which its judgment is to rest, and its decision thereon is presumed to have been made upon evidence sufficient to sustain it. Its determination upon this question is to be made upon evidence of some nature, and, whether this evidence is sufficient or insufficient to support its conclusion thereon, it has the jurisdiction to make the determination, and if its conclusion is incorrect it is merely error, which can be reviewed only upon a direct appeal. Even though it should determine the question without any evidence before it, the same presumption of verity attends its decision upon this point as upon any other issue which it may determine without evidence. Nor does this presumption of its jurisdiction to make the decision depend upon the existence of any record of the decision." We think the rule above stated applies equally to a judgment obtained against a nonresident by publication. The court has jurisdiction in such case, provided certain things are done. Notice must be given as provided by the statutes of the state. The court must determine, before giving judgment, that such things have been done. The presumption in support of a judgment of a court of general jurisdiction is not made to depend upon the way in which a summons is required to be served. The rights of nonresidents are no greater than the rights of residents when such nonresidents are brought before the court by proper process. The way of bringing them into court may be different, but in all cases where a judgment is collaterally attacked we must presume, in the absence of anything appearing to the contrary, that they were properly brought in. The presumption is the same where service has been made by publication as where personal service has been had. It is necessary that confidence, should be reposed in courts of such high character. It is the only safe rule for the protection of persons and property. If such judgments are erroneous, or if they were in fact rendered without jurisdiction, they may be reversed on appeal, by new trial, or in some cases by proceedings in a court of equity; but, when not questioned in some direct proceeding, the good of society demands that they shall not be collaterally attacked unless void on their face. Such is the rule stated in most of the late cases. Iiams v. Root, 22 Tex. Civ. App. 413, 55 S. W. 411; Buse v. Bartlett, 1 Tex. Civ. App. 335, 21 S. W. 52; Stewart v. Anderson, 70 Tex. 588, 8 S. W. 295; Thoms v. King, 95 Tenn. 66, 31 S. W. 983; Gemmel v. Rice and Wife, 13 Minn. 400 (Gil. 371); Hoagland v. Hoagland, 19 Utah, 103, 57 Pac. 20; Bank of Colfax v. Richardson, 34 Or. 518, 54 Pac. 359, 75 Am. St. Rep. 664; Black on Judgments, vol. 1, § 281, and cases cited. Appellant contends that the rule is declared in Galpin v. Page, 18 Wall. 350, 21 L. Ed. 959, to be that no presumption shall be indulged in favor of a judgment against a nonresident by publication. There are expres sions in the opinion very much tending in that direction. But whatever may have been said in Galpin v. Page must yield to the later and better rule laid down in Applegate v. Lexington, etc., Mining Co., 117 U. S. 255, 6 Sup. Ct. 742, 29 L. Ed. 892, where it is said: "Where a court of general jurisdiction is authorized in a proceeding, either statutory or at law or in equity, to bring in, by publication or other substituted service, nonresident defendants interested in or having a lien upon property lying within its territorial jurisdiction, but is not required to place the proof of service upon the record. and the court orders such substituted service, it will be presumed, in favor of the jurisdiction, that service was made as ordered, although no evidence thereof appears of record, and the judgment of the court, so far as it affects such property, will be valid." It is said in Black on Judgments, vol. 1, § 281, in commenting upon some of the earlier cases including Galpin v. Page: "But, on the other hand, most of the later decisions contend, and with much show of reason, that such a rule is arbitrary and illogical; for.. say they, the court is none the less a court of general jurisdiction because in this instance the Legislature prescribes a special mode for the exercise of its powers. According to this view, in cases of constructive service the record, if silent or incomplete, should be aided by the same presumptions which obtain in the case of ordinary judgments founded upon personal service." And, after referring to the later decisions, it is said in Freeman on Judgments, vol. 1, § 127: "The position is taken that presumptions of regularity are applicable to the proceedings of courts of record, not because of the particular means which these tribunals happen to employ, under the authority of the law, for the purpose of acquiring jurisdiction of the defendant, but because of the high character of the courts themselves, and this character is essentially the same in all cases, irrespective of the methods employed in the service of process." In this case the order for publication does not appear in the record, and hence appellant claims that the rule stated in Applegate