The

was on the claim and did the work in 1884 is not overcome by the mere statements of witnesses, who were on adjoining premises at divers times, that they did not see him on the Lake Superior claim in 1884, and did not believe he was there. Tappan, the mineral surveyor, saw him there in 1884; and Daniels, an experienced miner, says that in September, 1884, he saw digging within the limits of the claim, that had not been done when he was there in 1883. That the representation work was done for 1883 appears not only by plaintiffs' witnesses, but by the statement of one of defendant's witnesses (Kearns), who admitted that Sperling had sent men to represent the Lake Superior in 1883, but that they had, through mistake, done work on the Forget-Me-Not claim. deputy surveyor, however, straightens this point out by testifying that the easterly line of the Lake Superior went directly over the edge of tunnel No. 5, the cut for the entrance to the tunnel being off the claim, and within the Forget-Me-Not limits. Conceding the fact to be that the work was partly off the claim, still, if it was done to develop the Lake Superior claim, and for the benefit of the Lake Superior location, as it clearly was, it may be properly considered as annual assessment work on the Lake Superior claim. Hall v. Kearny (Colo. Sup.) 33 Pac. 373; Smelting Co. v. Kemp, 104 U. S. 636; Jackson v. Roby, 109 U. S. 440, 3 Sup. Ct. 301; Book v. Mining Co., 58 Fed. 106. The burden of showing nonrepresentation is upon the party alleging it. Coleman v. Cur

tis, 12 Mont. 301, 30 Pac. 266. The defendant therefore assumed to prove that plaintiff's or their predecessors did not do the requisite amount of work for 1883 and 1884. But we cannot sustain the finding of the court in this particular, and must remand the case for a new trial. The defendant has failed to sustain his averments of forfeiture by that clear and convincing proof essential in all cases where forfeiture is relied on.

Appellants have raised several other questions, pertaining, principally, to the admissibility of certain testimony. A witness was asked by the defendant if he knew what purported to be, and what was indicated by marks and monuments as, the discovery of the Lake Superior quartz lode mining claim, and, if so, what was the mark indicating the point of discovery of such claim. The witness to whom this question was put was a miner, and had known the ground in controversy since 1887, and said that he assisted in surveying the boundaries of the Lake Superior in that year. The object of this question was to prove that the discovery of the Lake Superior was north of the north side line of the claim. The court overruled the objection, and the witness answered by saying that he did observe a post at the discovery cut, and that it was a few feet north of the north side line of the Lake Superior, as surveyed by the surveyor. The argument

of the appellants is that the ruling was erroneous, because the witness had no knowledge of the condition of the claim prior to August, 1887, and that any answer that he might make would be hearsay. But we think the ruling of the court was correct. We see no objection to permitting a miner to testify what purported to be the discovery hole or cut of a mining claim, if he can intelligently answer such a question, by reason of his familiarity with the marks and monuments which indicate the discovery on the claim. We do not think it necessary to pass upon other objections made by the appellants. The judgment is reversed, and the cause remanded for a new trial. Reversed and remanded.

PEMBERTON, C. J., and BUCK, J., con

cur.

(15 Utah, 250)

MUNNS et al. v. LOVELAND et al. (Supreme Court of Utah. June 4, 1897.) ATTACHMENT-SHERIFF-JUSTIFICATION--LIABILITY

OF ATTACHING CREDITORS-JUDGMENT BY DEFAULT-BILL OF SALE-REPLEVIN-ALLEGATIONS

OF FRAUD-APPEAL-ABSTRACT-COSTS.

1. Attaching creditors are not liable for the acts of a sheriff unless by interference in some way they make themselves liable. They are presumed to have intended that no action should be taken by the officer not authorized by the terms of the writ. And it is not error to grant a nonsuit, as to creditors who have been joined in a suit with the sheriff, when the record furnishes no evidence tending to show that the officer was authorized or directed by his co-defendants, or either of them, to levy upon the particular goods in question, or any goods except such as belonged to the debtor. The receiving of the proceeds of the sale in satisfaction of their claims implies no consent to any i'regularities or proceedings of the officer, and they are not joint wrongdoers with the sheriff.

2. Where one of the attaching creditors files no answer to such a suit brought, and plaintiff fails to show liability as to any of such creditors, it is not error to deny judgment by default against a creditor thus failing to file an answer.

3. It is not error in a court to direct a jury to return a verdict of no cause of action, in a proceeding in replevin for the possession of goods or their value, against a sheriff who attached the same as the property of B., when the liability of the officer depends upon the validity of a sale of the goods claimed to have been made by bill of sale which has never been recorded, and where there was no change of possession, as required by section 2837, Comp. Laws Utah 1888.

