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 recover 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 prevented 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 the 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. 404; Woodruff v. Neal, 28 Conn. 165; Jackson v. Hathaway, 15 Johns. 447. Therefore,

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 townlot 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.

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 appearance, 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 com 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

■ For opinion on rehearing, see 39 Pac. 851

act of the legislative assembly was approved, creating the county of Flathead, said act to go into effect March 1, 1893. The real property which was the subject of the action was within that portion of Missoula county which, by this act of the legislature, became a part of Flathead county. Prior to, and at the time of, the appearance of the defendants in the action, the land which was the subject thereof had thus become to be within Flathead county. On this ground the defendants' motion for a change of venue is made. The motion being denied, they appeal from that order.

Sanford & Grubb, A. J. Shores, and Bickford, Stiff & Hershey, for appellants. Toole & Wallace, for respondent.

DE WITT, J. (after stating the facts). The labor and zeal of counsel in preparing briefs in this case seem to us to be disproportionate to the gravity of the legal proposition involved, which, indeed, occurs to us as a very simple one. Counsel for respondent, among other things, in support of their opposition to the motion to grant the change of venue, rely upon a portion of section 11, art. 8, of the constitution, which is as follows: "All actions for the recovery of, the possession of, quieting the title to, or for the enforcement of liens upon real property, shall be commenced in the county in which the real property, or any part thereof, affected by such action or actions, is situated." The action in the case at bar was commenced as the constitution requires. The action was as to real property, and it was commenced in the county in which the real property was situated, to wit, Missoula county. But we cannot understand how it may be argued that this provision of the constitution requires that the action shall be tried in a county where the real property is not situated, or in a county where the real property has ceased to be situated, long before the trial, and, indeed, almost at once after the filing of the complaint. If any inference is to be drawn from section 11, art. 8, of the constitution, as to where an action in regard to real property is to be tried, it would seem to us to be more reasonable that such action is intended to be tried in the county where the real estate is situated. Why declare by the constitution that an action should be commenced in the county where the real property is situated, and then infer from this provision that the action must be tried in a county where it is not situated at the time of the trial, or long prior thereto? Such reasoning from the constitution seems to us to be wholly unwarranted. On the other hand, the spirit of this constitutional provision seems to be that, if an action as to real property is to be commenced in the county where the real property is, it should also be tried in such county subject to change of venue. The commencement of an action does not largely in

volve the convenience of the parties or witnesses. The complaint may be mailed to the clerk of the court, and summons issued and served without the personal attention of the parties at all. But the trial does involve the convenience of the parties and witnesses. We certainly cannot hold that the constitutional provision which requires an action to be commenced in the county where the real property is, also intends to require that action should be tried in that county when the real property is no longer therein. We therefore think that section 56 of the Code of Civil Procedure is not in conIflict with section 11, art. 8, of the constitution in its application to the facts in this case. Section 56 of the Code of Civil Procedure is as follows: "Except when otherwise provided, actions for the following causes shall be tried in the county in which the subject of the action, or some part thereof, is situated, subject to the power of the court to change the place of trial, as provided in this act: First. For the recovery of real property, or of an interest therein, or for the determination in any form of such right or interest, and for injuries to real property. Second. For the partition of real property. Third. For the foreclosure of a mortgage on real property: provided, that where such real property is situated partly in one county and partly in another, the plaintiff may select either of said counties, and the county so selected shall be the proper county for the trial of any or all of such actions as are mentioned in this section." Therefore section 56 designates the place of the trial of this action as in Flathead county, for it is there that the land is situated. But defendants, when they came to appear in the case, found that the action was in a county other than that in which the land was situated. They found that the action was in the wrong county. Consulting the statute, they found sections 61 and 62 of the Code of Civil Procedure, as follows:

"Sec. 61. If the county in which the action is commenced is not the proper county for the trial thereof, the action may, notwithstanding, be tried therein, unless the defendant, at the time he appears and answers or demurs, files an affidavit of merits, and demands, in writing, that the trial be had in the proper county.

"Sec. 62. The court may, on good cause shown, change the place of trial in the fol lowing cases: First. When the county des ignated in the complaint is not the proper county."

The defendants were timely in making their motion for change of venue; that is, at the time when they appeared. They then found that under the facts as they existedthat is, the land being in Flathead county and not in Missoula county,-the county designated in the complaint was not the proper county. These were the conditions existing at the time the defendants appeared. Wal

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

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 constitu tion 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.

(15 Mont. 460) HOLLAND v. BOARD OF COM'RS OF SILVER 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 office 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 assessment list included mortgages for that amount which belonged to nonresidents of the state, and for that reason were improperly assessed. The assessor claimed his compensation on the total assessment made by him. The commissioners disallowed the sum of $2,945.75 of his account, that sum being the commission charged on the mortgages held by nonresidents, which the commissioners struck from the roll. The plaintiff appealed to the district court. There was a trial without a jury. The court found that $11,783,007 of the assessment was upon mortgages owned by nonresidents, and that by the law the plaintiff could not recover compensation upon such assessment. There was some correction made by the court, so that plaintiff recovered a judgment for $10.27. A motion for new trial was overruled, and plaintiff appeals.