v. Lexington, etc., Mining Co., supra, does not apply. It is sufficient to say that the order is no part of the judgment roll, and cannot be considered. In re Newman's Estate, 75 Cal. 220, 16 Pac. 887, 7 Am. St. Rep. 146; Sichler v. Look, 93 Cal. 603, 29 Pac. 220. In the latter case it was held on direct appeal that, where a summons was served by publication "in support of the judgment of the court, it will be presumed upon a direct appeal, in the absence of any evidence to the contrary, that this mode of service was made under a proper order of the court therefor, and that a sufficient affidavit for such order was presented to the court before making the order." In the case at bar the recital in the judgment is that the defendants have been duly notified by publication more than 30 days before the first day of the term of court. We must presume that an order was made for the publication of the notice, and that the notice was given as the laws of Missouri provide. The record does not show that the court did not have jurisdiction. It is claimed by appellant that the judgment should have been that the property be restored to the plaintiff, and not for the value of the property. The complaint, which is verified, alleges that the property has been sold by defendants and the proceeds thereof converted to their own use. The answer does not deny this. Therefore it was not necessary to find upon the question, and it would have been useless to make a judgment in the alternative. We find no error in the record. It is advised that the judgment be affirmed. 1. Const. art. 12, § 3, and Pol. Code, § 3672, declare that all mines and mining claims, after purchase from the government, shall be taxed at the price paid the government, and that if the surface ground, or any portion thereof, is valuable for any other purpose than mining, it shall be taxed at its value for such other purpose. A mining claim was within the limits of a city, and, while it had never been made an addition to the city, the owners had made a plat, and sold lots and blocks from the claim for town-site purposes; describing the portions sold by metes and bounds. The owners of the claim claimed that a portion thereof was reserved for mining purposes, and not taxable for any purpose other than mining; and it appeared that a shaft had once been sunk on such reserve, but that it had been abandoned, and that the lot on which the shaft was sunk had been sold. Held, that the so-called reserve was taxable for purposes other than mining. Commissioners' Opinion. Appeal from District Court, Silver Bow County; Jno. B. McClernan, Judge. Suit by James A. Murray and others against Thomas R. Hinds, as treasurer of Silver Bow county, and others. From a judgment for defendants, plaintiffs appeal. Affirmed. John J. McHatton and J. E. Murray, for appellants. Kirk & Clinton, for respondents. CALLAWAY, C. Appellants, James A. Murray, the Montana Loan & Realty Company, and the Home Investment & Realty Company, as owners of the Railroad lode claim, seek to enjoin the collection of cer tain taxes levied upon a portion of the claim which they allege to be reserved for mining purposes. During the years in controversy appellants paid the taxes due upon the mining claim as such. The taxes which are objected to were levied for county and municipal purposes upon the basis that the surface of the claim has an independent value, and is used for other than mining purposes. At the close of appellants' case, respondents moved for a nonsuit, which was granted. Appellants moved for a new trial, which was denied, whereupon they appealed from the judgment and the order denying their motion for a new trial. Section 3, art. 12, of the Constitution, declares, in part: "All mines and mining claims, both placer and rock in place, containing or bearing gold, silver, copper, lead, coal or other valuable mineral deposits, after purchase thereof from the United States, shall be taxed at the price paid the United States therefor, unless the surface ground, or some part thereof, of such mine or claim, is used for other than mining purposes and has a separate and independent value for such other purposes, in which case said surface ground, or any part thereof, so used for other than mining purposes, shall be taxed at its value for such other purposes, as provided by law." Section 3672 of the Political Code follows the language of the above section of the Constitution, and provides that "said surface ground, or any part thereof, so used for other than mining purposes shall be taxed at its full value for such other purposes." The proposition submitted, then, is simple: If the surface ground of the Railroad lode which is in controversy in this action, at the time the tax was levied, was used for other than mining purposes, and had a separate and independent value for such other purposes, the tax, if regularly levied, should be sustained. That the surface of the Railroad lode at the time in question had a separate and independent value for town-site purposes is, upon the record, indubitable. Was it used for town-site purposes? It appears to be within the corporate