Image provided by: University of Oregon Libraries; Eugene, OR
About Daily capital journal. (Salem, Or.) 1903-1919 | View Entire Issue (May 25, 1911)
-ilf DAILY CAPITAI JOURNAL, tlQl FITS. 4 44MMMM4444M4 . Women's Knit Vests 10c values 7c 25 c Vests 21c This month only Men's Balbriggan Underwear Regular 50c values 39c per . garment This month only t t THE JUNE WIDE WORLD MAGA ZINE. The June Wide World is a sterling number and contains a mass of in teresting and instructive information regarding the four quarters of the globe. Mr. H. Hesketh Prichard con tinues his enthralling account of the famous journey he made "Across Un known Labrador;" Major Sykes has another paper on "The Wilds of Per sia" and Mrs. Fred Maturln contrib utes a third article descriptive of her "Trek Beyond the Zambesi." John A. Hope, a hunter of international reputation, writes an account of his adventures with the Canadian wolf and Mrs. L. M. Terry gives an extra ordinary description of "The Myster ious Cave-Dwellers of Arizona." Dr. Maxlmus Neumayer commences a ser ies of articles on dealing with "Un explored Brazil" and there are a number of fine adventure stories. The illustrations are a striking fea ture of this magazine and one won ders how it is possible to collect so many new and remarkable photo graphs month after month. The Wide World is the most unique magazine on the news stands today. o What Foley Kidney Fills Will Do for Yon. Foley Kidney Pills are a true med icine. They are healing, strengthen ing, antiseptic and tonic. Foley Kid ney Pills take hold of your system and help you to rid yourself of your dragging backache, dull headache, nervousness impaired eyesight, and of all the miserable feelings that re sult from the impaired action of your kidneys and bladder. Remem ber It is Foley Kidney Pills that do this for you. Red Cross Pharmacy. REAL ESTATE NEWS BULLETIN THAT IT WILL PAY YOU TO READ OVER CAREFULLY Do Not Fail to Consult Us if you Want to Buy or Sell Prop erty. We Study the Value of Each Piece of Property From Standpoint of Buyer and Seller. We have one of the best five-acre tracts on the market, only 10 minutes' walk from streetcar line, with good house, barn, chicken house and yard, grove, and about 2 acres in orchard, owner will build on five acres adjoining and furnish water supply from windmill for both places. In full crop of fruits of all kinds and garden. Finest view of city and mountains, sheltered from south winds in winter, an ideal little home ranch for $2600. Compare this with anything that Is offered and go and see the place and you will be de lighted. A good home close in, four blocks from Marlon hotel, for a small family, house entirely rebuilt, concrete foundation, barn or woodshed, city water, electric lights, bat room, place for another bungalow on adjoining lots, two lots and house for $2000. Rents for $12 per month. The electric light and water fixtures cost $30. Street paving and sewer assessment $293.33 included in the above. The lots have a front of 102 feet on Mission street, and about the same on Liberty. Southeast corner. A good investment. Fine family home farm of 21 acres two and a half miles from city, half mile to macadamized road, 8 room house, full grown apple and pear orchard, nine acres In fruit, new windmill, barn, livestock, farm machinery team, four Jersey cows, with place, In full crop, $9,000. Fine young orchard place with $1800 improvements, 3'A acres prunes bearing, 20 acres planted to fruit, threefourths mile beyond forks of Jefferson and Liberty road, $8000. Stock and fruit ranch on Santiam river, 240 acres, 40 acres slashed, 10 acres in crops, 20 acres under wire fence one acre eight year old orchard, one acres potatoes, one acre garden IS head of cattle, team, wagon, harness, farm tools and crops, furniture worth $300, bungalow with five rooms, fire-place, three barns, cold spring that can be piped to house, six million feet of yellow fir piling and tie timber, $6000. Terms, half cash. Three lots and three houses in West Salem on easy terms. First class corner building lot in Sommerclal street in finest residence part of city, $1500. Two lots on Aural avenue Just off Commercial street, $300 each. First clas scorner building lot In Salem Heights addition, two blocks from Commercial street, for a few days only $400. Have $400 to loan on real estate mortgage. ... , , Eight-room house, fine lot 79x160, on carllne, In best residence part of city, fruit trees and fruit, niodera Im provements, $5000. , , Best 20-acre prune orchard, In full bearing, one-half mile from Rosedale, $6000. Well established manufacturing business, one-fourth