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complaint, and the priority of the same over their rights, and setting up prior rights in certain of themselves. Special issues were submitted to a jury, and 59 questions answered by them. The court revised these findings, made certain modifications, and afterwards entered a decree establishing the respective rights of all parties.

Upon May 23, 1892, the appellant filed its statement on appeal, which was afterwards, on the 18th of July, settled as correct. There appears in the record, between the conclusion of the testimony of a witness and the instructions of the court to the jury, a "specification of errors," in which are recited the particulars wherein the evidence is claimed to be "insufficient to sustain the findings of the jury and the modifications thereof by the court, and the decree of the court," so far as the same relate to certain ditches belonging to certain of the defendants. The appeal in the case is from the judgment in favor of defendants Davis, Thompson, and Julia Reynolds, adjudging that said defendants are entitled to the use of certain of the waters of Beaver creek prior in time to the right and appropriation of the appellant. There is no bill of exceptions in the record, no motion for a new trial, and no order denying such a motion. It is therefore impossible for the court to consider the alleged error of insufficiency of the evidence to sustain the findings of the jury and court. Porter v. Clark, 6 Mont. 246, 11 Pac. 638; Mining Co. v. Hayes, 6 Mont. 32, 9 Pac. 581.

Appellant, in its brief, makes a point against oral transfers of ditches and water rights; but there being nothing properly before the court to show that there were any such oral transfers, independent of a transfer of the land to which the water was appurte nant, it is unnecessary to pass upon the ques tion raised. That a water right is appurtenant to the land upon which it is used, and, unless abandonment is proved, that a transfer of land with its appurtenances conveys the interest of the grantor in any ditch or water right necessary to the use and enjoyment of the land, has been decided by this court. Tucker v. Jones, 8 Mont. 225, 19 Pac. 571; Sweetland v. Olsen, 11 Mont. 27, 27 Pac. 339. The only other point made by the appellant is that the respondents Davis and Thompson should exhaust their prior claim to the waters of Beaver creek from the 300 inches "arising in the bed of the stream below the head of the appellant's ditch, and above the head of the ditch of said respondents." This cannot be considered, in the absence of a motion for a new trial. See authorities above cited.

It is presumed that the evidence supports the findings and judgment, and that the instructions were based upon testimony in the case. Broadwater v. Richards, 4 Mont. 80, 2 Pac. 544, 546; Princeton Min. Co. v. First Nat. Bank, 7 Mont. 530, 19 Pac. 210; Lockey v. Horsky, 4 Mont. 457, 2 Pac. 19; Morse v. Swan, 2 Mont. 306; Twell v. Twell, 6 Mont.

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FIRST NAT. BANK OF MISSOULA v. BAI-
LEY, County Treasurer.1

(Supreme Court of Montana. Feb. 11, 1895.)
TAXATION-BANK STOCK-ASSESSMENT TO BANK-
CORRECTION BY BOARD OF EQUALIZA-
TION-INJUNCTION.

1. Revenue Act March 6, 1891, § 6, provides that stockholders of banks must be assessed on the value of their shares; and that the officers of the bank shall furnish the assessor a verified statement showing the amount and number of shares, and the amount of its surplus or reserve fund, and investments in real estate. Held, that a printed assessment list, such as is required by law to be made out and returned to the assessor, indorsed on the back, "Assessment list of property subject to taxa tion, owned, claimed, or in possession or control of" a certain bank, containing a list of the real estate and improvements thereon, capital stock, surplus, undivided profits, with the amounts and value of such property, and a deduction of one-third of its value claimed by such cashier, is not the statement required.

2. Where the assessor made an unauthor ized assessment of the shares of bank stock to the bank, and the bank did not ask the board of equalization to correct such erroneous assessment, it could not enjoin the collection of the taxes, in the absence of a valid excuse for its failure to apply to such board.

3. Where bank stock is erroneously assessed to the bank instead of the stockholders, the board of equalization may correct the assessment.

Appeal from district court, Missoula county; Frank H. Woody, Judge.

Action by the First National Bank of Missoula against D. J. Bailey, treasurer of Missoula county. From a judgment for defendant, plaintiff appeals. Affirmed.

