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in considering the compatibility or noncompatibility, the consistency or inconsistency, of the uses of this surface easement for town-lot purposes and mining purposes, or for railway purposes and mining purposes, there must be constantly kept in mind the estate which the condemnation by the railway company takes, namely, the easement of the right of way, which would be the same estate, as far as the mines are concerned, as would be granted by the owner if he voluntarily deeded to a town-lot occupant, reserving to himself the mines. It is perhaps, difficult to understand how the surface of the ground could be used for mining purposes if the easement of the right of way to the railway company had been granted, any better than such surface could be used for mining purposes if an easement for town. lot uses had been granted, but we cannot hold otherwise than that this matter is a question of fact, upon which evidence should have been allowed, and upon which the jury should have decided, under proper instructions, as we have above pointed out. The judgment is therefore reversed, and the case is remanded for new trial. Reversed and remanded.
HUNT, J., concurs.
such owner or his grantee can so use the land for two purposes, there is a value for each purpose, of which value the landowner is deprived, whether his land is taken from him by condemnation, or granted by him by voluntary deed. Such two compatible uses of the land would, therefore, go to constitute its market value, and it is conceded that the owner may recover the market value. We think that these views were those which obtained upon the trial of the Warren Case. In the instruction of the court to the jury in that case, it was held, in effect, that a landowner could not recover a value for two uses of the land if the one use excluded the other. Thus the court instructed the jury. The court did not instruct the jury simply and baldly that the landowner could recover only for the most valuable use, nor did the court instruct the jury baldly that the landowner could not recover for two uses, but the jury was instructed, in effect, that if one use excluded the other the landowner could recov. er for one only, and that he might recover for the most valuable use. By referring to the instruction in the Warren Case it is seen that it holds that, if the town-lot use prerented a mining use to as great an extent as the railway use would prevent the mining use, then the landowner could recover the value of one use only. This seems to us logical, and perfectly in accord with the decisions that the landowner may recover the market value of the land. But in the case at bar the court, by excluding evidence as to value of the land for a mining use, and by forbidding the landowner from proving more than one use, decided the question a priori of whether the town-lot use would In fact interfere with the mining use to as great an extent as the railway use would prevent a mining use. We cannot but conclude that this was a question of fact which should have been determined by evidence. The evidence being introduced, the court should, by appropriate instructions, as in the Warren Case, have properly limited the consideration of this evidence by the jury. The jury could then, under these proper instructions, have determined whether the town-lot use would destroy the owner's use of the surface of the ground for mining purposes to the same extent as would the railway use. It must be remembered throughout this whole consideration, however, that the railway company condemns and takes only the easement of the use of tbe surface of the ground (section 599, Code Civ. Proc.), and does not take the owner's estate in the minerals, or the right to work the ground for the minerals, if he can do so by not interfering with the railway's estate in the easement. Perley v. Chandler, 6 Mass. 454; West Covington v. Freking, 8 Bush. 121; Dubuque v. Benson, 23 Iowa, 248; Blake v. Rich, 34 N. H. 282; Tucker v. Eldred, 6 R. I. 104; Woodruff v. Neal, 28 Conn. 165; Jackson v. Hathaway, 15 Johns. 447. Therefore,
(15 Mont. 464) BOOKWALTER v. CONRAD et al. 1 (Supreme Court of Montana. March 11, 1895.) CHANGE OF VENUE – ACTION RELATING TO LAND
-FORMATION OF New COUNTY. 1. Const. art. 8, $ 11, provides that actions concerning land shall be "commenced” in the county in which the land is situated. Code Civ. Proc. § 56, provides that such actions shall be "tried" in the county where the land is situated. Held, that where an action was commenced in a county in which the land was then situated, and subsequently, and before defendant's appear. ance, a new county was formed out of that part in which the land was, defendant was entitled to a change of venue to the new county, if he applied therefor at the time he appeared.
2. "General Laws" (Comp. St. $ 209), pro viding that no action pending at the time any statutory provision shall be repealed shall be af. fected by such repeal, does not affect the right of defendant to a change of venue in an action concerning land, where the action was menced in the county wherein the land was then situated, but, by a subsequent act creating a new county, the land was made part of the new county.
