he died shortly thereafter. At the conclusion of the testimony the court directed a verdict for defendant, and plaintiff appeals. Other facts will appear in the opinion.

the place where the car finally stopped. We find nothing in any phase of this case that justifies the application of the "last clear chance" rule.

[4] It should be borne in mind in the beWm. C. Benbow, for appellant. A. M. ginning that he who admits negligence on Dibble (Wilbur & Spencer, on the brief), for his own part, and seeks to avoid its conserespondent.

MCBRIDE, J. (after stating the facts as above). [1] It is evident from the testimony that the negligence of the deceased was the proximate cause of his death. He neither looked nor listened, nor took any precautions to insure his own safety, when it is evident that even a casual glance would have made known the fact that defendant's car was in close proximity. In addition to this he was attempting to cross the street, not at the crosswalk, but at an unusual place and under unusual circumstances, as his presence was concealed by the car that he had just left, until he approached within a few feet of the track.

[2] Even if he had been observed nearing the track of the west-bound car, the motorman would have been justified in supposing that he would halt before stepping upon the track. To step from a place of safety to a place of imminent danger would require less than a second of time. A car going at the rate of four miles an hour would progress nearly six feet in a second of time. Had the motorman observed that deceased was likely to put himself in peril by attempting to cross the track, it would have required at least a second or more of time to stop the The testimony of Buchler, the only witness who actually saw deceased struck by the car, indicates that, when deceased had reached the south rail of the north track, the car was six or seven feet away. Here, for the first time, deceased was in a position of actual danger, or in a position that would indicate to the motorman that he intended to cross the track ahead of the car; and to say that he had time to realize the peril deceased was in, and apply the brakes and stop the car in less than two seconds, and that he was negligent in failing to do so, would be unreasonable.

car.

[3] The fact, if it be a fact, that the car had no headlight, can have no bearing, as the testimony shows that the light was sufficient to enable a person nearly a block away to see both deceased and the car.

quences, has the burden of proof to show, by the outweighing of the testimony, that, notwithstanding such negligence, the circumstances were such that the opposing person, after perceiving his peril, could, by ordinary care, have avoided injuring him. We fail to find such proof in this case.

Under

[5] Conceding, for the purposes of the argument, that defendant was negligent in failing to stop its car or in failing to ring a gong, the evidence shows that the negligence of deceased was concurrent, and continued to the very moment of the injury. such circumstances plaintiff cannot recover. Drown v. Northern Ohio Traction Co., 76 Ohio St. 234, 81 N. E. 326, 10 L. R. A. (N. S.) 421, 118 Am. St. Rep. 844; Dyerson v. Union Pac. R. Co., 74 Kan. 528, 87 Pac. 680, 7 L. R. A. (N. S.) 132; Holmes v. Southern Pac. C. R. Co., 97 Cal. 161, 31 Pac. 834.

[6] Nor can the "last clear chance" rule apply to the alleged negligence of defendant in failing to stop its car more quickly after the collision occurred. The evidence is clear that the death was the result of deceased's having been struck by the car. Whether the whole injury happened at the very moment of the collision, or partly then and partly afterward, and before the car was stopped, is a matter of mere conjecture. The whole accident was one transaction, and, to attempt to cut it into fragments, it would have been necessary to require the jury to depart from the realm of proof and enter the domain of speculation. Rider v. Syracuse R. T. R. Co., 171 N. Y. 139, 63 N. E. 836, 58 L. R. A. 125; Drown v. Northern Ohio Traction Co., supra.

The contention that the defendant was negligent in failing to have a proper fender upon its car cannot be sustained. Section 7007, L. O. L., describes the character of fenders that shall be used upon street cars in the state of Oregon, but has this proviso: "Provided, that whenever, in the judgment of the mayor and the members of the common council ** * * it shall be deemed for the best interests of the residents and inhabitants of any such city or town to subPlaintiff, practically conceding the negli- stitute in lieu of the apron, fender, or guard, gence of deceased, contends that the failure hereinbefore provided for, another approved of defendant's motorman to stop the car for design of apron, fender, or guard, said mayor a considerable distance (from 40 to 50 feet) and said city council shall have such right from the place of collision should entitle whenever there shall be entered upon the plaintiff to recover upon the "last clear records of said city or town the reasons for chance" rule. It is contended with some making such substitution." Before this acciplausibility that the jury might have found dent occurred, the council and mayor, by a that deceased came to his death, not from resolution duly passed, declared that the the effect of the original collision, but from "Hunter Drop Guard Fender," of the design, subsequent injuries inflicted after he was form, and construction adopted for use by thrown under the fender and dragged to the Portland Railway Company and the City

& Suburban Railway Company, was adapted | 2. ADVERSE POSSESSION (§ 13*)-REQUISITES. for use in the city of Portland, and better calculated to prevent accidents or injuries to persons than the fender provided for in the act of the Legislature, and directed its use in the city of Portland by such companies and their assigns.

The judgment of the circuit court is af- place on the land described in the complaint, firmed.

