthree ponies and eight dollars in money ter of law, tend to show guilt, but the infertherefor. From this last statement the ence or presumption to be drawn therefrom word "ten," as originally written, had been is one of fact, for the jury. Where the law crossed out, and the word “eight” interlined, fixes the weight or effect of evidence, the but the evidence was conflicting as to wheth- court may declare it to the jury; but where er the change was made before or after the the guilt of the defendant is sought to be affidavit was filed. The state also called one proven, not directly by the facts shown, but Dufur as a witness, who testified that Ma- by ipferences therefrom, the court cannot loney told him that he made the trade for select out a particular item of evidence, and the horse about noon, or a little after, on instruct the jury that it tends to prove or Monday, but the witness was not very cer- disprove the main fact, without invading the tain as to the exact time.

province of the jury, whose duty it is to There was no evidence whatever that the give such facts or circumstances the weight defendant Snelling had made any state- they are entitled to in the light of all the ments, conflicting or otherwise, as to how he evidence in the case. The instruction as came into possession of the property, nor given was, we think, error, and for this readid the evidence show any statements by Ma- son the case must be reversed, and a new loney other than as detailed above. Upon trial ordered. this state of the testimony the court instruct- There are numerous other assignments of ed the jury, at the request of the prosecu- error in the record, but the only one relied tion, that: "If you find from the evidence on for a reversal is the definition of a "reathat the defendants have made conflicting sonable doubt,” which is perhaps subject to statements as to how they came into posses- some verbal criticism. Whether, however, sion of the animal in question, this fact may it contains reversible error, is unnecessary to be considered by you as tending to show consider, in view of a new trial, and what that their possession was unlawful.” This was said about the better practice in such instruction, it seems to us, was erroneous. cases in State v. Morey, 25 Or. 255, 257, 35 The manifest effect of it, under the evidence, Pac. 655, and 36 Pac. 573. Judgment rewas that, though the defendant Maloney versed, and new trial ordered. had made no contradictory statements as to the party from whom he received the property, or as to how he came into possession

(27 Or. 38) thereof, yet if at one time he said he paid

MENDENHALL V. HARRISBURGH WA. therefor ten dollars, in addition to three

TER-POWER CO. ponies, and at another time only eight dollars, and at one time said he made the trade (Supreme Court of Oregon. March 4, 1895.) between 10 and 11 o'clock in the morning, PLEADINGS-AMENDMENT-INJUNCTION. and, at another time, about noon, such state

1. The only issue in a case being the width ments would tend, as a matter of law, to of a tract subject to a right of way, it is not show, not only that his possession was un

an abuse of discretion to refuse an amendment lawful, but likewise the possession of his

as to the name of the person from whom it was

obtained. codefendant, who had made no statements

2. One is not entitled to have his pleadings whatever concerning the matter. False and amended to conform to the proof, where obcontradictory statements by a defendant in jection was made to the introduction of the

evidence for which the amendment is desired. explanation of his possession of stolen prop

3. Injunction will lie to prevent the widenerty are competent evidence against him,

ing of a ditch for a water course through plainbut the effect and value thereof, and what tiff's land, and the erection of a dam which they tend to prove, is for the jury, not the would destroy plaintiff's ford, defendant havcourt. The competency of such evidence is

ing no legal right to do either. one thing, and what it shows or tends to Appeal from circuit court, Linn county; show is another, and quite a different, thing. George H. Burnett, Judge. 'The former is a question for the court, and Suit by Ella H. Mendenhall against the Harrisburgh Water-Power Company. Decree within the limits of the right of way. A lor plaintiff. Defendant appeals. Affirmed. reply having put in issue the allegations of