limits of the city of Butte. If its owners had laid out the surface of the Railroad lode into blocks, lots, streets, and alleys, filed a plat thereof with the county clerk, and, by compliance with the law provided in such cases, made the surface of the Railroad lode claim an addition to the city of Butte, and sold the lots for town-site purposes, there could be no question but what the vendors made use of the lots so sold for town-site purposes. Appellants introduced in evidence a piat marked "South Side Addition," which shows the surface of the Railroad claim to have been divided into blocks, lots, streets, and alleys. Parts of the streets and alleys appear to have been condemned as such by the city of Butte. The blocks, lots, and streets on the Railroad claim conform to the streets and claim an addition to the city of Butte. They divided it into blocks and lots conforming to the streets and alleys of Butte, and sold the same as favorable opportunity offered. If they once did reserve a portion of the premises, with the intention of using the same for mining purposes, that intention, as shown by their acts, was abandoned. The property was platted and either sold or held for sale for town-site purposes. When the surface of the Railroad claim became of an independent value for town-site purposes, and was used as such, it became subject to taxation under the Constitution and statutes. Appellants have failed to prove that the tax complained of does not lawfully attach to the property in controversy, and upon that issue the holding of the lower court was correct. Merely claiming a portion of the premises as reserved for mining purposes, and at the same time disclosing a state of facts abso alleys of Butte as they existed at the time of the trial. The part claimed as reserved for mining purposes is divided into blocks and lots. The witness Cobban testified: "As to whether or not that claim, or any part of it, was ever platted by either of the owners of the claim, or any one representing it, is a kind of a hard question to answer. The claim was platted for private use, and it was afterward used for private plat. There never was a plat filed of that claim, and no record was ever made of the plat. The lots on Wyoming street originally were, I think, sixty feet in width and 110 feet long. This was in the reserved portion, that I have referred to." Further on he said: "The property described in the complaint as being that which Mr. Hinds, as treasurer of Silver Bow county, has advertised for sale and threatens to sell, I suppose, has reference to the South Side Addition, or the Railroad lode." The record discloses affirmatively that the great-lutely inconsistent with the basis of their er portion of the surface of the Railroad claim has been sold for town-site purposes, and is built up as a part of the city of Butte. The lots were not sold and conveyed by number of the lot and block, but by metes and bounds, conforming to the lots and blocks as platted. Appellant Murray so conveyed considerable portions of it. The Thompson Investment Company, a real estate agency, and Messrs. Cobban & Casey, real estate agents, at different times, had charge of the property for the purpose of disposing of it. Mr. Casey testified: "There was a mineral reserve made on that lode claim, the western boundary of which was Wyoming street, and this so-called Indiana avenue. That avenue was not in existence at that time, but I know that there was a solid block between that and Wyoming street, which was reserved for a shaft for mining purposes." No mining appears to have been done upon the so-called reserve, except that in 1893 or 1894 a shaft about 30 feet deep was sunk on what is designated as lot 4 in block 3. This lot was afterwards sold. Indeed, the west half of the "solid block" referred to by Mr. Casey, as indicated by the map marked "Exhibit A," is covered with buildings, as is lot 17 on the easterly half. The so-called reserve apparently consists of 6 lots and two fractional lots on the easterly side, and approximately 3% lots on the southerly side, of block 3. At any rate, all the other lots appear to have been built upon, and so clearly used for town-site purposes. Now as to the reserve as last defined: The witness Corbett, a real estate agent, testified that while he was with the Thompson Investment Company that concern was instructed not to sell a portion of the property which corresponds to block 3, but said "it was later on segregated and sold." No explanation of this statement was made. It thus appears that the owners of the Railroad lode accomplished every purpose which they could have brought about, had they formally made the Railroad contention, places them in the position of having adopted a subterfuge to escape paying taxes on the property. 