Appeal from district court, Missoula county; Frank H. Woody, Judge.
Action by J. Bookwalter against Charles E. Conrad and others. From an order of the district court denying a change of venue, defendants appeal. Reversed.
This is an appeal from an order of the district court refusing to grant defendants' motion for a change of venue. The action was commenced February 4, 1893, in the district court of Missoula county. The subject of the action was real estate, then situate in Missoula county. On February 6, 1893, an
1 For opinion on rehearing, see 39 Pac. 851
act of the legislative assembly was approved, volve the convenience of the parties or witcreating the county of Flathead, said act to
The complaint may be mailed to go into effect March 1, 1893. The real prop- the clerk of the court, and summons issued erty which was the subject of the action was and served without the personal attention within that portion of Missoula county of the parties at all. But the trial does inwhich, by this act of the legislature, became volve the convenience of the parties and a part of Flathead county. Prior to, and at witnesses. We certainly cannot hold that the time of, the appearance of the defend- the constitutional provision which requires ants in the action, the land which was the an action to be commenced in the county subject thereof had thus become to be with- where the real property is, also intends to in Flathead county. On this ground the de- require that action should be tried in that fendants' motion for a change of venue is county when the real property is no longer made. The motion being denied, they ap- therein. We therefore think that section 56 peal from that order.
of the Code of Civil Procedure is not in con
flict with section 11, art. 8, of the constituSanford & Grubb, A. J. Shores, and Bick
tion in its application to the facts in this ford, Stiff & Hershey, for appellants. Toole
case. Section 56 of the Code of Civil Pro& Wallace, for respondent
cedure is as follows: “Except when other
wise provided, actions for the following causDE WITT, J. (after stating the facts). The es shall be tried in the county in wbich the labor and zeal of counsel in preparing briefs subject of the action, or some part thereof, in this case seem to us to be disproportionate is situated, subject to the power of the court to the gravity of the legal proposition involv- to change the place of trial, as provided in ed, which, indeed, occurs to us as a very this act: First. For the recovery of real simple one. Counsel for respondent, among property, or of an interest therein, or for the other things, in support of their opposition determination in any form of such right or to the motion to grant the change of venue, interest, and for injuries to real property. rely upon a portion of section 11, art. 8, of Second. For the partition of real property. the constitution, which is as follows: "All Tbird. For the foreclosure of a mortgage on actions for the recovery of, the possession of, real property: provided, that where such quieting the title to, or for the enforcement real property is situated partly in one coun. of liens upon real property, shall be com- ty and partly in another, the plaintiff may menced in the county in which the real prop- select either of said counties, and the counerty, or any part thereof, affected by such ty so selected shall be the proper county for action or actions, is situated." The action the trial of any or all of such actions as are in the case at bar was commenced as the mentioned in this section." Therefore sex constitution requires. The action was as to tion 56 designates the place of the trial of real property, and it was commenced in the this action as in Flathead county, for it is county in which the real property was sit- there that the land is situated. But defend. uated, to wit, Missoula county. But we can- ants, when they came to appear in the case, not understand how it may be argued that found that the action was in a county other this provision of the constitution requires than that in which the land was situated. that the action shall be tried in a county They found that the action was in the wrong where the real property is not situated, or county. Consulting the statute, they found in a county where the real property has ceas- 1. sections 61 and 62 of the Code of Civil Pro. ed to be situated, long before the trial, and, cedure, as follows: indeed, almost at once after the filing of the "Sec. 61. If the county in which the action complaint. If any inference is to be drawn is commenced is not the proper county for from section 11, art. 8, of the constitution, the trial thereof, the action may, not with. as to where an action in regard to real prop- starding, be tried therein, unless the defenderty is to be tried, it would seem to us to ant, at the time he appears and answers or be more reasonable that such action is in- demurs, files an affidavit of merits, and de tended to be tried in the county where the mands, in writing, that the trial be bad in real estate is situated. Why declare by the the proper county. constitution that an action should be com- "Sec. 62. The court may, on good cause menced in the county where the real prop- shown, change