sideration of the intent to defraud-a matter of inference from the facts before them, which it was their province to draw or reject." In Kotter v. People, 150 Ill. 441, 37 N. E. 932, the syllabus in part is: We find no error in the record. The judgment of the court below is affirmed. MCBRIDE, C. J., and BURNETT and MOORE, JJ., concur. TION CO. (72 Or. 553) "On the trial of one for the forgery of receipts, the court on behalf of the people, instructed the jury that, while it was necessary that the defendant should have forged the receipts with the HARRISON v. PACIFIC RY. & NAVIGAintent to damage and defraud the persons whose names were signed thereto, yet if they found that the defendant forged the receipts, or either of them, then the law would presume that defendant intended to damage and defraud such persons. Held, that it was error to give the in struction." In McCay v. State (Tex. Cr. App.) 22 S. W. 975, the court says in part: "It is not every signing of another's name without authority which constitutes forgery. There must inhere in the act an intent to injure or defraud. If there is a reasonable and honest belief that the signature will be approved, there can be no forgery." In State v. Gullette, 121 Mo. 457, 26 S. W. 356, the court says: "Instructions 1 and 2 given on behalf of the state were erroneous in not submitting to the jury the issue raised by the allegations of the indictment and defendant's plea of not guilty, whether the act charged, if done, was done with the 'intent to injure or defraud.'" In Knowles v. State (Tex. Cr. App.) 74 S. W. 767, the court says: "Now, if Haney authorized appellant to sign the name, or if appellant believed he had a right to sign the name under all the existing circum stances, he would not be guilty. Upon another trial this matter should be submitted in the charge to the jury." * In Regina v. Beard, 34 Eng. Com. L. R. 659, Coleridge, J., says: "It is not merely writing another man's name, but writing it without authority and with in tent to defraud. But I go further, because 1 think that if a person had reasonable ground for believing, from the acts of the party, that he had authority to accept, and did in point of fact act upon that, it could not be forgery.' Writing the company's name on the back of the check without authority so to do was not necessarily forgery. Such an act, to constitute forgery, must be done with the intention to defraud. Assuming that the plaintiff had no authority to indorse checks belonging to the Scudder Syrup Company, still his indorsement of the check in question did not constitute the crime of forgery, unless he did it with intent to defraud. The contention of the defendant is that the trial court should have determined, from the evidence, that the plaintiff, by writing the Scudder Syrup Company's name upon the check in question, committed the crime of forgery, and have directed the jury to return a verdict for the defendant; but we cannot assent to this claim. The Constitution guarantees to parties, in cases of this kind, a trial by jury, and we hold that there was in evidence facts sufficient to require the case to be submitted to the jury. We cannot say that there was no evidence to support the verdict. (Supreme Court of Oregon. Oct. 13, 1914.) 1. CONTINUANCE (§ 7*)-DISCRETION OF COURT. within the sound discretion of the trial court. The matter of continuance of the trial is [Ed. Note. For other cases, see Continuance, Cent. Dig. §§ 17, 18; Dec. Dig. § 7.*] 2. CONTINUANCE (§ 23*)-GROUNDS-ABSENCE OF EVIDENCE. defendant to obtain exemplifications of the proThe refusal of a continuance, asked by the bate records of an adjoining county, to establish the authority for execution of an administrator's deeds of tidelands, which were offered in evidence, was not an abuse of discretion, where there was no dispute at the trial about question involved being one of law as to plaindefendant's ownership of the tidelands; the tiff's rights as owner of the adjoining upland. [Ed. Note. For other cases, see Continuance, Cent. Dig. §§ 68-71; Dec. Dig. § 23.*] 3. APPEAL AND ERROR (§ 968*)-CHALLENGES -BIAS. Under L. O. L. § 121, stating as a cause of challenge to a juror the existence of a state of mind which satisfies the trier that he cannot try the issue impartially, the question whether jurors, who were either depositors or debtors of a bank of which the plaintiff was president, and who stated on voir dire that their relations with the bank would not influence them, could act_impartially was one of fact for the trier. [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. § 3843; Dec. Dig. § 968.*] 4. EXCEPTIONS, BILL OF (§ 22*)-EXHIBITSQUESTIONS PRESENTED FOR REVIEW. An exhibit containing all the evidence and a complete record and history of all that transpired at the trial attached to the bill of exceptions, is not part of the bill of exceptions and, if it were, could not be considered except to determine the correctness of a ruling on motion for nonsuit or directed verdict. [Ed. Note.-For other cases, see Exceptions, Bill of, Cent. Dig. §§ 12-15, 19, 29; Dec. Dig. § 22.