Stephen De Wolfe, for appellant. H. J. Haskell and M. L. Wines, for respondent.

HUNT, J. (after stating the facts). The principal question for decision is: Under the revenue law of 1891, was a tax imposed on mortgages, deeds of trust, and other instruments for the security of debts, when such securities were owned and held by nonresidents of the state? It is well settled in this state that under section 371 of the Code of Civil Procedure, which declares that a mortgage of real property shall not be deemed a conveyance, whatever its terms, so as to enable the owner of the mortgage to recover possession of the real property without foreclosure and sale, the character of the instrument is restricted to purposes of security, and is subject to the doctrines of equity. Fee v. Swingly, 6 Mont. 596, 13 Pac. 375; First Nat. Bank v. Bell S. & C. Min. Co., 8 Mont. 32, 19 Pac. 403; 2 Jones, Mortg. §§ 20, 39. In Gallatin Co. v. Beattie, 3 Mont. 173, the assessor of Gallatin county assessed certain mortgages in that county to a resident of another county. Justice Knowles says: "A mortgage is a security for a debt. It creates no estate in real property. equity doctrine is that the mortgage is a mere security for the debt, and only a chattel interest. In regard to mortgages, we have followed the decisions of the courts of California, from which state we borrowed our statutes upon that subject. The rule established by the courts of that state upon this subject is an equity rule. * *The record of a mortgage is not the mortgage itself, or any more than any other copy." McMillan v. Richards, 70 Am. Dec. 655. Regarding a mortgage, therefore, for the purposes of taxation, as nothing more than a collateral security, depending upon some outside obligation to secure which it is given, it is established by the great weight of authority that the mortgage belongs to the owner of the debt, and passes with the debt to any lawful

The

holder thereof. Attorney General v. Supervisors of Sanilac Co., 71 Mich. 31, 38 N. W. 639. The debt, therefore, if owned and controlled by one not a resident of the state, is not "property in the state, subject to taxation," as provided by the revenue act of 1891, but can be assessed only at the domicile or place of residence of the creditor, without regard to the domicile of the debtor. Cooley, Tax'n, 63; Eells v. Holder, 2 McCrary. 622, 12 Fed. 668; Grant v. Jones, 39 Ohio St. 514; State v. Van Syckle (N. J. Sup.) 8 Atl. 120; Mayor v. Hussey (Md.) 9 Atl. 19; City & County of San Francisco v. Mackey, 22 Fed. 602; State v. Darcy (N. J. Sup.) 16 Atl. 161; City of St. Paul v. Merritt, 7 Minn. 258 (Gil. 198); Board of Commissioners v. Cutter, 3 Colo. 349; Worthington v. Sebastian, 25 Ohio St. 1; Liverpool & London & Globe Ins. Co. v. Board of Assessors, 44 La. Ann. 760, 11 South. 91; Goldgart v. People, 106 Ill. 25; Foresman v. Byrns, 68 Ind. 247; 1 Desty, Tax'n, pp. 62, 330; People v. Eastman, 25 Cal. 603; State Tax on Foreign-Held Bonds, 15 Wall. 300; People v. Smith, 88 N. Y. 577; Territory v. Delinquent Tax List (Ariz.) 24 Pac. 182; De Vignier v. City of New Orleans, 4 Woods, 206, 16 Fed. 11; Com. v. Chesapeake & O. R. Co., 27 Grat. 344. The appellant seeks to distinguish the State Tax on Foreign-Held Bonds Case, supra, from the doctrine fully supported by the authorities listed above; but nearly every case which we have read by our original examination of this question, or which has been called to our attention by the briefs of counsel, regards the opinion of Justice Field in that case as upholding the general principle that personal property, consisting of mortgages and debts generally, owned by a nonresident of the state endeavoring to tax such property, "has no situs independent of the domicile of the owner." And until the same court which rendered that opinion declines to regard it as maintaining such a principle, we accept the general interpretation given to the language of Judge Field as the correct one, restricting its application, however, to mortgages in the possession of the owner. The case of Common Council of City of Detroit v. Board of Assessors of City of Detroit, 91 Mich. 78, 51 N. W. 787, cited by appellant, decided that the law of Michigan taxing mortgages owned by nonresidents was not unconstitutional. The statute of that state, however, expressly provided that any "mortgage by which a debt is secured, when land within this state is pledged ** shall, for the purposes of assessment and taxation, be deemed and treated as an interest in the land so pledged." The court held that the legislature could give a situs to mortgages where the land was situated, treating them as interests in realty, though held by nonresidents. In distinguishing the case from the State Tax decision, supra, the court say that the statute of Michigan "imposes a tax upon an interest in real estate as such," while the decision of the

