material allegation going to the gist of the action is wholly omitted, it cannot be presumed that any evidence in reference to it was offered or allowed on the trial, and hence the pleading is not aided by the verdict." Booth v. Moody, 30 Or. 222, 46 Pac. 884; Houghton v. Beck, 9 Or. 325; Aiken v. Coolidge, 12 Or. 244, 6 Pac. 712; Gschwander v. Cort, 19 Or. 513, 26 Pac. 621. Now, the issue joined in this case was such as necessarily to require on the trial proof that the feed and care charged for by the plaintiff had elther been furnished at the request of the defendant or he had promised to pay for the same, and without such proof it is not to be presumed that the court would have permitted a verdict in favor of the plaintiff, or that the jury would have found such a verdict. Judgment affirmed.

(48 Or. 266)

MILLER v. UNION COUNTY. (Supreme Court of Oregon. July 17, 1906.) 1. HIGHWAYS-ESTABLISHMENT UNDER STATUTE-REPORT OF VIEWERS-ADOPTION.

An order of a county court "approving" the report of viewers appointed on proceedings for the establishment of a county road, was a compliance with Laws 1903, p. 262, § 11, requiring the report to be "adopted."

2. SAME APPEAL-TIME.

Laws 1903, p. 262, § 11, provides that if the county court is satisfied, on the laying out of a county road, that the damages assessed by the viewers' report are equitable and that the road will be of sufficient importance, the court shall order the damages paid by the county, but that, if not of sufficient importance, the court may refuse to establish the highway unless the damages be paid by petitioners. Section 15 (page 267) provides that a party aggrieved by the assessment of damages may appeal to the circuit court within 20 days after the adoption of the report by the court, and by section 78 (page 285). it is the duty of the county court, before any county road is finally established, to submit all the files and records to the district attorney for his opinion as to the legality of the proceedings. A report of viewers was approved by the county court as to the damages, and the papers referred to the district attorney, and thereafter the matter was continued until it was ordered that the road be declared a public highway upon petitioners paying a specified sum. Held, that the approval of the damages was final, and a landowner, deeming himself aggrieved, not having ap pealed within 20 days there from and not until within 20 days after the order declaring the road a public highway, it was too late, and the appeal was properly dismissed.

Appeal from Circuit Court, Union County; Robert Eakin, Judge.

Proceeding by Dillie Randall and others for the laying out of a county road, and from a judgment of the circuit court, dismissing the appeal of George Miller from a judgment of the county court establishing the highway, he appeals. Affirmed.

This is a claim for damages which it is asserted the owner of certain real property will sustain if a public road is established across his premises. Dillie Randall and others petitioned the county court of Union county to lay out a county road therein, and, hav

ing complied with all the jurisdictional requirements, the board of county road viewers were ordered to meet at a time and place specified, and view, survey, and lay out a road on the line designated. This order was obeyed, and the board on August 2, 1905, filed their report, recommending that the prayer of the petition be granted, and also finding that by the location of the proposed road the premises of the plaintiff, George Miller, would be rendered less valuable in the sum of $100, from which award he appealed to the county court. The report of the board was publicly read on two different days of the same session, in which it was filed and the matter was continued for the term. This report was, on September 8, 1905, approved as to the damages to the premises of the plaintiff and the papers in the cause were referred to the district attorney. The matter was thereupon further continued from term to term until January 5, 1906, when it was ordered by the county court that the road as surveyed be declared a public highway, upon the petitioners paying to the county clerk for Miller, the sum of $100. Seventeen days thereafter the plaintiff served and filed a notice of appeal and gave a proper undertaking therefor, and the transcript having been sent up to the circuit court for that county, the appeal was dismissed, and he appeals from such judgment to this court.

