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complaint, and the priority of the same over 19, 9 Pac. 537; Black v. Black, 6 Mont. 15, their rights, and setting up prior rights in 2 Pac. 317. The complaint supports the certain of themselves. Special issues were judgment, and the findings are consistent submitted to a jury, and 59 questions an- therewith. Chumasero v. Vial, 3 Mont. 376. swered by them. The court revised these The judgment is therefore affirmed. Af. findings, made certain modifications, and aft- firmed, erwards entered a decree establishing the respective rights of all parties.

PEMBERTON, C. J., and DE WITT, J., Upon May 23, 1892, the appellant filed its concur. statement on appeal, which was afterwards, on the 13th of July, settled as correct. There appears in the record, between the conclusion

(15 Mont. 301) of the testimony of a witness and the in- FIRST NAT. BANK OF MISSOULA v. BAI. structions of the court to the jury, a “specifi

LEY, County Treasurer.' cation of errors,” in which are recited the (Supreme Court of Montana. Feb. 11, 1895.) particulars wherein the evidence is claimed TAXATION-BANK STOCK-ASSESSMENT TO BANKto be “insufficient to sustain the findings of CORRECTION BY BOARD OF EQUALIZAthe jury and the modifications thereof by the

TION-INJUNCTION. court, and the decree of the court," so far as

1. Revenue Act March 6, 1891, § 6, pro

vides that stockholders of banks must be a so the same relate to certain ditches belonging

sessed on the value of their shares; and that the to certain of the defendants. The appeal in officers of the bank shall furnish the assessor the case is from the judgment in favor of a verified statement showing the amount and defendants Davis, Thompson, and Julia Rey

number of shares, and the amount of its sur

plus or reserve fund, and investments in real polds, adjudging that said defendants are en

estate. Held, that a printed assessment list, titled to the use of certain of the waters of such as is required by law to be made out and Beaver creek prior in time to the right and

returned to the assessor, indorsed on the back, appropriation of the appellant. There is no

“Assessment list of property subject to taxa.

tion, owned, claimed, or in possession or conbill of exceptions in the record, no motion trol of a certain bank, containing a list of the for a new trial, and no order denying such a real estate and improvements thereon, capital motion. It is therefore impossible for the

stock, surplus, undivided profits, with the

amounts and value of such property, and a de court to consider the alleged error of insufi

duction of one-third of its value claimed by ciency of the evidence to sustain the findings such cashier, is not the statement required. of the jury and court. Porter V. Clark, 6

2. Where the assessor made an unauthor Mont. 246, 11 Pac. 638; Mining Co. v. Hayes,

ized assessment of the shares of bank stock to

the bank, and the bank did not ask the board 6 Mont. 32, 9 Pac. 581.

of equalization to correct such erroneous assessAppellant, in its brief, makes a point ment, it could not enjoin the collection of the against oral transfers of ditches and water

taxes, in the absence of a valid excuse for its

failure to apply to such board. rights; but there being nothing properly be- 3. Where bank stock is erroneously assessfore the court to show that there were any ed to the bank instead of the stockholders, the such oral transfers, independent of a transfer

board of equalization may correct the assess

ment. of the land to which the water was appurtenant, it is unnecessary to pass upon the ques. Appeal from district court, Missoula coudtion raised. That a water right is appurte

ty; Frank H. Woody, Judge. nant to the land upon which it is used, and, Action by the First National Bank of Misunless abandonment is proved, that a trans- soula against D. J. Bailey, treasurer of Misfer of land with its appurtenances conveys

soula county. From a judgment for defend; the interest of the grantor in any ditch or wa- ant, plaintiff appeals. Affirmed. ter right necessary to the use and enjoyment This is an action for an injunction to enof the land, has been decided by this court. join the collection of taxes. Plaintiff, in its Tucker v. Jones, 8 Mont. 223, 19 Pac. 571; complaint, alleges that on the day of Sweetland v. Olsen, 11 Mont. 27, 27 Pac. 339.

