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(19 Idaho, 635)

judge of the Second judicial district on reMCGUIRE V. GRANGEVILLE SAVINGS & spondent's motion for a new trial, on the TRUST CO.

21st day of January, 1910, and, on the 9th (Supreme Court of Idaho. March 30, 1911.) day of February, 1910, the said judge made

an order granting said motion. The ap(Syllabus by the Court.)

peal is from said order. NEW TRIAL (8 70*)-INSUFFICIENCY OF EVI

J. M. McDonald, for appellant. W. N. DENCE.

Evidence in this case examined and con- Scales, for respondent. sidered, and hold that there was no abuse of the discretion vested in the trial court in grant

WOODS, District Judge (after stating the ing a new trial.

[Ed. Note.-For other cases, see New Trial, facts as above). This appeal was proseCent. Dig. $ 142; Dec. Dig. $ 70.*]

cuted from an order of the Honorable Edgar Appeal from District Court, Idaho County;

C. Steele, judge of the Second judicial dis

trict of Idaho, granting respondent a new Edgar C. Steele, Judge.

Action by P. A. McGuire against the trial upon the ground that the evidence in Grangeville Savings & Trust Company. Ver- said action is insufficient to justify the ver

dict of the jury. dict for plaintiff, and, from an order grant

We have examined the evidence in this ing a new trial, he appeals. Affirmed.

case as contained in the record, and, it apThe appellant by his complaint alleges the pearing therefrom that there was no abuse incorporation of respondents; that about of discretion upon the part of the trial court the day of January, 1909, he sold to in granting the motion for a new trial, the Frye & Bruhn, Incorporated, of Seattle, order made in the premises should be afWash., through it's agent, J. H. Blackburn, firmed. It is therefore directed that the now deceased, some live stock of the value of order granting a new trial be, and the same $445.87, of which $25 was to be paid at the is hereby, affirmed. Costs awarded to retime of the purchase, and the balance, $420.- spondent. 87, at the time of delivery of the stock; that the stock was received by one A. J. Logsdon SULLIVAN, J., concurs. AILSHIE, P. J., as agent for Frye & Bruhn, Incorporated, took no part in the decision. acting also as agent for Blackburn and respondent in making payment therefor about

(19 Idaho, 537) January 20, 1909; that Frye & Bruhn, Incorporated, furnished said Blackburn the AZCUENAGA BROS. LIVE STOCK & LAND sum of $600 to make the partial payment for

CO. V. CORTA. stock sold by appellant, and stock received (Supreme Court of Idaho. March 16, 1911. from other parties near the same time, which Rehearing Denied April 20, 1911.) money was deposited with respondent; that

(Syllabus by the Court.) when the said stock was so delivered to 1. PUBLIC LANDS ($ 52*) - SCHOOL LANDS said agent of Frye & Bruhn, Incorporated, GRANTED TO STATE--IDENTIFICATION. the said Logsdon deposited with the re Until the government causes the public dospondent the amount due the different per- main to be surveyed, the state or its lessee or sons so delivering stock for shipment to 16 and 36 granted to the state by the admis

grantee has no method of identifying sections Frye & Bruhn, Incorporated, in drafts, total- sion bill for school purposes. ing $2,084.24, which, with the $600 there [Ed. Note.-For other cases, see Public Lands, tofore advanced and deposited with respond. Cent. Dig. $$ 139–146; Dec. Dig. $ 52.*] ent, completed the payment for said stock 2. PUBLIC LANDS (8 52*) — SCHOOL LANDS and the commission of said Blackburn; that

GRANTED TO STATE-IDENTIFICATION. the sum of $445.87 is the amount of money ble to identify school lands granted to the state

Proof of a private survey is not admissibelonging to appellant so received by said by the government, but the government has rerespondent for the use and benefit of appel- served to itself the right to control the surveys lant, and respondent refuses to pay the and method of identification of school sections,

of the public domain, and to furnish the means same, and appellant prays judgment for said and, until the government causes a survey to sum, with interest from January , 1909, be made, there is no competent and legal proof and costs.

that can be adduced which will identify such

sections. The respondent denies specifically each

[Ed. Note.-For other cases, see Public Lands, material allegation of the complaint.

