"The right of property is a legal right and not a natural right, and it must be measured always by reference to the rights of others and the public.' If this be true, then there can be no universal law which, in the absence of constitutional restrictions, forbids a state from providing for the condemnation of private ways of necessity in the furtherance of the development of its material resources."

sions, the modes, conditions and agencies for its appropriation."

Under the provisions of title 13, Revised Statutes 1913 (Civ. Code, pars. 3071-3097), private property may be taken for public uses only. In that title, the lawmaking body of the state has defined "eminent domain" as the right of the people or government to take private property for public use, and has

"We think the Legislature acted within its constitutional powers in defining a private way of necessity and establishing the procedure for making the right available. As defined, it is promotive of the public welfare, in that it prevents a private individual from bottling up a portion of the resources of the state."

Lewis on Eminent Domain (3d Ed.) § 367,

says:

"This power (eminent domain), with all its incidents, is vested in the Legislatures of the several states by the general grant of legislative powers contained in the Constitution. From this it follows: First, that the power can only be exercised by virtue of a legislative enactment; second, that the time, manner, and occasion of its exercise are wholly in the control and discretion of the Legislature, except as restrained by the Constitution. It lies in its discretion to determine to what extent, on what occasions, and under what circumstances this power shall be exercised.'"

Our Constitution does not define "private ways of necessity," nor has the lawmaking body defined the expression. While, as above stated, we are of the opinion that it is used in the Constitution somewhat generically, and therefore includes all necessary private ways, we think it is the province of the Legislature, rather than the courts, to define the words. The power to appropriate private property to the use of another, whether public or private, lies dormant in the state until the Legislature authorizes its use, designates agents, prescribes the purposes and extent of use. In other words, before this sovereign power of the state may be exercised, he who claims the right must point out the modes, conditions, and agencies of appropriation as fixed and granted by legislative expression. As was said in Tacoma v. State, 4 Wash. 64, 66, 29 Pac. 847:

"The exercise of the power of eminent domain is so high and peculiar a thing that nothing less than an act of the Legislature of a state can support it, and that act must not only confer the power, but prescribe the method by which

it is to be done."

The same decision quotes Judge Cooley's language approvingly:

"The right to appropriate private property to public uses lies dormant in the state, until legislative action is had, pointing out the occa

may be exercised. As the tunnel site here sought to be condemned is clearly for the individual uses and purposes of the appellant for the profitable mining and milling of its private ores, it is indispensably essential that the Legislature authorize its condemnation by direct and unambiguous language before the court could entertain this proceeding. The lawmaking body has not defined a tunnel such as the one here desired as private way of necessity, and therefore the power of condemnation in this instance lies dormant. The constitutional provision to the effect that private property may be condemned for private ways of necessity not having been supplemented by proper legislation defining what "private ways of necessity" are, the judgment

of the trial court must be affirmed.

The order of the lower court is affirmed.
FRANKLIN, C. J., concurs.

CUNNINGHAM, J. (concurring specially). I concur in the order affirming the judgment of the lower court. My reasons for so concurring in that order, briefly stated, are because the allegations of the complaint show that the purpose for which the right of way is sought to be taken is clearly for a private use and not a public use, and therefore an act of taking for the purposes alleged would clearly be an unconstitutional exercise of the right of eminent domain. Section 17, art. 2, State Constitution.

In determining the question of what is a public use, Mr. Justice Cooley (Const. Lim. p. 532) says:

"The reasons of the case, and the settled practice of free governments, must be our guides in determining what is, or is not, to be regarded such where the government is supplying its a public use; and that only can be considered own needs, or is furnishing facilities for its citizens in regard to those matters of public necessity, convenience, or welfare, which, on account of their peculiar character, and the difficulty-perhaps impossibility-of making provision for them otherwise, it is alike proper, useful, and needful for the government to provide."