C. H. Finn, for appellant. R. J. Slater, for respondent.

MOORE, J. (after stating the facts). The question to be considered is whether or not the order of the county court of September 8, 1905, approving the report of the board of county road viewers as to plaintiff's claim for damages was a final judgment. The statute prescribing the method of establishing county roads provides, in effect, that it shall be the duty of the county court on receiving the report of the board of county road viewers to cause the same to be read publicly on two different days of the same term, and if no petition for damages be filed, and the court is satisfied that such road will be of public utility, the report of the viewers being favorable thereto, they shall cause the report, etc., to be recorded, and from thenceforth such road shall be considered a public highway. Laws 1903, p. 262, 11. The viewers, while laying out county roads, are required to assess and determine how much less valuable the prem ises through which a road is to be located will be rendered by opening the same as a highway and set forth such estimate in their report, which shall be considered as the true measure of damages in such cases, provided that any person feeling aggrieved by such assessment may appeal to the county court, and also from the decision of such court to the circuit court. Laws 1903, p. 267, § 13. If the county court is satisfied that the

amount of damages so assessed is just and equitable, and that the proposed road will be of sufficient importance to the public to cause the damages so assessed and determined to be paid by the county, the court shall order the same paid to the complainant out of the county treasury; but if, in the opinion of the court, such proposed road is not of sufficient importance to the public to cause the damages to be paid to (by) the county, the court may refuse to establish the same as a public highway, unless the expense or damages or some part thereof, as the court may think proper, shall be paid by the petitioners. Id. § 14. Any complainant who may conceive himself aggrieved by the assessment of damages as prescribed by the last two sections may, within 20 days after such report is adopted by the court, appeal therefrom to the circuit court of the proper county. Id. § 15. It shall be the duty of the county court, before any proposed county road is finally established and ordered open, to submit all the files and records of the proceedings had therein to the district attorney of that county for inspection, whose duty it shall be to advise the county court as to the legality of the proceedings. Id. § 78.

It is argued by plaintiff's counsel that, construing these provisions together, all matters relating to the location of a county road are in fieri until the highway is declared established, and that an order made by a county court prior thereto in respect to the assessment of damages, is only a step in the proceedings and therefore not final. In construing the provisions of an earlier statute of similar import, it was ruled that an appeal to the circuit court from the assessment of damages in road matters brought up only the question of the injury sustained by the opening of a highway through a person's premises, and did not involve the regularity of the other proceedings. Fanning v. Gilliland, 37 Or. 369, 61 Pac. 636, 62 Pac. 209, 82 Am. St. Rep. 758; McCall v. Marion County, 43 Or. 536, 73 Pac 1031, 75 Pac. 140. In Hammer v. Polk County, 15 Or. 578, 16 Pac. 420, a proposed county road having been surveyed across certain lands, a claim for damages in consequence thereof was filed, whereupon the county court, pursuant to the law then in force, appointed three householders to examine the premises and report how much less valuable they would be rendered by reason of the location of the road. The persons so appointed performed the duty devolving upon them, and filed their report to the effect that the premises in question were not damaged, but that the land through which the road was proposed to be located was of the value of $15 per acre. The county court thereupon found that the damages to such land was $45, accepted and approved the report, and ordered that upon the payment by the petitioners of the sum so awarded such road should be declared a public highway. Within 20 days from the making of the or

der approving the report, the claimant appealed therefrom to the circuit court, which dismissed the appeal on the ground that the order referred to was not final, and from such judgment the claimant appealed to this court. In deciding the case it was held that an appeal would lie from an order determining the amount of damages, if taken within 20 days after the report of the householders was adopted. Mr. Justice Strahan, speaking for the court in construing a provision of the statute identical with section 15 of the Laws of 1903, herein before adverted to, says: "The court might have refused to establish the road as a public highway as long as the proceedings to assess damages were pending on appeal; but the record discloses that pending the appeal the petitioners paid the damages assessed, and the county court established the road. But these proceedings in no way affected appellant's right to prosecute his appeal and to have a jury pass upon the amount of his damages."