2. Appellants seek to avoid the tax levies because, as they say, the boards of equalization were not properly constituted. Under the pleadings and proof, this feature of the case is immaterial. Appellants do not complain that the taxes were in any wise excessive, their only claim being that the tax is wholly invalid. Having held that the property was subject to taxation, it is unnecessary to consider this point further. It follows that the judgment and order should be affirmed. CLAYBERG, C. C., and POORMAN, C., concur. PER CURIAM. For the reasons given in the foregoing opinion, the judgment and order are affirmed. BRANTLY, C. J., not having heard the argument, takes no part in this decision. (30 Mont. 421) FORDIAM v. NORTHERN PAC. RY. CO. (Supreme Court of Montana. May 23, 1904.) BILLS OF EXCEPTIONS -SERVICE-WAIVER OF OBJECTIONS-FLOOD WATERS OF RIVER SURFACE WATER-OBSTRUCTION. 1. Objection that the bill of exceptions was not served in the manner provided by Code Civ. Proc. § 1831, is waived by the presenting of ámendments to the proposed bill. 2. Flood waters of a river, which become severed from the main current, or leave it never to return, and spread out over lower ground, become surface water; but if they form a continuous body with the water flowing in the ordinary channel, or if they depart therefrom presently to return, they are to be regarded as still a part of the stream, subject to the law as to obstruction thereof. 3. Under the common law overflow waters of a stream which still form part of the stream may not be obstructed by a railroad company by a fill along its right of way without openings, so as to injure the property of another. Appeal from District Court, Missoula County; Henry C. Smith, Judge. Action by Julia Fordham against the Northern Pacific Railway Company. Judgment for defendant. Plaintiff appeals. Reversed. This action was brought by the plaintiff (appellant here) to recover damages alleged to have been caused by the wrongful act of the defendant railway company. The plaintiff owns certain lands situated along the south bank of the Bitter Root river. A portion of these lands are lowlands, and comprise the bottom land of the river at that point. The defendant railway company owns a right of way across the low or bottom land of the river on the north side directly opposite plaintiff's lands. Its railroad track is constructed on this right of way, and substantially parallel with the river for some distance. Near the northernmost line of plaintiff's land the river turns to the north, and is crossed by defendant's railroad by means of a bridge. Prior to 1897 there was open trestlework supporting the track for 1,400 feet west from the west pier of the bridge. From the west end of this trestle was a solid embankment or fill, constructed in 1887, but concerning which no complaint is made. In 1897 the railway company constructed a solid embankment or fill from the east end of the old fill to a point 285 feet west of the west pier of the bridge. The subjoined diagram illustrates the relative situations of these objects. During every spring or early summer, when the snow in the mountains at the headwaters of the Bitter Root river and its tributaries is melting rapidly, the Bitter Root overflows its banks, and spreads over the plaintiff's lands, and over the lowlands across which defendant's right of way extends. The general fall of the country is towards the north, so that prior to 1897 these flood or overflow waters ran off through defendant's trestlework to the north, and some distance below fell into the channel of the river again. Plaintiff contends that by reason of the fill or embankment made in 1897 the flood waters of the river were held back, raised, and caused to overflow her land on the opposite side of the river during the annual overflows in 1898 and 1899 to a much greater extent than theretofore, and when the waters receded during these years a new channel of the river was cut wholly on plaintiff's land, wasting and destroying from 10 to 20 acres of valuable agricultural land, and causing damage to her in the amount claimed, at least. Upon the conclusion of plaintiff's testimony, which tended to prove the facts herein set forth, the trial court sustained a motion for a nonsuit, and entered judgment for defendant for costs, from which judgment plaintiff appealed. A. L. Duncan and Nolan & Loeb, for appellant. Wm. Wallace, Jr., for respondent. HOLLOWAY, J. (after stating the facts). It is conceded that the railway company constructed the fill in 1897 on its own land. It is alleged in the answer that this new fill was necessary to avoid "dangerous and difficult curves and grades and to avoid annoyance to public travel," and this is not denied. Respondent railway company contends that the bill of exceptions was not served in the man ner provided by law; but this objection is waived by the respondent presenting amendments to the proposed bill of exceptions. The purpose of the statute (section 1831, Code Civ. Proc.) is to insure that the person upon whom service is sought shall actually receive, if possible, the document to be served; and when a party appears, and presents and has allowed his amendments to a proposed bill of exceptions, he is hardly in a position to say that he has never actually received a copy of the same. Respondent also contends that the appeal should be dismissed for the reason that the notice of intention to move for a new trial is not