Dec. Dig. $ 52.*] The action was tried before the court with 3. PUBLIC LANDS (8 51*) - SCHOOL LANDS a jury, and on September 24, 1910, the jury GRANTED TO STATE-TITLE OF STATE. found for the appellant in the sum of $445. Where the government has caused a survey 87, upon which verdict judgment was ren

to be made, and by such survey the identity of

a school section is established, the state has dered for appellant on said last-named date. such an interest and equity in the property as

Upon a statement of the case prepared by to enable it to maintain an action to enjoin and respondent and specification that the evi- restrain trespassers from entering upon the dence was insufficient to justify the verdict, pecially true where such trespasser in no way

property and committing waste, and this is esthe case came on to be heard before the 'connects himself with the government or the ti

tle to the land or shows that he has any right sections until after the survey has been made to acquire title to the land under any of the by the government and formally accepted laws of the United States. [Ed. Note. For other cases, see Public Lands, "As we view the matter, however, it is not

and approved by the General Land Office. Dec. Dig. § 51.*] 4. PUBLIC LANDS (8 52*)-SURVEYS-IDENTI

so much a question in this case as to when FICATION OF SCHOOL LAND GRANTED TO the absolute title or fee vests in the state, as THE STATE.

it is a matter of proof of the state's interest Where the government has caused school or equity in and to the identical tract of lands to be surveyed, the evidence of identification is competent and sufficient, even though the land. The government seems to have reservsurvey has not been formally approved and ac-ed to itself the implied power to control the cepted.

public surveys, and consequently has reserv[Ed. Note. For other cases, see Public Lands, ed in itself the means of identification of secDec. Dig. $ 52.*]

tions 16 and 36 which were granted to the Appeal from District Court, Owyhee Coun- state by the admission bill for school purty; Ed. L. Bryan, Judge.

poses. When the respondent in this case unAction by the Azcuenaga Brothers Live dertook to prove its case and show as lessee Stock & Land Company against Miguel Cor- of the state that the state had a right to ta. Judgment for plaintiff, and defendant lease this land, it was necessary to identify appeals. Affirmed.

the land by means of a government survey. N. M. Ruick, D. A. Dunning, and B. W. No private survey could establish that fact Oppenheim, for appellant. Hawley, Puckett or identify the tract of land. & Hawley, for respondent.

The Supreme Court of the United States,

in United States v. Montana Lumber & Mfg. AILSHIE, P. J. This action was institut Co., 196 U. S. 573, 25 Sup. Ct. 367, 49 L. Ed. ed by the plaintiff to enjoin the defendant 604, held that proof of a private survey was from trespassing on section 16, township 8 not admissible to show that timber cut was south of range 5 west, Boise Meridian, and taken from an odd section which fell within for damages for his repeated acts of tres- the limits of the Northern Pacific Railroad pass. The complaint alleged that plaintiff grant. In that case, three questions were was the lessee of the state of this section of certified by the Circuit Court of Appeals for land. A temporary injunction was issued, the Ninth Circuit up to the Supreme Court and the case was thereafter submitted to the of the United States, and that court answercourt on the pleadings and stipulation as to ed the first and third questions in the afthe facts concerning the title and right of firmative. Those were purely and solely possession to the land. Judgment was en questions as to the admissibility of evidence. tered in favor of the plaintiff, and the de- That case was subsequently followed by the fendant appealed.