the place of trial in the folo erty is situated, and then infer from this lowing cases: First. When the county des. provision that the action must be tried in a ignated in the complaint is not the proper county where it is not situated at the time of county." the trial, or long prior thereto? Such reason- The defendants were timely in making ing from the constitution seems to us to be their motion for change of venue; that is, wholly unwarranted. On the other hand, the at the time when they appeared. They then spirit of this constitutional provision seems to found that under the facts as they existedbe that, if an action as to real property is to be that is, the land being in Flathead county commenced in the county where the real prop- and not in Missoula county,-the county des. erty is, it should also be tried in such coun- ignated in the complaint was not the proper ty subject to change of venue. The com- county. These were the conditions existing mencement of an action does not largely in- at the time the defendants appeared. Wal
proceeding is tried, and that section 209 refers to the proceeding, and its preservation, as above noted, and not to the place of the trial. We are of opinion that the motion for a change of venue should be granted. The whole spirit of the constitution, and the laws of this state and elsewhere, and the decisions of the courts, is to the effect that actions in regard to real property shall be tried in the jurisdiction, or in the geographical division of the jurisdiction, where the land is situated. It is quite true, probably, that in framing the laws as to the place of trial, and the change of the place of trial, there was not within contemplation the particular and peculiar facts of a county being divided at just about the time when a motion for a change of venue could be filed. But we believe that, applying the constitution and the laws to the facts as we find them in this case, the motion should have been granted. The order of the district court is therefore reversed, and the case is remanded, with directions to grant the defendants a change of venue to Flathead county. Reversed.
HUNT, J., concurs.
lace v. Owsley, 11 Mont. 219, 27 Pac. 790. It is true that these conditions did not exist when the complaint was filed, but were brought about by reason of the act of the legislature cutting off a part of the territory of Missoula county, and placing the same within Flathead county, which territory included the real property in question in this action. And here counsel for respondent urge the applicability of section 209, “General Laws,” Comp. St., which is in part as follows: "No action, plea; prosecution, civil or criminal, pending at the time any statutory provision shall be repealed, shall be affected by such repeal, but the same shall proceed in all respects as if such statutory provisions had not been repealed." Counsel contend that under this section of the statute the action must proceed in Missoula county, because it was pending there when Flathead county was created, and that the act of the legislature creating Flathead county could not affect the action then pending in Missoula county. But we are of opinion that the act creating Flathead county did not, in the language of said section 209, affect the action pending in Missoula county. It did not affect the action, or have to do with the action at all. It simply worked the result of changing the proper place of trial to the new county. No rights in the action, no pleas or defenses therein, were affected. By reason of the creation of Flathead county, and by reason of a change of venue, if it were granted, the action would simply be picked up in its entirety, taking all its parts and attributes, and transported to the place of trial intended by the constitution and the laws. We are of opinion that the effect and intent of said section 209 is to preserve the action as it existed, that it shall not suffer in its validity, and that all the steps taken in the same shall be saved entire. “Anderson's Law Dictionary defines an action as follows: "The lawful demand of one's right (3 Bl. Comm. 116) in a court of justice. McBride's Appeal, 72 Pa. St. 483.' Another definition in the same dictionary is: 'An action or suit is any proceeding for the purpose of obtaining such remedy as the law allows.' The definition cites Harris v. Insurance Co., 35 Conn. 311. In that case the court, speaking of 'suit' or 'action,' says: “But by a suit, within the meaning of this provision of the policy (of insurance), is more clearly meant any proceeding in the court for the purpose of obtaining such remedy as the law allows a party under the circumstances.' Black's Law Dictionary, under the title of 'Action,' gives this definition: 'The legal and formal demand of one's rights from another person or party, made and insisted on in a court of justice.'” State v. Newell, 13 Mont. 302, 34 Pac. 28. See this same case last cited for a more full exposition of what an action is, We are of opinion that the action is the proceeding itself, and not the place where the
(15 Mont. 460) HOLLAND v. BOARD OF COM'RS OF SIL
VER BOW COUNTY. (Supreme Court of Montana. March 11, 1895.) TAXABLE PROPERTY-MORTGAGES OWNED BY NON.