1893, in accordance with section 6 of The only other point made by the appellant “An Act Concerning Revenue,” of the Laws is that the respondents Davis and Thompson of Montana, approved March 6, 1891, it furshould exhaust their prior claim to the waters nished the assessor of Missoula county & of Beaver creek from the 300 inches "arising verified statement of the amount and numin the bed of the stream below the head of ber of shares of the capital stock of said the appellant's ditch, and above the head of bank, its surplus and reserve fund, and the the ditch of said respondents." This cannot amount of its investments in real estate, a be considered, in the absence of a motion for copy of said statement being attached to the a new trial. See authorities above cited. complaint as Exhibit A, and made part

It is presumed that the evidence supports thereof; that the books of said bank show the findings and Judgment, and that the in- the names of all the shareholders, their resistructions were based upon testimony in the dences, and the number of shares owned by case. Broadwater v. Richards, 4 Mont. 80, each; that said books were at all times open 2 Pac. 544, 546; Princeton Min, Co. v. First to the inspection of said assessor, to aid him Nat. Bank, 7 Mont. 530, 19 Pac. 210; Lockey in assessing said shareholders; that the veriv. Horsky, 4 Mont. 457, 2 Pac. 19; Morse v. fied statement aforesaid was furnished to Swan, 2 Mont. 306; Twell v. Twell, 6 Mont said assessor by the bank, to aid him in ass

• Rehearing denied.

certaining the number of shares of the stock ber of shares of the stock of the bank, and of said bank, fixing the value that the same in fixing the value at which the same should should be assessed to the individual share- be assessed to the individual shareholders, holders; that the assessor did not use the is attached to the complaint as an exhibit, same for the purpose for which it was fur- and made part of the pleading. This panished, but entered and returned the same per is an assessment list, such as is required as the assessment against said bank for the by law to be made out and returned to the full amount thereof, to wit, $170,000; that assessor. It is printed, and on the back it had no notice or knowledge that said as- thereof is this indorsement: "Assessment sessment had been made against it until list of property subject to taxation, owned, after the board of equalization of said coun- claimed, or in possession or control of First ty had met and adjourned, after equalizing National Bank at 12 m., on the first Monday the taxes for the year 1893, nor until after of March, 1893;" and is sworn to by the the tax lists for that year had been certified cashier of the plaintiff bank. This list conto the treasurer of said county, and only re- tains a list of the real estate, improvements ceived notice thereof when the treasurer thereon, capital stock, surplus, and undivided notified it to pay taxes on said amount; that, profits, with the amounts and value of all having received no notice of said assessment, of said property, with a deduction of oneit did not appear before the board of equal- third of the value thereof claimed by the ization for the purpose of having the same cashier. From an inspection of this tax list, corrected; that, having declined to pay said wbich is a part of the complaint, we think taxes, the treasurer of said county adver- it cannot be held that it is simply a "verified tised all of the real estate of plaintiff for statement," to aid the assessor in assessing sale, for the whole amount of taxes assessed the individual shareholders, as claimed by against it on said amount of $170,000; that plaintiff. plaintiff protested in writing against the al- Section 6 of the revenue law, approved leged illegality of said assessment and the March 6, 1891, is as follows: sale of said property for taxes; that said “Sec. 6. The stockholders in every bank or protest was served on the treasurer of said banking association organized under the aucounty before the day of sale, but that said thority of this state or the United States, treasurer, disregarding said protest, is threat- must be assessed and taxed on the value of ening to sell, and will sell, said property, their shares of stock therein, in the county, unless enjoined from so doing; that said town, city or district where such bank or assessor did not assess to the shareholders banking association is located, and not elsethe value of the number of shares owned by where, whether such stockholders reside in each, but assessed the whole thereof, with such place or not. To aid the assessor in the other property contained in said verified determining the value of such shares of statement, to the plaintiff; that plaintiff, on stock, the cashier or other accounting officer the 1st day of December, 1893, offered to pay of every such bank must furnish a verified said treasurer the sum of $1,512.50, the statement to the assessor, showing the amount of taxes due on the real estate of amount and number of shares of the capital said bank; that the treasurer refused to ac- stock of each bank, the amount of its surcept the same; that plaintiff is now willing plus or reserve fund, the amount of invest. to pay said amount of taxes due on said real ments in real estate, which real estate must estate; that said treasurer has advertised be assessed and taxed as other real estate." for sale, and will sell, the real estate of the It may be conceded that the assessment of plaintiff for the whole amount of taxes as- the capital stock of the bank to and as the sessed against the capital stock, surplus, and property thereof was unauthorized in this undivided profits, and real estate of plaintiff, case, under said section. The bank had a unless enjoined by the court. An order to right to object to this assessment. But it show cause why an injunction should not appears that it returned in its list of propissue was made, with temporary restraining erty for taxation its capital stock as proporder. The defendant demurred to the com- erty owned, possessed, or controlled by it; plaint of plaintiff, on the ground that it did and, if it objected or desired to object to not state facts sufficient to entitle it to the being thus assessed, it should have gone berelief demanded, or any relief. The demur- fore the board of equalization, and had the rer was sustained by the court, an injunc- correction made. tion denied, the temporary restraining order It is contended by appellant that the board vacated, and plaintiff's complaint dismissed. of equalization had no authority to make

