and ipso facto they became streets, and hence subject to the burden of streets.

[Ed. Note.--For cases in point, see Cent. Dig. vol. 36, Municipal Corporations, § 1420.]

2. SAME.

Whether a county road becomes a street when included within a city's corporate limits depends upon the intention of the Legislature, as gathered from the city charter, general laws, and the whole course of legislation on the subject.

[Ed. Note.--For cases in point. see Cent. Dig. vol. 36. Municipal Corporations. § 1420.]

3. DEDICATION-STREETS-SALE OF LOTS WITH REFERENCE TO PLAT.

A sale of lots with reference to a plat showing a street is sufficient to complete a dedication of the street. subjecting it to any new servitude incident to it as a street.

[Ed. Note.--For cases in point, see Cent. Dig. vol. 15, Dedication, $ 35.]

4. MUNICIPAL CORPORATIONS STREET IMPROVEMENT ASSESSMENT APPORTIONMENT. Newberg City Charter (Laws 1893, p. 305) § 82, provides each lot or part of block abutting a street. extending to the center line of the block, shall be liable for the full cost of a street improvement upon the one-half of the street abutting upon it. Section 64 (page 301) provides the council shall assess upon each lot, etc., liable therefor, its proportionate share of the cost of an improvement. Section 65 provides the total cost shall be assessed proportionately to the adjacent lots. Section 66 requires the council to determine the proportionate share of the cost assessable to each tract, and to assess the proportionate shares, and makes the determination and assessment conclusive. tion 110 (page 312) provides that, in assessing the cost of a street improvement, the council shall assess one-half of the cost upon the property on each side of the street to the center line of the abutting blocks, excepting that the cost for building or repairing sidewalks shall be charged to the property immediately abutting thereon. Heid, that section 82 merely declares what proportion of a block shall be liable for the improvement of an abutting street, that the measure is not to each lot for the expense of the improvement of the half street abutting such lot, and that it is proper to apportion the total expense of the improvement pro rata according to frcntage on the street.

Sec

Appeal from Circuit Court, Yamhill County; William Galloway, Judge.

Suit by A. P. Oliver and others against the city of Newberg and others to enjoin the collection of street improvement assessment. From a judgment dismissing the suit, plaintiffs appeal. Affirmed.

This is a suit brought by plaintiffs against the city of Newberg and others to enjoin the collection of an assessment of the expense of a street improvement upon abutting property. The street improved is known as "First Street," and was originally a county road, laid out by Yamhill county prior to the platting of any part of the city of Newberg and prior to its incorporation. The town was originally incorporated in 1889, and afterward, in 1893, a new act of incorporation was passed, repealing the old one. In the re-enactment of 1893 the charter excepts out of the jurisdiction of the county court of Yamhill county all the territory within the city for road purposes or taxation therefor, and grants to the city the full control of all

county roads within its jurisdiction. In the year 1905 the said city, by virtue of the terms of its charter with reference to the improvement of streets, proceeded to grade, gravel, and erect a curb on either side of said First street for a distance of nine blocks, and after the completion of said improvements ascertained the expense of grading and graveling to be $4,449, and of the curb 45 cents per lineal foot. The city then proceeded to assess the said expense, less the street intersections, to the abutting property along the said street pro rata according to the frontage. On trial of the suit, the findings were in favor of defendants, and the suit dismissed; and the plaintiffs appeal.

Martin L. Pipes and J. S. McCain, for appellants. Richard W. Montague and Clarence Butt, for respondents.

EAKIN, J. (after stating the facts). The plaintiffs seek to avoid liability for said assessment upon the ground that the said alleged First street is a county road, and abutting property is not subject to the expense of the improvements thereof under the city charter, and that, if liable, the city should have assessed to each lot only the expense of the improvement of the half street abutting thereon. The issues as to the manner in which improvements were made and the character of the material used thereon are waived by the plaintiffs. Questions for consideration therefor are: Is the so-called First street a street within the meaning of the charter authorizing such improvements? And, if so, was the manner of the assessment of the expense of the improvement against the adjacent property within the authorization of the charter?