cash; easy terms on balance; $20 000 Brush farm, fine fruit land, Id Liberty district, 22 acres, 2 acres cleared, good house $2200. Finest improved fruit farm and residence on Garden Road for sale on easy terms; $10 000. Half-acre tracts on South Commercial Street, close in, on easy terms; $600. Three first-class 50-acre tracts on fine road, near church and school, per acre. $100. Five-year-old prune orchard, half-mile beyond end of carllne, sold In lota of two acres or upward, to suit purchaser,, all but first two acres, $5Q00 per acre. R R Rvan olace 20 acres, IM miles east of city, fine house, two large barns, $10,000. HaU bfock TwenUetb and Trade streets, corner lot with house, $1200; three lots $800 to $1000. Bes nve acres with orchard, house and barn, little timber, ideal little borne lot, with $1500 Improvements, ClGhouse anTtwo lots, corner Liberty and Mission, price, Including paving and sewer, $2000. Sour" choice building lots, two facing Liberty and two on High streets, $800. Spot cash. All good, new build ings on the block. Lots large, 75x141. and all sewer assessments paid. Try the BIG 4 4 pair Men's Sox for 50c Others 3 pairs for 25 c -. Motor Car Insurance, We write insurance. on automobiles and all kinds of power driven vehi cles at the lowest rates, and Insure against damages from fire under any and all circumstances, whether In pri vate or public garage or on the road or in accident. More cars are de stroyed by fire than by all other causes put together. Rates the low est. E. Hofer & Sons, 201 U. S. Na tional Bank building. 5-22-tf Mrs. J. S. Starnes, Hickory, N. C, seaks to those who have a similar trouble. "I have been bothered a great deal with throat and lung trouble, and find Foley's Honey and Tar Compound gives me Immediate satisfaction and relief," Take Foley's Honey and Tar Compound for coughs colds and hoarseness, for children and grown people. Accept no sub stitutes. Red Cross Pharmacy. o Home prosperity depends 'upon home industry, and state-wide pros perity will be made greater, If factor ies selling "Made in Oregon" goods are patronized by the local merchants Balked at Cold Steel. "I wouldn't let a doctor cut my foot off," said H. D. Ely, Bantam Ohio, "although a horrible ulcer has been the plague of my life for four years. Instead I used Bucklen's Arni ca Salve, and my foot was soon com pletely cured." Heals barns, bolls, sores, bruises, Eczema Pimples, corns, surest pile cure 25c at J. C. Perry's. OREGON SUPREME Foil Text Published bj Courtesy of Supreme 0. R. k X. Co. t. Ceolldge, Union County. Oregon Railroad and Navigation Company, appellant, v. O. F. Coolldge, respondent. Appeal from the circuit court for Union county. Hon. J. W. Knowles. Judge. Argued and submit ted at Pendleton, May 2. 1911. W. W. Cotton, Cochran and Cochran, and W. A. Robbins, for appellant F. S. Ivan hoe, for respondent Burnett, J. Af firmed. The plaintiff, a railway corporation organized under the laws of Oregon, operating as a common carrier a rail way extending from Portland to Huntington in this state, claims to have entered into an arrangement with the Union Pacific, the Oregon Short Line and the Denver and Rio Grande Railroad companies whereby they promulgated a joint tariff pre scribing a rate of 60 cents per hun dred pounds on shipments of cement In carload lots transported over their lines of railroad from Portland, Colo rado, to La Grande, Oregon, which said tarifT was thereafter duly pub lished and filed with the Interstate commerce commission and was at the time mentioned in the complaint, the lawful rate for the transportation of that kind of property between said points over said lines of railroad. As the delivering carrier authorized un der that arrangement to collect In Its own name from a consignee the en tire through freight charges on freight moving between those two points, the plaintiff asserts In sub stance that about April 25, 1907, the defendant purchased at Portland, Colorado, 500 sacks of cement, load ed the same on a car and delivered the car so loaded to the Denver and Rio Grande Railroad company at Portland, Colorado, with instructions to transport the same over said lines of railroad and deliver it to defendant as consignee at La Grande Oregon, and that he agreed to pay for the same the lawful rate for that carriage of that kind of property. It is also stated in the complaint that having received the shipment at Huntington, Oregon, its eastern terminus, the plaintiff paid the other lines of rail road the full amount of their charges for transporting the property to that point and thereafter carried it to La Grande, where