RESIDENTS. 1. Under Code Civ. Proc. § 371, which de clares that a mortgage of real property is not a conveyance which will enable the owner to take possession without foreclosure and sale, the instrument is not an interest in land, but security only, and subject to the doctrines of equity.
2. Mortgages as collateral security are deemed to have no situs except that of the domicile of their owner, and when owned by nonresidents of the state are not "property in the state subject to taxation," within the meaning of the revenue act of 1891.
Appeal from district court, Silver Bow county; J. J. McHatton, Judge.
Action by M. L. Holland against the board of county commissioners of Silver Bow county to recover for compensation as assessor: From a judgment for plaintiff for $10.27, and an order denying a new trial, plaintiff appeals. Affirmed.
The plaintiff and appellant, Holland, was, in 1891, the assessor of Silver Bow county. As such assessor, in the year 1891, he returned his assessment, amounting to $32,043,606, including the assessment on all mortgages, deeds of trust, contracts, and other obligations by which any debt was secured, and which remained unsatisfied on the records of the recorder's oflice of Silver Bow county, and which was not barred by the statute of limitations at 12 o'clock m. on the first Monday in March, 1891. On October 6, 1891, the board of county commissioners struck from the assessment roll the sum of
$11,783,007, on the ground that the assess- holder thereof. Attorney General v. Superment list included mortgages for that amount visors of Sanilac Co., 71 Mich. 31, 38 N. W. which belonged to nonresidents of the state, 639. The debt, therefore, if owned and conand for that reason ·were improperly assess- trolled by one not a resident of the state, is ed. The assessor claimed his compensation not "property in the state, subject to taxaon the total assessment made by him. The tion,” as provided by the revenue act of 1891, commissioners disallowed the sum of $2,945.- | but can be assessed only at the domicile or 75 of his account, that sum being the com- place of residence of the creditor, without mission charged on the mortgages held by regard to the domicile of the debtor. Cooley, nonresidents, which the commissioners struck | Tax'n, 63; Eells v. Holder, 2 McCrary. from the roll. The plaintiff appealed to the 622, 12 Fed. 668; Grant v. Jones, 39 Ohio district court. There was a trial without a St. 514; State v. Van Syckle (N. J. Sup.) jury. The court found that $11,783,007 of 8 Atl. 120; Mayor v. Hussey (Md.) 9 Atl. 19; the assessment was upon mortgages owned City & County of San Francisco v. Mackey, by nonresidents, and that by the law the 22 Fed. 602; State v. Darcy (N. J. Sup.) 16 plaintiff could not recover compensation upon Atl. 161; City of St. Paul v. Merritt, 7 Minn. such assessment. There was some correc- 238 (Gil. 198); Board of Commissioners v. tion made by the court, so that plaintiff re- Cutter, 3 Colo. 349; Worthington v. Sebascovered a judgment for $10.27. A motion for tian, 25 Ohio St. 1; Liverpool & London & new trial was overruled, and plaintiff ap
Globe Ins. Co. v. Board of Assessors, 44 La. peals.
