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Nuisance-What not Excessive Verdict.

2. A verdict for $2,000 in an action for damages for maintaining a nuisance, where it appeared that besides losing $15 rental a month of a house and garden for about a year, plaintiff lost the use of a quarter-section of land with improvements thereon, and suffered discomfort and annoyance for practically two years, held not excessive, it being impossible in such a case to lay down a fixed measure of damages.-Newton v. City of Roundup, 24.

Order Setting Aside Under Guise of Correcting Minutes, Void.

3. Held, that a verdict arrived at, received and filed in regular manner, eight of the jurors, upon their poll, answering in the affirmative, could not be set aside on motion, supported by the affidavit of one of them to the effect that he had answered in the negative, asking specifically that it be set aside, under the pretension that its purpose was merely to correct the minutes of the court.-Currey v. Butte Electric Ry. Co., 146.

Directed Verdict-Motion by Both Parties-New Trial.

4. Where both parties moved for a directed verdict, thus in effect submitting the cause upon an agreed statement of facts, the court may nevertheless grant the defeated party a new trial if it deems the verdict as directed by it erroneous.-Buckhouse v. Parsons, 156.


Of defects in pleading-Variance-Trial on agreed statement of facts,— see Pleading and Practice, 24.

Of defenses pleaded-What constitutes,-see Pleading and Practice, 32. Of right to rescind, see Contracts, 22.


Municipal-Issuance at discount prohibited,— -see Cities and Towns, 9.


Flumes-Easements,-see Mines and Mining, 10-12.

Riparian and nonriparian lands,-see Real Property, 5-14.

Sudden change of watercourse Effect on boundary of land of riparian owner, see Real Property, 8.


1. A "watercourse" is a living stream with defined banks and channel, not necessarily running all the time, but fed from other and more permanent sources than mere surface water.-Le Munyon v. Gallatin Valley Ry. Co., 517.

Surface Waters-Obstruction by Railroad Embankment-When Defendant not Liable for Damages.

2. Under the common-law rule of liability for the obstruction of surface waters, in force in this state in the absence of statute providing otherwise, defendant railway company was not liable for damage caused to plaintiff's property by surface waters which were dammed up by its embankment and for the escape of which it had failed to construct culverts or openings, its duty in this respect being confined, by subdivision 5 of section 4275 and section 4362, Revised Codes, to providing outlets for streams, watercourses, etc., intersected by the embankment, plaintiff's evidence having failed to establish that the invading waters were conveyed through a natural watercourse.-Le Munyon v. Gallatin Valley Ry. Co., 517.

See Criminal Law, 39.


"Devises"-"Bequests,"-see Executors and Administrators, 5–7.

See, also, Evidence.

Expert and opinion evidence, see Evidence, 24-27.

When Mental Incompetents may Testify.

1. The testimony of an incompetent person is admissible in evidence if the court is satisfied that he has sufficient mentality to appreciate the nature and obligation of an oath and is capable of giving a correct account of the matters which he has seen or heard with reference to the question at issue, his incompetency going only to the weight of his evidence.-Martin v. Hover, 302.

Rape-Credibility of Prosecuting Witness-Question for Jury.

2. The credibility of the prosecuting witness in a prosecution for attempted rape was a matter for determination by the jury, and its verdict of guilty establishes the truth of her testimony for all purposes.-State v. Prouty, 310.

Criminal Law-Witnesses-Former Conviction of Misdemeanor-Improper


3. Held, that the provision of section 8907, Revised Codes, to the effect that the conviction of a person of any offense may be proved for the purpose of affecting the weight of his testimony, refers to conviction for a felony, and that therefore refusal to permit crossexamination of a witness for the state as to his former conviction of a misdemeanor was proper.-State v. Stein, 441.

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In re Fratt's Estate, 537.

"Board"-(Rev. Codes 1907, sec. 3138.)

Majors v. Lewis and Clark County, 616.

"Character" of special improvements-(Chap. 142, sec. 2, Laws 1915.), Evans v. City of Helena, 589.

"Commensurate" with earnings

Donovan v. Bull Mt. Trading Co., 95.


State v. Stevens, 402.