the shipment was de livered to and accepted by the defen dant as consignee. The plaintiff avers that, the total fmlirht cha vtra nn the shipment according to the legal tariir was the sum of $291.25, of which the defendant paid the plaintiff $166.25, leaving a balance of $125 which the defendant refused to pay ana for which the plaintiff demands judgment. There are two other counts In the complaint for two simi lar shipments on like alleged terms. The answer traverses all the alle gations of the complaint aside from the corporate existence and business of the plaintiff, except as otherwise stated in the answer. The defendant affirmatively states that he purchased 500 sacks of cement at Portland, Col orado, for sale at La Grande, and the vendor then and there caused the said cement to be delivered to defendant at La Grande; that plaintiff delivered the cement to the defendant at La Grande and demanded and received from defendant as full and reasona ble compensation for the transporta tion in question the sum of $166.25, which was the reasonable and only amount fixed or lawfully chargeable or collectible by plaintiff as freight on such shipment, being a rate of 35 cents per hundred pounds. Substan tially the saine defense is made to the other two counts. The reply mater- COURT DECISIONS F. A. Turner, Reporter of the Court I not enougn in our Judgment to court for permission to redeem It authorize or require the plaintiff to! The laborer's lien clam very often Is . , ! charge for a haul from Portland, ! unliquidated and never necessarily ially controverts the answer especial-' Colorado, through La Grande to notice to the administrator of Its ex ly as to the rate propertly chargeable. Portland, Oregon, and back again to i istence or amount The policy of the At the close of the testimony fonLa Grande, when the only service! law Imperatively requires that such the plaintiff the court entered a ' rendered was a direct haul from the j claims be presented. By thug present Judgment tor nonsuit from which thepolnt of shipment to the point of de-jlng them the claimant waives no plaintiff appeals. livery. If any evidence had been right whatever and may thereafter Burnett, J.: The plaintiff declares ' glven of a tnrt8h rate the court proceed to enforce his lien. Casey v. upon an original agreement of the could then have determined whether jAult. 4 Wash. 167; 29 Pac. 1048, is a defendant to pay the freight at the le-!ft WR8 Boater or less than the com- case n point and we adopt the rea gal rate established In pursuance Ofiblnattol rate charged by the plain- sonlng of that case as applicable to the interstate commerce law. ll.ln i tif ' Section 6 of the act of congress : this. that rate to be 60 cents per hundred iof June 29, 1909 amendatory of the pounds. Both the agreement and the i ONR1"' Interstate commerce law. alleged rate having been denied, it I Provldes tnat if no Joint rate over was Incumbent upon the plaintiff to ; th? tnro,,Sn rou,e naa ben esta prove them. It mav be remarked in ' ''sned- the several carriers In such passing that there is no evidence In j hrouSn rou,e sna ftI. Pnt and the record showing that anv contrac- keep opPn to Publlc Inspection the tual relations existed directly De. separately established rates, fares tween the plaintiff and any of the and charses applying to the through carriers mentioned in the pleadings. At best It only shows that a con signor at Portland, Colorado, loaded the property on a car and entrusted It to the Denver and Rio Grande Rail road company and directed Its ship ment to the defendant at La Grande. The most that the testimony shows in that respect is that the defendant found his property in the possession of the plajntiff at Ia Grande under Its claim of $166.25 for freight, which he paid, and received his property. The principal question, however, in this case hangs upon whether or not the plaintiff offered sufficient proof that the legal rate was 60 cents per hundred pounds, as alleged In the complaint. The only testimony of fered on that question consisted of extracts from freight tariffs jointly filed with the Interstate commerce """"'ssion by th plaintiff and other railway companies participating In the shipment, as mentioned In the complaint Objection is made by the defendant that these extracts were not properly certified, but this was practically abandoned at the argu ment In addition to reciting his cus tody of the schedules and tariffs of rates, the certifying officer, the secre tary of the Interstate commerce com mission, states that the copies had been compared by him with the orig inals in his custody and that the