This is an action for an injunction to enjoin the collection of taxes. Plaintiff, in its complaint, alleges that on the day of

1893, in accordance with section 6 of "An Act Concerning Revenue," of the Laws of Montana, approved March 6, 1891, it furnished the assessor of Missoula county a verified statement of the amount and number of shares of the capital stock of said bank, its surplus and reserve fund, and the amount of its investments in real estate, a copy of said statement being attached to the complaint as Exhibit A, and made part thereof; that the books of said bank show the names of all the shareholders, their residences, and the number of shares owned by each; that said books were at all times open to the inspection of said assessor, to aid him in assessing said shareholders; that the verified statement aforesaid was furnished to said assessor by the bank, to aid him in as

'Rehearing denied.

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certaining the number of shares of the stock of said bank, fixing the value that the same should be assessed to the individual shareholders; that the assessor did not use the same for the purpose for which it was furnished, but entered and returned the same as the assessment against said bank for the full amount thereof, to wit, $470,000; that it had no notice or knowledge that said assessment had been made against it until after the board of equalization of said county had met and adjourned, after equalizing the taxes for the year 1893, nor until after the tax lists for that year had been certified to the treasurer of said county, and only received notice thereof when the treasurer notified it to pay taxes on said amount; that, having received no notice of said assessment, it did not appear before the board of equalization for the purpose of having the same corrected; that, having declined to pay said taxes, the treasurer of said county advertised all of the real estate of plaintiff for sale, for the whole amount of taxes assessed against it on said amount of $470,000; that plaintiff protested in writing against the alleged illegality of said assessment and the sale of said property for taxes; that said protest was served on the treasurer of said county before the day of sale, but that said treasurer, disregarding said protest, is threatening to sell, and will sell, said property, unless enjoined from so doing; that said assessor did not assess to the shareholders the value of the number of shares owned by each, but assessed the whole thereof, with the other property contained in said verified statement, to the plaintiff; that plaintiff, on the 1st day of December, 1893, offered to pay said treasurer the sum of $1,512.50, the amount of taxes due on the real estate of said bank; that the treasurer refused to accept the same; that plaintiff is now willing to pay said amount of taxes due on said real estate; that said treasurer has advertised for sale, and will sell, the real estate of the plaintiff for the whole amount of taxes assessed against the capital stock, surplus, and undivided profits, and real estate of plaintiff, unless enjoined by the court. An order to show cause why an injunction should not issue was made, with temporary restraining order. The defendant demurred to the complaint of plaintiff, on the ground that it did not state facts sufficient to entitle it to the relief demanded, or any relief. The demurrer was sustained by the court, an injunction denied, the temporary restraining order vacated, and plaintiff's complaint dismissed. Marshall & Corbett, for appellant. J. M. Dixon, H. J. Haskell, Ella L. Knowles, and J. G. Denny, for respondent.

PEMBERTON, C. J. (after stating the facts). The verified statement which plaintiff claims in its complaint it furnished the assessor to aid him in ascertaining the num

ber of shares of the stock of the bank, and in fixing the value at which the same should be assessed to the individual shareholders, is attached to the complaint as an exhibit, and made part of the pleading. This paper is an assessment list, such as is required by law to be made out and returned to the assessor. It is printed, and on the back thereof is this indorsement: "Assessment list of property subject to taxation, owned, claimed, or in possession or control of First National Bank at 12 m., on the first Monday of March, 1893;" and is sworn to by the cashier of the plaintiff bank. This list contains a list of the real estate, improvements thereon, capital stock, surplus, and undivided profits, with the amounts and value of all of said property, with a deduction of onethird of the value thereof claimed by the cashier. From an inspection of this tax list, which is a part of the complaint, we think it cannot be held that it is simply a "verified statement," to aid the assessor in assessing the individual shareholders, as claimed by plaintiff.

Section 6 of the revenue law, approved March 6, 1891, is as follows:

"Sec. 6. The stockholders in every bank or banking association organized under the authority of this state or the United States, must be assessed and taxed on the value of their shares of stock therein, in the county, town, city or district where such bank or banking association is located, and not elsewhere, whether such stockholders reside in such place or not. To aid the assessor in determining the value of such shares of stock, the cashier or other accounting officer of every such bank must furnish a verified statement to the assessor, showing the amount and number of shares of the capital stock of each bank, the amount of its surplus or reserve fund, the amount of investments in real estate, which real estate must be assessed and taxed as other real estate."

It may be conceded that the assessment of the capital stock of the bank to and as the property thereof was unauthorized in this case, under said section. The bank had a right to object to this assessment. But it appears that it returned in its list of property for taxation its capital stock as property owned, possessed, or controlled by it; and, if it objected or desired to object to being thus assessed, it should have gone before the board of equalization, and had the correction made.