*1 5. NAVIGABLE WATERS (§ 36*)-TIDELANDS RIGHTS OF OWNER. Any rights a party may acquire to tidelands are subject to the jus publicum, including the rights of navigation and fisheries in waters which alternately cover and uncover the lands. [Ed. Note.-For other cases, see Navigable Waters, Cent. Dig. §§ 180-200; Dec. Dig. § 36.*] 6. EMINENT DOMAIN (§ 99*)-COMPENSATION TO OWNER-ELEMENTS. Where the construction of a railroad prevents access by the owner of upland or timber land to tidewater, such prevention of access is a proper element of damages. [Ed. Note.-For other cases, see Eminent Domain, Cent. Dig. § 290; Dec. Dig. § 99.*] 7. EMINENT DOMAIN (§ 96*)-COMPENSATION TO OWNER OF PROPERTY INJURIES TO PROPERTY NOT TAKEN. On the exercise of the right of eminent domain by a railroad company, the owner of the *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes land may recover, not only the fair value of the land taken, but also compensation for injuries to the remainder of the tract. thority for the execution of the administrator's deeds. The deeds themselves were offer [Ed. Note. For other cases, see Eminent Do-ed and received in evidence at the trial, and main, Cent. Dig. §§ 245-249; Dec. Dig. § 96.*] there was no apparent contention against Department 1. Appeal from Circuit Court, Tillamook County; William Galloway, Judge. Action by M. W. Harrison against the Pacific Railway & Navigation Company. From a judgment for plaintiff, defendant appeals. Affirmed. The plaintiff alleges himself to be the owner of certain lands in Tillamook county, part of which he says abuts upon Tillamook Bay, an arm of the sea in which the tide ebbs and flows. He further states that the defendant company constructed its railroad over part of his land in such a way as to cut off his access to those tidal waters so that it not only appropriated to its own use the land actually occupied by its track, but also damaged his remaining land, in that he was practically prevented from utilizing the timber growing on that part of his premises. The answer on the merits admits the appropriation of about two acres of the plaintiff's land for the construction of the defendant's railroad, and that the plaintiff has 3,700,000 feet of merchantable timber on the remainder of his land, but otherwise traverses the allegations of the complaint. From a judgment for the plaintiff the defendant appeals. P. P. Farrens, of Portland (Wm. D. Fenton, Ralph E. Moody, Wallace McCamant, and John F. Reilly, all of Portland, on the brief), for appellant. A. E. Clark, of Portland, and H. T. Botts, of Tillamook, for respondent. BURNETT, J. (after stating the facts as above). The contention of the defendant is that the circuit court erred in the following particulars: (1) It did not grant a continuance; (2) it permitted biased jurors to sit in the trial; (3) it permitted immaterial and prejudicial testimony to be introduced; and (4) it gave erroneous instructions as to the measure of damages and as to what might be considered in determining the amount thereof. their efficacy as muniments of defendant's title. For all that appears in the record there was no dispute at the trial about defendant's ownership of the tidelands. The question involved appears to have been one of law as to the rights of the plaintiff as owner of the adjoining upland to navigate the waters of the bay when the tide should cover the defendant's lands described in the administrator's deeds. The matter of postponement of the trial is within the sound discretion of the trial court. Lew v. Lucas, 37 Or. 208, 61 Pac. 344; Linn County v. Morris, 40 Or. 415, 67 Pac. 295. In the absence of any contest over the title of the defendant to the tidelands mentioned we cannot say that the circuit court abused its discretion in denying the postponement. [3] The alleged bias of the jurors of which the defendant complains consisted in the fact that the plaintiff was the president and principal owner of a bank in Tillamook, which was patronized by at least nine of the jurors who sat in the trial of the case. They were either depositors in the bank or owed it small sums of money, and all declared in substance, on voir dire, that the indirect relation they sustained to the plaintiff by virtue of their business dealings with the bank with which he was connected would not influence them in their decision of the case. This feature was elaborated by the examination of the jurors in question and over the objection of the defendant the court accepted them for the trial of the cause. In such a case the particular cause of challenge defined in section 121, L. O. L., is: "For the existence of a state of mind on the part of the juror, in reference to the action, or to either party, which satisfies the trier, in the exercise of a sound discretion, that he cannot try the substantial rights of the party challenging, the issue impartially and without prejudice to and which is known in this Code as actual bias." We cannot say as a matter of law that the relationship described above disqualified the [1, 2] The action was commenced April 4, jurors. The propriety of such men acting 1912, and brought to trial April 24, 1913, hav- in that capacity is a question of fact to be ing been set on the 18th of that month. One determined by the trial court from all the contention of the defendant was