this correction. It is the duty of this board Marshall & Corbett, for appellant. J. M.

to "examine the assessment book, and adjust Dixon, H. J. Haskell, Ella L. Knowles, and

and equalize the valuation of the taxable J. G. Denny, for respondent.

property of the county." We do not think it

can be successfully contended that, under PEMBERTON, C. J. (after stating the the law, this board has no authority to corfacts). The verified statement which plain- rect an assessment when property has been tiff claims in its complaint it furnished the assessed to a party which he does not own, assessor to aid him in ascertaining the num- or when there has been a double assessment, or property exempt from taxation has been its bank stock was subject to taxation pro assessed, etc. The most that can be said in vided it was taxed as the property of the this case is that property has been assessed individual shareholders. It is not contendto piaintiff which it claims it does not own, ed that any unjust discrimination as between and therefore not liable for the taxes there- this bank stock and other moneyed capital on. If such be the fact, the plaintiff should in the state has been made in the taxation have gone before the board of equalization thereof. It can only be contended that the for relief. In its complaint it gives no suffi- assessment was illegal, in that the capital cient reason for not doing so. This court stock was assessed to the bank instead of the beld in Railroad Co. v. Patterson, 10 Mont. individual shareholders. To correct this ir90, 24 Pac. 704, that a complaint seeking to regularity, it was the duty of plaintiff to enjoin the collection of a tax, on the ground apply to the board of equalization. Meyer of irregularity or illegality in the assess- v. Rosenblatt, 78 Mo. 495; Oteri v. Parker, ment thereof, which did not show that the 42 La. Ann. 374, 7 South. 570; Board of complainant had first sought relief before Com’rs v. Searight Cattle Co. (Wyo.) 31 Pac. the board of equalization, was bad on de- 268; Meade v. Haines (Mich.) 45 N. W. 836. murrer. See, also, authorities cited in that We think no error has been shown in the case. In Bourne v. Boston, 2 Gray, 491, Mr. action th court below. The judgment Justice Bigelow says: "The plaintiff was affirmed. Affirmed. pot legally taxable for the property held by him as trustee, but he was taxable for the DE WITT and HUNT, JJ., concur. property of his ward in the city of Boston, and therefore a portion of the tax which in this action he seeks to recover back was

(15 Mont. 2011 rightly assessed to bim. This would seem MCANDREWS V. MONTANA UNION RY. to bring the case within the principle, now

CO. well settled by the authorities, that, where (Supreme Court of Montana. Feb. 11, 189.51 & person is liable to taxation for personal

INJURY TO RAILROAD EMPLOYE-DEFECTIVE HAN! and real estate in a city or town, is sole