4. In replevin the rule that, where a party to an action relies upon fraud, he must allege and prove it, does not always apply. Where the plaintiff alleges ownership generally, and right of possession, without disclosing the origin of title, or stating facts showing it, the defendant may traverse the allegations of the complaint, and, under the issue thus formed, may prove that the plaintiff's title was founded in fraud, and introduce any evidence which tends to show that the plaintiff had neither title in the property nor right of possession thereof.

5. Where property is found in the possession of the defendant in attachment proceedings, and the writ under which the levy was made and the property seized was issued by a court or officer having lawful authority to issue it, and is in legal form, the officer may justify the levy by producing the writ.

6. When the omissions and inaccuracies of appellant's abstract render the filing of an additional abstract necessary, the costs of such additional abstract may be taxed against appellant. (Syllabus by the Court.)

Appeal from district court, Weber county; H. H. Rolapp, Judge.

Action by Arthur J. Munns and Elias Jensen against C. C. Loveland, H. E. Gibson, and C. A. Smurthwaite (partners as Gibson & Smurthwaite), L. E. Hall, Zion's Co-operative Mercantile Institution, Brigham City Woolen-Mills Company, George Q. Cannon & Sons Company, Brigham City Mercantile & Manufacturing Association, and Gilbert F. Boreman. From a judgment for defendants, plaintiffs appeal. Affirmed.

The first question presented in this case is whether the court erred in granting the nonsuit as to all the defendants except C. C. Loveland at the close of the plaintiffs' testimony. The appellants contend that these defendants were joint wrongdoers with the sheriff, because, as is insisted, they directed the officer to levy on the goods, and accepted the proceeds of the sale in satisfaction of their demands against E. A. Box. This contention is not sustained by the record. The matters set up in the answer in justification simply show that the officer was authorized in the attachment suits to levy on and sell the property of E. A. Box, but show no direction to him to levy upon or sell the property of these plaintiffs, or of any other person. There is nothing in the answer which would establish the fact that they were joint wrongdoers, even if it were true that the officer was a wrongdoer. Nor did the plaintiffs, before resting their case, introduce any evidence which even tended to show that the officer was authorized or directed by his co

tween the 1st and 5th of May, 1893. After Sheriff Loveland had levied upon and taken into his possession the goods, under the various writs of attachment, said Box and his wife executed a deed of assignment for the benefit of his creditors to the plaintiffs (the appellants herein), as assignees, and thereby attempted to convey the merchandise in controversy, and some real property. The assignees then demanded the possession of the goods, which was refused by the sheriff. After such refusal, on the 20th day of May, 1893, they were sold by the sheriff under writs of attachment issued in the attachment suits; ard on the same day the assignees brought this action to recover the possession of the goods, or, if that could not be obtained, their value. They alleged in their complaint generally, in addition to the formal matters, that they were the owners and entitled to the possession of the goods and chattels in controversy, and that upon demand made the defendants refused to surrender the same, and still wrongfully detain and withhold them from the possession of the plaintiffs. All the defendants except George Q. Cannon & Sons Company filed answers in which they specifically denied the allegations of the complaint, and in justification set up the attachment proceedings. At the trial of the cause, upon the plaintiffs resting a nonsuit was granted as to all the defendants except C. C. Loveland, the sheriff; and at the close of the testimony of defendant Loveland the court directed the jury to find a verdict of no cause of action as to him, and entered judgment· accordingly. Thereupon this appeal was prosecuted.

particular goods in question, or on any goods, except such as belonged to E. A. Box, or that either of such defendants knew, or had reason to know, that the goods levied upon belonged to any other person than E. A. Box, or that they, or either of them, assumed to direct or control the officer in making the levy. Their receiving the proceeds of the sale in satisfaction of their claims, of itself, implied no consent to any irregularities or proceedings of the officer. The attaching creditors were not liable for the acts of the sheriff unless by interference in some way they made themselves liable, and it was incumbent upon the plaintiffs to establish such liability by a preponderance of the evidence, because the defendants are presumed to have intended that no action should be taken by the officer not authorized by the terms of the writs. Speaking of the liability of defendants, in an action for trespass, who had given an indemnity bond in attachment proceedings to an officer who served the writ, the supreme court of the United States, in Lovejoy v. Murray, 3 Wall. 1 (Mr. Justice Miller delivering the opinion), says, "That the attaching creditor is not answerable for the acts of the officer unless he in some manner interferes so as to make himself liable must be conceded." Freem. Ex'ns, § 273; Abbott v. Kimball, 19 Vt. 551; Hyde v. Cooper, 26 Vt. 552. We are of the opinion that the nonsuit, as to the attaching creditors, was properly granted. The fact that George Q. Cannon & Sons Company filed no answer is immaterial, because the plaintiffs failed to show any liability; and for the same reason the motion to enter judgment by default

as to the last-named defendant company was properly denied.

