which recognize the necessity for a proceed-[ion over it, control of its use, and disposition. ing in condemnation to open a road across The thing owned may be tangible or intanga railroad right of way. ible, a fee in land or an easement in it. A

In 24 L. R. A. (N. S.), in a note at page railroad company across whose tracks a 1214, it is said:

"As an easement in a railway right of way is property within a constitutional inhibition against taking or damaging private property

for public use without compensation, it is generally held that a street or highway, cannot be laid out or established across it without making compensation therefor."

street is opened loses the exclusive controlwhich is property-over the part devoted to street purposes, and hence a part of its property is "taken." Its right to compensation for that part is a natural right, protected is the declaration of the United States Suby express constitutional provisions. Such preme Court in the case last cited.

[3] There is, moreover, no reason for giv

ing to the commission the right to condemn.

Paragraph 59 of section 6525, R. S. 1908, gives express power to town and city councils to extend streets across railroads.

Paragraph 74 of said section provides that

when it shall be deemed necessary by any municipal corporation to enter upon or take private property for any of the uses theretofore named, which includes street purposes, the same shall be examined, `appraised, and To this note are cited cases from Arkansas, the damages thereon assessed, and the proConnecticut, Georgia, Illinois, United States ceedings in connection therewith shall be in Supreme Court, Indiana, Kansas, Kentucky, all respects the same as is now or may hereMassachusetts, Michigan, Missouri, Nebraska, after be provided by general law for the takNew Jersey, and Pennsylvania. The note ing of private property for public or private also points out that

"Notwithstanding a railway company must be compensated for the laying out of a street across its right of way, yet the expense of constructing the crossing and its approaches may be lawfully imposed upon it."

The distinction is that the taking is under the right of eminent domain, while the regulating as to crossings and approaches is under the police power of this state.

In 15 Cyc. 669, it is said:

"A railroad company is entitled to compensation for the location of a public highway across its right of way."

In support of this text cases are cited from Illinois, Kansas, Massachusetts, New Jersey, Ohio, and Pennsylvania.

[1] The right of a person or corporation, whose property is taken for public use, to compensation therefor, is guaranteed by both the state and the federal Constitutions. Such right, however, exists regardless of constitutional provisions. It is a settled principle of universal law, reaching back of all constitutional provisions, that the right to compensation is an incident to the exercise of the power of eminent domain. C. B. & Q. R. Co. v. Chicago, 166 U. S. 226, 17 Sup. Ct. 581, 41 L. Ed. 979.

[2] The fact that property may be damaged or destroyed, without compensation, under the police power, has no bearing upon this controversy. Here the property is to be "taken," and devoted to a public use, the railroad company retaining a right to its use, qualified by the right of the public to a new use. "Property" consists, not in the thing

use.

This shows that the Legislature recognized that in carrying out the powers given by paragraph 59 the right of eminent domain was necessary to be granted, or at least that it was advisable to grant it. Doubtless, under the authorities, the right given in a previous paragraph of that section to extend and open streets would have given the right to cross railways by condemnation but the matter is made clear by the paragraph in question.

Section 6588, R. S. 1908, clearly contemplates the necessity for a condemnation of a right of way for a street. It provides:

"No street or highway shall be opened, straightened or widened, nor shall any other

improvement be made which will require proout the concurrence in the ordinance or resceedings to condemn private property, witholution directing the same of two-thirds of the whole number of the members elected to the council or board of trustees."

If the citizens of Peetz want the street extended they can doubtless induce the town council to take appropriate action to that end. This local action better accords with the principles of popular government than does the committing of the matter to the determination of a state commission.

In every view of the case, the conclusion is irresistible that the commission did not regularly pursue its authority and hence its order is invalid. The commission is there fore directed to vacate the order.

SCOTT and ALLEN, JJ., dissent.

DENVER & R. G. R. Co. v. JOHNSON et al. rived at Blanca, and were unloaded and plac

Error to District Court, Costilla County; locked said car, during the afternoon of July 3, J. C. Wiley, Judge.

