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About Daily capital journal. (Salem, Or.) 1903-1919 | View Entire Issue (March 22, 1911)
rAOK'MX. DAILY CAPITAL JOURXAL, SALEM, OREGON. WEDNESDAY", 3IARCH 22, 1911. II "mm0T BRAND Hams and Bacon t J axe every one inspected by the U. 8. Government. The official stamp is your protection. It assures you that look rr J-0" ar "a,p 'n allowing your children to eat for tm t'omnfcia Jlrand Hums and Macon. Look for the Y I I ' J trade mark Columbia Krand und the little round 1 I f I A p" t2 l) K',v,n""ent tnip. The beet Huine and Bacon II W 4 Vn"p'" th.it yon have ever enten are alwujra found in j 1 . wrappers bearing Columbia ISrand trade mark. I I It la your guide. Inula t upon Columbia Jlrand. I VSk At Best Dealers, Hotels and Cafes J Vw Cnioa Meat Compear. Portland, Ore. JT J? SUPREME COl'BT DECISIOX. (Continued from Page 2.) pert opinion than of a narrative of facts. However, there was some evi dence tending to show that Kelsey was taking more than his share of the water and other evidence tending to show that he cut the ditch to irri gate his pasture land, when Daltoa needed the water for his crops. We do not feel, therefore, that the -verdict on the last cause of action was without evidence to support it. Exception Is taken to certain In structions of the court and these will now be considered. The first instruc tion is as follows: "I instruct you that the prior ap proprlator of the waters of the stream for irrigation purposes has the right to use the same to the extent of his necessities for such purposes without lot or hindrance from other users thereof, but that his uso thereof must be economical and strictly In accord ance with hlB needs, and not other wise. It is his duty so to use his Bald appropriation in Irrigating his promlHOB as to do the least harm to other userB, and so to handle the wa ter upon his promises as will make the watera of a stream of the best use to the community. Every ditch should be so handled as to satisfy the users therefrom if possible. Any method or Irrigation which Is waste ful or extravagant can not be upheld by the courts and Is, an Improper use thereof, when others need the water for like UBe. It Is a rule of law that the approprlator does not own the water which he has appropriated, but he does own the right to use the same, and that only. After he has made use of It, any quantity thereof which passes below his premises, is open to the use of others as their rights ap pear, and the prior approprlator thereof ennnot assert sovereignty over such water after It has passed the point whore It Is avallublo to his usage. These rules apply to plain tiff Aid defendant In this case alike." We think this Instruction properly TJfOMXS Of III AWWOai, STATEMENT OF TXB COLUMBIA LIFE & TRUST COMPANY, atai.' of OrvKVu"U!ZZtZ !'; t0 """' Commlaaloner of th. im.,,,1 OaMTat. capital (mill up Premiums Inlvrvat , , IWCOMB. DISBURSEMENTS. l9i0. Ifeath Clalma Otlii-r piiyinentu holder JU.ILmI examination ' M 'r.2Lu' "" ",,J 'i w Total dtaburafnienta Caah on hand and Vn 'bank J Loana on piiitro,l uuiur admitted usa. t. Total ailmlttoil BHuetB Legal ri-nt-rve on ikiIIcIm.. tiAii.mE. ah othur llabllltla ... " Capital ntw.lt DuuwtlKne.1 funda .!!!.'.'!."!! Purpln, to policy holder New Insurant written In 1910 Insurant m for Deo. 31. lnio;".',' . . . , , , , aCMXESS IV OftEOOK Total rlBka wrlttn dtirlnc th roar. Orosa nr.mluma rmvlvm ilurlna- the v.'-ar I.oei. In,.i,rrl iliiiln he year! ' ' ..... .uuuuui uj riHKa outataix Kiln In Oremm, IVo.'sV.'liio COLUMBIA LIFE & mm mm wni I f lor backne ), rheumatism, kidnev If 1? states the law and that it Is not In conflict with the decree of 1906. That decree, it Is true, adjudicates that Kelsey is entitled, as a prior appro prlator, to the use of four feet of wa ter, but this must be subject to the qualification that such use must be necessary at the time. At some sea sons of the years one-fourth of that amount might be all that would be re quired, and at other seasons the whole might not be sufficient. Now to allow defendant to divert four feet of water upon his own land, when one foot would be amply sufficient, would be clearly unjust and contrary to that sound policy of the law which does not recognize actual ownership in running water, but merely right to the beneficial use of It. The second Instruction objected to, we think correctly states the law and does not Infringe upon the rights of defendant as defined