same are correct transcripts of the parts thereof particularly specified In said documents. This is a substan tial compliance with our statute on that subject, L. O. L. Sec. 771. The secretary further states that these extracts show "the combination through rates based on Portland, Or egon, and rules and regulations gov erning the same applicable to a ship ment of cement moving between April 15, 1907, and August 15, 1907. from n the iilonrilnira 1 Portland, Colorado, to La Grnnria Oregon," and further states that there are "no through Joint rates on file with the said commission from and to the said points of origin and uesunauon applicable to, said ship ment between said dates," meaning between Portland, Colorado, and La Grande, Oregon. It Is the duty of a certifying officer only to state what his record shows In terms quoted in the transcript. It is not for him to impart legal effect to the excerpts quoted. His statement that the ex tracts Bhow the combination th rates and rules and regulations gov- eiiiuiK me same ana mat they are ap plicable to a shipment, are conclu sions of law and are not binding upon the court. It la for the court to con strue the legal effect of documents offered in evidence. L. O. L. Sec. 136 Within the meaning of this section It was not error when the crcuit court refused to allow a rate expert, pro duced by plaintiff as a witness, to construe the certified copies of the extracts from the rate sheets above mentioned and to declare to the jury therefrom the amount of the local rate. The first extract Is from supple ment number 17 to tho trans-continental freight bureau, west bound lanrc number 4-C, effective June 24 lauo. a states that "the following special commodity rates will apply designated, only from and to points exceut that rates applying from Alls-! ther, II. K. Charlton, in possession of sourl River common points will apply : the wood, with instructions to hold as maxima from Colorado terminals ; It for hhu as security for his claim, and Colorado common points." It , The administrator subsequently do gives the rate over the lines of the i mnnded possession from H. K. Charl companies mentioned In the com-: ton. who refused to deliver the wood, plaint on cement from Portland, Col-; nnd thereupon filed In the county orado, to Portland, Oregon, at 35 ; court a complaint In the name of the cents per hundred pounds. It also state, with himself as a relator, appears from a further extract from charging Charlton with contempt; the freight tariff of the plaintiff filed nnd while Charlton was absent, at wlth the Interstate commerce com-; tending to contempt charges, the ad mission that the special commodity mlnlstrator sold, and caused to be rate on cement from Portland. Ore- gon, to l,a Urande was 2;i cents per hundred pounds. A still further ex- iract certified Dy the secretary from uie transcontinental freight bureau circular number 9-C, filed October fi. 1905, that "rale applicable to or from intermediate Pacific coast points as published In current east bound and west bound tarlffB of the trnnscontl- nental freight bureau or subsequent Issues thereof will apply to or from stations named herein on the lines of the O. R. & N. Co. in Oregon, Wash- ington and Idaho west bound; dnnt answered, pleading (li the gen- where lower through rate can be ; eral Issue; (2) setting up the con made by use of the terminal rate to i tract between Dye and Denver Churl Portland plus the local rate from ! ton and claiming a Hen by virtue of Portland to destination, such lower I such contract and also by virtue of through rate will govern." It also Sec. 7452 L. O. L., giving a possessory appears that Portland, Oregon, takes lien to laborers and others for their a terminal rate and La Grande takes Just and reasonable charges for la rates applicable to or from Inter- j bor performed. At the close of the mediate points. Do these extracts i testimony, the court directed the Jury thus certified prove the plaintiff's i to find a verdict for the plaintiff for allegation that 60 cents was the 'whatever they should find to be the legal rate for one hundred pounds on a shipment of the kind In ques tion from Portland, Colorado, to La Grande, Oregon. The plaintiff contends that It Is not only entitled to but required, to charge the terminal rate from Colo rado to Portland, Oregon, 35 cents, which the defendant has already paid, but also an additional 25 cents, being the local rate from Portland, Oregon, back to La Grande. Under the paragraph relating to west bound freight above quoted, this combina tion of ths terminal rate f f 35 cents plus the local rate back to