Many cases have negatively stated the rule by which the courts may determine whether a given use is public or private, but leave the matter open to modification whenever local circumstances make a change necessary. The Supreme Court of Minnesota in the case of Minnesota Canal & Power Co. v. Koochiching Co., 97 Minn. 429, 107 N. W. 405, 5 L. R. A. (N. S.) 638, 7 Ann. Cas. 1182, states such rule thus:

"A use is not public unless the public, under proper police regulation, has the right to resort

to the property for the use for which it is acquired independently of the mere will or caprice of the person or corporation in which the title of the property would vest upon condemnation."

To the same effect are the following cases: Brown v. Gerald, 100 Me. 351, 61 Atl. 785, 70 L. R. A. 472, 109 Am. St. Rep. 526; Gaylord v. Sanitary Dist., 204 Ill. 576, 68 N. E. 522, 63 L. R. A. 582, 98 Am. St. Rep. 235; Coates v. Campbell, 37 Minn. 498, 35 N. W. 366; Board of Health v. Van Hoesen, 87 Mich. 533, 49 N. W. 894, 14 L. R. A. 114; Fallsburg Power & Mfg. Co. v. Alexander, 101 Va. 98, 43 S. E. 194, 61 L. R. A. 129, 99 Am. St. Rep. 855; Cozard v. Kanawha Hardwood Co., 139 N. C. 283, 51 S. E. 932, 1 L. R. A. (N. S.) 969, 111 Am. St. Rep. 779; Healy Lumber Co. v. Morris, 33 Wash. 490, 74 Pac. 681, 63 L. R. A. 820, 99 Am. St. Rep. 964; In re New York, 135 N. Y. 253, 31 N. E. 1043, 31 Am. St. Rep. 828; Ulmer v. Lime Rock R. Co., 98 Me. 579, 57 Atl. 1001, 66 L. R. A. 387; Howard Mill Co. v. Lumber Co., 77 Kan. 599, 95 Pac. 559, 18 L. R. A. (N. S.) 356; Lake Koen Nav. Res. & Irrig. Co. v. Klein, 63 Kan. 493, 65 Pac. 687. I consider these authorities of controlling weight upon the question. Many others can be cited, such as Lewis on Eminent Domain and the cases cited therein, and Cooley's Constitutional Limitations and the cases cited therein. More specific references need not be given in this kind of opinion.

I consider that no other question is involved in this appeal, and a decision of that question disposes of the cause. I therefore concur in affirming the judgment.

(93 Kan. 668)

BYLAND v. E. I. DU PONT DE NEMOURS POWDER CO. (No. 18884.) (Supreme Court of Kansas. Jan. 9, 1915.) (Syllabus by the Court.)

DEMURRER TO EVIDENCE.

In an action for damages caused by an explosion of defendant's powder mill, the former decision affirming the judgment which sustained a demurrer to the plaintiff's evidence is adhered to.

On petition for rehearing. Rehearing denied. For former opinion, see 93 Kan. 288, 144 Pac. 251.

,PORTER, J. In a petition for rehearing complaint is made that the second paragraph of the syllabus (93 Kan. 288, 144 Pac. 251) is misleading because it leaves the inference that appellant, after alleging the specific acts of negligence relied upon, had contented himself by merely proving that an explosion occurred, and had attempted to invoke the doctrine of res ipsa loquitur. The paragraph in question was, of course, intended to be read in connection with the preceding paragraph, wherein it was ruled that the trial court correctly sustained the demurrer to the evidence for the reason that there was no substantial proof, direct or circumstantial, fairly tending to prove the cause of the

of the court that in appellant's brief it was claimed, first, that there was sufficient proof of the specific acts of negligence alleged to make a prima facie case, and that the cause should have gone to the jury. Upon this feature of the case appellant's former contention is reargued at much length, but nothing new is called to our attention which leads to a different conclusion from that reached at the hearing. The second claim urged in the briefs was substantially this: Having offered proof of numerous dangerous conditions at the mill permitted by appellee to exist, the doctrine of res ipsa loquitur "then applies"; and cases were cited to the effect that the mere fact of an explosion of a powder mill is prima facie evidence of negligence. Two reasons were stated in the opinion which prevent the appellant from invoking the doctrine: First, having alleged the specific acts of negligence relied upon, he must recover, if at all, upon proof of those or of some of them sufficient to sustain a verdict. Second, the mere occurrence of the explosion is not, under the decisions cited in the opinion, sufficient to support a presumption of negligence in favor of an injured employé.

