at a point above the land of respondent, and running through the latter's land in a channel several hundred yards south of its old channel, and south of some land called the "Island," and beyond the reach of appellant's ditch. Thereupon, the appellant, notwithstanding the objection and protest of respondent, constructed a new piece of ditch from a point nearly 600 feet below the head of the old ditch, across respondent's land, to the new channel of said creek. This new piece of ditch is about 700 feet long; and after it had been dug, against respondent's objection, as aforesaid, respondent filled up a part of it, which act is the basis of this action. The evidence warranted the jury in finding that this new ditch, if maintained, would be a damage to respondent of at least $1,000; that respondent offered to allow appellant to make a connection between his old ditch and the new channel by means of a new piece of ditch at other points on respondent's land, where but little damage would be done respondent by such connection; and that, by accepting respondent's offer, appellant could have reestablished his ditch and water right, and enjoyed the use thereof as formerly, at less expense than he incurred by digging the said new ditch. The question whether or not the connection of appellant's old ditch with the new channel of the creek would be a substantial change of the servitude (Allen v. Water Co., 92 Cal. 138, 28 Pac. 215), and therefore not maintainable, does not arise, because respondent did not make that point. eral law applicable to this case is therefore well settled. The right to take water from the land of another for use on the premises of the person taking it is an easement founded on a grant, or on a prescription which supposes a grant. Such an easement does not give its owner the right to commit a trespass upon the servient tenement, or to exercise the easement after any manner which happens to suit his pleasure. His right is measured by the terms of his grant; or, where the supposed original grant does not appear, by the [rescriptive use. This, however, includes what are called "secondary easements," such as the right to enter upon the servient tenement and make repairs, and to do such things as are necessary for the full exercise of the right. But these secondary easements must be exercised only when necessary, and in such a reasonable manner as not to needlessly increase the burden upon the servient tenement. Hargrave v. Cook (Cal.) 41 Pac. 18; Gale, Easem. p. 235 et seq., and notes. "As every easement is a restriction upon the right of property of the owner of the servient tenement, no alteration can be made in the mode of enjoyment by the owner of the dominant heritage, the effect of which will be to increase such restriction. Supposing no express grant to exist, the right must be limited by the amount of enjoyment proved to have been had." Id. p. 237. And the authors, on page 246, further say: "The servi

The gen

ent owner has likewise his rights. The dominant owner's encroachments can be justified only to the extent of his easement. As to all beyond that, his acts constitute a private nuisance, for which an action may be maintained. With regard, therefore, to all artificial easements, he is bound to keep his works in such a state that they will cause no incumbrance to his neighbor beyond that warranted by the easement; and if he neglects this he brings himself within the ordinary case of a violation of the rule, 'Sic utere tuo ut alienum non laedas,' and is, of course, liable to an action. The servient owner has in this, as in other cases of nuisance, the privilege of taking the remedy into his own hands." In Ware v. Walker, 70 Cal. 591, 12 Pac. 475, cited by the appellant, the court say that the plaintiff therein exercised his right "in a reasonable and proper manner, and, as found by the court, without damage to the defendant."

The court, we think, fairly gave the case to the jury, in view of the principles above stated, and we see no prejudicial error committed in its rulings. The case therefore resolves itself into questions of facts properly submitted to the jury, and, as there was evidence amply sufficient to sustain their verdict, there is no reason for disturbing it. The order denying the motion for a new trial is affirmed.

Pol. Code, § 3819, as amended by St. 1893, p. 32, providing for actions against counties to recover illegal taxes paid under protest, does not authorize an action against a county for taxes collected by it for the use of a school district within the county.

Commissioners' decision. Department 1. Appeal from superior court, San Diego county; E. S. Torrance, Judge.

Action by the Pacific Mutual Life Insurance Company against the county of San Diego to recover taxes paid under protest. A demurrer to the complaint was overruled, and from judgment sustaining a demurrer to its answer defendant appeals. Reversed.