by the decree. The courts In all previous litigation between parties, as In this case, have recognized the difficulty of laying down any fixed rule for the diversion of this water at any particular time which would do exact Justice to all parties. It is evident that all parties to this litigation are more anxious to Inconvenience and annoy each other than they are to uso their water to the best advantage, and that they will probably continue to litigate so long as their Holds produce crops sufficient to pay the expenses. Noth ing but placing a disinterested com missioner In charge of this ditch and keeping him there at the expense of the' parties concerned will ever stop this litigation and It is doubtful if that course will have the desired ef fect. Instruction No. 4 objected to by appellant Is as follows: "I also Instruct you that the find ings of fact found by this court In that Bult wherein this plaintiff and others were plaintiffs, and Mr. Kelsey was defendant, muBt control you, wherein such findings are definite and certain In their terms or their lm port Is plain Where this court In I 200,000.01) t 7.l1.05 $ 110.48S.O4 4.O0O.0I) S.lii l.SJ 4.1U7 .13 10.1)117. 3d 8. 3u4.il ::::::::::::: H.K99.8J S.6I1.4T ASSETS, i r i iiu je I ." . 8 7 ii . S o 4.'.j III 84 4,H13.l!t l.10l).41 t 844,5U.6 M. 9M.10 l,utM..-2 . $200. nun. on 4.5J.17 :'I9.5J!).27 SM.6U.C9 l ?l I.150.69 3.300.4:M.4 FOB THE rtia 1,3!'5.99S51 T0,!i. IS 4,OU0.00 4. ooo.no S. 73.'. 9,"6. 31 TRUST.COMPANY, M. M. JDHNNny S.vn-tary, RED PHARMACY. that suit found certainly upon point that has arisen In this action, its find ing must control yours and you must abide by such finding, which, I in struct you, is final and conclusive alike upon the parties hereto, this jury, and this court, and they must be so treated by you under your oath as jurors." This instruction is erro neous, in that it leaves to the Jury the construction of the findings of the circuit court. It was the duty of the court to construe these findings and explain to the Jury their force, effi cacy and application to the matters at bar. Instruction No. 6, objected to, is as follows: "One of the provisions of plaintiff's 'Exhibit B,' which is the Instrument executed by L. S. Kelsey, C. A. Dougherty, James Dalton and others, on the 10th day of October, 1900, reads as follows: ' and the1 said L. S. Kelsey shall have the right at any time and all times to pass his own water from other ditches through said ditch, and at any time use his own water therefrom.' I in struct you that the said stipulation is mutual; that is to say, all parties to that agreement have the right to pass their water through that ditch and no party to that agreement has the exclusive right Under that stipula tion each party must respect the rights of his co-owners in running his own water through that ditch. This stipulation does not give Mr. Kelsey or Mr. Dalton a right to run such a quantity of water for bis own use into that ditch aa would deprive any other party to it of the same right. Wherefore, If you find from the evidence, that the defendant caused damage to the plaintiff, by a disre gard of plaintiff's rights to use water therefrom, the defendant would be liable therefor. I Instruct you that no party to that agreement has a right to the exclusive control of the ditch mentioned In this agreement, or any part thereof, from Its Intake on North Powder River to the tap of the last party using water therefrom, but that each party must respect the rights of the others." This instruction Is misleading In that It seems to leave out of view defendant's prior right to use four feet of the water flowing through the Kelsey-WIlson ditch. It Is true that such right is expressly recognized In other instructions but there Is such an ambiguity here as was calculated to confuse the jury. Instruction No. 9 is as follows "As to the Dalton Box: I Instruct you that the plaintiff has no right to dis turb it or lower the bed of the ditch at that point or above there or to fill in the ditch at the Hutchinson Slough, with more water than can be carried past the Dalton Box. Nor did Mr. Kelsey have any right to dam up that box and prevent any water from flowing through the same If there were other reasonable means availa ble to him whereby he might use his water, If by so damming he would needlessly prevent plaintiff from get ting his share of the water. If by opening the bottom of the dam In that box whereby the water could run through to