Circuit Court of Appeals in United States v. It seems that the government caused a sur-Birdseye, 137 Fed. 516, 70 C. C. A. 100, and vey to be made covering this section of land, also in Clemmons v. Gillette, 33 Mont. 321, and that, after the survey and prior to the 83 Pac. 879, 114 Am. St. Rep. 814. So far as formal approval of the survey by the Gen- we are aware, it has never been directly held eral Land Office, the state leased section 16 by the Supreme Court of the United States, to the respondent company, and thereafter, or any other court, that the state has absoand while respondent was in possession of lutely no right or interest in school sections the land grazing the same with its live stock, until after the official survey is made; but the appellant entered upon the land with his it has rather been held that there is no means band of sheep and occupied and grazed the of proof as to the particular tract or body same.

The only authority under which the of land which constitutes sections 16 and 36, appellant claims the right of entering upon and that therefore there is no legal means of the land and occupying it is the general suf- identification of the land until after the offerance, permission, or license of the United ficial survey is made. That is what we un States to graze live stock on the public do- derstand to be held by the foregoing authori. main. It is admitted by appellant that he ties, and, indeed, we so announced our underknew the lands had been surveyed and that standing of the rule in Balderston v. Brady, according to such survey this was section 16 18 Idaho, 238, 108 Pac. 742. of the township. He also admits that he [3] On the other hand, the Supreme Court was aware of the occupancy of the respond- of the United States and the inferior federal ent at the time he entered upon the land courts have almost uniformly recognized an with his live stock.

inchoate right or an equitable title as exist[1, 2] Appellant has gone into the questioning in the state to these sections at all times at great length of the state's title to sections prior to the survey, and that this right is 16 and 36, granted to the state by the general subject to be defeated on the one hand, or government for common school purposes. He vested absolutely and in fee simple on the has argued and cited many authorities which other hand, according to the condition and he insists support his position that the state occupation of the property at the time the acquires no interest or right or title to school survey is made. A homesteader, however, •For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes.

could not acquire any interest in the prop- | the Hussey Case and involved in the case erty after the survey is actually made ou now before us. the ground, although the survey might not be No question is raised in this case as to the actually accepted and approved for years sufficiency of the facts pleaded to entitle the thereafter.

plaintiff to an injunction except as to the [4] The appellant in this case fails to con- specific question of title above considered. nect himself with the government in any We therefore express no opinion as to the way, whereby he could acquire any title or sufficiency of the complaint in other respects right or interest in and to the property from to entitle the plaintiff to an injunction in this the government. According to his own show- case. ing, he is at the best a mere trespasser on For the foregoing reasons, the judgment the land or possibly a temporary occupant should be affirmed, and it is so ordered. by sufferance of the government if the gov- Costs awarded in favor of respondent. ernment still retains the right to direct the control and occupation of such land. The re SULLIVAN, J., concurs. spondent, on the other hand, shows that it is a lessee from the state. He also shows that the land has been surveyed, and this fact is

(19 Idaho, 612) not established by proofs of a private survey,

SHEFFIELD . CLELAND. but by proofs of a government survey. While (Supreme Court of Idaho. March 30, 1911.) it appears that this survey has not yet been formally accepted and approved by the de

(Syllabus by the Court.) partment, that fact could not improve appel- 1. BILLS AND NOTES ($ 510*)—ACTIONS-AD

MISSIBILITY OF EVIDENCE. lant's condition or relation to the land, nor Held, that the court did not err in the adcould it in any way tend to connect the ap- mission and rejection of certain evidence. pellant with the government or its title to the [Ed. Note.-For other cases, see Bills and land. While a rejection of the survey and Notes, Cent. Dig. $8 1746-1759; Dec. Dig. $ a resurvey by the government showing that

510.*) this body of land is not in fact section 16 2. BILLS AND NOTES ($_404*)--LIABILITY OF

INDORSER-TIME FOR PRESENTMENT—"REAwould ultimately defeat the state and inci

SONABLE TIME." dentally the respondent as its lessee, that As a general rule the question of what is a would present a condition and state of facts “reasonable time" in which to present for paythat does not arise in the present case and ment a promissory note which was indorsed aftwith which we are not confronted. As beer maturity is one of fact to be determined by

the circumstances of each particular case. tween these parties, where the government is [Ed. Note.--For other cases, see Bills and asserting no right to the land, we think the Notes, Cent. Dig. $8 1091-1103; Dec. Dig. 8 state's lessee is clearly entitled to protect 404.* its possession and occupancy of the land as vol. 7, pp. 5977-5983;' vol. 8, p. 7780.]