By the charter of 1893 the city of Newberg was created, the boundaries of which included the street in question; and by section 139 it is provided that: "The city of Newberg, as created by this act, shall have full power to lay out, open, work, change, and control all the highways and roads within the corporate limits thereof, and the inhabitants of said city within said limits, and all property therein shall be exempt from the payment of road taxes of any and every kind to the county of Yamhill. For the purpose mentioned in this section, the territory within the limits of the city of Newberg is excepted out of the jurisdiction of the county court of Yamhill county, Oregon, and full control of all roads and highways, or parts thereof, within the corporate limits of said city is hereby vested in the city of Newberg." Laws 1893, p. 316. When the city proceeded to act under the charter of its creation, it thereby accepted the relinquishment and grant of all county roads within its territory, and ipso facto they became streets. In Heiple v. East Portland, 13 Or. 97. S Pac. 907, cited by plaintiffs' counsel as holding contrary to this view, it is found that the language of the charter is very different from the one

before us. The East Portland charter amendment of 1872 (Laws 1872, p. 181) only excepts the territory out of the jurisdiction of the county court and authorizes the city to collect road taxes for repairs of streets. It also appears that the act of 1872 was an amendment or addition to the East Portland charter relating to county roads, and not mentioned in the original charter. Mr. Justice Lord, in holding that the act did not make it a street, says: "The case is different where, by the act, the limits of the city are extended, and new territory is acquired and subjected to the laws and jurisdiction of the municipality." Also, in the Eugene charter, section 98 (Laws 1889, p. 296) gives authority to the city when it is deemed expedient to establish streets upon county roads within its limits; and when so located they shall become streets. In Huddleston v. Eugene, 34 Or. 343, 55 Pac. 868, 43 L. R. A. 444, it is held that no new condemnation was required and that the ordinance for its improvement was an acceptance of the grant; and in the opinion in that case, Mr. Justice Moore cites with approval McGrew v. Stewart, 51 Kan. 185, 32 Pac. 896, in which it is held that, where a city extends its boundary over new territory, the highway therein was impressed with the character of a street, and subject to exclusive control by the city and to the liabilities and servitudes of all other streets within the city. To the same effect is Elliott, Roads and Streets (1st Ed.) p. 313; Id. (2d Ed.) § 450.

Whether a county road becomes a street, when included within the corporate limits of a city, depends upon the intention of the Legislature, as gathered from the city charter, general laws, and the whole course of legislation on the subject. 2 Dillon's Mun. Corp. 676 et seq.; State ex rel. v. Com'rs Putnam Co., 23 Fla. 632, 3 South. 164. Where the Legislature has expressly conferred upon the corporation control of the county roads within its boundaries, and excepted the territory within it from county control for road purposes, there is no question but that such highways become streets, and subject to all the burdens of streets. This is definitely stated in 27 Am. & Eng. Enc. Law (2d Ed.) 104, and recognized in Elliott, Roads and Streets (2d Ed.) § 116. In Railroad Company v. Defiance, 52 Ohio St. 262, 299, 40 N. E. 89, 97, the court say: "While counsel for the plaintiff concede that the parts of the county roads so brought within the defendant's corporate limits became highways of that municipality, they contend it acquired control of them, in the language of the petition, "for police purposes only,' by which we understand counsel to mean that the defendant was without authority to improve them at all, or, if improved, the expenses should be paid by tax collected from the property of the whole county. This position is, we think, untenable. The highways so brought within the corporate limits of the defendant were removed from the control which the county