It is contended by appellant that the board of equalization had no authority to make this correction. It is the duty of this board to "examine the assessment book, and adjust and equalize the valuation of the taxable property of the county." We do not think it can be successfully contended that, under the law, this board has no authority to correct an assessment when property has been assessed to a party which he does not own, or when there has been a double assessment,

or property exempt from taxation has been assessed, etc. The most that can be said in this case is that property has been assessed to plaintiff which it claims it does not own, and therefore not liable for the taxes thereon. If such be the fact, the plaintiff should have gone before the board of equalization for relief. In its complaint it gives no sufficient reason for not doing so. This court held in Railroad Co. v. Patterson, 10 Mont. 90, 24 Pac. 704, that a complaint seeking to enjoin the collection of a tax, on the ground of irregularity or illegality in the assessment thereof, which did not show that the complainant had first sought relief before the board of equalization, was bad on demurrer. See, also, authorities cited in that case. In Bourne v. Boston, 2 Gray, 494, Mr. Justice Bigelow says: "The plaintiff was not legally taxable for the property held by him as trustee, but he was taxable for the 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 rightly assessed to him. This would seem

to bring the case within the principle, now well settled by the authorities, that, where a person is liable to taxation for personal and real estate in a city or town, his sole remedy, for an overtaxation, caused by an excessive valuation of his property, or by including in the assessment property of which he is not the owner or for which he is not liable to taxation, is by an application to the assessors for an abatement." It seems to be the well-settled rule that when the law has provided boards of equalization, with power to adjust or correct assessments, parties being dissatisfied with the assessment of their property must apply to them, in the first instance, for relief, and that courts of equity will not interfere by injunction to restrain an irregular or illegal assessment until such relief has been sought and denied. In Stanley v. Supervisors, 121 U. S. 550, 7 Sup. Ct. 1234, the supreme court says: "To these boards of revision, by whatever name they may be called, the citizen must apply for relief against excessive and irregular taxation when the assessing officers had jurisdiction to assess the property." See High, Inj. (3d Ed.) 485, and authorities cited.

Courts of equity are very reluctant to interfere by injunction with the collection of the revenue of the government, and will not do so except in cases when the party has no proper relief at law. The plaintiff having returned its list of property that it did own for taxation, and having included in such list property that it did not own, and for the taxation of which it was not liable, according to the well-settled rule, should have applied to the board of equalization to correct said list, and for relief from the payment of the taxes of which it now complains; and, having failed so to do, it is not entitled to the equitable relief prayed for in its complaint. It is conceded by the appellant that

its bank stock was subject to taxation provided it was taxed as the property of the individual shareholders. It is not contended that any unjust discrimination as between this bank stock and other moneyed capital in the state has been made in the taxation thereof. It can only be contended that the assessment was illegal, in that the capital stock was assessed to the bank instead of the individual shareholders. To correct this ir regularity, it was the duty of plaintiff to apply to the board of equalization. Meyer v. Rosenblatt, 78 Mo. 495; Oteri v. Parker, 42 La. Ann. 374, 7 South. 570; Board of Com'rs v. Searight Cattle Co. (Wyo.) 31 Pac. 268; Meade v. Haines (Mich.) 45 N. W. 836. We think no error has been shown in the action of the court below. The judgment is affirmed. Affirmed.

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In an action by a section hand for inju ries due to defects in a hand car on which he was riding, causing it to jump the tracks while crossing a bridge, it was shown that plaintiff knew of such defects, and informed his superiors, but continued to use the car on being told merely that request had been made for a new car, and being directed to use the one at hand with great care until the new one came. It was also shown that the car was obviously dangerous, and that plaintiff had seen it leave the tracks, when going at a much less rate of speed than it had acquired at the time of the accident. Held, that plaintiff could not recover.

Appeal from district court, Silver Bow county; J. J. McHallon, Judge.

Action by Michael McAndrews against the Montana Union Railway Company. From a judgment for plaintiff, and an order denying a new trial, defendant appeals. Reversed.