Though an appeal lies from an assessment of damages as indicated, the action of a county court in establishing a county road can be re-examined only by a writ of review. Leader v. Multnomah County, 23 Or. 213, 31 Pac. 481. It will be seen that a reinvestigation of the question of an assessment of damages sustained by the laying out of a county road and of the establishing of a public highway is secured by adopting procedure essentially different, thereby preserving the distinction existing in these matters. Since the opinion in Hammer v. Polk County, supra, was announced, the statute has been amended so that a board of county road viewers, consisting of the county surveyor, the county roadmaster, and one qualified freeholder, take the place of the viewers theretofore appointed and also perform the duties of the householders who prior thereto assessed the damages sustained by the opening of a road, if any compensation therefor were claimed. Laws 1903, p. 262. Under the former law, in case damages were claimed by any person through whose land a county road was marked out, two reports were made, to wit, the viewers' opinion as to the merits of the petition and the householders' assessment of the damages sustained. The law now in force imposes on the board of county road viewers the duty to lay out all proposed roads, to assess and determine the damages which would result by the opening thereof, and to file with the county court their report, showing a performance of the service required. Because one report now takes the place of two under the former law, no reason can be perceived why the rule adopted in Hammer v. Polk County, supra, should not be controlling, when that part of the report relating to the damages assessed is adopted by the county court. The statute provides that any person who conceives himself aggrieved by the assessment of damages may appeal therefrom to the circuit court at any time within 20 days after

the report of the board of county road viewers is adopted. Laws 1903, p. 262, § 15. In the case at bar the county court made and entered in its records the following direc tion: "It is ordered that the report of the board of road viewers, made and filed in said cause, as to the damages to the premises of George Miller, to wit, in the sum of one hundred dollars, be, and the same is, hereby approved." It is maintained by plaintiff's counsel that, as the statute requires the report of the viewers to be "adopted," an order whereby it was "approved" is not a compliance with the requirements of law. To adopt means to approve. Webst. Int. Dic.; Dallas v. Beeman, 18 Tex. Civ. App. 335, 45 S. W. 626. These words being synonymous, the use of the latter term by the county court clearly expresses its intention and sufficiently conforms to the legal mandate.

The order of a county court adopting the report of the board of county road viewers as to the damages which will result to a landowner if a proposed road, surveyed through his premises, is opened, though made before the road is declared a public highway, is an adjudication of the sum, if any, found to be due such owner; but it is not a determination as to whether the county or the petitioners shall pay the whole or any part thereof. The question as to who will be required to pay such award, where a preliminary order is made as to the damages, necessarily remains in abeyance until the report of the board of county road viewers, as to their opinion in favor of establishing such road, has been finally passed upon. If the report as to the damages is not acted upon by the county court until the inquiry is considered as to whether or not the proposed road shall be declared a public highway, and the latter question is determined in the negative, no necessity would exist for taking an appeal. Should this question be concluded in the affirmative, however, and damages are awarded, the payment of which is assumed by the county, the applicant for compensation might, on appeal, secure a much larger sum, thus imposing on the municipality a burden which it would not have undertaken in the first instance, if the county court could have known what the result would have been; for, the proposed road having been declared a public highway, the payment of the judgment would become imperative. When the county court adopts the report of the viewers as to the assessment of damages, but defers the consideration of the question as to whether or not the proposed county road shall be declared a public highway until the issue of damages has been finally determined, if the sum thus awarded could not be paid by the petitioners and was deemed too excessive to be borne by the county, the prayer of the petition for laying out the road could be denied, thereby avoiding the payment of any judgment for damages against the county and escaping the result of the adjudication by the payment of the costs and disbursements

only, in case the appellant recovered a judg ment more favorable than the report appealed from. These possible results induce the conclusion that a county court may adopt the report of a board of county road viewers, and that the assessment of damages can be finally determined before the proposed county road is declared a public highway. Nor does the fact that a county court is required to submit to the district attorney all the files and records of the proceedings on a petition for the location of a proposed county road before it can be ordered open, alter the deduction that the preliminary question of the assessment of damages may be determined before the matter is so referred.

