Page images

adverse party or an appellate court, might in the custody of a public officer. Id., $ possibly condense the matters thus expressed, 703. affords no valid reason for dismissing an ap- It will be remembered that the case of peal, where, as in the case at bar, there has the Moss Mercantile Company V. First Nabeen a substantial compliance with the pro- tional Bank, supra, was a suit in equity, visions of the statute and of the rules of this and a final decree having been rendered therecourt. Where the assignment states that the in, the judge trying the cause was required court erred in giving, over objection and to identify all the exhibits (B. & C. Comp. exception, certain instructions, setting them $ 827), and an appeal having been taken on out in distinct paragraphs, containing only the merits, the transcript brought up such a very small part of the entire charge, and not matters to this court, where, in cases of indicating the language complained of under that kind, they thereafter remain, constitutseparate assignments, to hold that if either ing a judicial record (Id. § 741), which could of the parts of the charge, so generally ex

have been proved by the production of the pressed, correctly stated the law applicable original or by a copy thereof certified wy to the case, the entire assignment would the clerk of this court, and attested by his be unavailing, would, in our opinion, be too official seal. Id. $ 742. The object of requiring technical The motion to affirm the judg- the production of a copy, authenticated in ment will, therefore, be denied.

this manner, is to identify a document which Considering the case on its merits, the is in the custody of a public officer, so that bill of exceptions shows that one of the it may be received in evidence, and though a counsel for the plaintiff herein, having been judicial record cannot, over objection and called as Miller's witness, testified that Ex- exception, be proved by parol (Bowick v. hibit E, introduced in evidence in the case Miller, 21 Or. 25, 26 Pac. 861), such record of Moss Mercantile Co. v. First National can be established by a writing, the identity Bank, 47 Or. 361, 82 Pac. 8, 2 L. R. A. (N. of which is acknowledged without objection, S.) 657, and published at page 32 in the as in the case at bar, by counsel for the brief of the defendant therein, was a cor

adverse party who was authorized thus to rect copy of the original, which had been speak for his client. 16 Cyc. 1024. The sent with the transcript of that cause on

production of the best evidence, as stated appeal to this court. Miller's counsel, refer

in the objection to the admission of the letter

The inring to such original, thereupon inquired: | referred to, was therefore waived. "Do you know whether it has been returned

troduction of such evidence was also objected (ir not?" An objection having been inter

to on the further ground that it was ir

It posed, the witness replied: "I don't think relevant, incompetent, and immaterial. it is material, and I decline to answer it.”

must be admitted that Helmick's assignment Q. "I just ask you if you know?” An ob- of the judgment to the plaintiff herein, withjection to this question on the ground that

out reservation or qualification, would have it was incompetent, irrelevant, and immate- transferred to it, as between the parties rial, having been sustained, no exception was hereto, all his right thereto. Though the astaken to the action of the court in this re-signment expressly appointed the bank Helspect. Thereafter Miller's counsel offered mick's irrevocable attorney with power of in evidence the copy of such exhibit that had substitution, the stipulation to that effect heen identified in the manner indicated. An did not prevent him from rescinding such objection to its admission on the ground, authority, unless it was coupled with an inter alia, that it was not the best evidence, interest, independent of a compensation for having been sustained, an exception was al- the collection of the sum awarded. Tiffany, lowed. The copy referred to is as follows: Agency, 157; Frink v. Roe, 70 Cal. 296, 11 "Payette, Idaho, April 27th, 1903. Mr. Henry Pac. 820; MacGregor v. Gardner, 14 Iowa, Helmick, Payette, Idaho-Dear Sir: Che as- 326; Blackstone v. Buttermore, 53 Pa. 266. signment of the judgment against O. W. Por- The letter which was offered in evidence ter in Malheur County, Or., for $2775.00 and having stated that the proceeds of the Porter $120 costs, we have entered for collection, judgment when collected should be subject proceeds of which when collected shall be to Helmick's order, the writing, if genuine, subject to your order. Yours truly, [Signed] tended to show that the plaintiff herein had P. A. Devers, Cashier." The bill of excep