the ulti mate destination. La Grande, can be used only when that sum, amounting to 60 cents, is lower than the through rate, being a rate direct from Port land, Colorado, to La Grande No evidence whatever was offered of any such through rate. Hence the court was without any standard of com parison whereby to determine whether the combination of the 1 , , . . ... I KMuuuai naa mcai rate wouia do existing in parol, and without any less or greater than the through written evidence of their validity, rate. The certificate of the secre- rest upon a different principle. The tary of the Interstate commerce com- mortgage or mechanic's lien claim Is mission, indeed, states that there is 'of record and, therefore, notice to the no through joint rate on file with administrator of the nature and ex the commission between Portland, i tent of It, so that he can reasonably Colorado, and La Grande, but this la; prepare to meet It or apply to tho 11 sl"" min'ir. u. oiau ai Large p. 586. The plaintiff tailed in Its proof In that It gave no evidence either of a joint rate or of what would operate in Its place, namely, the several rates charged by each carrier applicable to a through ship ment over the several lines between the point of origin and the point of delivery of the shipment the sum of which would be equivalent to a through Joint rate. In our judgment the testimony offered on this point was not sufficient to prove the alleg ation that 60 cents per hundred weight was the legal rate for which the defendant was liable, If ai all. It may be well conceded that If the legal rate had been properly proven Its reasonableness could not be ques tioned In this action. Baldwin Sheep & Land Co. v. Columbia Southern Railway Co.. 114 Pac. 469. It may also be conceded as established by the authorities that the transporta tion company has the right at the outset to establish Its rates without previous application to the interstate commerce commission and that the question as to the reasonableness of such rate can be heard, In the first instance at least, only ' before that commission; but, presuming that the transportation companies concerned In the joint Bhlpment have obeyed the law, the court below vss authorized to conclude that in accepting the shipment and delivering the same to the defendant on payment of a rate of 35 cents per hundred, It had law fully fixed that as the rate from the point of origin to La Grande and having fixed it once and closed the transaction In question, It could not, so far as appears In the evidence In this case, 'afterwards fix another rate and make it relate back to the closed Incident as a basis upon which to de mand an increase in the charges. The judgment is affirmed. Brown v. Triinx, Union Comity. Frank Brown, as administrator of the estate of William Dye, deceased, respondent, v. Franklin Truax, appel lant. Appeal from the circuit court for Union county. The Hon. J. W. Knowles, Judge. Argued and submit ted at Pendleton, Oregon, May 2, 1911. Cochran & Cochran, for respondent Turner Oliver, for appellant. Mc Brlde, J. Affirmed. This Is an action for claim and de livery, arising out of the following facts: In October, 1908, William Dye was the owner of a quantity of cord wood, situated near Kameln, Union county, and entered into a contract with Denver Charlton to haul and de liver It at the railroad track at Kam eln, nt the agreed price of $1.50 per cord. It was agreed that Charlton should hold possession of the wood until the price of hauling should be paid. In December, 1908, Dye disap peared, and In May, following, por tions of his dend body were found and Identified, nnd plaintiff was appoint ed his administrator. The hauling wns not completed at the time of Dye's disappearance, but about 30 or 40 cords were hauled thereafter, but without knowledge by Charlton of , the death of Dye. About Auril 1. 1909, Denver Charlton left the stato nnd before denartine nlnced his fn- shipped away, all but 92 cords of the wood. The county court dismissed the contempt charge, and found that ; Charlton was entitled to hold posties- Rlnn of the properly to enforce his ! firm's Hen. Thereupon Charlton nd- ; vertlsed the wimrl for Rnle. nt nnnilnn i to satisfy the lien and defendant be-' I came the purchaser at $4.00 per cord. Plnlntlff broueht this action tn re- cover the property and for damages. No demand for possession of the ; property was made upon defendant before the action was beeun. Defen- value of tho wood. Other facts ap pear in the opinion. Defendant ap peals. McBrlde, J: Ws are compelled to affirm the Judgment In this case. The finding of the probate court