The syllabus therefore merely followed the opinion in stating that, having failed to produce evidence that the explosion was caused by the specific negligence alleged, the doctrine of res ipsa loquitur could not be relied upon.

There is a complaint, too, that the opinion does some injustice to appellant's claim respecting the Factory Act. From a careful re-examination of the briefs, it appears that appellant's third contention was substantially as stated in the opinion, that, without conceding any failure of proof of the cause of action at the common law, he relied also upon the Factory Act. We held that none of the provisions of the Factory Act apply, and, having already disposed of the other contentions of appellant, the opinion proceeded upon the theory that the judgment must be affirmed. It is true the opinion states that "no evidence was offered to show that they or any other person had made any change in the screens on the day before the accident." It was not intended by this statement to intimate that, if evidence had been offered to show that the foreman or repair man or some other employé had made a change in the screens shortly before the accident, there would have been a failure of proof because the change was not shown to have been made at the particular date mentioned in the petition.

Decisions are cited in the opinion wherein the facts upon which they turned were different from those involved in the present action. They were referred to as illustrating some principle of law which the court believed was involved in a discussion of the contentions raised by appellant.

That appellant was not willing, as stated in the opinion, to rest his case alone upon

"The evidence also shows that defendant was negligent in not requiring the pressmen to change their shoes just as they entered the door of the mill instead of at the washhouse where they must walk over the dangerous grit on the paths and tramways before going into the mill. The defendant was very careless in permitting the horse to walk from the cinder, sulphur rock and clay ballast, into the powder

on the floor," etc.

"From the circumstances of the men walking over the cinder covered path and tramway into the raw mixed explosive material in the press mill and the horses walking on the clay, sand, - cinders, sulphur rock, etc., at the side of the track on the tramway and from there into this explosive material in the mill, we think the evidence shows, in addition to the heat caused by the friction of a butterfly thumb-nut hanging in the rolls at the time of the explosion, that a piece of this grit from the paths and tramways probably came in contact with the pinched thumb-nut, and produced a spark or additional friction which ignited the surrounding powder and caused the explosion." (Italics ours.)

In the former opinion it was held that the

cause could have been submitted to the jury only for the purpose of permitting them to speculate and conjecture what caused the explosion. We adhere to this conclusion, and the petition for rehearing will be denied. All the Justices concurring.

(19 N. M. 422)

MCCOY et al. v. TORRANCE COUNTY SAV-
INGS BANK et al. (No. 1657.)
(Supreme Court of New Mexico. Aug. 27, 1914.
Rehearing Denied Nov. 28, 1914.)

(Syllabus by the Court.)

1. PLEADING (§ 345*)-ALLEGATION OF CONDITION PRECEDENT NECESSITY JUDGMENT ON PLEADINGS.

-

When plaintiff's right of action depends upon a condition precedent, he must allege in his complaint the fulfillment of such condition, or a legal excuse for its nonfulfillment. In default of such allegations, it is no error for the court to render judgment against him on motion for judgment on the pleadings.

[Ed. Note. For other cases, see Pleading, Cent. Dig. §§ 1055-1059; Dec. Dig. § 345.*] 2. INJUNCTION_(§ 187*) — DISSOLUTION-AsSESSMENT OF DAMAGES-EVIDENCE.

Upon the dissolution of an injunction, a court of equity has no power to assess damages resulting from the issuance of the same, with out hearing evidence as to the character and extent of the damages actually sustained.