CAR-ASSUMPTION OF RISK--CON IBremedy, for an overtaxation, caused by an

UTORY NEGLIGENCE. excessive valuation of his property, or by

In an action by a section hand for inju

ries due to defects in a hand car on which he including in the assessment property of

was riding, causing it to jump the tracks while which he is not the owner or for wbich he crossing a bridge, it was shown that plaintiff is not liable to taxation, is by an application

knew of such defects, and informed his superito the assessors for an abatement.” It seems

ors, but continued to use the car on being told

merely that request had been made for a new to be the well-settled rule that when the law car, and being directed to use the one at hand bas provided boards of equalization, with with great care until the new one came. It was power to adjust or correct assessments, par

also shown that the car was obviously dangerties being dissatisfied with the assessment

ous, and that plaintiff had seen it leave the

tracks, when going at a much less rate of speed of their property must apply to them, in than it had acqmred at the time of the accident. the first instance, for relief, and that courts Held, that plaintiff could not recover. of equity will not interfere by injunction to Appeal from district court, Silver Bow restrain an irregular or illegal assessment county; J. J. McHallon, Judge. until such relief has been sought and denied. Action by Michael McAndrews against the In Stanley v. Supervisors, 121 U. S. 550, 7 Montana Union Railway Company. From Sup. Ct. 1234, the supreme court says: "To a judgment for plaintiff, and an order dethese boards of revision, by whatever name nying a new trial, defendant appeals. Rethey may be called, the citizen must apply versed. for relief against excessive and irregular This is an action for damages for personal taxation when the assessing officers had ju- | injuries. The plaintiff states in his comrisdiction to assess the property.” See High, plaint that on the 29th day of August, 1889, Inj. (3d Ed.) 485, and authorities cited. and prior thereto, he was employed by and

Courts of equity are very reluctant to in- was in the service of the defendant as a terfere by injunction with the collection of section hand; that on that day he was emthe revenue of the government, and will not ployed, with others, in repairing the roaddo so except in cases when the party bas no bed of the defendant; that the headquarters proper relief at law. The plaintiff having of the section on which he was working returned its list of property that it did own were at Garrison; that the section he was for taxation, and having included in such working on was south from that point about list property that it did not own, and for five miles; that he, with bis coemployés, the taxation of which it was not liable, ac- had to travel over their section to and from cording to the well-settled rule, should have their work on a hand car furnishe for that applied to the board of equalization to cor- purpose by the defendant; that it was the rect said list, and for relief from the pay- duty of the defendant to furnish for said ment of the taxes of which it now complains; purpose a good, safe, and secure hand car; and, having failed so to do, it is not entitled that the defendant failed in the discharge to the equitable relief prayed for in its com- of its duty in this respect, and, instead, furplaint. It is conceded by the appellant that nished knowingly an unsafe, defective, insufficient, and dangerous hand car; that used by the defendant or the foreman to insaid hand car bad been so unsafe for some duce him to use it. This contention requires

time; that about 15 days prior to said 29th an examination of the testimony offered by · day of August, 1889, plaintiff informed de- the plaintiff.