[2] To prevail on such a title, the defendants must prescribe in their own right and that of their predecessors. In other words, they must plead and prove title by adverse possession. To this there are five essential elements necessary: First, the possession must be hostile and under a claim of right; second, it must be actual; third, it must be open and notorious; fourth, it must be exclusive; and, fifth, it must be continuous. 1 A. & E. Enc. L. (2d Ed.) 795; Jasperson v. Scharinkow, 150 Fed. 571, 80 C. C. A. 373, 15 L. R. A. (N. S.) 1178, and notes; McNear v. Guistin, 50 Or. 377, 92 Pac. 1075; Talbot v. Cook, 112 Pac. 709.

firmatively the defendants allege in sub-public landing to receive and discharge passtance that they own and operate a ferry be- sengers and freight. Post v. Pearsall, 22 tween Hood River, Or., and White Salmon, Wend. (N. Y.) 425; Thomas v. Ford, 63 Md. Wash., under a license regularly granted by 346, 52 Am. Rep. 513; Talbott v. Grace, 30 the county court of Wasco county, and an- Ind. 389, 95 Am. Dec. 704. other license granted by the proper authorities for Klickitat county, Wash., and that they and their predecessors in the "maintenance and operation of said ferry have habitually used the places that the defendants are now using * ** for a ferry landing for freight and passengers and the United States mails for a period of more than 30 years, without interference or objection from the plaintiffs and their predecessors in interest, and the use made thereof by the defendants, and about which the plaintiff's now complain and seek to have enjoined, are the same and similar to the use made of said premises for a period of more than 30 years, and the plaintiffs have been guilty of laches and are estopped from complaining of said acts at the present time." Lastly they allege "that the general public has used the premises mentioned and described in the plaintiffs' complaint at the points and places therein mentioned and complained of as a ferry landing and public way, under a claim of right, adversely, and not by mere permission of owners, for a period greater than the period described by the statute of limitations beyond which actions for the recovery of real property cannot be maintained, namely, for a period of more than 30 years, which said use was next prior to the commencement of this action, and was continuous and uninterrupted and substantially by way of a certain and well-defined line of travel for said entire period, at all seasons of the year when the stage of the water in the Columbia river would admit thereof, whereby an easement was and is established in favor of the public, and the use thereof by the defendants, and about which the plaintiffs complain in their complaint herein, is the use by the defendants and the public taking passage on the defendants' boats, as has been the custom for said period of over 30 years."

The affirmative answers were traversed in material particulars by the reply, and, from a decree dismissing the suit, the plaintiffs appeal.

Carter & Dufur and H. H. Riddell, for appellants. A. A. Jayne and W. H. Wilson, for respondents..

[3] The testimony shows that these landings are made upon plaintiffs' premises during the several months of high water on the Columbia river, and that they have been more or less interrupted, sometimes by fences and sometimes by the stage of the water. There is no showing that this use of the bank has been otherwise than by acquiescence or permission of the landowner, constituting a mere revocable license. These essential elements of adverse possession are wholly lacking in the proof. It is claimed also by the defendants that there is a public way which has been in use for more than 20 years adjacent to the slough from which the landings in question are made, and that they are exercising a right to land upon the public highway which they are entitled to enjoy without hindrance from the plaintiffs. But the testimony shows that this road is merely adjacent to the slough, and at all points there is a narrow strip of land between the ground actually occupied by travel and the bank of the slough upon which the boats land. Hence parties leaving the boats at those points in going to the road would necessarily cross the small part of plaintiffs' land, and hence be guilty of at least a technical trespass.

[4] The principal question in the case is whether injunction will lie to prevent continued trespass. Originally the rule was that injunction would not lie in the first instance prior to a judgment at law to prevent trespass, unless the threatened injury was such as would cause permanent and irreparable injury to the freehold, such as removing ores BURNETT, J. (after stating the facts as from mines, or cutting down choice shrubabove). [1] The defendants avow that they bery, or destroying dwelling houses or the are constantly making use of the premises like, or in the further instance that the dein question as a landing place, and that fendant was insolvent. Smith v. Gardner, they will continue to do so. At the hearing 12 Or. 221, 6 Pac. 771, 53 Am. Rep. 342; they offered no proof of their alleged license Mendenhall v. Harrisburg W. P. Co., 27 Or. to operate a ferry at that point. The attempt to claim under a prescriptive right existing in the public is futile, for the public cannot so acquire a right to use private property bordering on navigable water as a

38, 39 Pac. 399; Garrett v. Bishop, 27 Or. 349, 41 Pac. 10; Moore v. Halliday, 43 Or. 243, 72 Pac. 801, 99 Am. St. Rep. 724. But later authorities establish the doctrine that, where the trespass is continued, made up of

AL SERVICE "FURNISH."

another illustrated advertising booklets is not a A contract by one to print and furnish to contract for particular personal services, but may be assigned; the word "furnish" meaning to supply or provide (citing Words & Phrases, tit. "Furnish").

