upon it. The grounds being left uninclosed, under such circumstances, cannot be construed into a license to pasture them, and the conditions are of such a character as to impliedly forbid it. Nor do I oppose the view expressed in the said opinion regarding the duty of employes of a railroad company to use reasonable effort at all times to prevent the injury or destruction of such animals when found upon the track of the road, although they are there wrongfully. Because cattle or horses go upon a railroad track through the negligence of their owner, it does not follow that the company has the right to kill them. Its employes should always avoid running them down, where they are able to stop the train without injury to it, or without endangering the safety of passengers. I am decidedly opposed to a trial court referring such a question to a jury, unless there is evidence in the case tending to establish the fact that they could reasonably and safely have stopped the train.

But

The majority members of the court assume that the evidence in this case tended to prove that the managers of the train, by the exercise of reasonable diligence, could have obviated the casualty in question. I very much doubt, however, whether it warrants that assumption. The statement in the bill of exceptions in regard to that matter is as follows: "That said locomotive was at the time-attached to one of defendant's regular passenger trains, which passed through said town and depot grounds, from north to south, about 1 o'clock P. M. of the day, which was the regular time for said train to pass said station at Tangent; that, upon approaching said station, and when about 300 yards distant therefrom, the engineer in charge of the train signaled his approach to said station by sounding the whistle; that said horse was at the time either upon the depot grounds along-side the track, or else was upon the public road, at the north boundary line of the depot grounds, and soon thereafter was seen upon the track of the railroad, on the depot grounds, which track, near the road, was elevated some ten or twelve feet, and at the place where the horse was struck was elevated six or eight feet above the surrounding ground; that soon after the whistle was sounded the horse was so seen upon the track between the last-named two points on the depot grounds, and was walking along towards the approaching train, as if intending to reach said county road, which crosses the railroad track at that point; that when the horse had progressed a few steps in that direction upon the track the engineer sounded the alarm whistle twice or oftener, and turned the steam through the cylinder cocks, to drive the horse from the track; that the horse was at that time from sixteen to sixty feet from said road, and the train was distant from the horse from one hundred and eighty to two hundred and fifty feet on the opposite side of the said county road; that when the engineer so sounded the alarm whistle the horse turned immediately around on

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the track, and started running back along and upon the track, towards the south, and away from the train, but was overtaken and struck by the train within from forty to sixty feet from where he so turned around on the track; * that there is a conflict of evidence as to what the speed of the train was when said horse was first seen to go on the track, and said alarm whistle was sounded, and as to whether or not said speed was slacked before the horse was overtaken, and struck by the locomotive, and as to whether or not the engineer endeavored to and could have stopped the train after the horse went upon the track, and before he was struck by the locomotive, the speed of the train when the horse went upon the track being variously estimated by witnesses at from eight to twenty miles per hour, and some of the witnesses testified that the speed of the train was considerably lessened before the horse was struck, while other witnesses testified that they could not perceive that the speed of the train was at all diminished between the sounding of the alarm whistle and the striking of the horse. The engineer testified that immediately upon sounding the alarm whistle he applied the brakes, reversed the engine, and did all that it was in his power to do towards stopping the train, which was running about three miles per hour when the horse was struck. The other witnesses who testified were standing on the depot platform, some 300 feet distant from the point where the horse was struck by the locomotive, and nearly in a direct line with the length of the approaching train; and some of them stated that they did not, and some of them that they did, think the engineer endeavored to check the speed of the train before striking the horse.