commissioners theretofore had over them, and became subject to the control, supervision, and care of the municipal authorities, like other streets and highways of the corporation. By express statutory provision the council is given the care, supervision and control of all public highways, streets, avenues, alleys, sidewalks, public grounds and bridges within the corporation,' and is charged with the duty of causing 'the same to be kept open and in repair, and free from nuisance.' Section 2640, Rev. St. The duty thus devolved upon the council is attended with the power to do whatever may be necessary in the proper and lawful performance of the duty, including the power to improve such ways, or parts thereof, in any lawful manner, when and as the public convenience may demand. Grading a street, and changing its grade, when necessary for its convenient use by the public, are lawful modes of improving the street, and keeping the same open and in repair." To the same effect are City of Louisville v. Brewer's Adm'r, 72 S. W. 9, 24 Ky. Law Rep. 1671; Almand v. Atlanta Con. St. Ry. Co., 108 Ga. 417, 34 S. E. 6; Cascade County v. City of Great Falls, 18 Mont. 537, 46 Pac. 437; State v. Jones, 18 Tex. 874; Town of Ottawa v. Walker, 21 Ill. 605, 71 Am. Dec. 121. By the terms of the charter above quoted, county roads within the corporate limits of the city of Newberg, existing at the time of the act of incorporation, thereby became streets.

2. The plats of the town of Newberg and additions thereto include the ground traversed by the county road now claimed as First street, which is marked thereon as "First Street"; and although prior thereto there was an easement over the same in the public for a roadway, yet the fee remained in the original owner or his grantee. In most of these plats the dedicators use the language, "We hereby dedicate all our interests in the streets and alleys as shown by said plat, field notes, and survey," or equivalent language; and even where such words of dedication are omitted, and the street is. shown by the plat, the sale of lots by the proprietor with reference to such plat is sufficient to complete such dedication (Spencer v. Peterson, 41 Or. 257, 68 Pac. 519, 1108; Christian v. Eugene [Or.] 89 Pac. 419); and, such being the case, the dedication subjects the street to any new servitude incident to it as a street. This is also recognized in the case of Heiple v. East Portland, 13 Or. 97, 8 Pac. 912, where Mr. Justice Lord says: "The next defense is estoppel by dedication, in this: that the plaintiff had sold lots abutting upon the disputed tracts according to a recorded plat, recognizing the same as a street. As stated, this certainly would be a good defense." But in that case the disputed tract was expressly reserved from the dedication. Some of these additions were laid out and the plats executed prior to the incor

poration of the town in 1889; but by the act of incorporation they became subject to the control of the municipality and to the liabilities and servitudes incident to the streets (McGrew v. Stewart, 51 Kan. 185, 32 Pac. 896), and upon either ground First street is a street subject to all the burdens incident to streets within the municipality.

3. The validity of the method adopted by the city in apportioning the expense of the improvement is questioned by plaintiffs. The expense of the curb and graveling was uniform as to every lot, and the only fluctuation in expense is in the grading, which cost $713.50 for the whole distance of 2,402 feetless than 15 cents per front foot. If the expense of grading the half street in front of some lots was only one-fourth as much as that of grading in front of others, as testified by one witness, the cost for grading the lots incurring the least expense would be 72 cents per front foot, and according to plaintiffs' theory the excess of their burden would not exceed $3.50 upon a 50-foot lot. Section 82 (page 305) of the charter of 1893 is relied upon by plaintiffs as supporting their claim that each lot is liable for the improvement of only the half of the street in front of it or abutting upon it. The only purpose of this section is evidently to declare what proportion of a block shall be liable for the improvement of a street in front of it, viz.: In extending the liability to the middle of the block, and considering the charter as a whole, this section can only be construed to mean that all the portion of the block extending back to the center line thereof shall be liable for the full amount assessable to the half street in front of it. We arrive at this conclusion for the reason that section 64 (page 301) provides that the council shall "assess upon each lot or part thereof liable therefor its proportionate share of the cost" of the improvement. Section 65 also provides that the total cost of the improvement shall be assessed proportionately to the adjacent lots; and section 66 provides that the council "shall then proceed to ascertain and determine the proportionate share of such cost assessable to each tract of land, and to assess by resolution each lot or parcel of ground with its proportionate share of such cost, which determination and assessment shall be final and conclusive." Section 110 (page 312) still further strengthens this view, as it provides: "In assessing the cost of any street improvement * upon the abutting property holders, the council shall assess one-half of such cost upon the property on each side of such street