For other definitions, see Words and Phrases, against appellant. This is a much stronger case in its facts 3. BILLS AND NOTES ($ 499*)-ACTIONS–Evi

DENCE-NONPAYMENT. than was the case of Northern Pacific Ry, A promissory note introduced in the trial

Hussey, 9 C. C. A. 463, 61 Fed. 231, of an action brought thereon is prima facie evifor the reason that here the land has been dence that the debt evidenced thereby is unpaid. surveyed and the grantee's lessee was in pos- Notes, Cent. Dig. $g 1695-1697; Dec. Dig. 8

[Ed. Note. For other cases, see Bills and session. In that case the Northern Pacific 499.*] Railway Company was allowed to maintain 4. SUFFICIENCY OF EVIDENCE. an action to enjoin trespassers from cutting Held, that there was sufficient evidence to timber off of land within the limits of the make a prima facie case, and that the court did Northern Pacific land grant, even though the not err in denying a motion for a nonsuit. land was still unsurveyed. This was done 5. BILLS AND NOTES ($ 538*)-ACTIONS-INupon the theory that the railroad company

STRUCTIONS. had such an interest in the land that it certain instructions.

Held, that the court did not err in giving might maintain its action to preserve the [Ed. Note.-For other cases, see Bills and property from waste. Justice McKenna pre-Notes, Dec. Dig. $ 538.*] sided over the Circuit Court of Appeals as one of the circuit judges at the time the

Appeal from District Court, Kootenai CounHussey Case was decided. He also wrote the ty; Robt. N. Dunn, Judge. opinion of the Supreme Court in the case of

Action by Curtis H. Sheffield against WilUnited States v. Montana Lbr. & Mfg. Co.,

liam H. Cleland. From a judgment for supra, and refers specifically to the Hussey plaintiff and an order denying a new trial, Case, and says there is nothing in the Hus- defendant appeals. Affirmed. sey Case which is in conflict with the rule McBee & La Veine, for appellant. C. H. announced by the Supreme Court in the Mon- Potts, for respondent. tana Lumber & Mfg. Co. Case. This furnishes a strong indication as to the view of the SULLIVAN, J. This action was brought Supreme Court on the question considered in l by respondent against the appellant as in

Co. v.

dorser of a certain promissory note executed as follows: "In determining what is a 'rea: by one McBee.

sonable time' or an “unreasonable time' reIt is alleged in the complaint that on the gard is to be had to the nature of the in10th day of December, 1903, one McBee, strument, the usage of trade or business (if for value received, made, executed, and de- any) with respect to such instruments, and livered a promissory note for the sum of the facts of the particular case." $100, with interest thereon at the rate of The facts of this case could be disclosed 8 per cent., to the appellantWilliam H. only by evidence as to what was said and Cleland; that some time after the maturity done at the time of the indorsement, and thereof, for a valuable consideration, said the answers given to the questions complainCleland indorsed said promissory note and ed of show the materiality of the testimony sold and assigned the same to the plaintiff, sought to be elicited thereby, as shedding and the plaintiff is the lawful holder and light on the transaction which would aid the owner thereof; that due notice of the sale jury in determining what was a reasonable and assignment of the note was given to time under the circumstances. the maker; that thereafter said promissory [2] While the liability of the indorser of note was presented to the maker for pay a note is fixed by law, the question of what ment and payment was refused, and that is a reasonable time to present the note to appellant had due notice thereof; that nei- the maker for payment, when it is indorsed ther the indorser nor the maker has paid after maturity, is not fixed by law, but desaid note, or any part thereof, and that said pends upon the facts of the case and the sum of $100, with interest thereon at the understanding and agreement of the parties. rate of 8 per cent. from the 1st day of April, The court did not err in admitting the evi1903, is due and payable; that said note dence referred to. provides for an attorney's fee in case suit is The fourth and fifth assignments of error instituted to collect the same. Plaintiff prays relate to the action of the court in refusing for judgment in the sum of $100 and 8 per to permit a witness for the appellant to ancent. interest, together with the further sum swer questions directed to the circumstances of $25 attorney's fee.