M. L. Ward, Dist. Atty., and Parrish & Mossholder, amici curiæ, for appellant. C. H. Rippey and Rippey & Nutt, for respondent.

BRITT, C. Action brought professedly under section 3819, added to the Political Code in 1893 (St. 1893, p. 32), for the recovery of alleged illegal taxes paid by plaintiff, under protest, to the tax collector of the defendant county. It is stated in the complaint that the taxes complained of were levied by the

1 Rehearing granted.

board of supervisors of the county "as and for a special school tax for the city of San Diego school district." The illegality alleged is that the question whether such tax should be raised was not submitted to a vote of the electors of the district, as required by sections 1830-1835, Pol. Code. Defendant demurred to the complaint upon the special ground, among others, that the taxes paid by plaintiff "are neither county nor state taxes, nor any taxes under the control of the defendant." The court overruled the demurrer, and defendant answered, alleging, with other matters, that the levy was made pursuant to a certain judgment obtained by said school district which became final on appeal to this court. San Diego School Dist v. Board of Sup'rs, 97 Cal. 438, 32 Pac. 517. The court sustained a demurrer to the answer, and rendered judgment for plaintiff. We need not inquire whether the answer stated a defense.

The funds of the school district are not subject to the control of the county so as to allow a reimbursement of the county for the amount of the judgment, if it should be paid (Const. Cal. art. 11, § 16; Pol. Code, § 1837); and if said section 3819, Pol. Code, admits of a construction which would uphold an action of this character, its constitutionality in that particular would admit of debate, for the credit of a county cannot be pledged for the payment of the liabilities of municipal or other corporations. Const. Cal. art. 4, § 31. But it was held in Elberg v. San Luis Obispo Co. (decided in department 2 of this court August 3, 1895) 41 Pac. 475, that said section 3819, Pol. Code, was not designed to authorize the recovery from a county of illegal taxes collected for the use and disposition of a high school district within the county. This case differs from that in no particular favorable to plaintiff. See, also, School Dist. No. 1 v. Town of Bridport, 63 Vt. 383, 21 Atl. 570; Stone v. Woodbury Co., 51 Iowa, 522, 1 N. W. 745; Taylor v. Avon Tp., 73 Mich. 604, 41 N. W. 703. judgment should be reversed, and the court below directed to sustain the demurrer to the complaint.

The

We concur: VANCLIEF, C.; SEARLES, C.

PER CURIAM. For the reasons given in the foregoing opinion, the judgment is reversed, and the court below directed to sustain the demurrer to the complaint.

(27 Or. 260)

JOSEPHI v. FURNISH. (Supreme Court of Oregon. July 20, 1895.) ATTACHMENT-DISSOLUTION BY ASSIGNMENT FOR CREDITORS-CLAIM TO PROPERTY BY THIRD PERSON- ESTOPPEL-IMPEACHMENT OF WITNESSREPLEVIN-FRAUDULENT SALE-Proof of Value.

1. Where goods are attached, one seeking to replevin them as owner cannot claim that, by reason of an assignment by defendant in at

tachment for the benefit of his creditors, the attachment was dissolved.

2. Where, in replevin for goods seized in attachment, the attachment defendant testifies that his sale to plaintiff was bona fide, and is asked on cross-examination whether he did not state to a person, in defendant's absence, that the sale was only made to avert a blackmailing suit, and that the goods were still his, to which he answers "No," the person named may be asked, for purposes of impeachment, whether the witness made the statement.

3. A witness for defendant should not be allowed to give a conversation held 12 feet from plaintiff, who was on the other side of a vault, it not being shown that plaintiff heard the conversation.

4. In replevin for goods seized under attachment and claimed by plaintiff under a sale by defendant in attachment, which it is claimed was fraudulent, defendant may, in order to rebut plaintiff's testimony as to the reasonable value of the goods, show that they were worth more than the sum named in the complaint, though the answer admits their value as alleged.

Appeal from circuit court, Umatilla county; Morton D. Clifford, Judge.

