Opinion of the Court-Upton, C. J. and to use a water-race to convey water is entitled only pro hoc. One who has such easement in the lands of another has not the ultimate property that will authorize him to carry away the soil or use it for any purpose not connected. with the use of the water; hence, the fact that the rocks and the earth excavated are the property of the owner of the soil does not settle the question whether the owner of the dominant estate may take them for the purpose of making repairs. The right to convey water through or over the lands of another, unless it is a mere license revokable at the will of the owner of the soil, rests in grant; and the terms of the grant, when they can be definitely ascertained, control its extent. The grant may be evidenced by deed, or it may be presumed from long enjoyment. In the one case the terms of the deed, and in the other the mode of enjoyment, must be known to enable a Court to determine who is bound to repair, or to what extent a party is privileged or restricted in the mode of making repairs. The general rule, that a party who has a right of enjoyment, has also a right to enter and make necessary repairs, is essential to the enjoyment of the thing granted. This right necessarily passes by the grant, otherwise it would be in the power of the grantor to virtually nullify and defeat his own deed, by depriving the grantee of the power to repair and use the thing granted. If the mode of enjoyment, and of making repairs, is specified in the grant, the Court was only to construe the contract; or, if the right has been acquired by prescription, the Court will ascertain, under the ordinary rules of evidence, how the right has been exercised and enjoyed; but cases arise where an easement has been acquired by deed, and the instrument is silent both as to the party bound to make repairs and as to the privileges and duties of the party in making them. It has been stated, in general terms, that where the deed thus leaves the matter of repairs to be implied, each case must be determined according to its own peculiar circumstances. The authorities cited establish the following general principles: The owner of the servient estate is not obliged to make repairs unless by virtue of a covenant so to Opinion of the Court-Upton, C. J. do, express or implied. The owner of the easement is privileged to repair in all cases where the easement cannot be enjoyed without repairs; and in making them, he may dig up the soil and otherwise use and encumber it, doing no more injury than is necessary when such course is indispensable to the enjoyment of the easement. When a particular mode of repair is convenient, but not indispensably necessary, no general rule is laid down in the authorities cited. In the case before us the terms of the deed are not set out, and it does not appear by the pleadings whether or not the rights of the parties in making repairs, are defined by the deed or contract under which the easement is claimed. On this point the complaint alleges that the plaintiff is owner, and in possession of, certain premises, and the defendant is owner, and in possession of, a right of way to a narrow strip of land through said premises, to be used as a mill-race to run the flouring-mill of the defendant." No objection was taken to the form of the pleading, and the Court construes this to be a statement that the defendant had an easement in the plaintiff's land, to convey a stream. of water over it in a race to the plaintiff's mill. The contract by which the easement was created not being before us, and this Court having no information as to its terms, touching the subject of repairs, cannot decide as a matter of law whether the defendant had a right to dig up the soil; neither can it be ascertained from the facts alleged or the evidence disclosed by the transcript, whether these repairs could have been made without digging up the soil. The Court instructed the jury that the defendant would not be obliged to take soil from his race or bring material from elsewhere to repair a breach in the race. Under certain conditions of the pleadings and evidence, the point involved in this instruction would include a question of fact which should be submitted to the jury, but if the right depended on the construction of a deed or other writing, it was a matter to be passed upon by the Court. As it does not appear by the record whether the contract under which the easement was acquired was in evidence, we cannot say Opinion of the Court-Upton, C. J. that the instruction was improper. The Court properly refused to instruct that the defendant had no right to dig the turf to the distance of ten or fifteen feet from the race. If there was a material question as to whether ten or fifteen feet was a reasonable distance, it was a question for the jury. The plaintiff requested the Court to instruct "that the defendant had no right to use the ditch for floating wood and logs." This the Court refused to give, and charged that "if by reason of floating wood or logs the race became stopped up and thereby was caused to overflow and damage the plaintiff the defendant would be responsible for damages." It is not shown, by the transcript, whether or not the defendant had the right to float wood and logs in the ditch, and no issue is made by the plaintiff on this point. Evidence that the ditch was used for that