concerning the making of the note sued on, A demurrer was interposed to said com- and the purpose for which it was given by plaint and overruled by the court, and an the witness to the appellant. The execution answer was filed which denies that due of the note was admitted, and it could not notice or any notice of any sale or assign- possibly make any difference in this case ment of said promissory note was ever given for what purpose the note was originally to the maker; denies that said promissory given, or as to what the attendant circumnote was indorsed by the defendant; denies stances were. The evidence sought to be that payment thereof was demanded or re- elicited by those questions was clearly imfused; denies that defendant had due or any material to the issues involved in the case. notice of any presentation thereof, or de The sixth assignment of error has refermand for payment or refusal of payment by ence to a question as to the reasonable valthe said maker; denies that said note or ue of certain personal property. The recany part thereof remains unpaid; denies that ord shows that said evidence was not mathe sum of $25 or any sum is a reasonable terial, as it appears that the transaction reattorney's fee for the collection of said note. ferred to had no connection with the note

Upon the issues thus made the cause was sued on in this action. The court did not tried by the court with a jury, and the jury err in denying defendant's motion for a returned a verdict in favor of the plaintiff, nonsuit. and assessed his damages at the sum of [5] The appellant's eighth assignment of $176.65, and judgment was entered for that error goes to the action of the court in glysum and costs of suit. A motion for a new ing instruction No. 4. Said instruction is trial was overruled, and the appeal is from taken verbatim from our statute defining the judgment and the order denying a new how to determine what is a reasonable time trial.

to present a promissory note for payment [1] The first, second, and third assignments under the negotiable instrument law. Secof error relate to the action of the court in tion 3510, Rev. Codes. It was not error to overruling appellant's objections to questions give that instruction. It is admitted that propounded to the respondent as to what the note in question was indorsed to the transpired at the time the note was indorsed respondent by appellant after maturity, and by appellant to the respondent. The note was therefore under our statute, as regards was indorsed after maturity, and the liabili- the appellant, payable on demand. ty of the defendant depended upon the law Section 3464, Rev. Codes, is as follows. governing such indorsements. Among other “An instrument is payable on demand: things, it was necessary to determine what "First. Where it is expressed to be payable was a reasonable time in which to present on demand, or at sight, or on presentathe note to the maker. Under our statutes tion; or, this should be determined in connection with “Second. In which no time for payment the facts of the particular case.

is expressed. It is provided by section 3650, Rev. Codes, "Where an instrument is issued, accepted

or indorsed when overdue, it is, as regards ey, after maturity, is prima facle evidence the person so issuing, accepting or indorsing that the debt evidenced thereby is unpaid.. it, payable on demand."

30 Cyc. 1264–1268. The introduction of an Said note therefore came within the rules unpaid note by plaintiff was sufficient evi-. governing the presentinent for payment of dence, if evidence were necessary, in support demand paper.

of the negative allegation of nonpayment. Section 3528, Rev. Codes, provides:

Partene v. Pardini, 135 Cal. 431, 67 Pac. 681; "Where the instrument is not payable on Brennan v. Brennan, 122 Cal. 440, 55 Pac. demand, presentment must be made on the 124, 68 Am. St. Rep. 46. day it falls due.