E. N. Clark and G. A. Luxford, both of Den-freight depot and warehouse of the defendver, for plaintiff in error.

ant, and the freight car above mentioned,

W. W. Platt, of Alamosa, for defendants in were discovered to be on fire, and were soon

As to the hardware in the car, the plaintiffs assumed control of the same. They had broOn July 2, 1916, the defendant in its capac-ken the seal and entered the car before the ity as a common carrier was transporting fire occurred. This shows final delivery. 1 certain merchandise, consisting of auto cas-Moore on Carriers, p. 200. After completion ings and horse nails, billed to the plaintiffs at of the contract of carriage and complete deliBlanca, Colo. These goods, on that day, ar- very to and acceptance by the .consignee, the

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

common carrier is not liable, as such, for loss | Reversed and remanded, with directions to or injury to the shipment thereafter occur- dismiss plaintiff's first cause of action and to ring. 10 C. J. 247, § 350; 4 R. C. L. 759, § 226. grant a new trial as to the second cause of A headnote in the Pacific Reporter to the action. opinion of this court in Lynch v. Union Pac. R. Co., 65 Colo. 152, 172 Pac. 1062, reads as follows:

"Where railway delivers a carload of vegetables to consignee, who accepts same and starts removing vegetables from the car, the railway's responsibility for the safety of the vegetables ceases; and, where vegetables remaining in car freeze, the railway is not liable for damages sustained."

Upon the principles announced or applied in the authorities above cited, the defendant in the instant case is not liable, and it was error to render judgment for plaintiffs.

The judgment is reversed, and the cause remanded, with directions to dismiss the action. Reversed and remanded.

SCOTT and BAILEY, JJ., not participating.

(33 Idaho, 292)

W. P. Guthrie, of Twin Falls, for appellant.

C. M. Booth, of Pocatello, and E. M. Wolfe and J. F. Martin, both of Twin Falls, for respondent.

BUDGE, J. Respondent's complaint contains two causes of action: The first, to recover the penalty provided by C. S. § 1909, for the unlawful grazing of sheep within two miles of his dwelling house; the second, to recover for the grazing of sheep upon his homestead. The cause was tried upon this complaint and appellant's amended answer, which put in issue all of the material allegations of the complaint, resulting in a verdict for respondent upon which judgment was entered. This appeal is from the judgment.

The facts, so far as material to the questions disposed of in this opinion, are as follows: It was alleged in the complaint that respondent was the owner of and had an interest in certain sheep, for the grazing and

LEITCH v. OWYHEE SHEEP & LAND CO. pasturing of which he depended upon the

(No. 3180.)

(Supreme Court of Idaho. Nov. 20, 1920.) 1. Animals 93-Grazing held no invasion of right of partnership under two-mile limit law. Under the provisions of C. S. §§ 1908 and 1909, partnership sheep have no lawful right to graze within two miles of the dwelling house on the land or possessory claim of one of the partners; nor can the partner sustain any damages by reason of the fact that other sheep have grazed thereon. Such grazing invades no legal right of the partnership.

grasses grown upon his homestead and the adjoining unclaimed and unappropriated public land. The proof offered by respondent disclosed the fact that the sheep did not belong to him individually, but were the property of a partnership in which respondent had a joint interest with one Catleugh, his partner.

The theory of damages upon which respondent sought to predicate his right to recover, although not disclosed by any allegation in the complaint, was that by reason of the loss of this pasturage the sheep had

2. Animals 91-Purpose of two-mile limit failed to gain as much in weight as they law stated.

One of the purposes of the provisions of the statute above referred to is to protect the public range for the benefit of the live stock of the owner or possessory claimant within two miles of his dwelling house.

3. Animals 100(4)—Proof of loss on partnership sheep incompetent to show damage to partner from trespass of other sheep.

Proof of loss in the weight of partnership lambs and loss in the wool clip of partnership sheep is not competent evidence to establish damages resulting from the trespass of other sheep on the homestead of one of the partners, nor from the destruction of pasturage thereon.

would have gained if this pasture had been
available, and that the wool clip was short
from the same cause. In other words, re-
spondent sought to make a loss sustained by
the partnership property the basis of his
measure of damages and right to recover.
The court refused appellant's request for an
instruction directing the jury to return a
this instruction is assigned as error.
verdict in its favor. The refusal to give