plaintiff and by turn ing In enough water additional at the head of the ditch In North Powder River he could have procured a suf ficient volume of water to have satis fied his needs and thus have avoided any Injury to plaintiff, if plaintiff was Injured, it was Mr. Kelsey's duty to have done so, and to have al lowed water to go down to plaintiff, I do not mean to say that Mr. Kelsey did put a dam in the Dalton Box; that Is a question for yout to deter mine from the evidence." We think this Instruction Is correct. It Is plausibly contended that a different rule Is laid down in the case of Carnes v. Dalton, Or. j 110 Pac. 170; but we do not so view that case. In that case It appears that, by reason of the dam In Powder Riv er being out of repair, It was Impos sible for Carnes to get the quantity of water he was entitled to by reason of a prior appropriation without re pairing or raising the dam. Dalton who was defendant in tht case claimed the right to use the full amount of his subsequent appropria tion, leaving the prior approprlator to rebuild to repair the dam In order to get the share to which he was en titled. The eourt properly held that Carnes was not required to do this, but, tf there was sufficient water flowing at the head of the ditch to supply Carnes, that he was entitled to take it, leaving to the subsequent approprlator the duty of raising the dam, so as to turn more water Into the ditch. What Is said by the court In reference to the right of Carnes and Kolsey to use the water then flow. lug In the ditch must he construed as applying to the conditions there found to exist. In the case at bar conditions are different There is evidence tending to show that there was an abundant supply of water at jthe head of tho ditch for all parties ( and If. by simply lifting the headgate, Kelsey could secure his supply, wlth- uui using tnat already turned In by plaintiff, he should have done so. Then If the ditch 'would not carry enough to give him bis four feet of water and also supply Dalton, he thould have the right to be first served, or if what Dalton had pre viously turned in was all that the ditch would contain, Kelsey would have the right to use the whole of It We do not understand the Instruction to assert any different doctrine. It follows from these views that the judgment of the lower court must be reversed with Instructions to dis miss the first, second and third causes of action and retry the case upon the fourth cause. Mr. Chief Justice Eakln took no part In the decision of this case. WILL MANDAMUS RAILROAD COMPANY Attorney-General Crawford Is pre. paring legal papers looking to the mandamuslng of the Corvallis & Eastern Railroad Company, to com pel it to build a depot at Lyons, and they will be filed with the proper court in the course of a few days. Last year the Oregon Railroad Commission acting upon petitions made by citizens, and after a hear ing on the subject, ordered the com pany .to build a suitable depot ' at Lyons. The company refused, and the attorney-general brought a suit against it, and recovered a penalty of $250 for violation of the order. The company then appealed to the su preme court, and the case Is now pending before that tribunal. The commission has now, with the view of securing immediate action l8t)ructed' the ajttorney-general to bring mandamus proceedings. Not a Word of Scandal Marred the call of a neighbor on Mrs. W. P. Spaugh, of Manvllle, Wyo who said: "She told me Dr King's New Life Pills had cured her of obstinate kidney trouble, and made her feel like a new woman Easy but sure remedy for stomach, liver and kidney trouble. Only 25c at J. C. Perry's. o THIS IS CERTAIN. The Proof That Salem Headers Can. not Deny. What could furnish stronger evl- dence of the efficiency of any remedy than the test of time? Thousands of people testify that Doan's Kidney Pills cure permanently. Home endorsement should prove undoubtedly the merit of this remedy. Years ago your friends and neighbors testified to the relief they had de rived from the use of Doan's Kidney Pills. They now confirm their testi monials. They say time has com pleted the test. A J. Wood, 733 N. Front street, Sa lem, Oregon, says: "About two months ago I began to suffer from kidney and bladder trouble. The kidney secretions were too frequent and painful In passage and caused me much annoyance. I had often heard Doan's Kidney Pills highly recommended and thinking they might prove of benefit, I procured a box at Dr. Stone's