to

a line in such adjacent or abutting blocks parallel with such street or alley so improved, and one-half the entire distance across such block therefrom: provided, that all assessment for the cost of building or repairing any sidewalk or pavement shall be upon the property immediately adjacent to or abutting

thereon, and for the full price of constructing or repairing such sidewalk or pavement." The exception contained in that section clearly shows that the Legislature meant that the expense of the whole improvement is to be apportioned to the adjacent property, except sidewalks and pavement, which are to be built by the owner in front of his own property, and the provision that one-half of the improvement shall be assessed to each side of the street shows that the measure is not to each lot the expense of the improvement of the half street abutting such lot. The charter, taken as a whole, clearly contemplates that the expense of the improvement, such as this, shall be apportioned to the abutting property on each side of the street back to the center line of the block proportionately, and even with that limitation it leaves considerable discretion to the council as to what shall constitute such proportionate apportionment; and we find that there was no error in apportioning the total expense of the improvement pro rata according to the frontage on the street.

The decree of the lower court is affirmed.

(50 Or. 99)

STATE v. REMINGTON.* (Supreme Court of Oregon. Aug. 20, 1907.) 1. CRIMINAL LAW-EVIDENCE-ADMISSIBILITY-MAPS.

On a trial for assault with intent to kill, a map of the locus in quo, shown to have been made by a competent surveyor, who was also a disinterested person, was competent, though made at the direction of the district attorney to illustrate his theory of the case.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 14, Criminal Law, § 1024.]

2. SAME-TRIAL-RECEPTION OF EVIDENCEORDER OF PROOF.

Under the express provisions of B. & C. Comp. § 842, the order of proof is within the discretion of the court.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 14, Criminal Law, § 1609.]

8. SAME-OPINION EVIDENCE-MATter WithIN KNOWLEDGE OF JURY.

A witness, first shown to be competent, may state, on a criminal trial, his opinion as to whether a 30-30 rifle would make a hole the size of the hole in a picket from a fence shown him, notwithstanding it was admitted that the shooting was done with a 30-30 rifle, and though the picket and the bullet which struck complaining witness, but which was mashed and battered, were received in evidence; such testimony not being subject to the objection that the question was one which the jury was as competent as witness to determine.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 14, Criminal Law, § 1052.]

4. HOMICIDE-ASSAULT WITH INTENT TO KILL -EVIDENCE-ADMISSIBILITY-EXTENT OF IN

5. SAME-INSTRUCTIONS.

On a trial for assault with intent to kill, it appeared that ill feeling had existed between complaining witness and defendant, and that defendant knew that complaining witness had threatened to take his life and went armed for that purpose; that defendant, having occasion to call on one who lived beyond complaining witness' farm, selected a route which took him across complaining witness' farm, but which route persons living in that vicinity had used without objection, and that defendant carried with him a 30-30 rifle. Held to warrant a charge that one cannot claim self-defense if he intentionally put himself where he knew he would have to invoke its aid, that if defendant could have avoided any conflict without increasing the danger to himself it was his duty to do so, and that if defendant sought the conflict, and showed fight and used a deadly weapon, or did an act in such a way as if about to engage in an affray, he could not invoke the law of self-defense until he had first retreated as far as he could with safety to himself.

Appeal from Circuit Court, Marion County; Geo. II. Burnett, Judge.

E. L. Remington was convicted of assault with intent to kill, and he appeals. Affirmed.

Grant Corby and W. H. Holmes, for appellant. John H. McNary, Dist. Atty., for the State.

MOORE, J. The defendant, E. L. Remington, was convicted of the crime of assault with intent to kill, alleged to have been committed in Marion county, November 22, 1906, by shooting and wounding one W. W. Slaughter, and appeals from the judgment which followed.