[Ed. Note.-For other cases, see Injunction, Cent. Dig. 88 398, 406, 407; Dec. Dig. § 187.*1 Appeal from District Court, Torrance County; E. L. Medler, Judge.

Injunction by W. M. McCoy and another, partners as W. M. McCoy & Co., against the Torrance County Savings Bank, a corporation, and another. From judgment for defendants, plaintiffs appeal. Affirmed.

On January 25, 1912, the appellees took judgment against the appellants, and Ben

"Memoranda agreement between the Torrance County Savings Bank and W. M. McCoy & Co. relative to judgment entered this day in cause No. 225, Torrance county:

"(1) In the event of a deficiency judgment in said cause which W. M. McCoy may have to pay, said company is to be allowed 2 per cent. discount on entire sum on which attorney's fee is computed in judgment.

McCoy & Co. of one year from this date on any "(2) Extension of time of payment to W. M. deficiency they may have to pay at 10 per cent. interest; said sum to be secured by such security as H. B. Jones and McCoy & Co. may agree upon.

"(3) Bank is to exhaust all property of B. B. Spencer and wife subject to execution before issuing execution against W. M. McCoy & Co. for any deficiency judgment.

"(4) Bank agrees to co-operate with W. M. McCoy & Co. in bringing Spencer and wife into court on supplementary proceedings; McCoy & Co. to take initiative in any such proceedings and pay all expenses of same. ascertained, then security is to be given by W. "(5) As soon as said deficiency judgment is M. McCoy & Co. to said bank as above provided. "[Signed] C. E. McGinnis, Atty. "[Signed] W. M. McCoy & Co. "By J. P. Dunlavy." Thereafter, the property mortgaged having been duly sold, there was a deficiency judgment, and the appellants and H. B. Jones having failed to agree upon the security for the payment of such judgment, the appellee, without waiting for the termination of the year specified had execution issue against the appellants and placed the same in the hands of the sheriff. To prevent the levy of this execution appellants obtained a temporary injunction, which was afterwards dissolved on the motion of appellee for judgment on the pleadings, and in the same action the court, without hearing any evidence, rendered judgment against the appellants for damages occasioned by the issuance of said injunction. The appeal from the dissolution of this injunction by the lower court. and from the judgment for damages so rendered, is now before us for consideration.

H. S. Bowman and M. T. Dunlavy, both of Santa Fé, for appellants. McGinnis & Hedgcock, of Santa Rosa, for appellees.

LEIB, District Judge (after stating the facts as above). Two questions are all that need be considered on this appeal:

[1] 1. Was the failure of appellants to secure the payment of the deficiency judgment by security, to be agreed upon by them and H. B. Jones, such noncompliance with their contract as to release the appellee from its obligation? In their complaint appellants do not allege that they furnished the bank such security, nor do they allege a legal excuse for not doing so. If the furnishing of such security was a condition precedent to the forbearance of the bank in issuing execution for one year, then, unless such secu

rity was furnished, the bank was released from its obligation under the contract. That such security was furnished, or a legal excuse for their failure to do so, must have been alleged by appellants in their complaint in order to state a cause of action. In ordinary language, that part of the contract which we need to consider was an agreement of appellee to extend the time for payment of the deficiency judgment for one year, on condition that appellants give security for such payment. It is susceptible of no other meaning. The time when such security was to be given was fixed; that is, as soon as the amount of the deficiency judgment was ascertained. Provisions were made for determining the character and sufficiency of such security. Parties were designated to pass upon the same. Contracts should be given a reasonable construction. We can see in the contract before us no other reasonable meaning than that appellants promised to secure the deficiency judgment, on condition that appellee would not have execution issue for one year. Such promise is the only consideration moving to the appellee. Until appellants complied with the conditions of that promise, they were not in position to restrain appellee from proceeding, in legal manner, to enforce its judgment. To hold otherwise would put it in the power of appellants to refuse arbitrarily to agree upon any security and thereby reap the same bene fits they would have derived from compliance with their contract in every particular. The law, logically construed, cannot arrive at such an absurdity. As appellants failed to allege performance on their part of a condition precedent by them to be performed, and failed to allege a legal excuse for its nonperformance, their complaint did not state a cause of action; hence the court below committed no error in dissolving the temporary injunction on motion for judgment on the pleadings. 9 Cyc. 699; Patrick et al. v. Colorado Smelting Co., 20 Colo. 268, 38 Pac. 236.

