ment made by the House the change in the notice above refrred to, and when so amended by the House, "that the Senate do thereupon concur in all amendments made by the House, including the additional amendment herein set forth." The House amended the bill as recommended, and it was duly passed, and approved by the Governor February 15, 1901. The only change made in that section since that time was in the proviso which was changed by Chapter 7, S. L. 1909, taking away the power to license saloons outside of incorporated cities and towns, and was made to read as contained in said section 2833, Comp. Stat. 1910.

It would seem that the legislature could not have more clearly expressed its intention not to give to the commissioners any discretion to refuse a license to an applicant whom they found qualified as required, other than that contained in the proviso. The striking out of the bill as introduced, all of its provisions vesting the board with discretion, except in one particular, certainly can not be construed as a grant of further discretion. The language, "Provided, however, that said boards shall have power to refuse any license for the selling of liquors at any place outside of incorporated cities and towns", clearly implies that the legislature believed and understood that without such grant the board would be without authority to so refuse. If the legislature understood that the board was already vested with such discretion, then the proviso was of no force and meaningless. "A proviso is a clause added to a statute, or to a section or part thereof, which introduces a condition or limitation upon the operation of the enactment, or makes special provision for cases excepted from the general provisions of the law, or qualifies or restrains its generality, or excludes some possible ground of misinterpretation of its extent." (Black on Interpretation of Laws, 270.) Here the proviso was evidently intended to give to the board a discretion to grant or refuse to grant licenses outside of incorporated cities and towns, but not otherwise. We are of the opinion that the fact that certain persons remonstrated against the granting of a license to the relator for the reasons stated, or that the mem

bers of the board or any one of them was opposed to granting any liquor licenses in the county did not legally justify the board in refusing to issue the license; and that according to the admitted facts in this case the board had no discretion in the matter. Counsel have cited many cases more or less bearing upon the question, but we find but little assistance from them. on account of the difference in the language of the statutes in the several states, in many of which the board is expressly given full or limited discretion. We shall refer to a few only, cited by the county attorney. Smyth v. Butters et al., 38 Utah 151, 112 Pac. 809, 32 L. R. A. N. S. 393, is cited as in point. But we find the Utah statute contains this language: "Any application for such license may be refused for good cause, in the discretion of the board of trustees of the town, the city council of the city, or the board of county commissioners." Swift v. The People, 63 Ill. App. 453, was a case in which the ordinances provided, "The mayor of the city of Chicago shall from time to time grant licenses for the keeping of dram shops within the city of Chicago, to any person who shall apply to him in writing, upon said person furnishing sufficient evidence to satisfy him that he or she is a person of good moral character," etc. A license was refused by the mayor on the ground that the place where the business was proposed to be conducted was within a purely residence neighborhood, and that a saloon in such district would be a nuisance. The court stated that the establishment of a saloon at the place for which license was applied would be a nuisance, and held that "a court should not, by mandamus, compel the public officials to issue a license for the keeping of a saloon in a residence neighborhood, where a saloon will be a nuisance." A very different state of facts from those presented in the present case. Cases from North Carolina are cited. The latest case from that state to which our attention has been directed is Barnes v. Commissioners, 135 N. C. 27. The court in that case referred to earlier decisions, under a statute substantially like the one it was then considering, in which it had been held that the licensing officers possessed a limited legal discretion

and followed the decision in those cases. And in further support of its holding referred to the fact that in 1893 after those cases were decided the law was changed to read, "Upon the filing of such application and affidavit, the commissioners shall, without the exercise of discretion, grant an order to the sheriff to issue such license." In 1897, before the Barnes case was decided, the law was changed by striking out the words "without the exercise of discretion", and the words "may grant" substituted for the words "shall grant", indicating an intention.on the part of the legislature to vest at least some discretion in the commissioners. The court saying: "But this does not mean that they may use this discretion for the purpose of advancing or vindicating their own views or opinions upon the general policy of selling liquor." Without comment on the numerous other cases cited by counsel for the respective parties, we refer to the notes to Sherlock v. Stuart, 96 Mich. 193, 55 N. W. 845, 21 L. R. A. 580. In the case at bar the town authorities of the town of Guernsey have approved and recommended the issuance of a license to relator. And it is to the town council alone that the legislature has given direct authority to prohibit the sale of liquor in the town. Whether the board of county commissioners have any discretion in the matter, or implied authority to refuse a license to a duly qualified person for any cause, we need not determine. But we are convinced that the board had no right to refuse to do so for the reasons assigned and admitted to be the only reasons for so doing.

