Mines and Minerals-Liens-Foreclosure-Complaint-Sufficiency.
1. A complaint to foreclose liens for materials and labor on min-
ing property, which alleges that plaintiff, at the request of defend-
ant, the owner, and codefendant operating the mine, acting through
a third person, their duly authorized agent, worked as an under-
ground miner at an agreed wage per day, earning a specified sum,
leaving unpaid a specified sum; that the services performed by plain-
tiff were performed in the working, development and operation of the
property; that plaintiff, to perfect a lien, filed and caused to be re-
corded in the office of the county clerk in the county his claim and
notice on May 4th, while the work was completed on March 31st
preceding; that the claim and notice of lien contained the name of
the lien claimant, a true statement of the claim and demand, after
deducting all just credits, the name of the owner and reputed owner
of the property, the name of the person by whom claimant was em-
ployed, a description of the property charged, a true statement of
the contract, and that the lien has not been satisfied, but is a valid
lien, states a cause of action. (Haines Commercial Co. v. Grabill,
375.)
Mines and Minerals-Notice of Lien-Statutory Provision.
2. A lien notice, which complies with Section 7445, L. O. L.,
providing that a true statement of the demand, after deducting
credits and offsets, with the name of the reputed owner and name
of the person by whom claimant was employed, with a description
of the property, is sufficient, though it does not segregate the demand
for overtime work. (Haines Commercial Co. v. Grabill, 375.)
Mines and Minerals-Liens-Foreclosure-Personal Judgment.
3. In a suit to foreclose a lien for materials and labor on mining
property, brought against the owner and a lessee operating the prop-
erty, the court, granting relief, cannot render a personal judgment
against the owner. (Haines Commercial Co. v. Grabill, 375.)
See Food, 3.
See Statutes, 2.
See Appeal and Error, 31.
See Judgment, 8, 10.
See Reformation of Instruments, 1, 2, 6.
See Appeal and Error, 18.
Mortgages-Deed as Mortgage-Parol Evidence.
1. A deed absolute on its face may be shown by parol to have
been intended by the parties as security for payment of money, and
to be in effect a mortgage. (Niehaus v. Shetter, 447.)
2. It is a maxim of the law that "once a mortgage, always a
mortgage." (Niehaus v. Shetter, 447.)
Mortgages-Deed as Mortgage-Laches.
3. The right to assert that a deed in form is a mortgage is not
barred by laches; the grantor, and afterward his executor, remaining
in possession, and paying the taxes, till agreement was made with
the holder of the mortgage to pay them, pending a prospective sale,
such holder not disavowing his trust or questioning that the deed was
intended as a mortgage. (Niehaus v. Shetter, 447.)
Mortgages-Deed as Mortgage-Defeasance.
4. To constitute a deed in form a mortgage there need not have
been a written deed of defeasance. (Niehaus v. Shetter, 447.)
Mortgages-Deed as Mortgage-Existence of Debt.
5. If a deed in form was designed as security for a debt at
the time created, or theretofore existing and continued, it should
be declared a mortgage. (Niehaus v. Shetter, 447.)
Mortgages-Deed as Mortgage-Purchasers.
6. A deed intended as a mortgage should be declared such against
one who, knowing it to have been given as such, took a deed, also
intended as a mortgage, from the grantee in the first deed. (Niehaus
v. Shetter, 447.)
Mortgages-Full Disposition of Controversy.
7. A deed having, in a suit by the grantee to quiet title, been
declared a mortgage, foreclosure should not be left to another pro-
ceeding, but had in such suit. (Niehaus v. Shetter, 447.)
Mortgages-Conditional Sale or Mortgage Distinguished.
8. In a case where purchasers of land, having given purchase
money notes secured by a mortgage on the premises, and the same
were assigned to plaintiff by the mortgagee as collateral security, con-
veyed the land to plaintiff under an agreement that they should be
allowed to redeem if they desired, by payment of the debt, the trans-
action was, as to such mortgagors, a conditional sale, and not a mort-
gage, the debt being extinguished. (First Nat. Bank v. Seaweard,
567.)
Mortgages-Attorney's Fee in Foreclosure of Absolute Deed as a
Mortgage.
9. Section 422, L. O. L., provides that in a suit to foreclose a lien
upon real or personal property other than that of a judgment or de-
cree, if it appear that a promissory note or other personal obligation
for the payment of money has been given, the court shall also de-
cree a recovery of the amount of such debt, as in case of an ordinary
decree for the recovery of money. Defendants S. were indebted to
plaintiff, and after selling land and receiving purchase money notes
secured by mortgage, delivered such notes to plaintiff as collateral.
Afterward plaintiff delivered up the notes and mortgage to the pur-
chaser, and accepted a conveyance of the property. Thereafter this
suit was instituted by the plaintiff to declare said deed a mortgage
and to foreclose the same, and to recover attorney's fees provided
for in the notes involved herein. Held that although the collateral
notes provided for attorney's fees, and though the notes representing
the principal debt also so provided, plaintiff cannot recover compen
sation for its attorneys. (First Nat. Bank v. Seaweard, 567.)
See Appeal and Error, 31.
See Trial, 2.
For Change of Venue.
See Venue, 1.