Action of replevin by D. E. Josephi against W. J. Furnish. Judgment was rendered for defendant, and plaintiff appeals. Reversed.

R. Mallory, for appellant. Balleray & Carter, for respondent.

WOLVERTON, J. This is an action to recover the possession of a certain stock of jewelry seized on legal process as the property of one William Wilkinson, of Pendleton, Or. The defendant justifies the taking, as sheriff of Umatilla county, under several valid writs of attachment duly issued about November 7, 1893, in causes pending against Wilkinson, and alleges that Wilkinson was the owner of the property when it was attached. As a further defense he alleges that on or about the 15th day of March, 1893, Wilkinson made a pretended sale of said stock to the plaintiff, for the purpose of hindering, delaying, and defrauding creditors, setting forth facts attending the alleged pretended sale, and averring that it was and is fraudulent and void as against the creditors of Wilkinson. These allegations are denied by plaintiff, and, for the purpose of showing a dissolution of the attachments, he alleges in his reply that on January, 1894, and prior to the entry of judgment in any of said causes, Wilkinson made a general assignment for the benefit of all his creditors. Upon the trial the verdict was for the defendant, and from the judgment rendered thereon plaintiff appeals, and contends:

1. That the assignment by Wilkinson for the benefit of his creditors, prior to the entry of judgments against him in said actions, dissolved the attachments proprio vigore, and the sheriff could no longer hold the property thereunder. To state the point briefly, suppose A. attaches the goods of B., B. assigns to D., and C., claiming under B., brings re plevin against A. Now, A. justifies under the attachment, and C., to defeat the justification, pleads the assignment, claiming that there

and place I told Mr. Brown, and said to him that the store was mine again, the same as before, or words to that effect." Whereupon the question put to Wilkinson was repeated to the said W. M. Brown, who was called for defendant, and he was asked whether or not Wilkinson made the statements therein contained, to which he answered, "Yes, sir." Witness was further asked: "Did he say anything else about this transaction with

Un

ing the basis upon which the defense is founded. The proposition proves too much. And if it were tenable, every transfer of personal property in fraud of creditors would find ample support in the act of the debtor, against which there could be no relief. less the assignment carried the property with it, we are unable to see how it could affect the attachment, which gives a special property in the thing attached sufficient to maintain its possession against every person except the assignee and those claiming under him. If he or any of those so claiming was pursuing the property, then the assignment would become relevant; otherwise not, unless for the purpose of showing property in a third person. See Tichenor v. Coggins, 8

Or. 270.

2. At the trial evidence was offered tending to show that on March 6, 1893, the plaintiff purchased of Wilkinson the stock of jewelry, together with the notes and accounts connected with the business, and 160 acres of land, for $4,500, and placed Wilkinson's watchmaker, one H. L. Hasbrouck, in charge thereof, who remained in possession for some two months, when Wilkinson was restored to and remained in possession from May until September, at which latter date Hasbrouck again resumed and was in possession at the date of the attachments.

William Wilkinson, being called as a witness for the plaintiff, gave testimony, as to the terms and circumstances attending the alleged sale by him to the plaintiff, tending to show that it was fair and bona fide, and for an adequate consideration. Upon crossexamination he was asked "whether or not he on the evening of March 6, 1893, being the day of the alleged sale to Josephi, about five o'clock in the evening, at Watson & Luhrs' planing mill, in the county of Umatilla and state of Oregon, didn't tell Mr. W. M. Brown that he had had Josephi come here, and he had given him a bill of sale to stop a blackmailing suit, and that Messrs. Leasure & Stillman were to sue him for Mrs. Nale, and that he only put the property out of his hands to stop that blackmailing suit, and that the property was his just the same, or words to that effect." To which the witness answered: "No. I showed Brown the receipt from Mrs. Nale. The consideration of the receipt was fifty dollars. I showed him the receipt in the store. I think we were standing near the stove. No one else was present. It is not a fact that at the time