His counsel contend that an error was committed in admitting in evidence, over their objection and exception, a map of the locus in quo where the shooting occurred. B. B. Herrick, county surveyor of the county mentioned, testified that, pursuant to the district attorney's direction, he measured a part of Slaughter's land and made a plat thereof, which he identified, and upon which appear black lines indicating certain objects. Thus, in a small square on the map is written the phrase "Pig shed." and on the west side of the shed are two parallel lines, marked "Log 3 feet high." At the southwest corner of the shed is a small circle having a crossS therein, and designated by the words "Point where shells were found." A garden is represented as being east of the pig shed, in which is another circle similarly marked, and indicated by the sentence "Point where plow lies." Two lines extend north and south, 29 and 124 feet, respectively, east of the pig shed, which are specified, in the order named. "Board fence 4 feet high" and "Picket fence 5 feet high." At a point in the palings last mentioned, in a direct line between the circles specified. is a cross, marked "Bullet hole in fence 315 feet above ground." A trail is represented as extending southeasterly across Slaughter's land, the nearest line of which is about 122 feet south of the pig shed. A county road, extending north and south, is indicated on the map as being east of such premises, and across the highway are certain

lines, marked "Pomeroy's house." All the ob jects thus specified, and others not mentioned, are represented by black lines. There are also on the plat certain red lines, in the broken parts of which appear numbers, indicating in feet the distance, respectively, from one object to another. Omitting these numbers, the red marks are as follows: One direct and two curved lines connect the circles hereinbefore mentioned. A line extends from the circle designating the point where the plow lies to Slaughter's dwelling, and from thence to Pomeroy's house. A line is drawn southeasterly from the pig shed to the trail, and another line also extends southwesterly from the point where the plow lies to a point in the picket fence. The objections interposed to the introduction of the map in evidence were based on the ground that no testimony had been introduced tending to show that the shooting had been done at any given point, and also for the reason that the red lines were made on the plat, at the district attorney's direction, to illustrate his theory of the case.

The state attempted to establish the fact, by the discovery of the three empty shells of the same caliber as the defendant's rifle, which parts of cartridges were found near the southwest corner of the pig shed, that Remington fired his gun from ambush behind the log indicated on the plat. The county surveyor was not present when the metallic cases were discovered, and the information which enabled him to note on the plat the words "Point where shells were found" was not derived from his personal observation of a material fact, but obtained from the declarations of others. In Adams v. State, 28 Fla. 511, 10 South. 106, the plaintiff in error was charged with the crime of murder in the first degree, and at his trial a map was offered in evidence, on which were delineated the route of a certain person and also the positions severally occupied by others. A verdict of guilty as alleged having been returned, judgment was rendered thereon, in reversing which the court say: "Ike Spanish did not take the map and trace the route in explanation of his testimony; neither did Sandy Sheffield mark on the map where he was, and where he saw Will Adams passing along; but it appears that Mr. Brown put these indications on the map. It also seems that the map was introduced in evidence after Spanish and Sheffield had testified. We think a map or diagram of the country in its physical condition at the time can be put in evidence, and any witness, in giving testimony as to localities, can indicate on the map the relative position of things or persons. But for a person who knew nothing of these matters, except what he heard from others, to designate the movements of persons on the map, would be testimony of a secondary character, and improper to be admitted." In the case at bar A. E. Pender testified that the morning after the shooting he

found in the grass and ferns at a point about six or eight inches west of the log indicated on the map, and at the southwest corner of the shed, two "30-30" shells, and two days thereafter he discovered another shell of the same size about three feet southwest of where he found the others; and, his attention having been called to the map, he identified thereon the places and objects thus indicated. Referring to a bullet hole in a picket of the fence he further stated that the perforation in the paling was in a direct line between the places where the two shells were found and where the plow was left in the furrow. This witness stated on cross-examination that, from the place where he found the two shells, a person using a gun right-handed would have been behind the shed. The order of proof is regulated by the sound discretion of the court (B. & C. Comp. § 842); and, though the map was received in evidence before Pender was called as a witness, his identification of the "point where the shells were found" rendered the plat competent evidence, as illustrating his description of the premises. 4 Elliott. Ev. § 3044: Rowland v. McCown, 20 Or. 538, 26 Pac. 853; People v. Cassidy, 133 N. Y. 612, 30 N. E. 1003.