that it own- evidence, and unless an abuse of discretion ed a controlling interest in the tidelands clearly appears, we cannot overturn its conin front of the premises of the plaintiff, and clusion. The men themselves were before that consequently he had no access to the the court. The judge observed them and navigable waters of Tillamook Bay for the under such circumstances was far more capurpose of marketing his timber. It appears pable of determining whether they would act that the defendant deraigned title to those impartially than we who only see the paper tidelands through certain certain administrator's record. State v. Armstrong, 43 Or. 207, 73 deeds in estates settled in the adjoining coun- Pac. 1022; State v. Megorden, 49 Or. 259, ty of Clatsop. These conveyances were of 88 Pac. 306, 14 Ann. Cas. 130; 306, 14 Ann. State record in Tillamook county. The postpone- v. Caseday, 58 Or. 429, 115 Pac. 287; State ment of the trial was for the purpose of v. Humphrey, 63 Or. 540, 128 Pac. 824. obtaining exemplifications of the probate rec- [4] The bill of exceptions proper in this ords of Clatsop county to establish the au- case contains no statement whatever of the testimony adduced. It is true there is attached to the bill of exceptions as an exhibit what is characterized as containing all the evidence and a complete record and history of all that transpired at the trial of the cause. This, however, is no part of the bill of exceptions, and if it were, could not be considered for any purpose except that of determining the correctness of the decision of the court of a motion for a nonsuit or for a directed verdict. National Council v. McGinn, 138 Pac. 493. The assignments of error in the instructions may be classified under two heads: (1) Conceding that the defendant was seized of the tidelands in Tillamook Bay, and that the plaintiff owned the uplands bordering thereon, the court erred in allowing the jury to consider, as an element of damage, that the plaintiff was deprived of access to those tidal waters by the building of the defendant's road; (2) in permitting the jury to consider as an element of damage, not only the actual value of the land occupied by the defendant's road, but also the effect upon the remaining land based upon the greater difficulty in marketing the plaintiff's standing timber. [5] Whatever rights a party may acquire to tidelands, they are subject to the jus publicum, which includes the rights of navigation and fishery in the waters, which alternately cover and uncover the lands twice in 24 hours. Bowlby v. Shively, 22 Or. 410, 30 Pac. 154; Corvallis & Eastern Ry. v. Benson, 61 Or. 359, 121 Pac. 418. interior land, that fact ought to be submitted to the jury with others illustrating the situation, and considered in estimating the damage resulting from the acts of the defendant. [7] It is well-settled that in estimating the damages accruing to a landowner from the exercise of right of eminent domain by a railway company the owner of the fee is entitled to recover, not only the fair value of the land actually taken, but also for the injury to the remainder of the same tract. It is apparently without dispute that the principal value of the plaintiff's land consists in the marketable timber growing thereon. Anything, therefore, which would destroy the market value of that timber would be an element of damage, and the court was clearly within the bound of the law in submitting that feature to the jury. Sharp v. U. S., 191 U. S. 341, 24 Sup. Ct. 114, 48 L. Ed. 211; Haggard v. School Dist., 113 Iowa, 486, 85 N. W. 777; Kansas City S. B. R. Co. v. Norcross, 137 Mo. 415, 38 S. W. 299; Chicago, R. I. & P. R. Co. v. George, 145 Mo. 38, 47 S. W. 11; Tri-State T. & T. Co. v. Cosgriff, 19 N. D. 771, 124 N. W. 75, 26 L. R. A. (N. S.) 1171; Chattahoochee Valley R. Co. v. Bass, 9 Ga. App. 83, 70 S. E. 683; Stuttgart & R. B. R. Co. v. Kocourek, 101 Ark. 47, 141 S. W. 511; Hauge v. La Crosse & S. E. Ry. Co., 148 Wis. 288, 134 N. W. 368; Baker v. Pennsylvania R. R. Co., 236 Pa. 479, 84 Atl. 959; Flemister v. Central Georgia P. Co., 140 Ga. 511, 79 S. E. 148; Louisville & N. R. Co. v. White Villa Club, 155 Ky. 452, 159 S. W. 983. Finding no error the judgment is affirmed. MOORE, RAMSEY, and BEAN, JJ., con cur. POWER CO. (72 Or. 560) (Supreme Court of Oregon. Oct. 13, 1914.) 1. STREET RAILROADS (§ 67*)-ORDINANCESPOSTPONEMENT OF OPERATION. [6] The tidal waters in any arm of the sea constitute nature's highway and the situation presented is analogous to one where a public county road should be laid out and established over the defendant's upland. Under such circumstances, if it did any act to prevent the plaintiff's lawful access to such a highway, it would be an element RUDOLPH v. PORTLAND RY., LIGHT & of damage. Here, in a certain sense, was a highway over the defendant's land, at least during such time as the water would permit the flotation of logs. If the plaintiff could obtain access to that water for such purposes, the deprivation of that right would constitute an element of damage if caused by the construction of the defendant's road. Besides all this, if it were possible for access to be obtained to the tidelands for logging purposes by