I do not think the jury were justified in finding from the facts, under the most favorable construction to the respondent which they could reasonably give them, that the employes of the company in charge of the train were guilty of violating their duty in the particular referred to. I do not believe that the facts were sufficient to sustain an allegation that said employes, by the exercise of reasonable care and diligence, could have avoided striking the horse with the locomotive. A finding by the jury that a train was running at the maximum or minimum rate supposed by the witnesses, or any interme diate rate, per hour, when the alarm whistle was sounded, and that it was 250 feet from the horse at the time, the greatest estimated distance, and that the engineer was not endeavoring to stop it, and could have done so, after the horse went upon the track, and before it was struck by the locomotive, would not have been sufficient to establish such want of care or negligence; as it would have lacked the further essential fact that the train could have been stopped within the distance indicated, and upon that character of grade, without danger of wrecking it, and imperiling the safety of those on board. An en

gineer of a railroad train is charged with a responsible duty, and he must be the judge, in the event of an emergency, as to the proper course to be pursued. He is often compelled, in cases of threatened danger from causes such as existed in this case, to accelerate instead of retarding the speed of the train, in order to save his own life, and the lives of others depending in a great measure upon his prudence and discretion. It would therefore be highly unjust to impute negligence to his conduct in the performance of his duty, without proof of all the facts necessary to constitute it. It could hardly be supposed that a person intrusted to so important a station as that of engineer upon a passenger train of cars would neglect to check the speed of the train in order to avoid running over a horse discovered upon the track, where it could be effectually and safely done. No one knows better than the engineer himself that his own life is in imminent peril whenever such an occurrence happens; and the law of self-preservation, if no other consideration, would prevent him from voluntarily taking such a risk. I think it may reasonably be claimed, as a rule of evidence in such cases, that the engineer is presumed to have performed his duty, unless the contrary is shown by direct and positive proof. In this case, however, no proof of any neglect on the part of the engineer, or of any of the employes of the company, was attempted to be established, except by remote inference, not deducible from the facts claimed. It seems to me, therefore, that when the circuit court gave the instruction: "In this case, if you believe from the evidence that the plaintiff was guilty of negligence in allowing his horse to be upon the depot grounds of defendant, and that such negligence contributed to the accident, still, if you believe the accident could have been avoided by the exercise of ordinary care and diligence on the part of the defendant, the defendant is liable, "-it committed error. Cases of this kind are too important to the public to be left wholly to the decision of a jury, who, in ninety-nine cases out of a hundred will determine them from sympathy, prejudice, and caprice. Courts have a responsibility to perform aside from announcing abstract propositions of law. It is the duty of a trial court, and of this court, to see that justice is administered; and it cannot be shirked by a pretext that the case was a proper one to be determined by the jury. In the trial of actions at law, where the testimony in support of the issue is conflicting, it is the province of the jury to determine the facts; but the court should always carefully scan the testimony, and ascertain upon what issues between the parties it is conflicting, and not shuffle the whole responsibility onto the jury. The instruction above set out left the jury, in this case, free to determine it according to their own notions of right, and without regard to the rules of law.

The court had refused to give the instruction requested by the appellant's counsel,

that it was negligence in the owner of a horse to voluntarily permit it to run at large, and seek pasturage upon railroad depot grounds, and, if it were unintentionally injured by the employes of the railroad, through negligence in operating its cars, while the horse was so trespassing upon such grounds, the owner of the horse could not recover damages from the railroad company for such injury,—and after such refusal proceeded to tell the jury that, if they believed from the evidence that the plaintiff was guilty of negligence in allowing his horse to be upon the depot grounds of defendant, and that such negligence contributed to the accident, still, etc. By this instruction, the question as to whether or not the plaintiff was guilty of negligence in allowing his horse to be upon the depot grounds of defendant, and that such negligence contributed to the accident,-a very important question of law, indeed,-was left entirely to the belief of the jury from the evidence. Yet this part of the instruction is less objectionable than the latter clause thereof, as it restricts the jury in their finding, whether the plaintiff was guilty of negligence on account of the act referred to, and whether such negligence contributed to the accident, to their belief from the evidence, while the latter clause, to the effect that, if they believed that the accident would have been avoided, etc., would indicate that they might find the defendant liable from general belief, or belief derived from any source. The rule that a railroad company may be liable for killing stock upon its road, although wrongfully there, does not arise out of any new principle. It has always been recognized as a wholesome doctrine that an owner of property had no right to destroy or mistreat another's cattle found trespasing upon the property, but must exercise reasonable care and prudence in removing them. The issue in this case was to this effect: The plaintiff said to the defendant: "My horse, without any fault of mine, went upon your railroad track; and your agents and servants so carelessly and negligently ran and managed your locomotive and cars upon said track that the same were run against the horse, and thereby killed it, to my damage," The defendant said, in answer thereto: "My agents and servants were not guilty of the alleged carelessness and negligence, but the damage of which you complain resulted from your own carelessness and negligence." Now, the plaintiff having failed to charge an intentional injury to his animal, should, in order to avail himself of the rule which allows a recovery, in such cases, in favor of a party guilty of contributory negligence on his part, have averred in the reply that, notwithstanding the alleged carelessness and negligence charged against him in the answer, he was still entitled to recover the value of his horse, for that the agents and servants of the defendant might and could, by the exercise of reasonable efforts, have avoided running the locomotive against the animal, and that they wholly failed to make such efforts,