Considering the respective theories of the district attorney and defendant's counsel, it is deemed proper to state the relation which existed between the prosecuting witness and Remington at the time the shooting occurred. Slaughter's wife had been divorced from him on the ground of cruel and inhuman treatment, in which suit he made no appearance. He blamed Remington, however, for his marital troubles, and had repeatedly threatened to take his life, to accomplish which he usually carried a revolver, occasionally exhibiting it, and declaring that he went thus armed to execute his purpose, which menaces had been communicated to Remington. Slaughter possessed the reputation, in the vicinity in which he lived, of being quarrelsome and desperate. The defendant's testimony is to the effect that he was engaged at Woodburn in selling firearms and other goods; that he left his place of business, November 22, 1906, in the afternoon, intending to call upon one George Killin, who lived in an easterly direction and beyond Slaughter's farm; that, thinking he might find some game on the way, he took with him, as was his custom, a gun, and, as he was passing on the shortest route along a trail, generally used by the public, across Slaughter's land, he observed some one moving, and, looking carefully, he recognized Slaughter approaching him in a threatening manner, armed with a shotgun; that the witness first accidentally discharged his gun upwards, but thereafter, hastily firing two other shots, Slaughter was hit; that the deponent immediately started back to Woodburn to surrender himself to a peace officer; that as he approached the town he saw sey

eral women, and thinking they had heard of the difficulty he had encountered, and possibly might be alarmed to see him armed, he hid his gun under a fence. On cross-exam ination, he was asked where he was at the time of the shooting, and replied. "I don't know exactly where I was." He further said, however, that he did not think he was on the trail indicated on the map. but that there were several other regularly traveled paths leading across Slaughter's land, on one of which he was traveling. William Esch, a deputy sheriff, stated on oath that Remington, having given bail, was temporarily released and went with the witness to the outskirts of Woodburn, where they found under a fence a "30-30" Savage rifle, which the defendant admitted he had hidden at that place. This gun and the shells discovered by Pender were received in evidence. Slaughter testified that as he was plowing in his garden he heard the report of a gun behind him, and, looking back, a shot soon thereafter penetrated his left shoulder, whereupon he ran toward his house, when another shot was fired, and some missile pierced his left eye, destroying the sight thereof: that when he entered the house he seized a loaded double-barreled shotgun with which to defend himself, and started for Pomeroy's house; and that he did not see the person who did the shooting. Pender, whose testimony has hereinbefore been adverted to, further stated on oath that he heard shots fired November 22, 1906, in the afternoon, and saw Slaughter, as he reached the county road, carrying a shotgun and calling for help; that the witness took the gun and found it loaded with paper cartridges, the cap on one of which had apparently been struck or indented by the firing pin. James Monto, who is Slaughter's nephew, testified on rebuttal that he visited this uncle October 6, 1906, and attempted to use the latter's shotgun, but did not discharge it, and, looking at the shells, he found the cap had snapped.

The foregoing is thought to be a fair synopsis of the material testimony, relating to the cause of the shooting, and, based thereon, the question to be determined is whether or not the court erred in permitting the district attorney, over objection and exception, to illustrate his theory of the case by introducing in evidence a map of the locus in quo, having thereon red ink lines extending from the point representing the southwest corner of the pig shed to the point indicating the place where the plow was lying when the plat was made. In People v. Phelan, 123 Cal. 551, 56 Pac. 424, the defendant was convicted of the crime of murder in the first degree on circumstantial evidence, in part tending to support the theory of the prosecution that, lying in wait behind a stump, he watched the approach of his victim, whom he killed, and thereafter claimed that he acted in self