sir. I asked him if he owed that firm any money, and he said 'No.' He said the stock was clear, and it was his." And, again: "Did you ever have any other conversation with William Wilkinson on or about the transfer of the stock?" A. "Yes, sir. Later on, in April. He showed me a receipt where he had settled up with Mrs. Nale for the blackmailing suit for the sum of fifty dollars, and said that the store was his again." All these questions were objected to as irrelevant and incompetent for the reason that the declarations of Wilkinson made after the sale could not bind Josephi. The further objection was made to the first question that if it was asked for the purpose of impeachment it was touching an immaterial matter, and therefore incompetent. The overruling of these objections is assigned as error. It is undoubtedly true that a witness, not a party to the record, cannot be impeached by showing that he has made contradictory statements concerning matters immaterial or irrelevant to the issues in the case. As put by Wharton, "the statement which it is intended to contradict must involve facts in evidence." 1 Whart. Ev. § 551. It is also well settled that the declarations of a vendor of goods and chattels after he has parted with all interest and possession are inadmissible, in the absence of fraud and collusion, to impeach or overthrow the title of the vendee. Krewson v. Purdom, 11 Or. 266, 3 Pac. 822; Manufacturing Co. v. Johnson, 50 Iowa, 142; Hirschfeld v. Williamson (Nev.) 1 Pac. 201; Turner v. Hardin (Iowa) 45 N. W. 758. It is contended here that, as the question put to Wilkinson touching what he said to Brown at Watson & Luhrs' planing mill called for evidence which was incompetent to impeach the plaintiff's title, it could not form the basis even for the impeachment of the witness, and that defendant was bound by his answer. This is stating the rule too broadly, although there is some authority for the contention. When some matter that is immaterial or wholly irrelevant to the issue is elicited from the witness, it concludes the party examining him, and his credibility cannot be impeached by showing that he has at other times made contradictory statements touching the same matter. We do not understand the rule to extend to matter that is incompetent merely because it is so, unless it may be said at the same time to be immaterial or irrelevant. Testimony may be incompetent because from its nature parties ought not to

be bound by it, yet, if it was admissible, it would not be wholly irrelevant, for it would tend to establish some fact or facts under the issues. Immaterial and irrelevant testimony establishes nothing pertaining to the issues. Foot v. Hunkins, 98 Mass. 525, 526. "It is not 'irrelevant to inquire of the witness whether he has not on some former occasion given a different account of the matter of fact to which he has already testified, in order to lay a foundation for impeaching his testimony.". 1 Greenl. Ev. § 449. Now the matter of fact about which Wilkinson had given an account in his examination in chief was the alleged sale to plaintiff. He stated the terms as he understood them, and related the attending circumstances. On cross-examination he was asked if he had not subsequently made contradictory statements to Brown touching the same transaction. The contradictory statements called for were incompetent to impeach plaintiff's title, because made subsequent to a transfer of the witness' interest and surrender of possession; but it was irrelevant to the issue, and if he had made contradictory statements touching the relevant matter about which he has testified it is well calculated to affect his credibility, and has an important bearing upon the establishment of a material fact in the case. The question so repeated to Brown was legally appropriate, and the court properly allowed him to answer it. The court should, however, have instructed the jury that the testimony was only pertinent to impeach the credibility of witness Wilkinson, and should be considered by them for that purpose only. Trapnell v. Conklyn (W. Va.) 16 S. E. 570; Manufacturing Co. v. Creary, 116 U. S. 166, 6 Sup. Ct. 369; Turner v. Hardin, supra; State v. Fitzhugh, 2 Or. 234. When the impeaching witness has answered the question put for the purpose of contradicting the witness whose credibility is in the balance, that is the end of his examination upon that subject, and it is inadmissible to allow the examination to proceed further, to the end that other statements, whether contradictory or not, may be elicited. Underh. Ev. 509; Pence v. Waugh (Ind. Sup.) 34 N. E. 860.