that Dye was dead and the appointment of an administrator was. in the absence of any evidence to the contrary, con clusive proof of that fact. We think the evidence tended to show that Den ver Charlton had a lien both by agreement and under Sec. 7452 L. O. L., but being of record a claim should have been presented to the adminis trator before any attempt was made to foreclose. In Tecl v. Winston, 22 Or. 489, this court held that a mort gage claim against real property could be foreclosed without, presenta tion, and the authorities are fairly uniform that mechanic's Hen claims and other claims of record need not be presented for allowance. But claims of the character of the one at bar, arising by operation of law or ... mnH-llT'., 'hefore' th.at n, atI i first presenting his claim, Charlton committed a wrongful act and his Hen was lost when he parted with posses sion of the property. If this should be treated as a Hen by contract there could be no sale of the property with out a foreclosure by suit In equity: u u. u sec. 422. Treating it as a laborer's Hen under Sec. 7452 L. O. L. neither the answer nor the proofs come up to the Btandard required by this section. The law provides that the laborer shall have a lien for "his Just and reasonable charges.'' There Is nothing In defendant's answer nor In his evidence alleging or attempt ing to prove the reasonableness of the sum claimed by Denver Charlton. He relies wholly upon alleged con tract It is like the case of one who sues upon an express contract and seeks to recover upon a quantum meruit. It is claimed that the court erred In not submitting to the Jury the ques tion of the ownership of the wood but thia was conceded In the answer. The defendant attempted to Justify by a'leglng the wood to bethe property of Dye, alleging a special property in or lien upon It by Trtue of his con tract with Dye and .services rendered thereunder. The ownership of the property being conceded to be in Dye, and the finding of the county court as to Dye's death being conclusive in this case, and the appointment of the plaintiff as administrator being shown by the proper record evidence, it was the duty of the court to inter pret these documents and ascertain their legal effect, which it did. It is claimed that the court erred in holding that the fact of agency could not be proved by the testimony of the agent, but we do not so un derstand the ruling. Counsel at tempted to jrove what H. K, Charlton had said to a witness In relation to the scope of his authority to act for Denver Charlton, when the court said: "You can't prove an agency by the agent, can you Mr. Oliver V The remark, taken In connection with what was before the court was evi dently merely an intimation that it was not permissible to prove the un sworn declarations of an agent to es tablish the fact of his agency. The testimony apparently was allowed to stand, though it was clearly Inadmis sible. We have treated ths case as though the agency of H. K. Charlton was clearly proved, m we think it wbb; but, giving this fact it greatest effect, It could make no difference in this case, It is urged that Brown stood by and permitted defendant to purchase the wood and thereby he Is estopped from now claiming It. but no such es toppel Is pleadedj nor proved. Plain tiff did no act calculated to mislead defendant, nor 1b there any testimony unit no even Knew tnat the sale was to be made. It is contended that the witness Seaman wns not qualified to testify as to the market value of the wood. He testflled that he was the station agent at Kamela; that be had not dealt In wood himself; that he knew its mar ket value; that ho heard It overrlay; that he heard people making bar gains on a number of occasions, though he had made none himself. We think this was sufficient to qualify Mm; besides, the Jury fixed the price of the wood at $4.00 per cord, the lowest price quoted by de fendant's witnesses. It Ir alsq clnlmed that plnlntiff can not recover In this action by roason of having failed to allego and prove a demand upon defendant for the property. The act of Charlton In selling the wood, being a wrongful cat, defendant's possession was wrongful and no demand was neces sary: Surles v. Sweeney, 11 Or. 21. Moreover, the defendant In bis an swer claims the title to the property nnd where such Is the condition of the pleadings no prof of demand Is necessary: Smith & Co. v. McLean, 24 Iowa 322; Ilomnn v. Lnboo, 1 Neb. 204; Shoemaker, Miller & Co. v. Himpson, IB Kan. 43. i,n.ln:l.!? ',"d.?L"on.T of the court in the contempt proceeding n a imr to mis action, but It cannot have thjH effect. It was brought In the name of the state and was quasi criminal, nnd the only valid Judgment that could have been rendered whb that Charlton was not guilty of tho contempt charged. The court could not, In such a proceeding, adjudicate ny properiy right. It was not be- ton. l,. i.tu,n J , ton, and cannot bind any party to this proceeding. Finding no error, the linlirment nf' " " ' " " ninic null I'llliri the circuit court Is affirmed. tiiilluirhcr T. Kellllier, Ct III, 1)011 Klin foiinly. A. M. Gallagher, respondent, v. W. J. Kelllher and another, appellants Appeal from the circuit court for Douglas county. The Hon. J. W. Hamilton, Judge. On petition for re hearing. Affirmed April 11, 1911. 