This is an action for damages for personal injuries. The plaintiff states in his complaint that on the 29th day of August, 1889, and prior thereto, he was employed by and was in the service of the defendant as a section hand; that on that day he was employed, with others, in repairing the roadbed of the defendant; that the headquarters of the section on which he was working were at Garrison; that the section he was working on was south from that point about five miles; that he, with his coemployés, had to travel over their section to and from their work on a hand car furnished for that purpose by the defendant; that it was the duty of the defendant to furnish for said purpose a good, safe, and secure hand car; that the defendant failed in the discharge of its duty in this respect, and, instead, furnished knowingly an unsafe, defective, in

sufficient, and dangerous hand car; that said hand car had been so unsafe for some time; that about 15 days prior to said 29th day of August, 1889, plaintiff informed defendant and the foreman of the section of the defective and dangerous condition of said hand car; that he requested that said hand car be repaired or a safe one furnished; that defendant promised to comply with said request, and ordered plaintiff to go on and use said car in the meantime; that, believing said promise would be speedily fulfilled by defendant, plaintiff continued in said employment and use of said hand car with great and extraordinary care; that by the exercise of such care he and his coemployés were enabled to use said car until the 29th day of August, 1889, without accident or injury; that on said day, when he was ordered by said foreman to use said hand car in his employment, plaintiff again objected, on account of the dangerous condition thereof, to doing so, but was again assured by said foreman that a good car would soon be furnished, and, relying on said promise, he did use the same; that on said day, while returning from his work on said hand car, and while exercising great care in the use thereof, in crossing a bridge, said car left the track, without any fault of plaintiff, on account of its defective and dangerous condition; that plaintiff was then and there thrown from said car, and off the said bridge, a distance of about 40 feet, and greatly injured thereby. The complaint also contains allegations as to the nature and extent of the injuries sustained by plaintiff. The answer of defendant denies the allegations of the complaint, except as to plaintiff's employment by defendant. The defendant alleges that plaintiff had been using the hand car in question for a long time prior to the day on which he was injured; that he was perfectly familiar with its condition, and that, with a full knowledge of its dangerous condition, he voluntarily used the same, and was not induced to use it on account of any promise by defendant or the foreman to repair said hand car or procure a safe one. On the trial the plaintiff obtained a verdict for $5,000, for which sum judgment was rendered. From this judg ment, and an order denying a motion for a new trial, this appeal is prosecuted.

Geo. Haldorn and J. S. Shropshire, for appellant. J. W. Cotter, for respondent.

PEMBERTON, C. J. (after stating the facts). The appellant contends that the verdict is not supported by the evidence, in that it appears from the evidence of the plaintiff, clearly, that, if the hand car was defective and dangerous, the plaintiff had full knowledge thereof; that he used it voluntarily; that he did not use it with proper care; that he never refused to use the car, and that no threats or inducements were

used by the defendant or the foreman to induce him to use it. This contention requires an examination of the testimony offered by the plaintiff.

It appears from the plaintiff's own testimony that he was a man of considerable experience in the kind of work he was employed in doing at the time he was injured, he having been engaged in this character of work for about three years before this. He states in his complaint that the car was defective and dangerous, and that about 15 days before the accident he so informed the foreman. He swears that on the day of the accident, and just before it occurred, he told the foreman "that the car was unsafe, and that he was afraid it would kill somebody," and that the foreman replied: "Get on that car. It is all right. We will soon get a new one." In another place he says: "The foreman said he was going to get a new car in a few days. He told me to get on the car, and use it as carefully as we could, and get along the best we could." In describing the condition of the car at the time he was using it, the plaintiff says: "As to what was the trouble with the car, as near as I can judge, she used to wabble. Her boxes were too loose, and she would wabble from one side to the other, and she was too loose, and out of running order. Furthermore, there was no brake on the car; that is, that could be used. It was an old car, and, in fact, I couldn't even find the date on it, or the number of it. It was an old car, being, I guess, used for many years. I couldn't say how many. Her wheels were what I would call 'wood and iron,' and here, where the iron runs out from where it is on the axle, the wood was loose; the wheels were wood, along with the iron inside the iron, and where the wood fastened into the boxing around the axle some of the wood was loose, and would work in and out. That was the car that I was on the morning that I was injured.” The plaintiff also swears that he had heard of this car jumping the track before this, and on one occasion it jumped the track when he was present, when the evidence shows it was being run at about four miles an hour. At the time of the accident, plaintiff says, they were not going any "faster than between five and seven miles an hour, as far as he could judge." The plaintiff says that when he was told to get on the car by the foreman he could not say whether the car was all right or not, but supposed the foreman knew more about it than he himself did, because he was foreman, and was supposed to know more about it than he did. This is substantially all that plaintiff's testimony shows that the foreman did or said to induce him to use the car.