Drug Store. I can say that the use of one box rid me of every symptom of kidney com plaint. I strongly advise other kid ney sufferers to give this remedy a trial. ' The above statement was given January 30, 1906, and was confirmed on November 20, 1909, by Mr. Wood. He said: "The statement I gave in 1906, publicly recommending Doan's Kidney Pills was correct. This rem edy cured me of kidney trouble and I have had no return attack." For sale by all dealers. Price 50 cents. Foster-Mllburn Co., Buffalo New York, sole agents for the United States. Remember the name Doan's and take no other. A Dreadful Siglit. . To H. J. Barnura, of Freeville, N. Y., was the fever sore that had plagued his life for years in spite of many remedies he tried. At last he used Bucklen's Arnica Salve and wrote: "It has healed with scarcely a scar left." Heals burns, bolls, ec zema, cuts, bruises, swellings, corns and piles like magic. Only 25c at J. C. Perry's. CIllinilQflOQQ UlliUUUfllU "I have used your valuable Cascaret ana i nna mem perfect. Couldn't do without them. I have used them for some time for indigestion and biliousness and am now completely cured. Recom mend them to everyone. Once tried, yots will never be without them in the family." Edward A. Marx, Albany, N.Y. Pleasant, Palatable. Potent. Taate Good Co Good. Never Sicken, Weaken or Gripe, lOc.iie. 50c Never aold In bulk. Therca nine tablet atampeO CC C. Guaranteed to cure or vour monn back. 929 Salem Fence Works I Headquarters for Woven Wlrs Fencing, Hop Wire, Barb Wire, Poultry Nesting-. Ebia- i flea, Malthold Roofing, P. . B. and Ready Roofing. All at the lowest prices. CHAS. D. MULLIGAN 150 Court street, PhoM 114 Ordinance Xo. 90S. A bill for an ordinance providing for incurring an Indebtedness to the amount of J30.000.00 by the issu ance and sale of bonds against the city of Salem Oregon, for the pur pose of raising funds for the con struction of necessary bridges within the city of Salem Oregon ; providing for the term of said in debtedness, and the terms, denom inations and interest of such bonds, and the manner of disposing of the same; and providing for submission of the proposition of Incurring such indebtedness and the Issuance of such bonds to the legal voters of the city of Salem at a special elec tion to" be called for such purpose. and matters kindred thereto. Be It Ordained by the Common Coun cil of the City of Salem, Oregon: Section 1. For the purpose of pro viding funds for the reconstruction of bridges at certain points on Mill creek where bridges were recently destroyed by floods, and constructing the other necessary bridges within the city of Salem, Oregon, the common council of said city is hereby author ized and empowered to Incur an in debtedness by the sale and Issuance of bonds as hereinafter provided, to the amount of $50,000.00. Section 2. Such bonds shall be known and designated as "Salem mu nicipal bridge bonds," and shall be issued in denominations not less than $100.00 and not greater than $100.00, upon a popular loan plan at a rate of Interest not to exceed five (5) per cent, per annum; such bonds shall be payable within ten (10) years from the firBt day of June 1911; provided, the right to take up and cancel such bonds, or any of such issue, upon the payment of the face value thereof, with accrued Interest to the date of payment at any semi-annual interest payment period, at or after one (1) year from the date of such bond or bonds, shall be and is hereby vested in the city of Salem. In case the city so desires to redeem any of such bonds, a notice shall be published for five (5) consecutive issues In a dally newspaper of general circulation pub llshed in the city of Salem, Oregon, during the month preceding the in terest payment period at which it is proposed to redeem such bond or bonds. Such notice shall also specify that on and after such interest pay ment period interest on such bond or bonds will cease, and such notice shall also describe the bond or bonds proposed to be redeemed by giving the date of issue and denomination thereof, and that the city proposes to redeem the same, which- notice shall have the effect to stop the running of Interest on such bond or bonds after such interest payment period. Section 3. The principal and inter est of said bonds shall be payable In gold coin of the United States of America, and the interest thereon shall be paid semi-annually on the first day of June and the first day of December of each year