This is a suit to enjoin the defendant from new matter contained in the answer, the taking possession of land belonging to the cause was referred to J. C. Powell, Esq., who plaintiff and cutting timber and enlarging a took and reported the evidence, with his findditch thereon, without first having it con- ings of fact and law thereon. After the de demned for that purpose. The facts show: fendant's evidence had been taken, it asked That one Jaso. S. Clark, in 1852 and the year leave, by its counsel, to file an amended anfollowing, byt a dam in a branch of the swer, based upon the affidavit of one of its Willamette myer, and dug a ditch therefrom attorneys, which showed that he supposed, across the pads now owned by the plaintiff, and so alleged, that W. M. Ladd was the and cond'rrced water therein to operate his owner of the ditch and right of way, and did mill, and 10 October 12, 1857, conveyed said not know that W. S. Ladd was the owner prcrises to one John A. Kendall by a deed until the contract entered into between him cortainjug the following reservation: “The and the defendant was offered in evidence; sail Ciark reserves the right of one rod in that it also appeared from said affidavit that width, where his mill race is now dug, run- the defendant and those under whom it ning through said tract of land, forever, in claims title had for many years exercised his own title, with all the appurtenances.” the right of going upon plaintiff's premises to That the legal title to said premises so con- repair the ditch, and that he believed it was veyed to Kendall has, by mesne conveyances, material and necessary to a proper defense become. vested in the plaintiff, and the ease- tbat the answer should be amended so as to ment so reserved in one W. S. Ladd, under make the allegations conform to the evidence. whom the defendant obtained possession. The defendant tendered with said affidavit That the defendant commenced the construc an amended answer alleging that W. S. Ladd tion of a new dam across said branch of the became the owner of certain mill property, to river, of about 250 feet below the site of the which said ditch and right of way were apold one, placing the north end of it upon the purtenant, but that the deed therefor had plaintiff's land, and the south end upon that been executed to one W. M. Ladd, who took of her husband, which if completed, will the title thereto in trust for W. S. Ladd, from destroy a ford used by the plaintiff and her whom it secured the right to enter upon said husband in crossing to and from their respec- premises and appurtenances thereto to repair tive lands. That, the ditch having become the dam and ditch; that the ditch was from shallow and much widened, the defendant 15 to 30 feet in width, and the excavation set stakes along its banks, intending to widen complained of was confined to deepening it it to 30 feet, and throw the dirt therefrom within the limits of the right of way; that upon the adjacent land, and had entered Ladd and his grantors had been in the open, thereon, and cut down and burned some small notorious, and adverse possession of said timber and brush which grew along the banks right of way for more than 40 years, and a of the ditch. The plaintiff alleges that the prescriptive right had thereby been acquired defendant is a corporation organized with to enter upon plaintiff's premises to repair the object, among others, of digging a canal the ditch; that the defendant has, with plainfrom a branch of the Willamette river, and tiff's knowledge, expended large sums of conducting water therefrom for the use of money in constructing the canal over most the citizens of Harrisburgh, in Linn county; of plaintiff's land, and in building the dam, that it had a right of way across her land, without any objection upon her part until and the right to the use of a ditch thereon the commencement of this suit; that defend. of the width of from 12 to 15 feet, and no ant is solvent, and able and willing to pay more; that the defendant, without having plaintiff any damage which she may sustain obtained her license or consent, and without | by reason of the matters alleged in her compaying for the land, or having it condemned, | plaint. The motion for leave to file the entered upon her premises, commenced build- amended answer having been denied, the refing a dam partly thereon, cut valuable timber eree found for the plaintiff upon all the issues, therefrom, and intended to, and would, unless except that the right of way was 164 feet in restrained, widen the ditch to 30 feet,-and width, the use of which could not be enjoyed prays for a decree perpetually enjoining it without the right of defendant to enter upon from erecting or maintaining said dam, or plaintiff's land 15 feet outside of the right of otherwise trespassing upon her land. The way for the purpose of making necessary defendant, after denying the material allega- repairs, and, as conclusions of law therefrom, tions of the complaint, except the existence found that plaintiff was entitled to an inof the ditch, for a separate defense, alleges Junction perpetually restraining the defendthat one W. M. Ladd was the owner of a right ant from widening the ditch beyond 1644 feet, of way and ditch thereon from 15 to 20 feet from trespassing upon or destroying any timin width, which he leased to defendant, and ber upon plaintiff's land, or throwing any licensed it to enter upon and construct a earth or other material thereon, except along canal for the purposes indicated in its char- said ditch, and within 15 feet of the banks ter, and that its acts, of which the plaintiff thereof, on either side, and from building or complains, consisted in deepening the canal maintaining the dam at any other place thar the old site. The court modified the findings | nature of the trespass is such as must necesof the referee by excluding the defendant's sarily lead to oppressive litigation or a multiright of entry upon plaintiff's land outside of plicity of suits, or the injury goes to the dethe 104 feet right of way, and rendered a struction of the estate, in the character in decree in accordance with the amended find- which it is enjoyed, or the trespass cannot ings, from which the defendant appeals. be adequately compensated in damages, and

the remedy at law is plainly inadequate, a: Geo. E. Chamberlain, for appellant. D. R.

court of equity, in such or like cases, is auN. Blackburn, for respondent.

thorized to interfere and grant relief by in.