purpose appears to have been admissible, as tending to show that the overflow was caused by a negligent or improper mode of using the ditch, but unless the overflow resulted from that use the question whether the defendant was entitled to so use the ditch was an abstract proposition, not material to the decision of the cause, and upon which it was not the duty of the Court to instruct. Using the ditch for that purpose was not made a ground for general or special damages, and it would have tended to mislead the jury to give an instruction from which it might be inferred that the defendant was entitled to even nominal damages for that cause alone. There is nothing in the point first stated "that the record does not show that the jury was present during the trial on the 24th of May." The record shows that the jury was regularly impaneled and sworn on the 23d of May; that the trial continued to the 24th, and that on the latter day the verdict was returned in Court. Every presumption is in favor of regularity after jurisdiction is acquired. The judgment should be affirmed. Opinion of the Court-Bonham, J. JAMES H. EVANS, RESPONDENT, v. S. H. CHRISTIAN, APPELLANT. WRIT OF REVIEW.-Writ of review will not lie where the right of appeal exists. DECISION OVERRULED.-Schirott & Groner v. Phillippi & Coleman (3 Ogn. 484), overruled so far as it is there held that appeal and review are concur rent remedies. Same case approved so far as it holds that review will lie in a cause (otherwise proper) where the time for appealing has elapsed. JURISDICTION. When want of jurisdiction appears, it is the duty of the Court at any stage of the proceeding, on its own motion, to refuse to proceed further. APPEAL from Lane County. Christian, the appellant, sued Evans, the respondent, before a Justice of the Peace in and for Lane County, to recover the value of a horse; and after issue joined and trial had, obtained judgment against Evans for one hundred and sixteen dollars and costs, which judgment was docketed on the 6th day of September, 1873. On the 20th day of September, 1873, Evans sued out a writ of review in the Circuit Court for Lane County, assigning error upon the record occurring at the trial of said cause before said Justice of the Peace. Upon the trial in the Circuit Court on said writ of review, it was adjudged that there was error in the proceedings of the Justice of the Peace at the trial, as alleged in plaintiff's petition, and the judgment rendered by said Justice was reversed. From this judgment of the Circuit Court the defendant Christian appeals to this Court, assigning as error the following points: Error in holding the order of the Justice, for a jury, illegal and void; error in holding that the defendant had not waived the defect, if there was defect, by going to trial with the jury selected; error in annulling and declaring void the judgment of the Justice and in taxing the costs against the defendant. By the Court, BONHAM, J.: For the purposes of this case we only deem it necessary to consider the third ground of error assigned; and we 4 375 5 275 8 492 13 417 14 208 14 209 14 210 14 211 11* 50 12* 440 12* 441 4 375 33 2081 4 375 40 77 4 375 41 330 4 375 47 619 Opinion of the Court-Bonham, J. only consider that so far as it involves the question of the jurisdiction of the Court below to grant a writ of review in a case like this, where the right of appeal existed at the time the writ was granted. An appeal from the Justice's judgment in this case might have been taken to the Circuit Court within thirty days from the date of its rendition. The judgment was rendered on the 6th day of September, 1873, and the writ of review was sued out on the 20th day of the same month. This state of facts presents for our consideration the question whether the remedies by appeal and by writ of review are concurrent, and if not, whether the Court below had any jurisdiction or authority to grant the writ of review at a time when the right of appeal existed. This question was not argued here, and we understand that it was not in the Court below; but inasmuch as it is a question touching the jurisdiction of the Court, it is proper to consider it here, for if the Court below had no jurisdiction to proceed, this Court, which possesses only appellate jurisdiction, could acquire none by the appeal. And when a question of jurisdiction presents itself in any stage of a proceeding, and it is discovered that the Court has no jurisdiction, either over the parties or the subject-matter of the cause, it is the duty of the Court on its own motion to refuse to proceed further. Any attempt to exercise judicial functions otherwise than as authorized by law would be a nullity and an idle waste of time. There is, however, a dictum in Schirott & Groner v. Phillippi & Coleman (3 Ogn. 484), which is well calculated to mislead the profession on the question of jurisdiction involved in this case. In fact, it is directly announced in that case by Mr. Justice Wilson, who prepared the opinion of the Court, that the remedies by appeal and writ of review are concurrent. But this conclusion, as thus unqualifiedly announced, I think, may properly be regarded as mere dictum, inasmuch as the direct question presented by the facts in that case was, whether the writ of review would lie after the right of appeal, which once existed in the case, had been lost by lapse of time. |