[1-3] Under the provisions of C. S. §§ 1908 and 1909, the partnership sheep had no lawful right on the public range within two miles of respondent's dwelling house, nor could the partnership sustain any damages by reason of the fact that other sheep had Appeal from District Court, Twin Falls been grazed thereon. Such grazing invaded County; Wm. A. Babcock, Judge.

no legal right of the partnership. One of the Action by William R. Leitch against the purposes of the provision of the statute above Owyhee Sheep & Land Company, a corpora- referred to is to protect the public range for tion, for damages for trespass under the two- the benefit of the live stock of the owner or mile limit law and on a homestead. Judg- possessory claimant within two miles of his ment for plaintiff, and defendant appeals. dwelling house. The respondent introduced

Idaho)

(193 P.)

no proof of damages sustained by him individually by reason of his live stock being deprived of the pasturage within two miles of his dwelling house. There was therefore no competent evidence submitted to the jury on this cause of action, and as to it the requested instruction should have been given.

In support of respondent's second cause of action, he introduced no competent evidence tending to show the extent of his damage. Proof of loss in the weight of the partnership lambs and loss in the wool clip of partnership sheep was not competent to establish damages to respondent resulting from the trespass on his homestead, nor the destruction of pasturage thereon. Respondent having, however, introduced evidence upon his second cause of action tending to establish that a trespass upon his land had been committed by appellant, it was not error for the court to refuse to give the instruction, requested by appellant, directing the jury to return a verdict in his favor as to the second cause of action.

The judgment is reversed, with instructions to dismiss respondent's first cause of action, and to grant a new trial as to the second cause of action. Costs are awarded to appellant.

MORGAN, C. J., and RICE, J., concur.

(33 Idaho, 291)

and decision by the court, comes now the court
and renders his decision, and orders judgment
entered in favor of the defendant and against
the plaintiffs, thereby dismissing plaintiff's com-
plaint.
"Judgment rendered December 31, 1917.
"F. J. Cowen, Judge.

"Filed December 31, 1917."

This is not a judgment, but an order for one, and is not appealable. Santti v. Hartman, 29 Idaho, 490, 161 Pac. 249, and cases therein cited.

On authority of the cases above mentioned, this appeal is dismissed. Costs awarded to respondent.

RICE and BUDGE, JJ., concur.

(33 Idaho, 287)

NIXON v. TONGREN. (No. 3326.) (Supreme Court of Idaho. Nov. 17, 1920.)

1. Judgment ~386(1)—No jurisdiction to vacate except upon timely motion.

The district court is without jurisdiction to entertain a motion to vacate a judgment upon any of the statutory grounds, unless the motion is made within the time limited by the statute.

2. Judgment 340-District court may vacate judgment which judgment roll shows to be void.

The district court may at any time vacate or set aside its judgment previously entered SEISSER et al. v. OREGON SHORT LINE when it is apparent from the face of the judg

R. CO.

(Supreme Court of Idaho. Nov. 17, 1920.) Appeal and error 133—No appeal from or. der for judgment.

An order for a judgment is not appealable.

Appeal from District Court, Bingham County; F. J. Cowen, Judge.

Suit to quiet title by H. F. Seisser and another against the Oregon Short Line Railroad Company. Decision on agreed statement of facts, ordering judgment for defendant, and plaintiffs appeal. Appeal dismissed. A. S. Dickinson, of Blackfoot, for appellants.

Geo. H. Smith, of Salt Lake City, Utah, and H. B. Thompson, of Pocatello, for respondent.

MORGAN, C. J. This case was submitted to the district court on an agreed statement of facts, in lieu of evidence, and the following decision was rendered:

"Judgment.

"The above-entitled matter having heretofore been taken under advisement for consideration

ment roll that such judgment is void.

3. Judgment 340-District court cannot vacate after loss of jurisdiction of motion to vacate.

When the district court has lost its jurisdiction to entertain a motion to vacate its judgIment, it is without jurisdiction to set its judgment aside unless from the face of the judgment roll it is void, except where an independent action has been brought for that purpose.

4. Judgment 279-Neither affidavit for nor order of publication are parts of judgment roll.

Under C. S. § 6901, in case the complaint be not answered by the defendant the judgment roll consists of the summons with the affidavit or proof of service, the complaint with a memorandum indorsed thereon that the default of the defendant in not answering was entered, and a copy of the judgment. Under this statute neither the affidavit for nor the order of publication is a part of the judgment roll.