no interest in the money, except possibly an tions further discloses that the person writ- anticipa ted commission for its collection, ing that letter was the officer so represented which is not such a part thereof or claim of the plaintiff herein. The statute, regu

thereto as to prevent a cancellation of the lating the admission of evidence, contains power before it has been executed, on the the following provisions: The original writ- ground that the agent has an adequate reming shall be produced and proved except as edy for the recovery of the damage sustainprovided in section 703. B. & C. Comp. $ 771. ed, for when the principal parts with his There shall be no evidence of the contents rights to the subject-matter before the agent of a writing, other than the writing itself, has executed the power, it is in law a revexcept in the following cases: (3) When ocation of the authority. Gilbert v. Holmes, the original is a record or other document 64 Ill. 548. The letter was, therefore, material and competent, and an error was com- Appeal from Circuit Court, Umatilla Counmitted in excluding it. A certified copy of ty; W. R. Ellis, Judge. the assignment of the judgment having been Action by W. M. Harvey against Victor offered in evidence, Helmick, as a witness for Lidvall. From a judgment in favor of defendthe defendant herein, was asked: “What, ant, plaintiff appeals. Reversed, and reif any, interest has the First National Bank manded for new trial. of Payette, Idaho, in that judgment?" An

This is an action of trover. It is alleged objection on the ground that the question in the complaint that on the

day of was incompetent, irrelevant, and immaterial, November, or the day of December, and calling for the opinion of the witness

1903, plaintiff was the special owner on one of the issues of the case, having been

mortgagee, and at the same time was mortsustained, an exception was allowed. As

gagee in possession, and entitled to the posbetween the parties to an assignment of a

session of a three-fourths interest in and chose in action, no consideration is neces

to a certain crop of grain grown and harsary to its validity. Dawson v. Pogue, 18

vested during the season of 1903, from the Or. 91, 22 Pac. 637, 6 L. R. A. 176; Gregoire

southeast 14 of section 29, township 3 N., v. Rourke, 28 Or. 275, 42 Pac. 996. This rule

range 31 E. W. M; that said grain was in rests upon the principle that a person who

the form of headings stacked upon the land is sui juris may make such disposition of

described and in the possession of an agent his property as he pleases, provided, no

of the plaintiff in process of foreclosure; person except himself is injured thereby.

that it amounted to 24 tons of the reasonable If the assignment executed by Helmick was intended absolutely to transfer his interest

value of $12 per ton or $288 in the aggregate; in the judgment to the bank, no necessity

that at said time and place the defendant existed for a declaration in the instrument wrongfully and without authority entered of any authority, irrevocable or for a limited

upon said premises, and took possession of period, to collect the money so awarded, for

all said headings and converted the same the right to do so would necessarily follow

to his own use to plaintiff's damage in the as an incident of the power conferred. The

sum of $288, the value thereof, and $100 statement that the bank was appointed at

special damages. The answer denies the torney, etc., casts a doubt upon the intent

allegations of the complaint and affirmativeof the assignment, rendering the instrument | ly alleges that, at all the times mentioned, ambiguous, and tending to show that the

defendant was the owner of the grain detransfer was made for some particular pur

scribed therein. The plaintiff filed a reply, pose without a design of vesting in the as

setting up in detail the execution of the mortsignee an interest in the judgment. This gage under which she claims, alleged a uncertainty in the instrument, evidencing the breach of the conditions thereof, and that for assignment, renders parol testimony admis

the purpose of foreclosure she entered into sible to explain the ambiguity, and as Hel-possession of the mortgaged property and, mick is the assignor, and presumed to be during the process of such foreclosure, the competent to state what interest he intended defendant wrongfully and unlawfully took to transfer, if any, the court erred in not possession thereof, and converted it to his permitting him to answer the question asked. own use. To sustain the issues on her part

It follows from these considerations that the plaintiff produced a chattel mortgage the judgment is reversed, and a new trial from one John Thomas to her covering among ordered.

other property, an undivided three-fourths

interest in a crop of grain to be grown dur(18 Or. 558)

ing the season of 1903 on the southwest 14 HARVEY v. LIDVALL.

of section 29, township 3 X., range 31 E.