has all the elements of the trial of an issue raised by the pleadings. Nothing should be allowed as damages which are not the actual, natural, and proximate results of the wrong committed. Clearly this could not be determined without the hearing of evidence in the manner above indicated.

"Where damages are assessed by the court upon the dissolution of an injunction, there must be evidence supporting such assessment. The record must show the evidence upon which the court assessed the damages, especially where there is no such findings of fact in the decree ing the evidence. There is no presumption in as will dispense with the necessity of preservsuch cases to aid the omission of the evidence from the record." 16 A. & E. Enc. Law, 461.

We therefore amend the decree of the lower court by striking therefrom the judgment against appellants for damages, without prejudice, of course, to a proper action on the bond, and, as so amended, the same is hereby affirmed, and it is so ordered.

ROBERTS, C. J., and HANNA, J., concur.

(82 Wash. 365)

STATE v. SHUTZLER. (No. 12183.) (Supreme Court of Washington. Nov. 27, 1914.)

CRIMINAL LAW (§ 636*)-TRIAL-INSTRUCTION OF JURY-PRESENCE OF ACCUSED.

tried for larceny, after being out a considerable A jury before whom accused had been time, were brought into court on Sunday afternoon at the direction of the judge, in the absence of accused without fault, and in the absence of his attorneys, with a purpose to discharge them. On ascertaining, however, that they stood eleven to one, the judge stated that, while the court could not and would not advise any juror to agree to a verdict contrary to his own judgment and conscience, it was proper for such juror to consider whether or not he might be mistaken, and added that he would request them to return to their jury room for further deliberation, and it was their duty to carefully consider the evidence under the instructions of the court, and endeavor, if possible, to arrive at a verdict. Held, that such procedure constituted a violation of accused's constitutional right to appear and defend in person and by counsel, guaranteed by Const. art. 1, § 22, and Rem. & Bal. Code, § 2145, which right pertains to accused at every stage of the trial when his substantial rights may be

affected.

[Ed. Note.-For other cases. see Criminal Law, Cent. Dig. §§ 1465-1482, 2120; Dec. Dig. § 636.*]

Court, Pierce County; M. L. Clifford, Judge. Department 2. Appeal from Superior Gus Shutzler was convicted of grand larceny, and he appeals. Reversed and remanded.

[2] 2. Did the court err at the hearing on said motion in rendering judgment for damages against appellants? Regardless of whether or not a court of equity, in the absence of legislative authority, upon dissolving an injunction, has power to enforce the payment of damages in the original action, we think the court erred in assessing damages in this case. The transcript before us shows that no evidence on the question of damages was heard by the court. We cannot conceive how damages could be assessed without taking evidence as to the character and extent of the same. In a contested case, there should be an opportunity given for the cross-examination of witnesses, and for the presentation of counter testimony. A hearing as to damages sustained by the issuance of an injunction, on the dissolution of the same,

P. L. Pendleton, of Tacoma (G. J. Langford and Browder D. Brown, both of Tacoma, of counsel), for appellant. Lorenzo Dow and W. D. Askren, both of Tacoma, for the State.