For the reasons stated, we are of the opinion that, upon the admitted facts in this case, the district court erred in refusing the writ of mandamus as prayed for, and that the judgment should be reversed, and the cause remanded for further proceedings not inconsistent herewith.

Reversed and remanded.

POTTER, C. J., and TIDBALL, District Judge, concur. BLYDENBURGH, J., being ill and unable to sit, Hon. V. J. TIDBALL, Judge of the Second Judicial District, was called in and sat in his stead.

ALLEN v. LEWIS.

(No. 925; Decided January 11th, 1919; 177 Pac. 433.) APPEAL AND ERROR-NEW TRIAL-AMENDMENT-RECORD ON APPEAL— ADDITIONS TO RECORD-REVIEW-REPEAL-STATUTES-CONSTRUCTION -INTENT — HEARING-TIME-TIME FOR TAKING APPEAL - JUDGMENT-PRIOR ADJUDICATION-MATTERS DETtermined—ReveRSAL— GROUNDS OF APPEAL INSUFFICIENCY OF EVIDENCE-WATERS AND WATER COURses-License-ADVERSE USE-ADVERSE POSSESSIONPOSSESSION UNDER MISTAKE-TRIAL-FINDINGS OF FACT AND CONCLUSIONS OF LAW-INCONSISTENCY OF FINDINGS AND CONCLUSIONS. 1. Under Laws 1917, Ch. 32, Section 10, authorizing court to award new trial to an appellant on the appeal record and specification of errors filed, within 15 days after notice from clerk, order granting new trial, entered after the 15 days, was properly amended to show that new trial was considered within time, but hearing by consent of parties was had after the 15 days.

2. That an appeal from an order granting a new trial under Laws 1917, Ch. 32, authorizing court to award new trial to appellant on appeal record and specification of errors, has been filed in the Supreme Court, does not deprive the trial court of the right to amend the order by the addition of facts nunc pro tunc.

3. Where an order amends an order granting a new trial, it may be brought into the record on appeal on a party's application.

4. Where an amendment of an order for new trial appealed from is incorporated into the record on appeal on a party's application, the record need not be returned for correction, since, under Supreme Court rule 12 (104 Pac. xii), omissions may be incorporated by requiring the clerk to certify thereto, or by granting leave to file a duly certified copy. 5. Laws 1917, Ch. 32, providing for a review by direct appeal from an order granting or refusing a new trial, does not repeal the provisions for review of a cause on error. 6. An affirmative statutory provision relating to the time or manner of performing official acts, unqualified by negative words, is directory rather than mandatory, though it is a question of intention to be ascertained from a consideration of the entire act, its nature, object, and consequences of construction.

7. The provision of laws 1917, c. 32, authorizing court to award new trial to an appellant on the appeal record and specification of errors filed, that review of record must be

had in 20 days, may be waived by consent, and the record retained in the trial court until the expiration of the extended time.

8. Where, under Laws 1917, c. 32, Sec. 10, authorizing court to award new trial to an appellant on appeal record and specification of errors, within 20 days after filing of specifications, the court granted a new trial, but by consent of parties order was not made until after the 20 days, such action did not preclude appeal by other party, it being provided that an appeal might be taken from the order granting the new trial.

9. A prior adjudication for plaintiff against defendant's assertion of title to the land, in a suit by plaintiff against defendant to recover the possession of crops grown by defendant on such land, did not bar defendant, in a subsequent suit by plaintiff for trespass in maintaining a flume and ditch across plaintiff's land, from asserting title to the right of way, since he might possess a right of way without owning the land.

10. To justify a reversal, in the absence of a record showing of the reasons on which the trial court acted in granting a new trial to plaintiff, there must be nothing in the specifications of error which would entitle plaintiff to a new trial.

11. In trespass for maintaining a flume over plaintiff's land for which defendant claimed to have a right of way by consent of a prior owner, new trial to plaintiff on ground that evidence did not show that such consent was given with full knowledge of the location of the true line held not

error.

12. Where one locates a ditch and flume on another's land with consent and permission, and relies on the license therefor, he cannot claim a right of way by adverse possession. 13. Adverse possession cannot be based entirely on possession under a mistaken belief that a division fence built by claimant was on the true line.

14. In an action for trespass by the maintenance of a flume over plaintiff's land, claimed by defendant to be maintained by consent of former owner, findings of fact that such owner consented, and that defendant's use of the ditch and flume was adverse to such former owner, and conclusions of law that defendant's entry was under license, and that defendant had obtained title by adverse possession, were inconsistent.