W. M., and offered to show that the mort(Supreme Court of Oregon. Dec. 11, 1906.)

gage was intended by the parties thereto to 1. TROVER AND CONVERSION - COMPLAINTSUFFICIENCY

cover the grain to be grown on the southIn trover, a complaint, alleging that plain

east 14 of such section, but by mistake the tiff was the owner and in possession of the

land was misdescribed therein; that the deproperty and entitled to such possession at the fendant who was the owner of the real estime of the conversion, was sufficient, and an additional allegation that the possession was as

tate described in the complaint, was familiar a mortgagee did not render the complaint ob- with all the transactions out of which the jectionable on the ground that it stated a mere mortgage arose, and knew that it was inconclusion, and that the mortgage should have

tended to cover the grain to be grown on such been set out either in hæc verba, or in substance or legal effect.

property; that he was not only present and [Ed. Note.--For cases in point, see Cent. Dig.

observed the harvesting of the grain, but vol. 47, Trover and Conversion, $ 197.]

that he had divided the same in accordance 2. SAME-EVIDENCE-SUFFICIENCY.

with the terms of his lease to the mortgagor, In trover, evidence, that plaintiff was in and had taken possession of his share; that possession of the property at the time it was taken by defendant, was sufficient to make out

the grain in controversy was taken possession a prima facie case in his favor.

of by the mortgagee plaintiff under the terms [Ed. Note. For cases in point, see Cent. Dig.

of the mortgage at a time when defendant · vol. 47, Trover and Conversion, $ 235.]

and all parties recognized and believed that the mortgage described the property intended | offered to prove, that she was in possession to be included therein; and that she became of the property in controversy at the time a mortgagee in possession before the error in it was taken by the defendant, and this was the description was discovered. This offer sufficient to make out a prima facie case in was refused, the evidence excluded and the her favor. plaintiff nonsuited.

Judgment reversed, and remanded for new

trial. Stephen A. Lowell, for appellant. J. P. Winter. for respondent.

HAILLY, J., having been of counsel, took BEAN, C. J. (after stating the facts). no part in the decision, To support the ruling of the trial court it is contended that the complaint does not state

(48 Or. 569) facts sullicient to constitute a cause of action because the mortgage, under which

MORRISON v. OFFICER. plaintiff claims, is not set out in the com

(Supreme Court of Oregon. Dec. 11, 1906.) plaint, either in hæc verba, or in substance, WATERS AND WATER COURSES-WATERS SUBor legal effect. It has been held that, in an


B. & C. Comp. $ 5019; Laws 1893, p. 150, action by a mortgagee after condition broken,

regulating the use of water, provides that the to recover possession of the mortgaged prop- person on whose land seepage or spring waters erty, or in trover for its wrongful conversion,

arise shall have the right to the use of such it is sufficient for plaintiff to alleve generally

Witris. The statute was enacted at a time

when the state was the owner of certain lands; that he is the owner and entitled to the pos- a portion of which were subsequently conveyed session, without setting out the source of his to plaintiff, and a portion to defendant. A title. Reinstein v. Roberts, 31 Or. 87, 5.) Pac.

perennial spring issued from defendant's land,

about 120 yards from the boundary line between !N? TOD Am. St. Rep. 364; Maros 1. Stephens,

plaintiff and defendant, and reached a point of 38 Or. 512. 03 Pac. 760, 61 Pac. 319. And about 150 yards on plaintiff's premises where we think the complaint, in the case at bar, it disappeared, making its way without channel

or banks, and moistening the ground for a space comes within this rule. It is alleged that

of about 30 feet in width. II old, that defendpl::iniiff was the owner and in possession of

ant was entitled to the use of all the water from the property in controversy und entitled to the spring. such possession at the time of the alleged (Ed. Note.-For cases in point, see Cent. Dig. conversion by the defendant. The averment

vol. 18, Waters and Water Courses, $ 110.] that her ownership and possession were Appeal from Circuit Court, Grant County; special ind as it mortgilgee, was unneces- George E. Davis, Judge. sary, but it did not render the complaint ob- Suit by Finlay Morrison against Floyd L. jectionable on the ground that it stated mere Officer. From a judginent in favor of plain(onclusions of law.