etc.

This would have presented the real issue in the case, an issue tendered by the plaintiff, and which he would have been compelled to maintain by a preponderance of evidence; but he tendered no such issue in his reply. Upon the contrary, he merely denied the allegation of his own carelessness and negligence in the affair. The court, however, cast the burden upon the defendant of proving, not only that the plaintiff was guilty of carelessness and negligence which contributed to the injury, but virtually required the defendant to show that it could not have avoided the accident by the exercise of ordinary care and diligence. The said instruction, substantially, went to that effect. It was to the effect that, if the jury found the plaintiff was guilty of negligence in the affair, "and that such negligence contributed to the accident, still the defendant was liable, if the jury believed that it could have been avoided by the exercise of ordinary care and diligence on the part of the defendant." Under that view, a plea on the part of a defendant, in an action against him for negligence, that the plaintiff was also guilty of negligence which contributed to the injury, would not be good unless it were averred in the plea, also, that the result could not have been avoided by the exercise of ordinary care and diligence on the part of the defendant. Nor would the defendant's proof in support of his plea be of any avail unless it incontestably established that the occurrence could not have been avoided by the exercise of such care and diligence on his part. The logical aspect of the instruction is far beyond my comprehension. If the plaintiff's negligence contributed to the accident, and the defendant was so guilty of negligence in the affair, then it was necessarily the result of their joint wrong; and it certainly could have been avoided by the exercise of ordinary care and diligence on the part of the plaintiff. Why, then, should the defendant be liable to the plaintiff for its wrong, when the plaintiff's wrong was at least equally as instrumental in producing the result? This will be the first case on record, I imagine, where contribution between wrong-doers has been enforced by a court of justice. If there had been evidence in the case tending to show that the conduct of the agents and servants of the appellant was reckless in the transaction which resulted in the destruction of the respondent's horse, or which indicated a total indifference and disregard of the respondent's rights of property, and such fact had been alleged in the complaint, or set forth in the reply, the trial court might very properly have instructed the jury that, if they found that such had been the conduct of the agents and servants of the appellant, they would be authorized to find him liable, although the plaintiff was guilty of negligence which contributed to the accident; but, in order to admit of a recovery in such a case, the conduct of the defendant must be proven to have been something more than negligent. It must be shown to have been

willfully done; for upon no other ground can a plaintiff recover damages against a defendant for an injury resulting from the joint act of both parties. The law will not tolerate so illogical a sequence as the allowance of a recovery of damages by one party against another on account of a transaction in which they are in pari delicto. But to submit to a jury questions of fact where there is no evidence in the case which will warrant them in making a finding thereon, or to submit to them questions involving both law and fact in a confused mass, and then send them out to guess at a verdict, is a travesty upon justice.