[Ed. Note. For other cases, see Assignments, Cent. Dig. §§ 28-31; Dec. Dig. § 19.*] 5. ASSIGNMENTS (§ 23*)-CONTRACTS-VALID

ITY.

Where one, contracting to print and furnish to another illustrated advertising booklets. signed the contract, the assignment was a mere substantially performed the work, and then asassignment of an accrued cause of action and was sustainable, though the contract called for personal services and was not assignable. Cent. Dig. §§ 40, 41; Dec. Dig. § 23.*] [Ed. Note. For other cases, see Assignments, 6. CONTRACTS (§ 279*)-PERFORMANCE-TEN

successive acts, each comparatively unim- | 4. ASSIGNMENTS ($ 19*)-CONTRACTS-PERSONportant in itself, and the threat and intention to continue is manifest, equity will enjoin the same, for the reason that each separate trespass forms a separate cause of action, and it would be idle to require the plaintiff to bring a distinct action for each one of the small trespasses. It would be a waste of time and serve no good purpose for the plaintiffs to bring an action at law for every different landing made by the defendants upon their land without authority. The actual damage accruing from each landing would be comparatively insignificant, and to try out each instance in an action at law would lead to a multitude of actions, the principles of which could be determined in one suit in equity. In this case the plaintiffs claim no damages, but only seek to prevent the continuation of the trespasses of which they complain. The authorities are numerous that equity will entertain their bill for that purpose, especially when persistent invasion of plaintiffs' premises would eventually work out the establishment of an easement in favor of the defendants. Shaffer v. Stull, 32 Neb. 94, 48 N. W. 882; Poirier v. Fetter, 20 Kan. 47; Murphy v. Lincoln, 63 Vt. 278, 22 Atl. 418; Amsterdam Knitting Co. v. Dean, 162 N. Y. 278, 56 N. E. 757; Walker v. Emerson, 89 Cal. 456, 26 Pac. 968; McClellan v. Taylor, 54 S. C. 430, 32 S. E. 527; Turner v. Stewart, 78 Mo. 480;| Boston, etc., v. Sullivan, 177 Mass. 230, 58 N. E. 689, 83 Am. St. Rep. 275; Lake Shore R. R. Co. v. Felton, 103 Fed. 227, 43 C. C. A. 189.

[Ed. Note. For other cases, see Contracts, Cent. Dig. § 947; Dec. Dig. § 212.*] 3. CONTRACTS (§ 300*)-PERFORMANCE-TIME.

One contracting to print and furnish to another advertising booklets from copy furnished by the latter may show that the work was done as fast as the latter furnished the copy, and proof of the failure of the latter to promptly furnish copy is admissible to show that the former promptly performed his part of the work. [Ed. Note. For other cases, see Contracts, Cent. Dig. § 1374; Dec. Dig. § 300.*]

DER.

One contracting to print and furnish to another advertising booklets need not make a physical tender of the work in a completed state, where the latter gave notice that it would not receive the same in any event.

[Ed. Note.-For other cases, see Contracts, Cent. Dig. § 1235; Dec. Dig. § 279.*] 7. INTEREST (§ 13*)-ACTIONS ON CONTRACT. An assignee of one substantially performing a contract who sues on the contract is not entitled to interest on the amount of his claim.

[Ed. Note. For other cases, see Interest, Dec. Dig. § 13.*]

Appeal from Circuit Court, Multnomah County; John B. Cleland, Judge.

Action by H. C. Browne & Co. against the Jno. P. Sharkey Company. From a judgment for plaintiff, defendant appeals. Modified and remanded.

On September 4, 1908, defendant entered into a contract with Lewis M. Head by the terms of which Head was to print and furnish to defendant 10,000 booklets, descriptive of Council Crest, an addition to the city of Portland, which defendant was preparing to place upon the market. The booklet was to contain 32 pages, including reading matter, certain illustrations, and a bird's-eye view half-tone insert; the reading matter and view for insert to be supplied by de fendant. The agreed price of the whole work was to be $1,071; part payment to be made as the work progressed and to be fully paid When the booklets were delivered.

Head entered upon the work and caused drawings and cuts to be prepared and printed as fast as defendant supplied copy, and had the booklets ready for stitching about November 10, 1908, except that the half-tone insert, which defendant was to provide, had not been furnished, although Head had requested it before the latter date. Head thereupon proposed to defendant that he would have all or any part of the 10,000 booklets stitched and covered and delivered to defendant without the insert; but defendant refused to accede to this proposition, or to furnish the view for the insert, or to

receive the booklets or pay for them, and | 64 Kan. 376, 67 Pac. 866, cited by appellant, rescinded the contract, claiming that it had wherein it is held that a contract to do counnot been completed within a reasonable time and that the booklets had been finished too late in the season to be of any value to defendant. After the booklets had been completed and were ready for stitching, Head assigned the contract and his right of action thereunder to plaintiff, who brought this action. The case was tried without a jury, and, from findings and judgment in favor of .plaintiff, defendant appeals.

For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes