of the court so to declare as a matter of law. Gompert v. Healy, 149 App. Div. 198, 133 N. Y. Supp. 689; Ketchum v. Herrington, 18 N. Y. Supp. 429;1 Glacius v. Black, 67 N. Y. 563; Spence v. Ham, 163 N. Y. 220, 57 N. E. 412, 51 L. R. A. 238. The reasoning of the court in the Sanford Case, supra, may be considered in relation to the question of performance. that case the court said: In "It may safely be affirmed that no man in his senses would purchase 3,500 peach trees, and agree that he would be content with the return of the purchase price, if it should turn out, after three or four years of culture, that they were substantially all worthless, and not what he ordered." The appellant had knowledge of the portion of the combined order that was intended for the respondent. The combined order and shipment was made at the request of appellant, and presumably for its convenience. The combined order, therefore, was separable, and it is proper to consider the individual order in determining the question of substantial compliance on the part of appellant. Wilson Case Lumber Co. v. Mountain Tim ber Co. (D. C.) 202 Fed. 305. The testimony is undisputed that of the 300 Jonathan and 130 Rome Beauty trees ordered, none were delivered, and that only 70 of the 500 apple trees ordered were true to name. No complaint was made as to the delivery of the pear, cherry, peach, or plum trees. In view of the foregoing facts, there was not a substantial compliance with the contract on the part of the appellant. No error was committed, therefore, in the introduction of the individual contract in evi dence. The second error assigned by appellant is that the court admitted evidence upon an erroneous theory of the measure of damages. It seems to be the theory of appellant that the damage must be limited to the land actually occupied by the orchard, the error assigned being the admission of evidence as to the damage to the 40 acres upon which the orchard, which occupied 7.77 acres, was planted. In the same connection the appellant complains that the court in instructing the jury adopted the same erroneous view as to the proper measure of damages. The court instructed the jury as follows: "The jury are instructed that the damages plaintiff is entitled to in this case, if you find from the evidence that he is entitled to any, is the difference in the reasonable cash value of the 40 acres in question at the time that the plaintiff discovered that the said fruit trees were not true to name, or at such time as he, the plaintiff, by the exercise of ordinary care and attention might have discovered that fact, with the trees true to name, and the reasonable cash value of the same 40 acres of land at the same time with the fruit trees thereon as they actually existed, that is, with the trees not true to name, if you so find from the evidence, together with interest on said sum at 7 per cent. 1 Reported in full in the New York Supplement; reported as a memorandum decision without opin I per annum from the commencement of this action, to wit, August 27, 1912. In other words, have been added to the premises, at the time the measure of damages is the value that would of the discovery of the mistake by the plaintiff, or at such time as he, the plaintiff, by the exercise of ordinary care and attention might of the varieties as ordered by the plaintiff." have discovered that fact, if the trees had been In this case, however, special questions were submitted to the jury, which questions and their answers are as follows: (1) What do you find the value of the acreage embraced within such orchard to have been had the trees been planted as contained in the order and the contract of the plaintiff, such value to be determined on or about April; 1910? We find the value of the ten acres to have been on the above date, $3,900.00. was at such time? D. P. Albee, Foreman. or (2) What do you find the value of the acreage embraced in the orchard to have been on about April, 1910, in the condition in which it We find the value of the ten acres, including the improvements, to have been $2,400.00. D. P. Albee, Foreman. the plaintiff in the sum of $1,500. The general verdict of the jury was for It thus appears that the jury took into the orchard was planted in arriving at their consideration only the 10 acres upon which verdict. The appellant cannot complain that the jury considered the 10-acre tract instead of the 7.77 acres upon which it claims the trees were actually planted. The 2.23 acres making up the 10 acres were occupied by the and were so situated that manifestly it would dwelling house and buildings of respondent, be impracticable to consider the 7.77 acres alone. Conceding appellant's theory to be correct, it was not injured by the evidence re ceived or instruction given. [5] In this state a judgment will not be reversed where it appears that the jury took cognizance only of matters proper for their consideration, even though erroneously instructed. Tarr v. Short Line, 14 Idaho, 192, 93 Pac. 957, 125 Am. St. Rep. 151. The appellant also assigns as error the action of the court in admitting evidence, over objections, as to the value of improvements upon the 40 acres aside from the orchard. As the value of the improvements was the same whether the trees in the orchard were true to name or otherwise, we think the admission of the testimony was harmless. [6] Appellant assigns as error the admission of answers to certain hypothetical questions propounded to witnesses, on the ground that the questions did not include all elements proven in the case, and which necessarily should have been included before the