I do not think the respondent was entitled to recover the judgment appealed from, nor see how it can legally be upheld. It is unjust in principle, and pernicious in its consequences, and was evidently obtained by sham and pretense. The idea that those in charge of the train of cars in question ran it against the horse purposely, or failed to do all in their power which could safely be done to avoid the collision, is too absurd and preposterous to be credited for a moment. The courts of this state cannot afford to tolerate a sentiment which ignores the rights of any parties litigant, whether belonging to natural or artificial persons. Because the appellant is a wealthy railroad corporation, and possibly arbitrary, extortionate, and exacting in its dealings with the public, it does not follow that its rights should be ignored. Nor is it good policy on the part of the community to countenance or encourage such practice. We must deal honestly and fairly by railroad companies, whether they do so by us or not. Such a course will be found to be by far the best in the long run. succeed in compelling them to pay for a few horses and cattle belonging to thriftless owners, who would probably prefer to have them run over and killed, if they could get anywhere near their estimate of value of the animals, than to exert the slightest effort to prevent the occurrence; but the advantage will be very inconsiderable as compared to the injury which retaliatory measures, if resorted to on the part of the railroads, would occasion, and it would be very unwise to incite any such antagonism. Railroad companies should be required to do their full duty to the public, and, if it need legislation to enforce it, stringent measures should be adopted; but to allow a petty system of illegal and unjust plundering of them will prove to be an indiscreet and short-sighted policy.

We may

(20 Nev. 446)

FORD et al. v. MCGREGOR. (No. 1,315.) (Supreme Court of Nevada. March 3, 1890.) TAXABLE PROPERTY-ERRONEOUS TAXATION.

1. Live-stock driven from the home ranch of the owners into another county, to be herded therein temporarily, and then returned to the ranch in the home county, is not assessable for taxes in the former county. Barnes v. Woodbury, 17 Nev. 383, followed.

2. In assessing property not taxable the assessor acts ministerially, and not judicially, and is personally liable.

Appeal from district court, Nye county; THOMAS H. WELLS, Judge.

A. E. Cheney, for appellants. Rives & Beatty, for respondent.

MURPHY, J. Appellants Ford & Merritt are copartners in the business of stock-raising. They are the owners of real estate and personal property, consisting principally of sheep, in Eureka county. They have no real estate in Nye county. Merritt resides in California. The home ranch, where appellant Ford resides, is in Eureka county, and is the principal place of business of the copartnership. The sheep are controlled, cared for, and managed at their home ranch. In the early spring the sheep have been annually driven away from the home ranch, in charge of herders, into Nye county, to graze upon the public domain of said county for a period of about two months, and were then returned into the county of Eureka, where they remained in the vicinity of the home ranch. In January, 1889, 14,000 head of the sheep were so driven into Nye county temporarily, and there grazed upon the public domain until the early portion of March, when the herders, as was the usual custom, commenced to drive them back into Eureka county; and, while the herders were so driving them, the respondent, assessor of Nye county, finding them at the commencement of the assessment season,—which begins on the first Monday in March, and ends on the first Monday of September in each year,-assessed them as personal property subject to taxation in Nye county for the year 1889. manded immediate payment to him of the amount of taxes on said personal property; and appellants refused to pay the same, or any portion thereof, and notified respondent that said property belonged in, and was assessable in, Eureka county, and was not assessable in Nye county. Thereupon the respondent seized upon and took possession of 1,400 head of said sheep, and sold sufficient thereof to satisfy the claim for taxes, and the costs and expenses of the assessment, levy, and sale. Appellants, in order to regain the possession of said sheep, were compelled to pay and did, under protest, pay the sum of $801; that being the amount of the tax, costs, and expenses. The sheep were immediately driven into Eureka county, and were, thereafter, there assessed, and the taxes due thereon made a charge against the real estate of appellants in Eureka county. This suit was instituted to recover the money paid under protest to respondent. The district court granted a nonsuit, and gave judgment in favor of the respondent upon the grounds: (1) That, upon the facts stated, the property was subject, under the law of this state, to taxation in the county of Nye; (2) that the respondent, in assessing the property and col

He de

lecting the tax, acted judicially, and could not, therefore, be held liable in this action.