fendant and the foreman of the section of It appears from the plaintiff's own testithe defective and dangerous condition of mony that he was a man of considerable exsaid hand car; that he requested that said perience in the kind of work he was emhand car be repaired or a safe one furnish- ployed in doing at the time he was injured, ed; that defendant promised to comply with he having been engaged in this character of said request, and ordered plaintiff to go on work for about three years before this. He and use said car in the meantime; that, be- states in his complaint that the car was delieving said promise would be speedily ful- fective and dangerous, and that about 15 filled by defendant, plaintiff continued in days before the accident he so informed the said employment and use of said hand car foreman. He swears that on the day of the with great and extraordinary care; that by accident, and just before it occurred, he the exercise of such care he and his coem- told the foreman "that the car was unsafe, ployés were enabled to use said car until and that he was afraid it would kill somethe 29th day of August, 1889, without acci- body," and that the foreman replied: "Get dent or injury; that on said day, when he on that car. It is all right. We will soon was ordered by said foreman to use said get a new one.” In another place he says: hand car in his employment, plaintiff again “The foreman said he was going to get a objected, on account of the dangerous con- new car in a few days. He told me to get dition thereof, to doing so, but was again on the car, and use it as carefully as we assured by said foreman that a good car could, and get along the best we could." In would soon be furnished, and, relying on describing the condition of the car at the said promise, he did use the same; that on time he was using it, the plaintiff says: said day, while returning from his work on "As to what was the trouble with the car, as said hand car, and while exercising great near as I can judge, she used to wabble. care in the use thereof, in crossing a bridge, Her boxes were too loose, and she would said car left the track, without any fault of wabble from one side to the other, and she plaintiff, on account of its defective and was too loose, and out of running order. dangerous condition; that plaintiff was then Furthermore, there was no brake on the and there thrown from said car, and off the car; that is, that could be used. It was an said bridge, a distance of about 40 feet, and old car, and, in fact, I couldn't even find the greatly injured thereby. The complaint also date on it, or the number of it. It was an contains allegations as to the nature and ex- old car, being, I guess, used for many tent of the injuries sustained by plaintiff. years. I couldn't say how many. Her The answer of defendant denies the allega- wheels were what I would call 'wood and tions of the complaint, except as to plaintiff's iron,' and here, where the iron runs out employment by defendant. The defendant from where it is on the axle, the wood was alleges that plaintiff had been using the loose; the wheels were wood, along with hand car in question for a long time prior to the iron inside the iron, and where the the day on which he was injured; that he wood fastened into the boxing around the was perfectly familiar with its condition, axle some of the wood was loose, and would and that, with a full knowledge of its dan- work in and out. That was the car that I gerous condition, he voluntarily used the was on the morning that I was injured." same, and was not induced to use it on ac- The plaintifi also swears that he had heard count of any promise by defendant or the of this car jumping the track before this, foreman to repair said hand car or procure and on one occasion it jumped the track a safe one. On the trial the plaintiff ob- when he was present, when the evidence tained a verdict for $5,000, for which sum shows it was being run at about four miles judgment was rendered. From this judg- an hour. At the time of the accident, plainment, and an order denying a motion for a tiff says, they were not going any “faster new trial, this appeal is prosecuted.

than between five and seven miles an hour,

as far as he could judge.” The plaintiff says Geo. Haldorn and J. S. Shropshire, for ap

that when he was told to get on the car by pellant. J. W. Cotter, for respondent. the foreman he could not say whether the

car was all right or not, but supposed the PEMBERTON, C. J. (after stating the foreman knew more about it than he himfacts). The appellant contends that the ver- self did, because he was foreman, and was dict is not supported by the evidence, in supposed to know more about it than he did. that it appears from the evidence of the This is substantially all that plaintiff's testiplaintiff, clearly, that, if the hand car was mony shows that the foreman did or sa id to defective and dangerous, the plaintiff had induce him to use the car. full knowledge thereof; that he used it vol- Martin McManimee, the section foreman, untarily; that he did not use it with proper was introduced as a witness on the part of care; that he never refused to use the car, the plaintiff. He and plaintiff are cousins. and that no threats or inducements were His testimony corroborates that of plaintif,

one.