tiff, defendant appeals. Reversed, and suit It is next contended that the proof offered dismissed. hy the plaintiff was inadmissible because

Errett Hicks, for appellant. Will R. King, parol evidence is not competent in an action

for respondent. at law for the purpose of showing a mis(lescription of the property intended to be

MOORE, J. This is a suit by Finlay Morincluded in a chattel mortgage. As a gen

rison against Floyd L. Officer to enjoin intereral rule, this may be conceded. IIutton v.

ference with the use of water issuing from a Arnett, 51 Ill. 198; First National Bank v.

spring. The facts are that, on December 5, TIendrickson, 61. Minn. 293, 63. X. W. 725.

1891, the state of Oregon executed to the deBut the plaintiff offered to go further and

fendant a deed to the northwest quarter of show that before the error in the mortgage

the southeast quarter of section 36 in townwas discovered she had commenced to fore

ship 11, south of range 25 east in Grant counclose it, and had taken possession of the

ty, ever since which he has been the owner in property intended to be mortgaged, and was

fee thereof. The state, on February 15, in such possession at the time of its alleged

1.901, also entered into a contract with the conversion by the defendant, and this was plaintiff for the sale of the northeast quarter suflicient to entitle her to maintain an action

of the southeast quarter of that section, townof trover therefor against a wrongdoer. "It

ship, and range, and five years thereafter he is very generally recognized,” say the editors

dug a ditch from a swale on the land last deof the American and English Encyclopedia scribed, and conducted to a part thereof waof Law, "that the possession of chattels, ter which he intended to use in irrigating a conferring, as it does, title good as against garden. The defendant thereafter cut two every one but the true owner, will enable ditches on his land from such swale, and dithe person in possession to maintain trover verted all the water therein, whereupon this therefor against a wrongdoer who takes the suit was commenced, resulting in a decree as chattels from his possession and wrongfully prayed for in the complaint, and he appeals. converts them, and the wrongdoer cannot The testimony shows

shows that a perennial set up the title of the true owner in defense spring issues from the defendant's land at a to the action, or even in mitigation of dam- point about 120 yards from the east line ages." 28 Am. & Eng. Enc. Law (2d Ed.) thereof, the water from which reaches a 674. The complaint alleges, and the plaintiff point about 150 yards on the plaintiff's prem

ises where it disappears. Though there is a conflict in the testimony, we think the great weight thereof supports the defendant's cuntention that the water does not usually appear on the surface, but, issuing from the spring on the side of a hill, it makes its way, without channel or banks, through brul and grass, moistening the ground, for a pale about 30 feet in width, the distance mentioned, and that where cattle have made tracks in the damp soil, water may be seen, but it does not flow until confined in a ditch. Vo controversy exists as to the quantity of water which the spring afforils, for each party admits that it does not exceed three-fourths of an inch, miners' measurement. The statute, regulating the use of water, contains the fol. lowing lause: "Provided, that the l'erson upon whose land seepage or spring waters first arise, shall have the right to the use of such waters." B. & C. Comp. & 5019. This act was passed February 22, 1893 (Law's Or. 1893, p. 1.30), when the state was the owner in fee of the lands hereinbefore described. The clause adverted to is, in our opinion, a grant of the exclusive right to the use of the unappropriated water specified, to the pers n upon whose land such water first arises, :11!d was probably a recognition of a practice privailing in the arid region of the United States, that the title to lands containing wilter issuing from the sources mentioned had been sei'ured, so that the water might be used for domestic or stock purposes, and th:t the quantity indicated did not appear to the leg. islative assembly to be more than was reasonably necessary to supply such use.