Ann. 760, 11 South. 91; Goldgart v. People,
106 Ill. 25; Foresman v. Byrns, 68 Ind. 247; Stephen De Wolfe, for appellant. H. J.
1 Desty, Tax'n, pp. 62, 330; People v. EastHaskell and M. L. Wines, for respondent.
man, 25 Cal. 603; State Tax on Foreign-Held
Bonds, 15 Wall. 300; People v. Smith, 88 N. HUNT, J. (after stating the facts). The Y. 577; Territory v. Delinquent Tax List principal question for decision is: Under the (Ariz.) 24 Pac. 182; De Vignier v. City of revenue law of 1891, was a tax imposed on
New Orleans, 4 Woods, 206, 16 Fed. 11; Com. mortgages, deeds of trust, and other instru- v. Chesapeake & O. R. Co., 27 Grat. 344. The ments for the security of debts, when such appellant seeks to distinguish the State Tax securities were owned and held by nonresi- on Foreign-Held Bonds Case, supra, from the dents of the state? It is well settled in this doctrine fully supported by the authorities state that under section 371 of the Code of listed above; but nearly every case , which Civil Procedure, which declares that a mort- we have read by our original examination of gage of real property shall not be deemed a this question, or which has been called to conveyance, whatever its terms, so as to en- our attention by the briefs of counsel, reable the owner of the mortgage to recover gards the opinion of Justice Field in that possession of the real property without fore- case as upholding the general principle that closure and sale, the character of the in- personal property, consisting of mortgages strument is restricted to purposes of se- and debts generally, owned by a nonresident curity, and is subject to the doctrines of of the state endeavoring to tax such propequity. Fee v. Swingly, 6 Mont. 596, 13 Pac. erty, “has no situs independent of the domi375; First Nat. Bank v. Bell S. & C. Min. cile of the owner.” And until the same court Co., 8 Mont. 32, 19 Pac. 103; 2 Jones, Mortg. which rendered that opinion declines to regard 88 20, 39. In Gallatin Co. v. Beattie, 3 Mont. it as maintaining such a principle, we accept 173, the assessor of Gallatin county assessed the general interpretation given to the language certain mortgages in that county to a resi- of Judge Field as the correct one, restricting dent of another county. Justice Knowles its application, however, to mortgages in the says: "A mortgage is a security for a debt. possession of the owner. The case of ComIt creates no estate in real property. The mon Council of City of Detroit v. Board of equity doctrine is that the mortgage is a Assessors of City of Detroit, 91 Mich. 78, 51 mere security for the debt, and only a chattel N. W. 787, cited by appellant, decided that interest. In regard to mortgages, we have the law of Michigan taxing mortgages owned followed the decisions of the courts of Cali. | by nonresidents was not unconstitutional. fornia, from which state we borrowed our The statute of that state, however, expressly statutes upon that subject. The rule estab- provided that any “mortgage by which a lished by the courts of that state upon this debt is secured, when land within this state subject is an equity rule.
The rec- is pledged * * shall, for the purposes ord of a mortgage is not the mortgage itself, of assessment and taxation, be deemed and or any more than any other copy.” McMillan treated as an interest in the land so pledged." v. Richards, 70 Am. Dec. 655. Regarding a The court held that the legislature could give mortgage, therefore, for the purposes of tax- a situs to mortgages where the land was sit. ation, as nothing more than a collateral se. uated, treating them as interests in realty, curity, depending upon some outside obliga- though held by nonresidents. In distinguish. tion to secure which it is given, it is estab- ing the case from the State Tax decision, lished by the great weight of authority that supra, the court say that the statute of Mich. the mortgage belongs to the owner of the igan “imposes a tax upon an interest in real debt, and passes with the debt to any lawful estate as such," while the decision of the
supreme court of the United States was that may differ from the medical experts as to the a tax could not be imposed upon the bond
propriety of the diagnosis and treatment.
3. An instruction that defendant, sued for itself, which had a situs at the domicile of
malpractice, is not liable if he exercised his best its owner. A careful examination, therefore, judgment in diagnosing and treating plaintiff's of the Michigan case, demonstrates that the case, although he may have been mistaken as to legislature, in the opinion of the court, had
the true character of the disease, is properly re
fused, as exempting defendant from liability if the power “to fix the situs for the purpose of he used his best judgment, although he may have taxation at the place of the location of the been careless in making his diagnosis, or the property mortgaged," and that real-estate proper mode of treatment may not have been in
volved in doubt. mortgages, for the purpose of taxation,
4. An instruction that a physician is liable could be treated as interests in lands. The
for malpractice if he omitted the ordinary and Oregon cases cited recognize a statute of established mode of treatment, no matter how that state similar to that of Michigan, and
much skill he may have possessed, is not mis
leading, where there is no claim that the case uphold its constitutionality. But until the
was one involving doubt as to the proper mode legislaturę passes such a law in Montana of treatment, and the issue and testimony reit is unnecessary to inquire into its validity, late solely to the question whether defendant
neglected to follow the ordinary and clearly-esfor we are of opinion that in the revenue law
tablished practice in treating plaintiff. of 1891 there is no provision giving a situs 5. An instruction that it is incumbent on to mortgages owned by nonresidents as prop- surgeons to conform to the established system erty within the state. The general rule must,
of treatment of a particular disease is not er
roneous or misleading on the ground that the therefore, control, and the case be determin
treatment referred to is one prescribed by some ed adversely to plaintiff. See above anthori- writers and surgeons, and not that universally ties. It may be that if, as a fact, notes and
commended, where there is no conflict as to mortgages owned by nonresidents are actual
the proper mode of treatment.