In re Fratt's Estate, 537.


Mannix v. Powell County, 512.

"Easement" apparent

Pioneer Min. Co. v. Bannack Gold Min. Co., 264.

"Expressly"-(Rev. Codes 1907, sec. 4970.)

McKeever v. Oregon Mortgage Co., 274.

"General character" of improvements (Chap. 142, sec. 2, Laws 1915.) Evans v. City of Helena, 589.

"General damages"

Whitelaw v. Vallance, 176.

Sankey v. Chicago etc. Ry. Co., 244.

"Implied easement”—

Pioneer Gold Min. Co. v. Bannack Gold Min. Co., 264.

"Incidental work"

Evans v. City of Helena, 588 et seq.

"Inheritance tax"

In re Fratt's Estate, 540.

"Journal entry”–

Currey v. Butte Electric Ry. Co., 153.

"Judgment"-(Rev. Codes 1907, sec. 6710.)

In re Smith's Estate, 293.


Clary v. Fleming, 253.


State v. Wallin, 340.


State v. Bennett, 361.

"Necessary" "Necessity"

Pioneer Gold Min. Co. v. Bannack Gold Min. Co., 264.


Zanos v. Great Northern Ry. Co., 21.



Pioneer Gold Min. Co. v. Bannack Gold Min. Co., 265.

In re Smith's Estate, 299.

"Probable cause"

Hawley v. Richardson, 127.

60 Mont.-45

"Quotient Verdict"—

Zanos v. Great Northern Ry. Co., 21.

"Reasonable doubt"

State v. Bess, 574.


Martin v. Hover, 306.

"Res adjudicata”—

In re Smith's Estate, 293.

"Special damages"

Whitelaw v. Vallance, 176.

Sankey v. Chicago etc. Ry. Co., 244. "Subsistence"-(U. S. Rev. Stats., sec. 5547.)

Majors v. Lewis and Clark County, 615.

"Support" (Rev. Codes 1907, sec. 9763.)

Majors v. Lewis and Clark County, 615.

"Surface waters"-Le Munyon v. Gallatin V. Ry. Co., 523. "The managers or proper authorities"-(U. S. Rev. Stats., sec. 5547.) Majors v. Lewis and Clark County, 615.


Le Munyon v. Gallatin V. Ry. Co., 523.

"Within a given number of days"-(Rev. Codes 1907, sec. 7148.) Batchoff v. Butte etc. C. Co., 187.


See Contracts, 1-4.


See Certiorari; Injunctions.


Adlam v. McKnight, 32 Mont. 349..

(Larceny—Identification of Property.)

Ahlstrom v. Fitzpatrick, 17 Mont. 295..... (Vague Contracts Void.)

Aiken v. City of Glendive, 60 Mont. 1...................

(Cities and Towns-Special Improvements.) Allen v. Bear Creek Coal Co., 43 Mont. 269.. (Appeal-Instructions-Review.)

(Negligence Complaint-Inferences)

Allen v. City of Butte, 55 Mont. 205....

(Cities and Towns-Special Improvements.)




... 269



Barnard Realty Co. v. City of Butte, 48 Mont. 102, 55 Mont. 384.... 115

(Streets Quieting Title-Equity.)

(Cities and Towns-Prescription)...


Barnes v. Smith, 48 Mont. 309...


(Corporate Stock Owned by One Person-Effect.)

Beck v. Holland, 29 Mont. 234...


(Official Duties-Presumptions.)

Bielenberg v. Eyre, 44 Mont. 397...



Birsch v. Citizens' Electric Co., 36 Mont. 574.... (Personal Injuries-"Negligence.")

Boehme v. Fitzgerald, 43 Mont. 226...


Bosanatz v. Ostronich, 57 Mont. 197......

(Equity Finding of Jury Advisory)..

Botkin v. Kleinschmidt, 21 Mont. 1.....

(Claims Against Estates.)

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Bourke v. Butte Elec. & P. Co., 33 Mont. 267.....


(Personal Injuries-Earning Capacity-Instructions.)

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Carlson v. Stone-Ordean-Wells Co., 40 Mont. 434....

(General and Special Damages.) DISTINGUISHED.



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