Believing that a fair construction of the provisions of the statute to which attention has been called warrants the determination that the order of the county court of September 8, 1905, approving the report of the board of county road viewers, so far as it related to the damages sustained by the plaintiff was final, it follows that, as no appeal was taken therefrom within the time prescribed, the judgment should be affirmed; and it is so ordered.

(48 Or. 622)

PIERCE v. UNION COUNTY. (Supreme Court of Oregon. July 17, 1906.) Appeal from Circuit Court, Union County; Robert Eakin, Judge.

Proceedings by Union county for the laying out of a highway. From a judgment of the circuit court dismissing an appeal from the county court by Walter M. Pierce, a claimant for damages, he appeals. Affirmed. C. H. Finn, for appellant. R. J. Slater, for respondent.

MOORE, J. This is a claim for damages which the plaintiff, Walter M. Pierce, alleges he will sustain if the county court of Union county opens a county road across his premises. The facts involved herein are almost identical with the details stated in the case of Miller v. Union County, 86 Pac. 3, except that in the case at bar the board of county road viewers found that Pierce would sustain no damages by the opening of the proposed road. The county court on October 8, 1905, approved this report as to the damages, but continued the matter as to establishing the road until January 5, 1906, when the route surveyed was declared a public highway. The plaintiff, 17 days thereafter, perfected an appeal from the latter order, and, the cause having been transferred to the circuit court for that county, the appeal was dismissed, and from such judgment an appeal was taken to this court.

The question here presented having been considered in and decided adversely to plaintiff's contention in the case adverted to, it follows that the judgment should be affirmed; and it is so ordered.

(10 Ariz. 216)

COOK, Sheriff of Maricopa County, et al. v.
PURMAN.
(Supreme Court of Arizona. May 12, 1906.)
EVIDENCE-OPINION EVIDENCE- VALUE OF
PROPERTY-COMPETENCY.

Where, in an action against a sheriff for an alleged wrongful levy on furniture, etc., the only evidence as to value was that of plaintiff, who testified that it was worth at least $5,000, but before she was permitted to so testify she stated on cross-examination that some of the articles were purchased by her, and that she knew the cost price and value thereof, and that some of the articles were purchased by her husband, who told her the amounts he paid for them, and that what her husband told her was the only source of her information as to value of those articles, she was not competent to testify except to the value of the articles which she herself purchased.

[Ed. Note. For cases in point, see vol. 20, Cent. Dig. Evidence, §§ 2218, 2274.] Doan, J., dissenting.

Appeal from District Court, Maricopa County; before Justice Kent.

Action by Mary E. Purman, as administratrix of the estate of D. M. Purman, deceased, against William W. Cook, as sheriff of Maricopa county, and another. From a judgment for plaintiff, defendants appeal. Reversed with directions.

T. J. Prescott (J. M. Jamison, of Counsel), for appellants. C. F. Ainsworth, for appellee.

CAMPBELL, J. This action was brought to recover damages claimed to have been sustained by reason of the defendant Cook, sheriff of Maricopa county, wrongfully levying on and selling certain personal property belonging to appellee, under a writ of execution issued on a judgment rendered against one John Q. White. The defendant, The United States Fidelity & Guaranty Company, is surety on the official bond of the sheriff. The case was tried to a jury, and resulted in a verdict in favor of the plaintiff for $3,500. From the judgment entered thereon and from an order refusing a new trial this appeal is brought..