The subsequent questions herein noted as put to the witness Brown, and his answers thereto, were, therefore, incompetent, and ought not to have been admitted, and likewise other questions and answers of the same nature. The same observation will apply to the like character of testimony elicited from the witnesses Park and Carter. The conversation which Park relates that he had with Wilkinson took place within 12 feet of the plaintiff, but around the corner of a vault, and out of his sight, and Park could not swear that he did or could have heard the conversation. Hence plaintiff could not be bound by Wilkinson's admissions, unless it was shown that he heard them, and had an opportunity of correcting any statement inconsistent with the facts as they existed.

3. The complaint alleges the value of the property sued for to be $5,000, and the answer admits it. On the trial testimony was offered by defendant, and admitted over the objections of plaintiff, showing the value of the stock of jewelry contained in the store about the time or subsequent to the commencement of this action to be from seven to ten thousand dollars, and this is assigned as error. The bill of exceptions shows "the testimony of the witnesses on part of plaintiff tended to prove that on the 6th day of March, 1893, plaintiff, D. E. Josephi, purchased of witness William Wilkinson a stock of jewelry then being contained in what is known as the 'Wilkinson Jewelry Store' in the city of Pendleton, Umatilla county, Oregon, tending to prove that the consideration for such purchase was $4,500; that in said purchase, and covered by the same consideration, was a tract of land located in Union county, Oregon, valued at $100, and the accounts and notes connected with said jewelry business, of the face value of $1,500, but really of nominal value; and tending to prove that said $4,500 was a reasonable value for the property purchased." We think this evdence was admissible, if for no other purpose, to rebut the testimony of plaintiff as to the reasonable value of the property at the time of the sale, and the court committed no error in allowing it to go to the jury. The further and separate defense setting up that the sale was pretended only and in fraud of the creditors, when construed as a whole and in the light of all the allegations therein contained, is deemed sufficient, especially as it is not tested by demurrer or motion.

In view of the foregoing considerations, the judgment must be reversed, the cause remanded, and a new trial ordered.

(1 Kan. App. 270)

ROUSE v. YOUARD. (Court of Appeals of Kansas, Southern Department, E. D. Aug. 16, 1895.) REVIEWING EVIDENCE ON APPEAL-INCONSISTENT FINDINGS AND VERDICT-LAYMAN AS AN EXPERT WITNESS-CARRIERS-LIABILITY FOR HANDLING DISEASED ANIMALS-CONSTITUTIONAL LAW.

1. Where there is evidence tending to prove each fact necessary to support the verdict of the jury, and the jury have rendered their verdict on such evidence, this court cannot disturb the verdict, although the court might have come to a different conclusion on the whole evidence.

2. When the special findings of fact returned by the jury are inconsistent with the general verdict, the special findings of fact are controlling, and the court should either render a judgment in accordance with the special findings, or set the findings and verdict aside and grant a new trial.

3. Where a person has been educated in a particular profession or trade, as a physician, surgeon, veterinarian, or engineer, or the like, he is presumed to understand thoroughly the questions pertaining to his profession or trade, he is termed an expert, and is qualified to give opinions on subjects coming within the scope of his profession or trade; but a witness who is not educated in any particular profession or

trade is not competent to give an opinion in any matter that requires science or skill to determine, although he may have frequently seen the treatment of diseases by physicians, or operations made by surgeons, and have assisted veterinarians in the treatment of stock for diseases, and have read extensively from books and papers treating on diseases of stock.

4. Common carriers in the transportation or hendling of articles that are dangerous to health or property of others, where they have a knowledge of such dangerous character, or, by the use of due care, should have knowledge thereof, will not be relieved of the liability for damage done in consequence, or injury to others, by the transportation or handling of such dangerous articles.

5. The provisions of chapter 161, Laws 1881, as amended by chapter 191, Laws 1885, are not an intrusion on the interstate commerce clause of the constitution of the United States, but a legitimate exercise of the police power of the state which extends to the protection of life, limb, health, comfort, and quiet of all persons, and the protection of all property, within the state; following the decisions in the cases of Patee v. Adams, 14 Pac. 505, 37 Kan. 136, and Railway Co. v. Finley, 16 Pac. 951, 38 Kan. 554.