questions could be properly answered. Subsequently, however, the omitted elements were supplied, in substance, and the erroneous admission of the answers was thereby cured. Appellant also complains that two witnesses were permitted to give opinion testimony without showing proper qualifications as ex d'Alene Co., 15 Idaho, 444, 98 Pac. 622, 16 resulted in no substantial injury to appelAnn. Cas. 544, this court said: lant. "No very nice distinction has ever been drawn or fixed rule established by which a trial judge shall determine the exact amount of knowledge, experience, and skill a so-called expert shall have before permitting him to testify before the jury. That question must be determined in the first instance by the court. * After the evidence is in, its weight and credibility is to be judged solely by the jury, and they will give it such weight as they think it is entitled to, and, indeed, if it runs counter to their convictions of truth in the exercise of their own knowledge and judgment, they may disregard it entirely." The judgment of the lower court will be affirmed. Costs awarded to respondent. BUDGE, C. J., and MORGAN, J., concur. (30 Idaho, 232) GOODING HIGHWAY DIST. OF GOODING Power to establish highways is vested, inboard of county commissioners to accept, on behalf of the state, the grant of right of way over the public domain expressed in section 2477, Rev. St. U. S. (Comp. St. 1913, § 4919), or to lay out a road across private property, it must substantially conform to the state law delegating this power to it and prescribing the manner in which it may be exercised. A mere order, made and entered of record by the board, declaring certain section lines to be public highways, is not a substantial compliance with the law. It does not appear, in view of the fore- (Supreme Court of Idaho. March 24, 1917.) going expression, that error was committed in 1. PUBLIC LANDS 64-HIGHWAYS - ACpermitting the witnesses to testify as ex- CEPTANCE-Order. perts. [7] Appellant also assigns as error the inherently, in the Legislature and in order for a struction of the court, quoted above, to the effect that the jury might give plaintiff interest from the date of the commencement of the action. This being an action for unliquidated damages, the instruction given was erroneous (Barrett v. No. Pac. Ry. Co., 29 Idaho, 139, 157 Pac. 1016); but in view of the fact that the answers to the special questions submitted to the jury show that this instruction was disregarded, the judgment will not be reversed on account of such error. The appellant also assigns as error the giv-2. DRAINS 55-WATERS AND WATER COURSing of the following instruction to the jury: "The jury are instructed that under the pleadings in this case it stands admitted that the defendant company is a foreign corporation, and that it failed to comply with the statutes of the state of Idaho in regard to designating an agent in this state upon whom service of summons could be made in this state; and, having thus failed to do so, the said defendant is not entitled to urge the defense of the statute of limitations in this case." At the opening of the trial the court had denied appellant's motion to amend its answer, so as to plead the statute of limitations. The instruction was gratuitous, in that the statute of limitations was not in issue, nor was any evidence introduced by the appellant tending to show that the cause of action was barred by the statute. The second paragraph of the complaint contained the allegation that the defendant was a foreign corporation, and that during all times mentioned in the complaint it had been, and now is, doing and carrying on business within the state, and that it had neglected to comply with the statutory requirements with reference to foreign corporations doing business within the state. This allegation is expressly admitted by the answer. The instruction, therefore, correctly stated the law, if the question involved had been an issue in the case. The instruction should not have been given; but, in view of the other instructions given by the court, it is apparent that no substantial injury was done to the appellant. All specifications of error on the part of appellant have been examined, but it appears that the errors committed by the trial court [Ed. Note.-For other cases, see Public Lands, Cent. Dig. §§ 222-225.] ES 244-CONSTRUCTION OF HIGHWAY – The owner of a ditch or canal constructed across an established highway must provide a bridge, at the point of intersection, for the use and benefit of the public; but if the ditch or canal is constructed prior to the establishment of the road which intersects it, the expense of building the bridge must be borne by the county or highway district to which the road belongs. [Ed. Note.-For other cases, see Drains, Cent. Dig. 61: Waters and Water Courses, Cent. Dig. 309.] Budge, C. J., dissenting in part. Appeal from District Court, Lincoln County; Chas. O. Stockslager, Judge. Suit by the Gooding Highway District of Gooding County, State of Idaho, against the Idaho Irrigation Company, to recover the cost of construction of bridges over defendant's canal. Judgment for defendant, and plaintiff appeals. Affirmed. M. Ruick, Oppenheim & Hodgin, and V. P. Twin Falls, for respondent. MORGAN, J. Appellant instituted this action pursuant to section 3310, Rev. Codes, to recover the cost of construction of certain bridges built across irrigation ditches and canals of respondent. That section makes it the duty of the owner of a ditch or canal to build substantial bridges at all places where it crosses county or state roads, or any road kept open and used by the people of a For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes neighborhood for their convenience and bene- [spondent reserving the right to lay out highfit, and provides that in case the owner neglects or refuses so to do, the board of county commissioners of the proper county shall, after ten days' notice, proceed to construct the same, and shall collect the cost thereof, together with costs of suit. It appears from the amended complaint that on January 12, 1909, the board of county commissioners of Lincoln county, by order entered of record, declared all section lines within certain townships in that county to be public highways; that appellant was organized as a highway district on June 20, 1911, and succeeded to the ownership of the roads laid out and constructed within its territory; thereafter Gooding county was created from a portion of Lincoln county and the townships in question were included therein; that, prior to the creation of the highway district and during the latter part of the year 1909 and early in 1910, respondent constructed ditches and canals across certain section lines within the aforesaid townships, and that between September 1, 1911, and December 1, 1912, after the ditches and canals had been constructed and put to use, appellant, while building and repairing highways along these lines, constructed 16 bridges, at points where they intersected the ditches and canals, at an aggregate cost of $1,220; that at least 15 days prior to building the bridges appellant gave notice to respondent to construct them, but by reason of its refusal to do so appellant was obliged to and did build the bridges at its own cost and expense; that all the land adjacent to the section lines above mentioned, prior to January 12, 1909, the date of the order of the board of county commissioners, was public land of the United States, and had been filed upon as "Carey Act" land, and was reclaimed and watered by the irrigation system of respondent; that the contract between the state of Idaho and respondent, which provides for the construction of the system and for watering the land, contains the following section: "Sec. 16. Highways.-Entries of land are understood to be made subject to a right of way without compensation to the entryman for roads upon all section lines and also upon all half section lines which may be designated by the board of county commissioners, as may be provided by law." Respondent demurred to the amended complaint. The demurrer was sustained, and, upon appellant's refusal to further plead, judgment of dismissal was entered, from which this appeal is prosecuted. ways along the section lines here under consideration, no other action than that taken by the board of county commissioners was necessary to establish legal highways thereon. In support of this contention the following cases are cited for our consideration: Schwerdtle v. Placer Co., 108 Cal. 589, 41 Pac. 448; Tholl v. Koles, 65 Kan. 802, 70 Pac. 881; Wallowa Co. v. Wade, 43 Or. 253, 72 Pac. 793; Walbridge v. Bd. of Com'rs Russell Co., 74 Kan. 341, 86 Pac. 473; Bd. Co. Com'rs Cowley Co. v. Johnson, 76 Kan. 65, 90 Pac. 805; Molyneux v. Grimes, 78 Kan. 830, 98 Pac. 278; Mills v. Glasscock, 26 Okl. 123, 110 Pac. 377; Wells v. Pennington Co., 2 S. D. 1, 48 N. W. 305, 39 Am. St. Rep. 758. These authorities decide that where the state Legislature declares certain section lines on the public domain to be highways, such lines are thenceforth highways on the theory that such a declaration is an acceptance of the grant made by the government, where no private rights have theretofore intervened, and that where the statutes of the state have provided for laying out highways by action of the board of county commissioners or where a right of way has been acquired by prescription such action by the board, in the manner provided by law, or user for the prescribed period, is as complete an acceptance of the government grant as if the Legislature itself had acted directly. In order that an act of a board of county commissioners in laying out a highway be valid, whether it be upon the public domain or over private property, the board must conform, substantially, to the law giving it such authority, because the power to establish highways rests, inherently, in the Legislature and not in the board, and the right may be exercised only in such manner as the Legislature prescribes. Gorman v. Co. Commissioners, 1 Idaho, 553; Prothero v. Co. Commissioners, 22 Idaho, 598, 127 Pac. 175. Section 916 et seq., Rev. Codes, prescribing the methods to be followed by boards of county commissioners in laying out highways, were in force in 1909, at the time of the action of the board which is relied upon by appellant in this case. These sections, at that time and prior to the amendment of the law upon that subject, provided for the filing of a petition by a certain number of residents of the road district in which the proposed highway was to be built; that the petition must describe the route, state the estimated cost, and the necessity and advantages of the proposed road. It was necessary that a bond accompany the petition to secure the payment, if it was denied, of the costs of the proceeding; viewers must be appointed whose duty It is appellant's contention that in view of it was to make a report upon the facts allegthis act of Congress, which grants a free right ed in the petition, and a time must be fixed of way for roads across the public domain at which those in favor of and those opposed and in view of section 16, heretofore quoted, to the establishment of the highway might [1] Section 2477, Rev. Stats. U. S. (Comp. St. 1913, § 4919) provides: "The right of way for the construction of highways over public lands, not reserved for public uses, is hereby granted." highways in question, and since it could not, legally, act in an arbitrary manner and with Appellant insists that by section 16 of the contract between the state and respondent all proceedings, such as the petition and hear-out regard to the wishes of those whose ing, appointment of viewers, etc., were waived, and that consent was granted for the establishment of these highways. Section 934, Rev. Codes, was as follows: "Public roads may be established without the appointment of viewers, provided the written consent of all the owners of the land to be used for that purpose be first filed with the board of county commissioners; and if it is shown to the satisfaction of the county board that the proposed road is of sufficient public importance to be opened and worked by the public, they shall make an order establishing the same, from which time only, shall it be regarded as a public road." Assuming that respondent could and did give the consent contemplated by that section and that viewers were unnecessary, yet the board must comply with the other provisions of the law. Respondent is not shown by the amended complaint to have waived (even though it could have done so) the presentation of a petition signed by the requisite number of residents of the district, notice of hearing, or the trial of the question of the sufficiency of public importance of the highways, and the amended complaint does not show that these steps, necessary to invest the board with jurisdiction, were taken. property was taxable for the construction and maintenance of the same, it follows that the order relied upon by appellant does not appear from the amended complaint to be valid; that the facts alleged in the amended complaint do not show respondent to be chargeable with the cost of constructing the bridges, and the demurrer was properly sustained. Canyon Co. v. Toole, 9 Idaho, 561, 75 Pac. 609. The judgment appealed from is affirmed. Costs are awarded to respondent. RICE, J., concurs. BUDGE, C. J. (concurring in part and dissenting in part). With respect to that portion of the opinion which holds that, "if the ditch or canal is constructed prior to the establishment of a public highway which intersects it, the expense of building the bridge must be borne by the county or highway district to which the road belongs," I concur. But it should be noted that the previous decisions of this court (MacCammelly v. Pioneer Irr. Dist., 17 Idaho, 415, 105 Pac. 1076; City of Twin Falls v. Harlan, 27 Idaho, 769, 151 Pac. 1191) make the question of the duty or the lack of duty on the part of those conThe most favorable construction to appel-structing canals to bridge them, turn upon lant of which section 16 of the contract is susceptible is that respondent consented, for itself and for future entrymen, not to the laying out of highways, nor that they would be of advantage or importance, but only that if the board of county commissioners, after proper petition and hearing thereon, should decide that highways were necessary and of sufficient public importance to justify the expense of their establishment and maintenance and should otherwise proceed "as provided by law" in designating, establishing, and laying them out, no compensation would be exacted for necessary land taken for that purpose along section and half section lines. [2] The owner of a ditch or canal constructed across an established highway must provide a bridge, at the point of intersection, for the use and benefit of the public, but if the ditch or canal is constructed prior to the establishment of a public road which intersects it, the expense of building the bridge must be borne by the county or highway district to which the road belongs. MacCammelly v. Pioneer Irr. District, 17 Idaho, 415, 105 Pac. 1076; Boise City v. Boise City Canal Co., 19 Idaho, 717, 115 Pac. 505; City of Twin Falls v. Harlan, 27 Idaho, 769, 151 Pac. 1191. The amended complaint in this case fails to show that the board of county commissioners complied with the statutes in the matter of laying out and establishing the the question of whether or not the roads were in actual use or were actually constructed at the time the canals were built. Applying that test to this case the demurrer should be sustained. I am unable to concur, however, in that portion of the opinion which holds that the board of county commissioners of Lincoln county exceeded its authority in the order of January 12, 1909, declaring all section lines public highways. Section 2477, Rev. Stat. U. S., grants a right of way for highways over public land. The Carey Act granted certain of the public lands of the United States to the state of Idaho. The Legislature accepted the conditions of the Carey Act. Section 1613, Rev. Codes. Subsection 3 of the Carey Act (Act Cong. Aug. 18, 1894, c. 301, § 4, 28 Stat. 422 [U. S. Comp. St. 1913, § 4685]) provides: hereby authorized to make all necessary con"Any state contracting under this section is tracts to cause the said lands to be reclaimed." By section 1613, Rev. Codes, the selection, management, and disposal of said lands is given to the state board of land commissionstate of Idaho and the respondent company, ers. Section 16 of the contract between the which is binding not only on said company, but upon all settlers taking up land thereunder, provides: subject to a right of way without compensation to the entryman for roads upon all section lines and also upon half