Several assignments of error present for review the action of the trial court in admitting, over the objection of defendants, the testimony of the plaintiff as to the value of the property claimed to have been wrongfully sold by the sheriff, and challenge the sufficiency of the entire evidence to sustain the verdict and judgment. The property sold consisted of household furniture and effects, including quite an extensive library. The only testimony as to the value of the property sold was that of the plaintiff, one witness who testified only as to the value of the library, fixing the same at the sum of $1,500, and the return of the sheriff showing that the property was sold under execution for the sum of $1,626.15. The plaintiff offered in evidence a detailed list of the property, showing the value of each article,

which she testified had been made from memory, and offered to testify as to the value of the property. Objection was made and sustained to the introduction of the list, but the witness was permitted to testify, over objection, to the gross value of the property, which she testified was at least $5,000. Before the witness was permitted to testify to this amount, the defendant asked and obtained leave to cross-examine her as to the source of her knowledge. She testified upon such cross-examination that some of the articles of furniture were purchased by her, and that she knew the cost price and value thereof; that some of the articles were purchased by her husband, who told her the amounts he paid for them, and that what her husband told her was the only source of her information as to the value of those articles. We think that the witness did not show herarticles which she herself did not purchase self competent to testify to the value of the and did not know the value of except through what her husband told her. Such testimony was clearly hearsay and should not have been admitted. The evidence does not disclose the value of the articles concerning which she was competent to testify, and there is no competent testimony in the record upon which to found a judgment for $3,500. We think the court erred in denying the motion for a new trial.

The judgment is reversed, with directions that a new trial be granted.

SLOAN and NAVE, JJ., concur.

DOAN, J. I dissent. I think there was sufficient competent testimony in the record as to the value of the property to sustain the verdict.

(10 Ariz. 214)

BRADFORD v. MORRISON. (Supreme Court of Arizona. May 12, 1906.) JUDGMENT LIEN PROPERTY SUBJECT TO LIEN.

-

In the absence of statute, as well as under Rev. St. 1887. par. 2932, declaring that real property shall be co-extensive with lands, tenements, and hereditaments, an unpatented mining claim is real property, within Acts 1891, p. 70, No. 50. § 4, declaring that a judgment, when properly docketed, shall be a lien on the real property of the debtor situate in the county.

Appeal from District Court, Yavapai County; before Justice Sloan.

Action by Priscilla Bradford against Robert E. Morrison. From a judgment for defendant, plaintiff appeals. Affirmed.

E. M. Sanford, for appellant. Robert E. Morrison, for appellee.

CAMPBELL, J. This action was brought by Priscilla Bradford, as plaintiff, to quiet title to certain unpatented mining claims.

Robert E. Morrison, defendant, set up a judgment lien upon these claims. From a judgment sustaining the validity of this lien plaintiff has appealed.

The sole question presented is whether the lien of a general judgment attaches to an unpatented mining claim. At the time the judgment was rendered and docketed, Act No. 50, p. 70, of the 16th Legislative Assembly, approved March 17, 1891, was in force. Section 4 of that act is as follows: "Every such judgment, when so docketed shall, for a period of five years from the date of the rendition thereof, be a lien on the real property in the county where the same is docketed, except the homestead of every person against whom such judgment shall be rendered and docketed and which he may have at any time thereafter within said period of five years." The general nature of the property which the locator or owner of an unpatented mining claim has therein has been the subject of discussion in the courts in numerous cases, but a review of these cases does not seem necessary here. That it is such an estate as may be inherited is beyond controversy. Section 2322, Rev. St. U. S. [U. S. Comp. St. 1901, p. 1425]; Forbes v. Gracey, 94 U. S. 762, 24 L. Ed. 313; Belk v. Meagher, 104 U. S. 279, 26 L. Ed. 735; Manuel v. Wulff, 152 U. S. 505, 14 Sup. Ct. 651, 38 L. Ed. 532; Elder v. Horseshoe Mining & Milling Co., 194 U. S. 248. 24 Sup. Ct. 643, 48 L. Ed. 960. The Legislature, at the time of employing the words "real property" in the statute under consideration, had defined the meaning to be given the term in the construction of statutes as "coextensive with lands, tenements and hereditaments," by a statute still in force when the judgment in question was docketed, though repealed since then. Paragraph