purchase or otherwise, any act of the defendant which would render such access impossible would of course tend to depreciate the value of the land upon which, the timber grew, and which would be the subject of logging operations. In other words, the mere proximity of land to tidewater is an enhancement of value not possessed by land at some inaccessible point in the distant interior. If, therefore, this adjacency to navigation is seriously impaired or practically destroyed so as to make plaintiff's lands substantially as inaccessible as the Under L. O. L. $ 7007, requiring every street car to have fenders of a kind therein prescribed, provided that, whenever in the judgment of the mayor and members of the common council of any city it shall be for the best interests of the residents to substitute another approved design of fender, the mayor and council may do so on entering on the records the reason for the substitution, where a city ordinance. enacted over eight years after this section went and council that a certain kind of fender should into effect, declares the judgment of the mayor be substituted, a portion of the ordinance postponing its operation for over three months was ultra vires and void. [Ed. Note.-For other cases, see Street Railroads, Cent. Dig. §§ 146, 147; Dec. Dig. 8 67.*] 2. STREET RAILROADS (§ 94*) — OPERATION - The operation of street cars not equipped with a fender, as required by a valid city ordi *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes nance, from which an injury to a child upon the track resulted, was negligence per se. [Ed. Note. For other cases, see Street Railroads, Cent. Dig. § 201; Dec. Dig. § 94.*] 3. NEW TRIAL (§ 127*)-PROCEEDINGS TO PROCURE-SUFFICIENCY OF MOTION. Though a motion for new trial did not specifically state that there was no evidence to sustain the verdict as to some material issue, the court properly granted a new trial, where such was the fact. [Ed. Note.-For other cases, see New Trial, Cent. Dig. §§ 256-262: Dec. Dig. § 127.*] Department 1. Appeal from Circuit Court, Multnomah County; Henry L. Benson, Judge. Action by Marcus M. Rudolph, as administrator of the estate of Maxine Melba Rudolph, against the Portland Railway, Light & Power Company. From a a judgment for plaintiff, defendant appeals. Affirmed. An action was instituted by Marcus M. Rudolph, as administrator of the estate of his daughter, Maxine Melba Rudolph, deceased, against the Portland Railway, Light & Power Company, a corporation, to recover damages occasioned by her death, which was caused by one of the defendant's electric cars running over her. The facts out of which the cause arose are that the defendant owns on Nebraska street, in the city of Portland, a single line of railway, extending east and west, on which track it operates passenger cars propelled by electricity. The plaintiff on July 16, 1912, resided on the south side of that street, and had caused to be piled, on the curb in front of his premises, wood: the tier being 24 feet in length. The east end of motorman; and (3) the last clear chance was also pleaded, and it was averred that the motorman failed to drop the fender or to stop the car in time to avoid the accident. The answer denied the material averments of the complaint, and for separate defenses Predicated on this motion the court made findings of fact as follows: "(1) That the street car which caused the injury to Maxine Melba Rudolph, resulting in her death, was not equipped with a fender as required by law, in this: (a) The pretended fender thereon did not extend out in front of the car, nor was it so constructed or arranged that any portion thereof could be dropped to the track to prevent persons from being run the pile extended about five feet farther east than the steps which afforded an entry, up an incline, from the sidewalk to his house. About 6:50 p. m. of that day, as he was laying planks near the west end of the wood, in order to wheel it into the shed, his daughter Maxine, then 4 years, 1 month, and 2 days old, who had been playing with other chil-over by said car. nor was the said fender so dren on the lawn, suddenly ran down the steps and, passing around the east end of the wood, went upon the street. The plaintiff, seeing the movement of the little girl, instantly looked west up the street and saw a car about 70 feet distant, approaching on a downgrade of about 4 per cent. He immediately ran around the west end of the wood and started up the street towards the car, shouting to the motorman to halt. No attention to such request was seemingly given, as far "(2) The testimony shows that the motorman as could be observed from any diminution of in charge of the car saw, or could have seen, the dangerous position of Maxine Melba Ruthe speed of the car, whereupon the plaintiff dolph, and appreciated, or could have appreciatturned and ran towards his daughter, but be- ed, her dangerous position in time to have stopfore he could reach her she was knock-ped said car and prevented the injury, but that ed down by the car and dragged along the track, instantly killing her. The negligence alleged in the complaint as a basis for the recovery is in substance: (1) The failure to provide for the car such