alter date of Issue, at the office of the treasurer of the city of Salem Oregon. Section 4. To eacli cf said bonds shall be attached twenty (20) inter est coupons, printed upon the margin of the paper upon which is printed the bond itself and representing the amounts of semi-annual interest to become due upon the said first days of June and December, consecutively succeeding the said date of Issue, and pledging the payment at the times and place mentioned, and at the rate of Interest agreed upon in the sale thereof. Such bonds shall be signed by the mayor of the city of Salem, Oregon and attested by the recorder of said city, and each bond shall bear the impress or the seal of the city of Salem, Oregon. Section 5. All such bonds remain ing unsubscribed for and unsold when the subscription books for the sale thereof shall have been duly closed shall be sold upon the open market to the highest and best bidder bid ding for all of said bonds so remain ing unsold, but for not less than par. Such bonds shall be exempt from all taxation for municipal purposes, and among equal bidders preference In the sale and allotment thereof shall be given to bidders residing In the city of Salem, and state of Oregon, for the smallest amount and lowest denominations In due sequence. Section 6. It shall be the duty of the treasurer of the city of Salem, Oregon, when said bonds herein pro vided for shall have been sold nnH ' paid for, and the purchase price thereof shall have been received by such treasurer to arrange and keep all funds arising from the sale there of, separate and apart from all other moneys of the said city and the same shall be designated, "emergency bridge fund," and the same shall be paid out only for the purpose of con structing and repairing bridges with in the city of Salem, Oregon. Section 7. For the purpose of car rying out the provisions herein con tained, namely: To incur an indebt edness in the sum of $30,000.00 for the purpose of reconstructing bridges destroyed by recent floods on Mill creek, and constructing and repairing other necessary bridges, all by the issuance and sale of bonds, a special election of the city of Salem, Oregon Is hereby called to be held on the 15th day of April. 1911. which election shall be held in all respects in the manner In which general elections are held la the city of Salem, at which time the matter of incurring Joy AND SICKNESS DON'T CHUM TO BE HAPPY KEEP WELL USE ONLY NEWDISCOVERYbroughtI TO CURE COUGHS AND COLDS WHOOPING COUGH AND ALL DISEASES OF THROAT AND LUNGS pnc. s7.d $1.00 .' . ..1 SOLO AND such Indebtedness by the issuance and sale of bonds shall be submitted to the legal voters of said city for their adoption or rejection. Each voter shalll designate bis intention by voting "Yes" or "No" in answer to the following question: "Shall the common council of the city of Salem Oregon, Incur an in debtedness by the Issuance and sale of bonds for the purpose of recon structing bridges destroyed by floods on Mill creek and constructing and repairing other necessary bridges In the city in the sum of $50,000.00?" Section 8. The ballot title to sub mit this ordinance to the legal voters of the city shall be substantially as follows, to-wlt: "To ratify Ordinance No. 905, pro viding for Incurring an indebtedness by the city of Salem, by the issuance and sale of bonds In the sum of $50, 000.00, for the purpose of construct ing necessary bridges. Vote Yes or No." Section 9. The city recorder shall, not later than twenty (20) days be fore the said proposed election, cause the full text and ballot title of this ordinance to be printed In a newspa per published and printed in the city of Salem, Oregon, for five (5) conse cutive publications. Passed by the common council this 27th day of February, 1911. Attest: CHAS. F. ELGIN, City Recorder. Approved by the mayor this 2d day of March, 1911. LOUIS LACHMUND, Mayor. o Try a Journal "Want Ad." Salem's most poular res taurant THE WHITE HOUSE We cater to the public who demand a good meal for a small price, Wm. McGilchrist & Sons. Bosom Sets The stud button holes exactly meet, the neck band does not bind on your neck; button holes exactly meet buttons, no bulging front, In fact a perfect fit if we launder your shirts. It Is done with our new STEAM PRESSES, which do not .ub or burn the fibre, but MOULD the cuffs, neck band and bosom to a PERFECT SHAPE. Try the new work. Visitors welcome. 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