2932, Rev. St. 1887. This legislative construction would seem to be conclusive of the question. Moreover, we have no doubt that, independently of the statute, the estate which the owner of an unpatented mining claim has therein must be held to be real property. In this and other jurisdictions it has for years been so treated. Jordan v. Duke, 6 Ariz. 55, 53 Pac. 197; Kinney v. Fleming, 6 Ariz. 203. 56 Pac. 723; Costello v. Graham (Ariz.) 80 Pac. 336; Keeler v. Trueman, 15 Colo. 143, 25 Pac. 311; Glacier Mountain Silver Mining Co. v. Willis, 127 U. S. 471, 8 Sup. Ct. 1214, 32 L. Ed. 172. Indeed, the action brought by the plaintiff herself to quiet her title is brought under the provisions of the statute authorizing actions to quiet title to real property, and can only be maintained under the statute upon the theory that such interest in the mining claims is real property. The judgment of the lower court is affirmed.

KENT, C. J., and DOAN and NAVE, JJ.,

concur.

(10 Ariz. 221)

STEINFELD et al. v. ZECKENDORF. (Supreme Court of Arizona. May 12, 1906.) 1. EQUITY-JURISDICTION-MISTAKE of Law. A mistake of law as to the legal effect of an agreement, unconnected with a mistake of fact, or fraud, imposition, or undue advantage, will not be corrected in equity.

[Ed. Note.-For cases in point see vol. 19, Cent. Dig. Equity, §§ 15, 16.]

2. TRIAL-FINDINGS-EFFECT.

An agreement between a corporation and a stockholder provided that the proceeds of the sale of certain property should belong to the corporation, that the stockholder should hold the same as security against loss arising out of assuming certain obligations, and that no dividends should be declared until he was indemnified. Held that, as the provisions of the agreement related only to the disposition of the proceeds of the sale of the property, a finding by the court that the parties rescinded it must be deemed as an adjudication that all rights created by the agreement were abrogated, notwithstanding another finding that the parties did not so construe the effect of the rescission.

3. APPEAL-PRESUMPTIONS FINDINGS SUPPORTING JUDGMENT.

The appellate court cannot assume that a judgment was based on a finding of fact, where the trial court distinctly stated that no such finding was made.

4. SAME FINDINGS BY APPELLATE COURt.

Where the testimony on an issue not determined by the trial court is conflicting, the court on appeal cannot find the facts and give judgment accordingly.

5. CORPORATIONS-STOCKHOLDERS - SUING IN

BEHALF OF CORPORATIONS-EVIDENCE.

Where it was found that an agreement between a corporation and a stockholder providing that the proceeds on the sale of property should belong to the corporation was rescinded, and there was no finding as to the ownership of certain shares of stock of the corporation, nor as to certain of the property, nor as to rights of the parties to the distribution of the proceeds of the sale, a judgment, in a suit by a minority stockholder, adjudging that the proceeds of the sale belonging to the corporation was erroneous, because not supported by the findings.

Nave, J., dissenting.

Appeal from District Court, Pima County; before Justice Campbell.

Action by Louis Zeckendorf against Albert Steinfeld and others. From a judgment for plaintiff, defendant appeals. Reversed.

Francis J. Heney and Eugene S. Ives, for appellants. Edwin A. Meserve and Frank H. Hereford, for appellee.

SLOAN, J. The appellee, Louis Zeckendorf, brought suit as a stockholder of the Silver Bell Copper Company in the district court of Pima county to recover, in behalf of said company, the proceeds of the sale of certain mining property alleged in the complaint to be wrongfully retained by the defendants, Albert Steinfeld, R. K. Shelton, and the Mammoth Copper Company, and to be the property of the said Silver Bell Copper Company. The complaint charged that the board of directors of the Silver Bell Copper Company, which was made a party