Martin McManimee, the section foreman, was introduced as a witness on the part of the plaintiff. He and plaintiff are cousins. His testimony corroborates that of plaintiff

in the main; as to the condition of the car. He says plaintiff, just before the accident, spoke to him about the car, saying it was not safe. He says: "I told him we had to do the best we could. I told him to get on the car, and go to Garrison. I expected that any time." In another place he says: "The condition of the car on which McAndrews was riding that morning was that for months before it was not fit for any white man to put it on a track." In another place this witness says: "McAndrews had complained about this car, and all the men on that section had made the same complaint. It had frequently left the track with me before this accident. It is easy for any man to know how she would leave the track." He says the axle was bent. He says, at the time of the accident, "she was running, perhaps, between six and seven and eight miles an hour; not faster." It appears that there were two cars on the track going to Garrison at the time of the accident; that plaintiff was on and in charge of the front car, and the foreman in charge of the other; that the cars were running very closely together-so closely that they frequently struck each other-before the accident. He says that this car left the track with him once, about two weeks before the accident, going at the rate of not more than four miles an hour, and that plaintiff was present. He says the car had a "bent axle," and "was out of repair in every shape from the first day she came to Garrison." McManimee further testifies: "When McAndrews complained, I told him that Sawyer always told me that he would send a new car as soon as he could get one, and to get along the best he could until such time. Sawyer told me he would send a new car as soon as he could. I did not know when he would send it. I ordered McAndrews to go ahead anyhow, and use the car. I did not threaten to discharge him if he did not use the car." He further swears that he never in his life "told a man that he would have to take his time if he did not use a car." Again, this witness says: "Several times before this, McAndrews had said that the car was unsafe, which I knew, but he never refused to use it; that is, straight out refused; he always grumbled a little." In answer to a question, this witness says he did not order plaintiff to take this car against his will, for he says: "I couldn't order any man against his will." From the foregoing statement of the evidence offered by the plaintiff, it is evident that he had full knowledge of the condition of the car at the time of, and for a long time prior to, the accident, and that he continued to use it, knowing that it was dangerous to do so. This would certainly be a bar to his right of recovery unless he has shown that the defendant promised to get a new car, and held out to him some sufficient inducement or assurance to continue to use the car in Its defective condition, and that he did con

tinue to use it on account of such inducement or assurance. It is claimed by plaintiff that the foreman having promised to secure a new car in place of the defective one, and having told him to go ahead, use the old one, and do the best he could, exercising proper care in the use thereof, constitutes such promise to get a new car, and such an inducement, as justified him in continuing to use the dangerous one. The law governing this contention is thus stated by Mr. Justice Harlan in Hough v. Railway Co., 100 U. S. 213: "There can be no doubt that, where a master has expressly promised to repair a defect, the servant can recover for an injury caused thereby within such a period of time after the promise as it would be reasonable to allow for its performance, and, as we think, for an injury suffered within any period which would not preclude all reasonable expectation that the promise might be kept." But this rule is a qualified If the machinery is not only defective, but so obviously dangerous that no ordinarily prudent man would assume the risk of using it, and the employé does use it, knowing its absolutely and obviously dangerous condition, and the dangers of using it, the master is not liable, notwithstanding the promise to remedy the defect. This qualification to the rule is well stated in Railway Co. v. Watson, 114 Ind. 20, 14 N. E. 721, and 15 N. E. 824, in the following language: "Where an em ployé knows that the danger is great and immediate, such as a reasonably prudent man would not assume, he cannot recover for an injury, even though he remained in the employer's service in reliance upon the latter's promise to remedy the defects which produced the danger." Railway Co. v. Watson, 114 Ind. 20, 14 N. E. 721, and 15 N. E. 824; 2 Thomp. Neg. 1011; Patterson v. Railroad Co., 76 Pa. St. 389; Kane v. Railroad Co., 128 U. S. 91, 9 Sup. Ct. 16; Furnace Co. v. Abend, 107 Ill. 45.

one.

The plaintiff in this case testifies that he knew the condition of the car; said somebody would get killed using it; he had known its condition for a long time; remained in the defendant's service long after the alleged promise to get a new car; had seen the car jump the track going at a rate not faster than four miles an hour; says the foreman told him to use the car with great care, and do the best he could until he could get a new one; he never refused to use the car; he was never threatened to be discharged if he did not use it. McManimee, plaintiff's cousin, says the car was so defective that anybody could see it; "that no white man would put it on a track"; that he told plaintiff to use it, and to do the best he could, using great care, until he could get a new one. Notwithstanding plaintiff's familiarity with the condition of the car, his knowledge of the fact that it had jumped the track going at a rate not to exceed four miles an hour, on the morning of the acci

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