This case cannot, in our opinion, be distinguished in principle from that of Barnes v. Woodbury, 17 Nev. 383. The rule therein announced as to the situs of personal property of the character of live-stock must govern and control this case. The fact that, in the Barnes Case, the cattle were permitted to roam at will, and that they wandered from the home ranch in Eureka county into the county of White Pine, and there grazed upon the public domain, at various times during the assessing period, while in this case the sheep were driven into the county of Nye, and there herded for a short period of time, does not make any difference in the application of the principles upon which the situs of the property for the purpose of taxation is to be determined. The reasons stated in the Barnes Case in support of the conclusions reached as to the situs of the property apply with equal force to this case, and are conclusive upon the question. The court erred in deciding that the property was assessable in Nye county.

The court also erred in holding that respondent acted judicially, and could not be held personally liable. In support of the views expressed by the court, counsel for respondent cites several New York cases, including, among others, Barhyte v. Shepherd, 35 N.Y. 238, and Swift v. City of Poughkeepsie, 37 N. Y. 511. The cases cited by counsel were reviewed at length in Bank v. City of Elmira, and it was therein declared that the doctrine announced in those authorities applied only to cases where the assessor had jurisdiction over the persons and property assessed, and erred, for instance, in assessing the property at too high a rate, which was simply an error in a matter to be judicially determined by them, and that the opinions referred to, in holding that the assessor acted judicially and not ministerially, could not be considered as authorities in protecting assessors in the assessment of property where they had no jurisdiction, and that, if such a doctrine was inferable from them, they should not be followed. CHURCH, C. J., in delivering the opinion of the court, said: "The distinction is between an erroneous and an illegal assessment. The former is when the officers have power to act, but err in the exercise of the power; the latter, where they have no power to act at all, and it does not aid them to decide that they have. It is argued that they have jurisdiction to determine what property is taxable in the town. This is a mistake. The legislature determines that question, and the officers have no power over it. The statute requires the assessors to ascertain by diligent inquiry' two things: (1) The taxable inhabitants; (2) the taxable property. Where they decide erroneously as to a taxable inhabitant, it is conceded, and the Mygatt Case, 15 N. Y. 321, holds, that they are liable as trespassers. Why not when they err as

to taxable property? The duty is precisely the same, and the power conferred in the same language. Assessors must have jurisdiction over the person and subject-matter, * * * otherwise, the assessment is illegal, and void." 53 N. Y. 58. It may be admitted that the New York cases are not entirely uniform in respect to the question as to what acts of the assessors are judicial, and what are ministerial; but, when the direct question is discussed, they have repeatedly held that whenever the assessors exceed their jurisdiction in assessing property and collecting taxes they are personally liable. People v. Supervisors, 11 N. Y. 573; Mygatt v. Washburn, 15 N. Y. 321; Clark v. Norton, 49 N. Y. 246; Dorwin v. Strickland, 57 N. Y. 495. The authorities in other states uniformly declare that the acts of the assessors in assessing property and collecting the taxes are ministerial, and that if, as in the present case, he exceeds his powers, he is not protected, and is held personally liable. San Francisco v. Talbot, 63 Cal. 486; Fairbanks v. Kittredge, 24 Vt. 12; Baldwin v. Shine, 84 Ky. 513, 2S.W. Rep. 164; Henry v. Sargeant, 13 N. H. 333; Hays v. Steam-Ship Co., 17 How. 600.

As long as the assessor acts within the scope of his authority, he is protected by the law; but, to bring him within this rule, he must be careful not to assume a jurisdiction which the law does not confer upon him. If he assumes an authority to decide upon the rights of others in cases which the law has not confided to his judgment, he is in general responsible to the same extent as if he possessed no official character whatever. "The office protects him only when he keeps within the limits which have been prescribed for his official action. When he exceeds those, he lays aside his official character, and must rely for his protection on the same principles behind which citizens in private life must defend themselves." Cooley, Tax'n, 553. The judgment of the district court is reversed, and the cause remanded; and the court is directed to enter judgment in favor of appellants for the sum of $801 and costs.