in the main; as to the condition of the car. tinue to use it on account of such induceHe says plaintiff, just before the accident, ment or assurance. It is claimed by plainspoke to him about the car, saying it was tiff that the foreman having promised to senot safe. He says: “I told him we had to cure a new car in place of the defective one, do the best we could. I told him to get on and having told him to go ahead, use the the car, and go to Garrison. I expected old one, and do the best he could, exercising that any time." In another place he says: proper care in the use thereof, constitutes "The condition of the car on which McAn- such promise to get a new car, and such an drews was riding that morning was that for inducement, as justified him in continuing to months before it was not fit for any white use the dangerous one. The law governing man to put it on a track.” In another place this contention is thus stated by Mr. Justice this witness says: “McAndrews had com- Harlan in Hough v. Railway Co., 100 U. S. plained about this car, and all the men on 213: "There can be no doubt that, where a that section had made the same complaint. master has expressly promised to repair a It had frequently left the track with me be- defect, the servant can recover for an infore this accident. It is easy for any man jury caused thereby within such a period to know how she would lcave the track." of time after the promise as it would be reaHe says the axle was bent. He says, at sonable to allow for its performance, and, the time of the accident, "she was running, as we think, for an injury suffered within perhaps, between six and seven and eight any period which would not preclude all miles an hour; not faster." It appears that reasonable expectation that the promise there were two cars on the track going to might be kept." But this rule is a qualified Garrison at the time of the accident; that If the machinery is not only defective, plaintiff was on and in charge of the front but so obviously dangerous that no ordinarily car, and the foreman in charge of the other; | prudent man would assume the risk of using that the cars were running very closely to. it, and the employé does use it, knowing its gether-so closely that they frequently struck absolutely and obviously dangerous condi. each other-before the accident. He says tion, and the dangers of using it, the master that this car left the track with him once, is not liable, notwithstanding the promise to about two weeks before the accident, going remedy the defect. This qualification to the at the rate of not more than four miles an rule is well stated in Railway Co. v. Watson, hour, and that plaintiff was present. He 114 Ind. 20, 14 N. E. 721, and 15 N. E. 824, says the car had a “bent axle," and "was in the following language: “Where an em: out of repair in every shape from the first ployé knows that the danger is great and imday she came to Garrison." McManimee mediate, such as a reasonably prudent man further testifies: “When McAndrews com- would not assume, he cannot recover for an plained, I told him that Sawyer always told injury, even though he remained in the emme that he would send a new car as soon as ployer's service in reliance upon the latter's he could get one, and to get along the best promise to remedy the defects which prohe could until such time. Sawyer told me duced the danger." Railway Co. v. Watson, he would send a new car as soon as he could. 114 Ind. 20, 14 N. E. 721, and 15 N. E. 824; I did not know when he would send it. I 2 Thomp. Neg. 1011; Patterson v. Railroad ordered McAndrews to go ahead anyhow, Co., 76 Pa. St. 389; Kane v. Railroad Co., and use the car. I did not threaten to dis- 128 U. S. 91, 9 Sup. Ct. 16; Furnace Co. v. charge him if he did not use the car." He Abend, 107 Ill. 45. further swears that he never in his life "told The plaintiff in this case testifies that he a man that he would have to take his time if knew the condition of the car; said somehe did not use a car." Again, this witness body would get killed using it; he had says: “Several times before this, McAn- known its condition for a long time; redrews had said that the car was unsafe, mained in the defendant's service long after which I knew, but he never refused to use the alleged promise to get a new car; had it; that is, straight out refused; he always seen the car jump the track going at a rate grumbled a little.” In answer to a question, not faster than four miles an hour; says the this witness says he did not order plaintiff to foreman told him to use the car with great take this car against his will, for he says: care, and do the best he could until he could "I couldn't order any man against his will." | get a new one; he never refused to use the

From the foregoing statement of the evi- car; he was never threatened to be dischardence offered by the plaintiff, it is evident ged if he did not use it. Melanimee, plainthat he had full knowledge of the condition tiff's cousin, says the car was so defective of the car at the time of, and for a long time that anybody could see it; “that no white prior to, the accident, and that he continued man would put it on a track”; that he told to use it, knowing that it was dangerous to plaintiff to use it, and to do the best he do so. This would certainly be a bar to his could, using great care, until he could get right of recovery unless he has shown that

Notwithstanding plaintiff's the defendant promised to get a new car, and familiarity with the condition of the car, held out to him some sufficient inducement his knowledge of the fact that it had jumped or assurance to continue to use the car in the track going at a rate not to exceed four Its defective condition, and that he did con- miles an hour, on the morning of the acci.

a

new

one.

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