section lines which may be "Entries of land are understood to be made designated by the board of county commissioners, as may be provided by law." This would seem to be a sufficient acceptance of the grant on the part of the state, and defines the location upon which roads may be designated. The board of county commissioners of the county in question entered an order declaring all section lines in question to be public highways. In my opinion the provisions of the Rev. Codes, 916 et seq., were evidently intended to restrict, limit, and define the mode of exercising the right of eminent domain; that is, the right of the county to take private property for a public use. Section 934, Rev. Codes, provides: "Public roads may be established without the appointment of viewers, provided the written consent of all the owners of the land to be used for that purpose be first filed with the board of county commissioners; and if it is shown to the satisfaction of the county board that the proposed road is of sufficient public importance to be opened and worked by the public, they shall make an order establishing the same, from which time only, shall it be regarded as a public road." If I understand respondent's contention correctly, it is that notwithstanding all of the land in question was taken with the right of way on section and half section lines, reserved, and therefore the consent of the owners would not be necessary, that the consent in some manner ought to be filed with the board. It will be noticed, however, that the written consent which is to be filed with the board is "of all the owners of the land to be used for that purpose." Here the owners of the land in question owned it subject to the easement, for the government had granted a right of way over the land, and the state had expressly reserved the rights of way in question, so that there are no owners within the meaning of this section who need be consulted. It is a fundamental principle of law that no one is required, much less a public officer or public board, to do a vain and useless thing, and to require the filing of a written consent where no written consent is necessary, and where there is no one to either consent or dissent, would avail nothing. The question of whether or not it is shown to the satisfaction of the county board that the proposed road is of sufficient public importance is a question addressed solely to the sound discretion of the board, and the fact that the board made an order which is duly and regularly entered of record, designating certain roads, would be an acceptance of the grant, and would carry with it the presumption that the board was satisfied that the roads were of sufficient importance and nec essary. I am of the opinion that the proceedings of the board were perfectly regular, and constituted a valid acceptance of the grant, but even if they were not, I think the board had ample authority to enter the order. Streeter v. Stalnaker, 61 Neb. 205, 85 N. W. 47. (63 Okl. 233) FIRST STATE BANK OF MOUNTAIN PARK v. SCHOOL DIST. NO. 65, TILLMAN COUNTY. (No. 8734.) (Supreme Court of Oklahoma. March 6, 1917. Rehearing Denied April 17, 1917.) (Syllabus by the Court.) JUDGES 25(2)-CASE-MADE-EXTENSION OF TIME-AUTHORITY OF JUDGE. A district judge, who has been assigned by order of the Chief Justice to hold court in a county outside of the district in which he is elected, has no authority, after the expiration of the time fixed in the order assigning him to hold court in said county, to grant an extension of time in which to prepare and serve casemade, in a case tried before him while lawfully holding court in such county. [Ed. Note.-For other cases, see Judges, Cent. Dig. §§ 100-104.] Error from District Court, Tillman County; Cham Jones, Judge. Action between the First State Bank of Mountain Park, Okl., and School District No. 65, Tillman County, Okl. Judgment for the latter, and the former brings error. Appeal dismissed. S. P. Freeling, Atty. Gen., J. I. Howard, Asst. Atty. Gen., and C. C. Black, of Lawton, for plaintiff in error. John E. Williams, of Frederick, for defendant in error. HARDY, J. On December 29, 1916, defendant in error filed in this cause motion to dismiss for the reason that the case-made was not signed and settled by the trial judge within any valid extension of time allowed by law or by the court. This case was tried before Hon. Cham. Jones, one of the regularly elected district judges of the state, who had been assigned by the Chief Justice of the Supreme Court to hold court in Tillman county, one of the counties of the Twenty-Fifth judicial district. On May 6, 1916, motion for new trial was overruled, and plaintiff in error given 90 days in which to make and serve case-made. On August 3, 1916, after the expiration of the time fixed in the order assigning him to hold court in said county, the said judge made an order granting an extension of 60 days from last-mentioned date. In Osborne v. Chicago, R. I. & P. Ry. Co., 45 Okl. 817, 147 Pac. 301, it was held that after a judge pro tempore had ceased to sit as a court, he has no power to extend the time for making and serving case-made in an action. tried before him. That was a case tried in the district court of Grady county before R. H. Hudson, the regularly elected district judge of the Twenty-Fourth judicial district, who had been assigned by the Chief Justice to hold court in Grady county, in the Fifteenth judicial district. After overruling plaintiff's motion for a new trial, 60 days was granted within which to prepare and serve case-made. The case-made was not prepared and served within the allowed time, |