(Syllabus by the Court.)

Error from district court, Labette county; J. D. McCue, Judge.

Action by Anna Youard against Henry C. Rouse, receiver. Plaintiff had judgment, and defendant brings error. Reversed.

On the 13th day of January, 1890, Anna Youard filed a bill of particulars before J. D. Scott, justice of the peace in and for the city of Parsons, in Labette county, Kan., in which she stated as her cause of action that George A. Eddy and H. C. Cross were the duly appointed, qualified, and acting receivers of the Missouri, Kansas & Texas Railway Company, and as such are, and at the times hereinafter mentioned were, in possession and control of, and engaged in operating, the Missouri, Kansas & Texas Railroad; that, in the month of July, 1889, they unlawfully and negligently transported to, and unloaded, drove, fed, and littered at, their stock yards near Parsons, in Labette county, Kan., cattle afflicted with Texas splenic or Spanish fever, a large number of which died at said stock yards of said disease; that said defendants negligently drove said cattle into said stock yards, in said county, and negligently allowed the same to remain and die in said stock yards of said contagious disease, and thereafter negligently gathered up the litter in said stock yards, infected by said cattle with said disease, and placed the same upon and near the pasture of plaintiff, in which her cattle were feeding, by reason whereof four cows owned by the plaintiff, without any negligence on her part, became infected with said disease, and died, to her damage of $200; and her pasture became dangerous and unfit for use for the pasturage of cattle, and she was deprived of the use thereof, to her damage of $25; and prays judgment for the sum of $225, her damages, and $50, as attorney's fees for prosecuting her action. Defendants were duly notified of the filing of

said bill of particulars and the pendency of said action, by service of summons, aud said cause was tried before said justice of the peace, and resulted in a judgment in favor of the plaintiff below; and the case was taken to the district court of Labette county, on appeal, and was tried in the district court by a jury. The jury returned a verdict in favor of the plaintiff below, and made and returned, with their general verdict, special findings of fact. Motion was made by defendants below for judgment against the plaintiff on the special findings of fact, notwithstanding the general verdict. Motion was overruled, and excepted to. Motion for new trial was filed, and overruled, and excepted to. Judgment for plaintiff below on verdict of the jury, and excepted to, and the case filed in the supreme court for review. Since the rendition of the judgment in the district court, and the filing of the case in the supreme court, the said George A. Eddy and H. C. Cross, receivers, have both died, and Henry C. Rouse has been duly appointed by the United States circuit court receiver de bonis non of the Missouri, Kansas & Texas Railway Company, and the action revived in the name of said Henry C. Rouse, receiver de bonis non. The case was duly certified by the supreme court down to this court for review, and both parties have appeared in this court and filed briefs, and argued said case before the court.

T. N. Sedgwick, for plaintiff in error. Kimball & Osgood, for defendant in error.

JOHNSON, P. J. (after stating the facts). The first error complained of, in the brief of counsel for plaintiff in error, is that the evidence on the trial was wholly insufficient to sustain the verdict of the jury or the judg ment in favor of Anna Youard against the receivers of the Missouri, Kansas & Texas Railway Company. This court cannot disturb the verdict of the jury, or the judgment of the court founded thereon, unless there was an entire want of evidence to prove some material fact necessary to entitle the plaintiff below to recover. To do so would be to entirely disregard the right of trial by jury. The jury had the witnesses before them, had an opportunity to hear their testimony as it was delivered, and observe the demeanor of each witness on the stand and the manner of giving his testimony, and, in fact, had an opportunity to see and determine whether his entire conduct and manner of giving his evidence was such as to impress an impartial trior with the truthfulness of his statements. It is the province of the jury to determine the credibility of each witness, and to weigh and determine what the evidence proves on the trial of the case; and, where there is evidence tending to prove each material fact necessary to the findings of the jury, and the jury have rendered their findings thereon, this court cannot disturb