When a spring furnishes a stream of water that rises to the surface, the right of appropriation attaches (Brosnan v. Iarris, 39 Or. 148, 6: Pac. 807, 34 L. R. A. 628, 87 Am. St. Rep. 619), but where, as in the case at bar, the admitted quantity is so insignificant that a surface stream is impossible, when spreal over the width of ground mentioned, the use of the water belongs to the person pon whose land it first arises. A small part of plaintiff's land was, before the diversion, moistened by water from the spring, and it is possible that such portion might be classed as a "water course," on the theory that the law of gravitation compelled the water to take that direction because of the conformiltion of the land. The testimony shows, however, that there are no banks to such

on plaintiff's premises, and, unless there is a bank or ripa on his land, he cannot be a riparian proprietor within the meaning of that term. The disposal of the use of wilter may be controlled by the Legislature when its acts designed for that purpose do not violate the fundamental law by trenching upon the rights of property, and believing that in the present instance, the clause of the statute quoted does not invade such provisions, and that the plaintiff secured his contract of purchase with knowledge of the act, the decree is reversed and the suit dismissed.

87 P.-57

(17 Okl. 85) BETTGE V. TERRITORY. (Supreme Court of Oklahoma. Sept. 4, 1906.) 1. JURY-RIGIIT TO JURY TRIAL-CONSTITUTIOXAL LAW.

The provisions of the Constitution of the l'nited States in relation to trials by jury for crimes and criminal proscautions are applicable to Oklahoma. 2. SUME: --WINBER OF JURORS.

l jury, within the meaning of the federal Constitution and the sixth amendment thereto, is a jury constituted, as it was aí (ommon law, of 12 persons, neither more nor loss.

[Eil. Vote. For cases in point, see Cent. Dig. vol. 31, Jury, 8 222.] 3. SAME-RIGHT IX CRIMISII CASE.

Under the provisions of the federal Constitution, the guaranty of an impartial jury in a criminal prosecution setures to the accuser! the right of it jury trial from the first moment, and in whatever court he is put on trial for the offense Garged.

[Erl. Vote ---For cases in point, see Cent. Dig. vol. 31, Jury, $s 14, 1:34.1 4. SAME-WILAT CONSTITUTES JURY TRIAL.

To accord to the caused the right to be tried by a jury in the appellate court, after he has been onre fully tried otherwis: than by a jury composed of 12 persons in a court of original jurisdiction, and sentenced to pay a fine or be imprisonert for not paying it, does not satisfy the requirements of the federal Constitution, except in th:'t class or grade of olienses called "pötty offenses," whish, according to the common law, may be proceeded against summarily in any tribunal legally constituted for that purpose. 5. SAJE - JURY OF SIX PERSOxs.

The provision of our statute that a person charger with a misdemeanor may be tried in the probate court by a jury composed of only six rersons is in conflict with the federal Constitution, and is therefore unconstitutional and void.

[Ed. Yote.-For cases in point, see Cent. Dig. vol. 31, Jury: $ 2:22.]

(Syllabus by the Court.)

Error from l'robate Court, Lincoln County; Fred A. Wigoner, Judge.

Otto Bettye wils convicted of selling liquor without a license, and brings error. Reversed and remanded.

Plaintiff in error was prosecuted in the probate court, by information filed on January 16, 190.7, charging him with the crime of selling liquor without a license. When the case was called for trial, the defendant demanded to be tried by a common-law jury composed of 12 persons. This demand was refused by the probate court, to which ruling of the court the defendant duly exrepted. The cause was then tried to a jury composed of only six persons, and a verdict was returned finding the

finding the defendant guilty as charged in the information. Motion for a new trial was filed and overruled, an exception saved, and the defendant was sentenced, on the 23(day of January, 1903, to pay a fine of $100 and costs, and ordered committed until the fine and costs were paid or satisfied. From this judgment the defendant appeals.

J. B. A. Robertson, for plaintiff in error. P. C. Simons, Atty. (1:1., ind Don C. Smith, Asst. Atty. Gen., for the Territory,