The next question which we will consider is whether the court erred in directing the jury to return a verdict of no cause of action as to defendant Loveland at the close of the testimony in the case. Counsel for the appellants insists that the merchandise levied upon under the several writs of attachment and sold was not the property of E. A. Box, the defendant in the attachment proceedings, but that it had been conveyed to his wife, Roxy Box, and by her to the plaintiffs. At the trial, to support this contention appellants introduced in evidence a bill of sale of the goods in controversy executed on the 27th day of January, 1893, and a deed of assignment of the same goods made by E. A. Box and his wife, Roxy Box, for the benefit of his creditors, bearing date May 12, 1893. The bill of sale was never recorded, nor were any of the creditors or the general public ever notified of its existence; nor does it appear from the record that the sheriff or any of the defendants had any knowledge of its existence, or of any claim of the wife to the goods which it purported to convey. Nor does the evidence establish the fact that there was any change of possession of the goods. E. A. Box, as a witness for the appellants, himself testified that before the sale to his wife he conducted the business; that he collected and paid bills; that he made deposits in the bank, and drew checks in his own name; that his wife had no occupation, prior to the time of the bill of sale, except attending to the household duties; and that after the bill was made he thought she did not do much else. He further testified: "At the time I made the bill of sale my two daughters were the employés in the store. They were the employés after that. The only change that I know that was made about the store, or in the store, after the bill of sale, was that I was not around there so frequently after that, if that would be considered a change." Trieste Box, daughter of E. A. Box, and one of the appellants' witnesses, testified that she lived at home and worked at the store just the same after the bill of sale as before; that her mother's duties were not changed after the bill of sale; she still attended to her household duties; that her father was the only one who did the buying for the store, both before the bill of sale and after; and that she surrendered the possession of the store to the sheriff, and gave him the keys, but did not remember what she said to him. Further reference to the evidence is not necessary, because it is apparent from a perusal of it that there was no delivery of the goods, or any change of possession, under the bill of sale, as required by section 2837, Comp. Laws Utah 1888, and that, therefore, the pretended sale was fraudulent and void as to creditors. The maker himself treated the bill as of no effect when he made the deed of assignment to the appellants, for in that instrument his vendee in the bill of sale joins

him simply as wife, and not as maker. Counsel for the appellants, however, insists that the question of fraud cannot be considered in this case, in reference to the transfer of the property, because fraud was not specifically alleged in the answer. This question was fully considered by this court in Jones v. McQueen, 45 Pac. 202,-a case very similar to this on several points; and, if counsel had been diligent in an examination of that case, much useless labor might have been averted in the briefs in this. We there said: "As a general rule, where a party to an action relies upon fraud he must plead it. In replevin, however, the law seems to be settled, in most jurisdictions, that where the plaintiff alleges ownership generally, and right of possession, without disclosing origin of title, or stating facts showing it, the defendant may traverse the allegations of the complaint, and, under the issue thus formed, may prove that the plaintiff's title was founded in fraud, and introduce any evidence which tends to show that the plaintiff had neither title in the property nor right of possession thereof. This rule is doubtless based on the fact that in replevin the plaintiff is not bound to disclose any source of title, and therefore the defendant is not bound to anticipate the source of title under which the plaintiff may claim."

The bill of sale being void as to creditors, the merchandise was subject to attachment by them as the property of E. A. Box at the time when the levy was made and the property taken into possession by the officer; and it is apparent from the evidence that, for the purpose of the attachment proceedings, at least, the goods must be considered as having been in the possession of E. A. Box, and that such possession was surrendered by his daughter to the officer, while acting as his agent, at the time of the levy. It is evident, therefore, that the defendant Loveland levied upon and sold the property of the defendant in the attachment proceedings, as authorized and directed in the several writs, and not that of these plaintiffs. The assignment made after the levy could not have the effect of devesting the sheriff of his possession under the writs, and did not affect the rights of the attaching creditors. It simply served to show that neither the husband nor the wife regarded the bill of sale as a valid transfer of the property. The sheriff, having attached and sold the property of the defendants in the attachment proceedings, and not that of a stranger to them, had the right, when sued in replevin, to justify under the writs; and having done so, as is apparent from the record, the court was justified in directing the jury to return a verdict of no cause of action. Where, as in this case, property is found in the possession of the defendants in attachment proceedings, and the writ under which the levy was made and the property seized was issued by a court or officer having lawful authority to issue it, and is in legal form, the officer may justify the levy by producing the

writ. This court so held in Jones v. McQueen, supra.