FULLERTON, J. Gus Shutzler was convicted of grand larceny, and appeals from

He assigns as error that the trial court on a legal holiday, in the absence of and without notice to himself or his attorneys, after the jury had been sent out to deliberate on their verdict, called them into the courtroom and gave them certain additional instructions. The facts giving rise to the contention are well stated by the trial judge in the following language:

"As stated in these affidavits [affidavits filed in support of a motion for a new trial], the jury had been deliberating upon their verdict from about 4 o'clock p. m. of the 31st day of January, until approximately 5 o'clock on the 1st day of February, 1914. At this time, on Sunday afternoon, the judge, being at the courthouse, was informed by the bailiff in charge of the jury that it was impossible for the jury to agree; and the court understood this information to come from the jurors, and, so understanding, instructed the bailiff to bring the jury into court for the purpose of being discharged, and they were so brought in, the court having in mind to discharge them if this report proved to be true. When brought into court, the judge asked them if they were able to agree upon a verdict. They answered they were not. The court then further inquired if they thought, if more time were given them for deliberation, they might arrive at a verdict, when a portion of them said they thought they could, and others of them stated they did not think they could arrive at a verdict. Thereupon the court said to the jury, in substance, that it was a matter of importance that the jury, if possible, come to a conclusion and arrive at a verdict, inasmuch as it was a matter of considerable expense to the county, and would be additional expense to retry the case. Some one of the jurors then informed the court that they stood 11 to 1, but did not indicate, nor was it known, upon which side the 11 were. The judge then said to the jurors that, inasmuch as but one of the number disagreed with his fellow jurors the court could not and would not advise any juror to agree to a verdict contrary to his own judgment and conscience, but that it was proper for a juror under such circumstances to consider whether or not he might be mistaken in his views. The judge then added that he would request them to return to their jury room for further deliberation, and that it was their duty to carefully consider the evidence under the instructions of the court, and endeavor, if possible, to arrive at a verdict; and some time later, probably about three hours later, the jurors arrived at a verdict, which was returned into court."

ant and his attorneys. The fact that, when charged, a situation was revealed which was called into court for the purpose of being disunknown to the court, required the court to take action of some character with reference to what was shown to be the condition of the jury. It was within the reasonable discretion of the court to determine whether they should be discharged, or sent back to further deliberation. What was said by the court at the time was in no sense an instruction on the evidence, or anything connected with the case. It was a general admonition to jurors who were engaged in the deliberation upon their verdict, and was proper."

It is our opinion that the assignment of error is well taken. It is a constitutional right of the accused in a criminal prosecution to appear and defend in person and by counsel (Const. art. 1, § 22); and by statute (Rem. & Bal. Code, § 2145) it is provided that no person prosecuted for an offense punishable by death, or by confinement in the penitentiary or in the county jail, shall be tried unless personally present during the trial. These are rights that pertain to the accused at every stage of the trial when his substantial rights may be affected-the giving to the jury special instructions during the period of their deliberations being no exception-and any denial of the right without the fault of the accused is conclusively presumed to be prejudicial. State v. Wroth, 15 Wash. 621, 47 Pac. 106; State v. Beaudin, 76 Wash. 306, 136 Pac. 137; 1 Bishop's New Criminal Procedure, § 273; Hopt v. Utah, 110 U. S. 574, 4 Sup. Ct. 202, 28 L. Ed. 262. Since it is the right of the accused to be present at every stage of the trial when his substantial rights may be affected, it is no answer to say that in the particular proceeding nothing was done which might not lawfully have been done had he been personally present. The excuse, if good for the particular proceeding, would be good for the entire proceedings; the result being a trial and conviction without his presence at all. The wrong lies in the act itself, in the violation of the constitutional and statutory right of the accused to be present and defend in person and by counsel.

In the present case the accused was absent without fault. It was a legal holiday, a day on which the courthouse doors could have been lawfully locked against him. It was enough that he remained within call, and that he did so remain is evidenced by the fact that he was readily found after the jury had announced an agreement upon a verdict. The judgment is reversed and remanded for

CROW, C. J., and MOUNT, MAIN, and ELLIS, JJ., concur.