6. A charge that defendant is liable if ly within the state, and are controlled by the through his negligence gangrene set in, and neagents therein, who retain them, and make cessitated amputation, or if it had set in before the investments for the owners, such securi
his first visit, and he neglected the proper and
ordinary measures to prevent its progress, thereties, under the present revenue laws, are by necessitating amputation or greater amputasubject to taxation, in the hands of such tion than would otherwise have been necessary, agents, as property in the state. That ques
ot erroneous as assuming as a fact that gantion is not before us.
grene had set in when defendant was called, or But, as said before,
during his treatment of plaintiff. the case at bar is not excepted from the gen- 7. In an action for malpractice the fact eral rule that "securities, such as mortgages
that gangrene had set in during defendant's and the like, are deemed to have no situs
treatment of the case is sufficiently established except that of the domicile of the owner,”
to justify an instruction based on that assump
tion by the testimony of plaintiff and another hence are not subject to taxation in this state witness tending to show gangrene, and of sevif the domicile of the owner is without the
eral physicians who afterwards attended plainstate. From the foregoing views it logically parently existed for some time, and of defend
tiff that there was then gangrene, which had apfollows that the assessor, having assessed 1 ant himself that he feared, but did not know, property not within the state, and therefore
that gangrene had set in. not taxable, cannot recover his fees for such
8. The giving of a charge that it is impor
tant to the interests of society that the profesassessment. Herriman v. Stowers, 43 Me. sion intrusted with the preservation of health 499; Berry v. Commissioners, 6 Mont. 121, and lives of the community should be held to a 9 Pac. 899. The order overruling a motion
strict rule of accountability is not ground for for new trial and the judgment are affirmed.
reversal, where the jury were correctly instruct
ed as to the rules governing the duty and liabilAffirmed.
ity of surgeons, and it is evident from the entire
record that they could not have been misled DE WITT, J., concurs.
Appeal from court of appeals.
Action by Jesse R. Jackson against N. G. (20 Colo. 532)
Burnham., From a reversal by the court of JACKSON v. BURNHAM.1
appeals (28 Pac. 250) of a judgment of the
district court for plaintiff, plaintiff appeals. (Supreme Court of Colorado. Feb. 8, 1895.)
This action was originally brought by
Jesse R. Jackson, in the district court of 1. Hypothetical questions to a medical ex- Arapahoe county, against N. G. Burnham, pert, which assume the facts in accordance with
to recover damages for malpractice. The the theory of the party asking them, of what the evidence tends to prove, are proper where, al
complaint avers, in substance, that the dethough the facts are disputed, there is ample tes
fendant was a physician, engaged in the timony tending to support every phase of the practice of his profession at the city of questions, and sufficient to justify the submis
Denver; that plaintiff employed him to treat sion thereof to the jury. 2. A verdict for plaintiff in an action for
him for a malady from which he then sufmalpractice, which is based on conflicting and fered; that defendant entered upon such sufficient evidence, will not be disturbed on the employment, and undertook, as a physician credibility of the witnesses or the weight of their testimony, or because the reviewing court
and surgeon, to administer medicines and
cure him of said malady; "that said de1 Rehearing denied March 4, 1895.
fendant did not use reasonable, ordinary, v.39p.no.6437