Counsel for the appellants also insists that the pleadings in the attachment suits were insufficient, and the proceedings irregular. While it must be conceded that the record, in these regards, shows a degree of carelessness which ought not to be encouraged, still we are of the opinion that the pleadings and proceedings were sufficient for the purposes of this suit.

The record in the case reveals many objections made at the trial of this cause which are so frivolous as not to merit our notice. Such objections serve to confuse, rather than aid in the trial of a cause. We perceive no reversible error. The judgment is affirmed, and, as there were such omissions and inaccuracies in appellants' abstract as rendered the filing of an additional abstract necessary, it is ordered that the costs of such additional abstract be taxed with the other costs against the appellants.

1. It was the duty of the city authorities of Mt. Pleasant to have used all reasonable means and precautions to prevent injurious consequences to its people and to property from floods which they should have anticipated, but in doing so they should have used all reasonable means and precautions not to cause the destruction of or injury to other property.

2. Water flowing in creeks or ditches cannot be regarded and treated as surface water. (Syllabus by the Court.)

Appeal from district court, Seventh district; J. W. N. Whitecotton, Judge.

Action by J. Jordan against the city of Mt. Pleasant. Judgment for plaintiff. Defendant appeals. Affirmed.

Williams, Van Cott & Sutherland and A. G. Sutherland, for appellant. William K. Reed and F. Erickson, for respondent.

ZANE, C. J. It appears from the findings of the lower court that Pleasant creek is a natural stream of water having its source in the mountains, and running westerly through the city of Mt. Pleasant; that its width varies from 8 to 12 feet; that its banks are perpendicular on either side, and from 2 to 12 feet high: that it held all its waters until a flood in 1893, caused by a heavy storm, called a "cloud burst"; that in 1894 the city authorities, at a point 3 or 4 miles above Mt. Pleasant, at the mouth of the canyon from which the creek issues, cons ructed barriers, 4 or 5 feet high, with an opening of about 8 feet for the waters of the creek to pass through, extending back on either side to ridges begin

ning a short distance above, and extending down the stream a distance of 2 miles, from 3 to 8 rods apart; that upon the outside of the ridges, which average in height from the bottom of the creek about 12 feet, the land is lower; that ditches were cut through these · ridges, just above the barriers, to the depth of from 18 to 24 inches, through which the waters could flow before running over the barriers; that on May 29, 1896, a flood, caused by an extraordinary storm called a "cloud burst," carried into and down the creek great quantities of débris consisting of timber, rocks, and mud, choking the opening between the barriers. A portion of this water and débris flowed through the ditches in the ridges on either side of the creek, and over the lands of the plaintiff and his assignors, greatly injuring the same and the crops thereon. It appears that the flood of 1893 overflowed the banks of the creek, but not the ridges on either side, from 3 to 12 rods apart; but below those natural elevations the water spread over a considerable area of land, including residence and business property, carrying mud and other drift, and doing serious damage. To prevent or alleviate such a calamity from a like occurrence, the city authorities erected the barriers and made the ditches complained of. Overruling necessity may be relied upon to justify the destruction of or injury to private property in some emergencies, as counsel contend. In the face of pending and imminent danger of destruction and disaster from the spread of a conflagration, or from the advance of a hostile army, the ravages of an infuriated mob, or the approach of a flood, the rights to private property may be sacrificed to prevent overwhelming calamity. But we do not think the erection of the barriers and the construction of the ditches two years before the flood. as they were made, can be so justified. It would seem that the opening between the barriers could have been made wider, and below the elevations on either side the capacity of the creek could have been increased or a ditch could have been added, or, if that was impracticable, ditches might have been provided to carry the water flowing over the elevations in consequence of the barriers. The city authorities must have contemplated the overflow to some extent, if not to the full extent that actually occurred in consequence of the barriers, from the fact that they cut the later ditches through the ridges. Undoubtedly the city authorities had the right, and it was their duty, to prevent injurious consequences from floods, which they should have anticipated, by the use of all necessary and reasonable means. But it was also their duty in so doing to use all reasonable means and precautions not to cause the destruction of or injury to private property, and, if necessary, to resort to right of eminent domain.

Counsel contend that the injury to plaintiff and his assignors was caused by surface water. After the water had collected in the creek, it could not be regarded as surface wa