a fender or guard as is required by law; (2) the carelessness and incompetence of the constructed, either as to design or place of its location, as to prevent persons from being injured or struck by said car or run over thereby, nor was the said fender so constructed that the same was above the rails the distance provided did not comply either with the general laws of by law. In these particulars the said fender Oregon, or with the requirements specified in the charter of the city of Portland, nor with the requirements of the ordinance introduced in evidence. There is a total absence of evidence showing that the company had any such fender on the car as is prescribed or required by law. said motorman, by reason of his incompetency, as alleged in the complaint, failed to stop the car. "(3) There is no evidence sufficient to show contributory negligence on the part of either the said Maxine Melba Rudolph, who is a child of the age set forth in the complaint, nor any contributory negligence on the part of the plaintiff. "(4) By reason of the absence of evidence on | ordinance. Thornton v. Portland Railway, these points, the court concludes that the death Light & Power Co., 63 Or. 478, 128 Pac. 850. of Maxine Melba Rudolph was caused by the negligence of the defendant corporation, and that the jury erred in returning a verdict for the defendant. The court further finds that the jury erred in not following the directions of the court given to it on these subjects." MOORE, J. (after stating the facts as above). Sections 1, 2, and 4 of an act of the legislative assembly filed in the office of the Secretary of State February 18, 1903, are incorporated in L. O. L. as sections 7007, 7008, and 7009. Section 3 of the enactment, however, is not thus set out, but reads: Evidently anticipating such determination, Ordinance No. 23259 of the city of Portland was regularly passed, after the injury last referred to had occurred, prescribing the fenders to be used on street cars operated in that city. This municipal enactment contained an emergency clause whereby the law went into immediate effect May 13, Sec1911, upon its approval by the mayor. tion 1 thereof was amended November 16, 1911, by Ordinance No. 24353, which pro vides generally that it shall be unlawful for railways within the city after September 1, any corporation owning or operating street 1912, to run any street car using air brakes without having attached to the front end of the car a fender projecting at least 24 inches, consisting of an apron composed of specified material and a life guard or vertical fender extending at least 3 inches in front of the bumper. Such apron to be attached to pistons working within cylinders, so that, by an emergency application of the air, the apron will be thereby lowered and held on the rails by the air pressure within such cylinders. The apron of the fender to have a projecting bar parallel with and in front of "The provisions of this act shall not be in force or effect until the first day of January, 1904." Gen. Laws Or. 1903, p. 94. Section 1 of the law mentioned is as fol- the apron, whereby the bar coming in conlows: "Every street car run, operated, or used on any street car line in the state of Oregon, other than operated by horses, shall be provided with good and substantial aprons, fenders, or guards which shall be constructed' so as to be firmly attached to the front end of each car and extend out in front of the front platform or front end of such car, not less than two feet, and so arranged that the forward end of such apron, fender, or guard shall be not more than three inches above the rails; and such apron, fender, or guard shall be built or constructed so that the motorman, or other person in charge of such car, can drop the front end of such apron, fender, or guard on the track, so as to prevent any person from being thrown down and run over by or caught beneath or under such car: Provided, that whenever, in the judgment of the mayor and the members of the common council of any city or town incorporated under the laws of this state, it shall be deemed for the best interests of the residents and inhabitants of any such city or town to substitute in lieu of the apron, fender, or guard, hereinbefore provided for, another approved design of apron, fender, or guard, said mayor and said city council shall have such right whenever there shall be entered upon the records of said city or town the reasons for making such sub stitution." tact with any pedestrian on the track, air Section 8 of the ordinance provided that, for any disobedience of its provisions, the corporation found guilty thereof should be punished by a fine of not less than $50 nor more than $500, and each day's operation of cars without being so equipped should be recognized as a separate offense. Section 2 of the enactment prescribes the fenders required to be used on cars operated in Portland not having air brakes. Section 8 thereof expresses the judgment of the mayor and common council of that city, as required in the proviso of section 7007, L. O. L. That clause of the ordinance also contains a fur Relying upon the power thus conferred, street cars operated within the city limits of the * |