Municipal Corporations-Public Improvements-Betterment Assess-
1. A contract for a street improvement, giving the superintendent
of streets power to increase or diminish its cost, after the contract
has been made, by requiring a greater or less amount of material,
as he shall determine, renders an assessment invalid. (Miller v.
Portland, 165.)
Municipal Corporations Public Improvements-Betterment Assess-
ment Estimation of Work.
2. To the validity of a street betterment assessment, it is not
necessary that the preliminary estimate of the cost of making the
improvement be precisely accurate, since a reasonable margin for
miscalculation must be allowed. (Miller v. Portland, 165.)
Municipal Corporations-Public Improvements-Betterment Assess-
ment Exceeding Estimate.
3. Where the expense of completing a street improvement came
to $30,844, instead of $13,652, as estimated, on account of unforeseen
difficulty in foundation work for a retaining wall, such increase in
the expenditure was so unreasonable that the assessment of the actual
cost of the work was invalid. (Miller v. Portland, 165.)
Municipal Corporations - Public Work Contractor's Bond-Bene-
ficiaries.
4. Construing liberally, as it should be, Laws of 1903, page 256,
Section 6266, L. O. L., entitled "An act to protect subcontractors,
materialmen, and laborers furnishing material for doing work upon
** public works," and requiring every original contractor for public
work to execute a bond to pay "all persons supplying him labor
or materials * for the work, and providing that anyone applying
for a copy of the bond, and making affidavit "that labor or materials
for the prosecution of such work has been supplied by him," and not
paid for, shall be furnished with a copy, and "said person sup-
plying such labor or materials shall have a right of action" on the
bond, inures to the benefit of one hauling materials under contract
with a subcontractor. (Portland v. New England Casualty Co., 195.)
Municipal Corporations Streets-Automobile Accident-Last Clear
Chance.
5. Where defendant drove his automobile into plaintiff, whose own
negligence had put him in peril, defendant was not liable under the
doctrine of last clear chance unless he actually did discover plaintiff's
danger in time to avoid the accident, not merely because he should
have so discovered the danger. (Twitchell v. Thompson, 285.)
Municipal Corporations-Validity of Street Assessment on Nonabut-
ting Property.
6. The illegal assessment for a street improvement that includes
a levy against a nonabutting lot does not render void a valid assess-
ment against property otherwise legally liable. (Birnie v. La Grande,
531.)
Municipal Corporations-Validity of Reassessment for Street Improve-
ment.
7. Under City Charter of La Grande, 1909, Section 35, paragraph
9, the city is required to give notice of any proposed street im-
provement to the owners affected, and having omitted to give such
notice, the assessments were held invalid, and any subsequent reassess-
ment under the provisions of said section was also invalid, for the
reason that the notice required by the charter was a condition prece-
dent to securing jurisdiction to make the improvement. (Birnie v.
La Grande, 531.)
Municipal Corporations - Initiative Petition - Effect of Adopting
Charter by Commissioners.
8. By Article XI, Section 2, of the Constitution of Oregon, the legal
voters of every city and town are granted authority to adopt, amend
or repeal their municipal charter, subject only to the Constitution and
criminal laws of the state, and where by an initiative petition of the
legal voters of the city of La Grande a new charter was presented
to the city recorder demanding that it be submitted to a vote at an
election to be held later, the act of the commissioners passing an
ordinance adopting such charter is not an enactment of such charter,
but amounts only to an approval thereof, for the reason that Section
3482, L. O. L., does not provide that the ordination of a city charter
or an amendment thereto would have the effect of enacting the same
into a law, but it is in the nature of a recommendation approving
such charter or amendment, thereby signifying that no competing
amendment as provided in said section was necessary. (Birnie v. La
Grande, 531.)
Navigable Waters-Log Boom-Pleading-Federal Authority.
1. Where defendant, while denying complainants' ownership, did
not affirmatively plead title to the lands in question, and alleged that
the boom was situated upon its own land and the waters of the river
and bay, and was maintained under license from the federal govern-
ment, without setting out the terms of such license, it could not be
presumed that it empowered defendant to prevent the tide-water
owner from access to navigable waters in front of his land. (Fellman
v. Tidewater Mill Co., 1.)
Navigable Waters-State Tide-lands Title Low-water Mark.
2. Deeds conveying all the tide-lands in front of the lots men-
tioned therein extended the title thereunder to low-water mark,
wherever that might be, then or afterward. (Fellman v. Tidewater
Mill Co., 1.)
Navigable Waters-Tide-lands-Accretion.
3. The purchaser of tide-water lands, taking to low-water mark,,
acquires title to accretions gradually forming upon his original grant.
(Fellman v. Tidewater Mill Co., 1.)
Negligence Questions for Jury.
1. While mere proof of an accident ordinarily raises no presump-
tion of negligence, yet, where it is accompanied by proof of facts and
circumstances from which an inference of negligence may or may not
be drawn, the case must be submitted to the jury. (Adams v. Cor-
vallis & E. R. Co., 117.)
Applied, Approved, Cited, Distinguished, Followed and Overruled in
See Table in Front of this Volume.
Cited and Construed in this Volume.
See Table in Front of this Volume.
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