in the record. This is untenable, first, for the reason that this is an appeal from a judgment, and not from an order overruling a motion for a new trial; and, second, respondent's contention is disposed of adversely to it by the decision in King v. Pony Gold M. Co., 28 Mont. 74, 72 Pac. 309. Respondent also contends that there was an extraordinary flood during 1898 and 1899, and that one Rockcramer had placed a dike or embankment along the north bank of the Bitter Root river further west than respondent's new fill, and that this dike was, or may have been, the proximate cause of the damage to plaintiff's land. But neither of these facts appear from the record in this case sufficiently to deserve further consideration. At most there is but a hint of the existence of either. The only serious question for determination is: Are these flood or overflow waters of the Bitter Root river, which, prior to 1897, flowed off over the lowland now crossed by respondent's new fill, to be treated as a part of a natural water course or as surface waters? And this question is to be resolved independently of the question whether the commonlaw rule or civil-law rule respecting the disposition to be made of these waters after their character is determined prevails in this state. It must be conceded that, if these overflow waters are to be treated as the other waters of the Bitter Root river when within its banks and the low, bottom land across which defendant's right of way extends as a natural water course during flood times, then defendant had no right to interfere with the natural flow of such waters to the damage of plaintiff, and the court erred in granting a nonsuit. 1. Are these overflow or flood waters of the Bitter Root river to be treated as surface waters or as a part of the natural water course? The decisions are in hopeless conflict upon the subject, and no useful purpose can be served by a review of them. Upon the same state of facts different courts have decided the question differently. In Indiana, Missouri, Kansas, Nebraska, and Washington it is held that these overflow waters are surface waters, to be dealt with as such according to the rule prevailing in those states. Cass v. Dicks (Wash.) 44 Pac. 113, 53 Am. St. Rep. 859; Ry. Co. v. Keys (Kan.) 40 Pac. 275, 49 Am. St. Rep. 249; McCormick v. Ry. Co., 57 Mo. 433; Morrissey v. Ry. Co. (Neb.) 56 N. W. 946; Taylor v. Fickas, 64 Ind. 167, 31 Am. Rep. 114. In California, while a distinction is apparently made between overflow waters and surface waters, the common-law rule respecting surface waters is held applicable to overflow or flood waters. Gray v. McWilliams, 98 Cal. 157, 32 Pac. 976, 21 L. R. A. 593, 35 Am. St. Rep. 163. "By the common law, flood water overflowing the banks of a stream is a part of the stream, though not flowing in a channel, and a riparian owner is not allowed to protect his lands by erecting barriers to the injury of another. This is clearly so in case the flood spreading beyond the banks of the stream forms with the stream one body, and flows within the accustomed boundaries of such floods." Jones on Easements, § 729; King v. Trafford, 1 B. & Ad. 874; Trafford v. King, 8 Bing. 204. In Georgia, Ohio, Iowa, Virginia, Minnesota, South Carolina, Wisconsin, and Tennessee it is held that these flood or overflow waters are still a part of the stream, and to be treated as such. O'Connell v. E. Tenn. Ry. Co., 87 Ga. 246, 13 S. E. 489, 13 L. R. A. 394, 27 Am. St. Rep. 246; Crawford v. Rambo, 44 Ohio St. 279, 7 N. E. 429; Sullens v. C. R. T. & P. R. R. Co. (Iowa) 38 N. W. 545, 7 Am. St. Rep. 501; Moore v. C., B. & Q. Ry. Co. (Iowa) 39 N. W. 390; Burwell v. Hobson, 12 Grat. 322, 65 Am. Dec. 247; Byrne v. M. & St. L. Ry. Co., 38 Minn. 212, 36 N. W. 339, 8 Am. St. Rep. 696; Jones v. Seaboard Air Line Ry. Co., 67 S. C. 181, 45 S. E. 188; Spelman v. City of Portage, 41 Wis. 144; Barden v. City of Portage, 79 Wis. 126, 48 N. W. 210; Carriger v. E. Tenn. Ry. Co., 7 Lea, 388. While a federal court usually follows the decisions of the highest court of the state in which such federal court is held, especially with reference to questions of local law or practice, the United States Circuit Court for the District of Indiana first decided that this question is one of general law, and then refused absolutely to follow the decisions of the Supreme Court of Indiana respecting this subject. The Supreme Court, in Taylor v. Fickas, above, and subsequently, held that these overflow waters are surface waters; but the federal court, after carefully reviewing these decisions, says: "The waters cast into a stream by ordinary floods must have a channel in which they are accustomed to flow, and, if they have, that channel is a natural water course, with which no riparian proprietor can lawfully interfere to the injury of another. If there is a natural water way or course, and its existence is necessary to carry off the water cast into the stream by ordinary floods, that way is the flood channel of the stream; and, if it is the flood channel of the stream, the water which flows there cannot be regarded as surface water. |