junction.” In the case at bar the evidence MOORE, J. (after stating the facts). It is shows that the defendant threatened to widcontended that the court, by refusing to en the ditch beyond the limits of its right of allow the defendant to file its amended an- way, and throw the material taken thereswer, abused its discretion. The plaintiff from upon plaintiff's land; to construct and alleged in her complaint that the defendant maintain a dam, the backwater from which had a right of way across her lands, and the would destroy the ford used by the plaintiff use of the ditch thereon, which was admit

and her husband; and to cut and destroy ted in the answer. The only issue upon

timber growing along the banks of the ditch, the question was as to the width of the

outside of the right of way. The injury cointract subject to the right, and hence it was plained of is more than a mere trespass, and immaterial from whom the defendant obtail..

goes to the destruction of plaintiff's estate. ed it. The transcript shows that objection

If the defendant could widen its ditch, and was made to the introduction of evidence

encroach upon and excavate the plaintiff's tending to show an adverse user outside of land, without having it condemned, then the the reserved right of way, or an estoppel by

limits of its right would be bounded, not by the plaintiff's seeming acquiescence in the

its necessity, but by its desires, and financonstruction of the dam or excavation of the

cial ability to accomplish them. Ever since ditch. “When," says Lord, J., in Cook v.

the feudal ages, the title to and possession or Croisan, 25 Or. 475, 36 Pac. 532, "the par

real property has been considered a valuable ties proceed with a trial, and evidence is

right, and courts of equity, since their orreceived, without objection, supporting mate- ganization, have used their power to prorial matters, which are not set out in the

tect this right, and, by injunction, have prepleadings, the court may permit the plead

vented encroachments upon such property

which tend to diminish the owner's estate ings to be amended to conform with the

therein. proofs." The right to amend a pleading so

Commenting upon a similar conas to make it conform to the proof proceeds

tention in the case of Railway Co. v. Porupon the theory that it presented the issues

ter, 72 Iowa, 426, 34 N. W. 286, Rothrock, sought to be established by the evidence in J., said: “It is further claimed that injunctroduced and admitted without objection,

tion is not the proper remedy; that the ac

tion should have been at law, for damages. but that some material allegation had been inadvertently omitted therefrom. In such

We do not think this position is well taken. cases it is the duty of the court, after the There can be no doubt that equity will enjoin evidence upon the supposed issue has been

encroachments upon land by making excaintroduced without objection, to permit the vations, erecting permanent buildings, and

the like." The threatened destruction of the amendment; but, when objection has been made to its introduction, the court has no

ford by the erection of the new dam would authority to allow such an amendment, as

be an injury to a private easement appurthis would have a tendency to invert the or

tenant to plaintiff's land, which equity will derly mode of trial prescribed by statute,

enjoin. Washb. Easem. 670. The injury and lead to the practice of settling issues complained of having threatened the destrucafter, instead of before, trial, thereby re

tion of plaintiff's estate and private easeturning to primitive methods. The plaintiff ment, and the defendant not having showu having made objection to the introduction of

any legal right to widen the ditch beyond this evidence, there was no abuse of discre

1643 feet, or to erect the dam, ex.not upon tion in denying leave to the defendant to file

the old site, it follows that the decree üst its amended answer.

be affirmeu, and it is so ordered. It is contended that equity will not relieve

WOLVERTON, J., having been engaged in against a trespass when the injury is not

this case in the court below, took no part in irreparable, but susceptible of pecuniary

the trial here. compensation. “The practice,” says Lord, J., in Smith y. Gardner, 12 Or. 221, 6 Pac. 771, "of granting injunctions in cases of

(27 Or. 45) trespass, is of comparatively modern ori

MARX et al. v. LA ROCQUE et al. gin, and is a jurisdiction sparingly indulged,

(Suprenie Court of Oregon. March 4, 1895.) and only upon a state of facts which show

PARTITION-WHO MAY MAINTAIN. that the injury would be irreparable, and the

The grantee in a deed of an undivided inremedy at law inadequate to redress the

terest in lands, intended as a mortgage, cannot wrong or injury complained of. When the maintain partition.