supreme court of the United States was that a tax could not be imposed upon the bond itself, which had a situs at the domicile of its owner. A careful examination, therefore, of the Michigan case, demonstrates that the legislature, in the opinion of the court, had the power "to fix the situs for the purpose of taxation at the place of the location of the property mortgaged," and that real-estate mortgages, for the purpose of taxation, could be treated as interests in lands. The Oregon cases cited recognize a statute of that state similar to that of Michigan, and uphold its constitutionality. But until the legislature passes such a law in Montana it is unnecessary to inquire into its validity, for we are of opinion that in the revenue law of 1891 there is no provision giving a situs to mortgages owned by nonresidents as property within the state. The general rule must, therefore, control, and the case be determined adversely to plaintiff. See above authorities. It may be that if, as a fact, notes and mortgages owned by nonresidents are actually within the state, and are controlled by the agents therein, who retain them, and make the investments for the owners, such securities, under the present revenue laws, are subject to taxation, in the hands of such agents, as property in the state. That question is not before us.

But, as said before,

the case at bar is not excepted from the general rule that "securities, such as mortgages and the like, are deemed to have no situs except that of the domicile of the owner," hence are not subject to taxation in this state if the domicile of the owner is without the state. From the foregoing views it logically follows that the assessor, having assessed property not within the state, and therefore not taxable, cannot recover his fees for such assessment. Herriman v. Stowers, 43 Me. 499; Berry v. Commissioners, 6 Mont. 121, 9 Pac. 899. The order overruling a motion for new trial and the judgment are affirmed. Affirmed.

1. Hypothetical questions to a medical expert, which assume the facts in accordance with the theory of the party asking them, of what the evidence tends to prove, are proper where, although the facts are disputed, there is ample testimony tending to support every phase of the questions, and sufficient to justify the submission thereof to the jury.

2. A verdict for plaintiff in an action for malpractice, which is based on conflicting and sufficient evidence, will not be disturbed on the credibility of the witnesses or the weight of their testimony, or because the reviewing court

1 Rehearing denied March 4, 1895. v.39p.no.6-37

may differ from the medical experts as to the propriety of the diagnosis and treatment.

3. An instruction that defendant, sued for malpractice, is not liable if he exercised his best judgment in diagnosing and treating plaintiff's case, although he may have been mistaken as to the true character of the disease, is properly refused, as exempting defendant from liability if he used his best judgment, although he may have been careless in making his diagnosis, or the proper mode of treatment may not have been involved in doubt.

4. An instruction that a physician is liable for malpractice if he omitted the ordinary and established mode of treatment, no matter how much skill he may have possessed, is not misleading, where there is no claim that the case was one involving doubt as to the proper mode of treatment, and the issue and testimony relate solely to the question whether defendant neglected to follow the ordinary and clearly-established practice in treating plaintiff.

5. An instruction that it is incumbent on surgeons to conform to the established system of treatment of a particular disease is not erroneous or misleading on the ground that the treatment referred to is one prescribed by some writers and surgeons, and not that universally commended, where there is no conflict as to the proper mode of treatment.

6. A charge that defendant is liable if through his negligence gangrene set in, and necessitated amputation, or if it had set in before his first visit, and he neglected the proper and ordinary measures to prevent its progress, thereby necessitating amputation or greater amputation than would otherwise have been necessary, is not erroneous as assuming as a fact that gangrene had set in when defendant was called, or during his treatment of plaintiff.

7. In an action for malpractice the fact that gangrene had set in during defendant's treatment of the case is sufficiently established to justify an instruction based on that assumption by the testimony of plaintiff and another witness tending to show gangrene, and of several physicians who afterwards attended plaintiff that there was then gangrene, which had apparently existed for some time, and of defendant himself that he feared, but did not know, that gangrene had set in.

8. The giving of a charge that it is important to the interests of society that the profession intrusted with the preservation of health and lives of the community should be held to a strict rule of accountability is not ground for reversal, where the jury were correctly instructed as to the rules governing the duty and liability of surgeons, and it is evident from the entire record that they could not have been misled thereby.

Appeal from court of appeals.

Action by Jesse R. Jackson against N. G. Burnham., From a reversal by the court of appeals (28 Pac. 250) of a judgment of the district court for plaintiff, plaintiff appeals. Reversed.

This action was originally brought by Jesse R. Jackson, in the district court of Arapahoe county, against N. G. Burnham, to recover damages for malpractice. The complaint avers, in substance, that the defendant was a physician, engaged in the practice of his profession at the city of Denver; that plaintiff employed him to treat him for a malady from which he then suffered; that defendant entered upon such employment, and undertook, as a physician and surgeon, to administer medicines and cure him of said malady; "that said defendant did not use reasonable, ordinary,