(20 Nev. 451)

WHITMORE V. MCGREGOR. (No. 1,318.) (Supreme Court of Nevada. March 3, 1890.) Appeal from district court, Eureka county; A. L. FITZGERALD, Judge.

Rives & Beatty, for appellant. Peter Breen and A. E. Cheney, for respondent.

MURPHY, J. A number of persons named in the agrced statement of facts are residents of Eureka county, and are the owners of real estate and personal property in said Eureka county. They are engaged in teaming and freighting in said Eureka county, and have been so engaged for a number of years. It has been their custom, at the close of the teaming and freighting season of each year, to send their horses and mules into Nye county, to be fed and cared for during the winter months, or until the reopening of the teaming and freighting season in the spring. As was their usual custom theretofore, in the month of December, 1888, the owners thereof had a number of horses and mules

driven from Eureka into Nye county, there to be fed and cared for until the opening of the teaming and freighting season in Eureka county in 1889. On the 15th day of March, 1889, the assessor of Nye county assessed said horses and mules, claiming that said property was subject to taxation in said county for that year, and demanded immediate payment of the taxes. The owners of the property protested against the property being assessed in Nye county, and the payment of the taxes therein, and claimed that the property belonged in, and was assessable in, Eureka county. The owners of said property paid to the appellant the sum of $219.76 to prevent him from selling the same. It is admitted

that the horses and mules were driven back into Eureka county on the 15th day of April, 1889, and that the assessor of Eureka county would assess said property to the owners thereof in Eureka county for the year 1889, if not restrained by legal process. The several claims were duly assigned to respondent, and he brings this action to recover the money paid under protest.

The questions of law presented in this case are the same as in the cases of Barnes v. Woodbury, 17 Nev. 383, and Ford v. McGregor, ante, 508, (No. 1,315;) and on the authority of those cases the judgment appealed from is affirmed.

(9 Mont. 288)

ST. LOUIS MINING & MILLING Co. v. MonTANA Co., Limited.

(Supreme Court of Montana. Feb. 4, 1890.) MINING CLAIMS-INSPECTION AND SURVEY.

Code Civil Proc. Mont. § 376, giving district courts power to make an order for an inspection or survey of a mining claim whenever any person shall have any right to or interest in any lead, lode, or mining claim which is in the possession of another, and an inspection or survey shall be necessary for the protection of such rights or interest, is not unconstitutional, as being unjust and oppres sive, though the interest of petitioner is not defined, and though the order may be issued without requiring bond, and before suit, and no provision is made for appeal, as the order may be reviewed on certiorari.

Appeal from district court, Lewis and Clarke county; HUNT, Judge.

Cullen & Sanders, for appellant. Wade. Toole & Wallace, and McConnell & Clayberg, for respondent.

BLAKE, C. J. The St. Louis Mining & Milling Company of Montana filed its petition in the district court of Lewis & Clarke county, and alleged that the petitioner is a corporation under the laws of Montana; that the Montana Company, Limited, is a corporation under the laws of Great Britain; that the petitioner is the owner of the St. Louis Quartz Lode Mining Claim, situated in said county; that the Montana Company, Limited, is the owner of the Marble Heart, the Maskelyne, and the Nine Hour Quartz Lode Mining Claims; "that being anxious of, and it being necessary for your said petitioner to have an inspection, examination, and survey made of, the premises last aforesaid, in order to enable it to institute its action to recover the possession of the said property, so owned by it, and for the recovery of such damages as it may have sustained by reason of the taking, extraction, and conversion of the quartz rock, ore, and mineral, taken by the said Montana Company, Limit

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