[4) Appellant devotes a large portion of "Where it is payable on demand, present his brief to a discussion of the alleged inment must be made within a reasonable sufficiency of the evidence to sustain the time after its issue, except that in case of a verdict. The evidence in this case as to the bill of exchange, presentment for payment time within which the note was presented to will be sufficient if made within a reason the maker for payment and notice given to able time after the last negotiation thereof." the indorser of nonpayment thereof is con

It therefore became necessary, in order to flicting. The rule is too well established in hold the indorser, who in this case is the ap- this state to the effect that where there is pellant, to show that the note was presented a substantial conflict in the evidence a judgto the maker thereof for payment within a ment entered on the verdict of a jury will reasonable time after the indorsement, and not be reversed, to require any further diswhat was a reasonable time in this case de- cussion of that question. pended upon the facts in the case, which Finding no reversible error in the record, would include the understanding or agree the judgment must be affirmed, and it is so ment between the appellant and respondent ordered, with costs in favor of respondent. at the time the note was indorsed and sold to the respondent. Nor does it make any

AILSHIE, P. J., and WOODS, District difference as to whether the question of Judge, concur. what was a reasonable time was determined by the court or by the jury, because, if it

(19 Idaho, 586) should be held that this matter was one to MENASHA WOODENWARE CO. V. SPObe determined by the court, then it is 'ap KAND INTERNATIONAL RY. CO. parent that the court determined that pre (Supreme Court of Idaho. March 25, 1911. sentment was made in this case within a

Rehearing Denied April 20, 1911.) reasonable time by overruling the defendant's motion for a nonsuit. The respondent,

(Official Syllabus.) and not the appellant, was the only one who 1. Trial ($348*) - SPECIAL AND GENERAL

VERDICTS. could complain of the action of the court in

Under sections 4396 and 4397, Rev. Codes, letting this question go to the jury.

the trial court is authorized to render judgIt was held in Bassenhorst v. Wilby, 45 ment on general and special verdicts. Ohio St, 333, 13 N. E. 75, as follows: "What

[Ed. Note. -For other cases, see Trial, Cent. is a reasonable time is generally a mixed Dig. $ 822; Dec. Dig. & 348.* question of law and fact. Where the facts 2. TRIAL ($ 350*)--SUBMISSION OF QUESTIONS

-SPECIAL VERDICT. are in dispute, it should be submitted to the Held, that certain findings of fact by the jury for its determination under proper in- jury in the form of special verdicts were anstructions from the court; but where the swers to questions of fact, which it was proper material facts are admitted, or not in dis-stituted a substantial compliance with the repute, it is a question for the court, and can- quest of appellant in relation thereto. not properly be submitted to the jury." [Ed. Note.-For other cases, see Trial, Cent.

As a general rule, the question of what is Dig. $$ 828-833; Dec. Dig. $ 350.*] a reasonable time within which to present 3. TRESPASS ($ 61*) – UNLAWFUL CUTTING for payment a promissory note wbich was

AND CARRYING AWAY OF TIMBER-ACTIONS

-TREBLE DAMAGES-APPLICATION OF STATindorsed after maturity is one of fact to be Ute. determined by the circumstances of each Section 4531, Rev. Codes, authorizing particular case by the jury, if there is a con- rying off timber from the lands of another, is

treble damages for unlawfully cutting and carflict in the evidence; otherwise by the court. not applicable where it is not shown that the

[3] The giving of the seventh instruction trespass was willfully and intentionally comby the court is assigned as error. That in

mitted. struction was to the effect that the posses-cent. Dig. § 147; Dec. Dig. § 61.*]

[Ed. Note.-For other_cases, see Trespass, sion by the plaintiff of an uncanceled prom- 4. TRESPASS (16*)—NATURE OF Actionissory note is prima facie evidence that such UNLAWFUL CUTTING OF TIMBER-ACTIONSnote remains unpaid, and the burden of prov PLEADING. ing the payment thereof is upon the de section 4531, Rev. Codes, where it is not alleg.

An action to recover treble damages under fendant. The possession by the creditor ofed that the damage was committed willfully, or a writing providing for the payment of mon. intentionally, does not come within the purview

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