HAINER, J. (after stating the facts). It is contended by the plaintiff in error that the Constitution of the United States secured to bim the right to be tried by a common-law jury, composed of 12 persons, and that, that right having been denied, the probate court was without jurisdiction to impose a fine upon the defendant or to order him to be imprisoned until such fine was paid. This precise question is before this court for the first time for determination. Article 3, § 2, of the Constitution of the United States provides: "The trial of all crimes, except in (ases of impeachment, shall be by jury, and such trial shall be held in the state where the said crimes shall have been committed; but when not committed within any state, the trial shall be at such place or places as the Congress may by law have directed." And by the 6th amendment to the Constitution it is provided: "In all criminal prosecutions the accused shall enjoy the right to a speedy and public trial by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature of the accusation, to be confronted with the witnesses against him, to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense." It is the settled doctrine of the Su. preme Court of the United States that the provisions of the federal Constitution relating to trial by jury for crimes and in criminal prosecutions apply to the organized territories of the United States. Thompson v. State of Utah, 170 U. S. 343, 18 Sup. Ct. 620, 42 L. Ed. 1061; American Publishing Co. v. Fisher, 166 U. S. 464, 17 Sup. Ct. 618. 41 L. Ed. 1079; Springville v. Thomas, 166 U. S. 707, 17 Sup. Ct. 717, 41 L. Ed. 1172; Callan v. Wilson, 127 U. S. 540, S Sup. Ct. 1301, 32 L. Ed. 223; Reynolds v. United States, 98 U. S. 145, 25 L. Ed. 241.

In Thompson v. Utah, supra, Mr. Justice Harlan, speaking for the court, said: "But the wise men who framed the Constitution of the United States and the people who approved it were of opinion that life and liberty, when involved in criminal prosecutions, would not be adequately secured except through the unanimous verdict of 12 jurors. It was not for the state, in respect of a crime committed within its limits while it was a territory, to dispense with that guaranty simply because its people had reached the conclusion that the truth could be as well ascertained, and the liberty of an accused be as well guarded, by 8 as by 12 jurors in a criminal case. It is said that the accused did not object, until after verdict, to a trial jury composed of 8 persons, and therefore he should not be heard to say that his trial by such a jury was in violation of his constitutional rights. It is sufficient to say that it was not in the power of one accused of felony, by consent expressly given or by

his silence, to authorize a jury of only 8 persons to pass upon the question of his guilt. The law in force when this crime was committed did not permit any tribunal to deprive him of his liberty, constituted of a court and a jury of 12 persons." And in Callan v. Wilson, supra, the same learned justice said: “The third article of the Constitution provides for a jury in the trial of 'all crimes, except in cases of impeachment.' The word 'crime,' in its more extended sense, comprehends every violation of public law. In a limited sense it embraces offenses of a serious or atrocious character. In our opinion the provision is to be interpreted in the light of the principles which, at common law, determined whether the accused, in a given class of cases, was entitled to be tried by a jury. It is not to be construed as relating only to felonies, or offenses punishable by confinement in the penitentiary. It embraces as well some classes of misdemeanors, the punishment of which involves or may involve the deprivation of the liberty of the citizen. It would be a narrow construction of the Constitution to hold that no prosecution for a misdemeanor is a prosecution for a 'crime' within the meaning of the third articles, or a 'criminal prosecution' within the meaning of the 6th amendment. And we do not think that the amendment was intended to sujplant that part of the article which relates to trial by jury. There is no necessary conflict between them. Mr. Justice Story says that the amendment, 'in declaring that the accused shall enjoy the right to a speedy and public trial by an impartial jury of the state or district wherein the crimne shall have been committed (which district shall be previously ascertained by law), and to be informed of the nature and cause of the accusation, and to be confronted with the witnesses against him, does but follow out the established course of the common law in all trials for crimes.' Story on the Constitution, $ 1791. And as a guaranty of a trial by jury, in the third article, implied a trial in that mode and according to the settled rules of the common law, the enumeration, in the sixth amendment, of the rights of the accused in criminal prosecutions, is to be taken as a declaration of what those rules were, and is to be referred to the anxiety of the people of the states to have in the supreme law of the land, and so far as the agencies of the general government were concerned, a full and distinct recognition of those rules, as inof the constitutional guaranties of life, liberty, and property. This recognition was de manded and secured for the benefit of all the people of the United States, as well those permanently or temporarily residing in the District of Columbia, as those residing or being in the several states. There is nothing in the history of the Constitution or of the original amendments to justify the assertion that the people of this District may be lawfully deprived of the benefit of any

« PreviousContinue »