Appeal from circuit court, Marion county; deed can maintain a suit for partition, and George H. Burnett, Judge.

this, we think, must be answered in the Action of partition by D. Marx and A. C. negative. The statute (regulating the parJorgensen against A. E. La Rocque, M. H. tition of real property) applicable to this Gilbertson, and the State Insurance Com- case provides that when several persons hold pany. From a judgment dismissing the ac- and are in possession of real property as tion, plaintiffs appeal. Affirmed.

tenants in common, in which one or more

have an estate of inheritance or for life or J. M. Gearin, for appellants. W. M. Kaiser, for respondents.

years, any one or more of them may maintain a suit for partition. Hill's Ann. Laws,

§ 423. It is necessary, therefore, that plainBEAN, C. J. This is a suit for partition tiffs show both a legal estate in and possesof real property. The complaint is in the sion of the premises sought to be partitioned; usual form, setting forth the interests of the and it is the settled law of this state that a respective parties in the land sought to be deed, though absolute in form, if intended partitioned as claimed by the plaintiffs, and by the parties as a security for a debt, is to averring that they and the defendants are be treated as a mortgage, as much so as if the owners and in possession thereof as ten- it contained a condition that the estate ants in common. The answer denies the al- should revert to the grantor upon payment legations of the complaint, and affirmatively of the debt, and that it vests no title or alleges that the defendant Gilbertson is the right to the possession in the grantee, but owner in fee, and in the open and exclusive simply creates a lien or incumbrance on the possession, of 50 acres of the land described land. Anderson v. Baxter, 4 Or. 105; Hurin the complaint, and that the defendant La ford v. Harned, 6 Or. 363; Sellwood v. Gray, Rocque is the owner in fee, and in the open, 11 Or. 534, 5 Pac. 196; Thompson v. Marnotorious, and exclusive possession, of the shall, 21 Or. 171, 27 Pac. 957; Adair v. remainder. The reply put in issue the alle Adair, 22 Or. 115, 29 Pac. 193. In such case gations of the answer, and, upon the issues the court looks beyond the terms of the inthus joined, the cause was tried, resulting strument to the real transaction, and, when in a decree dismissing the suit, from which that is shown, will give effect to the contract plaintiffs appeal.

of the parties; and, whatever may be the The facts, briefly, are: That on March 20, form of the instrument, if it was executed 1883, one George C. La Rocque was the own- as security for a debt it will be treated mere. er of an undivided one-twentieth interest ly as a mortgage, and the title and right to in the real property sought to be partitioned, possession will remain in the mortgagor until and, being indebted to one F. B. Ilarrington, foreclosure and sale. Odell v. Montross, 68 conveyed such interest to him by deed abso- N. Y. 499; Shattuck v. Bascom, 105 N. Y. 39, lute in form, but intended as a mortgage, to 12 N. E. 283; Barry v. Insurance Co., 110 N. secure said indebtedness, as the evidence, in Y. 1, 17 N. E. 405. From this it necessarily our opinion, abundantly shows. Afterwards follows that plaintiffs have no legal estate in La Rocque confessed judgment in favor of or right to the possession of the land sought Harrington on the indebtedness secured by to be partitioned, and cannot maintain a suit the deed, or a portion thereof; and Harring. for that purpose. The alleged transfer of ton subsequently assigned the judgment, Harrington to Freeland, and of Freeland to and conveyed the land in question to the the plaintiffs, of any interest in the premises plaintiffs, by a deed absolute in form, to se which might have remained in Harrington cure his indebtedness to them. Two or three after the execution of the deed by him, was years afterwards La Rocque paid the Har- wholly ineffectual to transfer title-First, rington judgment in full to plaintiffs, and because Harrington had no title which he the same was satisfied of record; and on the could convey; and, second, if he had, it 25th day of August, 1886, he, the said George could not be conveyed by parol. Peugh v. C. La Rocque, sold and conveyed the prem. Davis, 96 U. S. 332; Marshall v. Williams, ises in question to the defendant Alphonso 21 Or. 268, 28 Pac. 137. La Rocque, who immediately entered into It was urged that, in case the court should possession. Whether the judgment against reach the conclusion that plaintiffs did not La Rocque in favor of Harrington included have such a title to the property as would all the indebtedness intended to be secured enable them to maintain this suit, the court by the deed of March 20, 1883, is a disputed should, nevertheless, retain the cause and question in the case, but, as we understand enforce plaintiff's' lien upon the property if the law, its consideration is immaterial at it should be of the opinion that the debt to this time.

secure which the property was conveyed had It is conceded that plaintiffs have no title not been fully paid. A sufficient answer to in the premises sought to be partitioned, un- this position is found in the fact that the less they acquired it under the deed from complaint contains no allegations upon which Harrington, which is admitted by all parties such a proceeding could be based. It is in to have been intended as a mortgage. The the form used in partition suits, and alleges principal question, then, remaining for con- that plaintiffs are the owners and in possideration, is whether a grantee in such a session of the property, and that is the only

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