Appeal from District Court, Twin Falls County; Wm. A. Babcock, Judge.

Action for divorce by John Tongren against Emma Tongren. Judgment for plaintiff by default, and, on respondent's motion,

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

W. E. Nixon, as administrator of the will annexed of John Tongren, deceased, was substituted as the party plaintiff, and judgment in the divorce suit was declared void and set aside and defendant permitted to answer, and from such order the administrator appeals. Order reversed.

H. C. Hazel, of Twin Falls, for appellant. H. J. Swanson and H. B. Thompson, both of Pocatello, for respondent.

motion was not made within the time limited by this statute. People v. Temple, 103 Cal. 447, 37 Pac. 414; People v. Davis, 143 Cal. 673, 77 Pac. 651. In the Temple Case the court not only announced the rule applicable to the case at bar, but pointed to the way out of the difficulty in the following language:

"When a judgment is not void upon its face, the court has no power to set it aside on mo

tion, unless the motion is made within a reasonable time, but resort should be had to an action, and all the parties interested should be notified and have an opportunity to be heard."

The court therefore was without jurisdiction to vacate or set aside the judgment previously entered, unless from the face of the judgment roll it was void.

BUDGE, J. On the 26th day of October, 1915, a judgment was entered in the district court for Twin Falls county in an action wherein John Tongren, now deceased, was plaintiff, and the respondent, Emma Tongren, defendant, dissolving the bonds of matrimony between the parties on the ground of de[2-4] C. S. § 6901, provides, in so far as its sertion. From the judgment roll it appears provisions are applicable to the point under that the service of summons purports to have discussion, that, in case the complaint be not been by publication. On the 23d day of answered by the defendant, the judgment March, 1918, respondent filed a motion in that roll shall consist of the summons with the action wherein she sought to have appellant, affidavit or proof of service, the complaint Nixon, as administrator with the will annex- with a memorandum indórsed thereon that ed of the estate of John Tongren, deceased, the default of the defendant in not answersubstituted as party plaintiff, and asked for ing was entered, and a copy of the judgment. an order declaring the judgment decreeing Under this section, this court held in O'Neill divorce void, for the reason that she had not V. Potvin, 13 Idaho, 721, 93 Pac. 20, 257, folbeen served in the manner prescribed by lowing the rule announced in Hahn v. Kelly, statute, and that the court had never acquir- 34 Cal. 391, 94 Am. Dec. 742, that neither the ed jurisdiction, and further asking that the affidavit for the order of publication nor the default be set aside and that she be permit-order was a part of the judgment roll, in efted to file her answer. On the 27th day of June, 1918, and after a hearing upon the motion, the court made an order substituting appellant as plaintiff in the action, declaring the judgment decreeing the divorce void, set-Davis, supra. In the O'Neill Case Chief Justing aside the default, and permitting respondent to file her answer. This appeal is

sion:

fect thereby overruling upon this point
Strode v. Strode, 6 Idaho, 67, 52 Pac. 161, 96
Am. St. Rep. 249, relied upon by respondent.
See, also, People v. Temple and People v.

tice Ailshie, in his concurring opinion, ex-
pressed the hope that the Legislature would
amend the statute so as to specifically re-
quire the affidavit and order for publication
to be made a part of the judgment roll, but
so far the Legislature of this state has made
no such amendment. The California statute
(Code Civ. Proc. § 670, subd. 1), however, has
been amended (St. 1895, p. 45) by adding
thereto the provision:

"And in case where the service so made be by publication, the affidavit for publication of summons, and the order directing the publication of summons, must also be included."

From an inspection of the judgment roll in "When from any cause the summons in an this case it must be said that there is nothaction has not been personally served on the ing on the face thereof to indicate that the defendant, the court may allow, on such terms service had by publication was defective or as may be just, such defendant, or his legal rep-that the judgment was void. The order of the resentative, at any time within one year after court declaring the judgment void was therethe rendition of any judgment in such action, fore erroneous. to answer to the merits of the original action."

Under this provision the court was without jurisdiction to entertain a motion to vacate the judgment for the obvious reason that the

The order is reversed. Costs are awarded to appellant.

MORGAN, C. J., and RICE, J., concur.