114 Pac. 943. Cardwell & Watson, for appollants. Coshow & Rice, for respondent. Eakln, C. J. Denied. Eakln, C. J.: Counsel for defendant contends that the deed from Genger to Collins, through which defendant uue, conveys an tne land owneo by mm, not conveyed to the church people, which, he says, grants the very strip In dispute. But the statement assumes that the strip In dispute Is not In the tract convoyed to the church people which can be made to nppear only by proof of the location of the west line of the church tract. The only evidence that that line Is other than the location of the old fence Is In tho evidence of Ger mond, the surveyor, which Is not the evidence of any fact, but the opinion of a witness. Defendant contends that this evi dence, not being objected to, was rel evant and material and sufficient to V I Electric Rubber Hose is not only the most durable and ectxv- omical garden hose made, but it is the only hose in the world that u self- measuring. Every foot of Electric Hose you buy is numbered. The figures art moulded in tba corrugated outer tube. You can use your Electric Hose to met ure your garden, io help Uy out flower beds and regulate the distance between plants or shrubbery. Don't buy ordinary hose before too let as explain the extraordinary qualities of Electric SALEM HARDWARE COMPAJfT. prove the fact. He does not testify to the facta but gives his conclusion, based upon a former survey made by himself, without the facts upon which It is based, viz: the correct starting point of the survey and the correct courses and distances. We must be enabled to follow tn the footsteps of the surveyor. Aside from the authorities cited la the opinion It Is said In Stewart v. Carleton, 31 Mich. 273, "It appears to have been supposed that the survey ors are competent not only to testify to measurements and distances, but also to pass judgment themselves, and on Information of their own choosing upon the position of lines and starting points. This is not the only case In which we have encoun tered such evidence on Important pri vate rights; and surveyors seem to have the idea that they may act en tirely upon their own judgment in de termining public and private rights. This is very dangerous error But the determination of facts be long exclusively to courts and Juries." To the Bame effect are Radford v. Johnson, 8 N. D. 182; O'Brien Cav anaugh, 61 Mich. 369. In Burt v. Buscb, 82 Mich. 606, it is said that "They (surveyors) may detail facts, but, when they have no knowledge of facta, their opinions or conjectures cannot control to establish or dis turb boundaries . The ques tion of location of a starting point for a surveyor Is one of fact for tha Jury and not one of theory to be de termined finally upon the opinion of surveyors or experts." In Olln v. Henderson; 120 Mich. 149, 154, the following Instruction giv en to the Jury was approved: "it is for you to fix that (the starting point of the surrey) by the evidence In this case; and the fact that a surveyor, unless he has the original monument to start from, has made a survey, and what he believes or claims to be the property, Is no evidence of that pro perty, except such as you may find that he has started from the original point." So also, Roast v. Donald, 84 Tex. 648. A surveyor can testify to any fact within his knowledge, but his opinion or conclusion of facts, based upon a nurvey nmue oy mm, it not compe tent, at least without giving the de tails of the survey. Therefore, even though the evidence of the surveyor was not objected to it was not evi dence of o fact but the conclusion or the witness, and, as stated In the opinion, there la no proof that the west line of the church property Is other than where the old fence was located. It necessarily follows that there Is no evidence that any of the land east of that west fence of the church property was included in the deed from Genger to Collins. The east line of defendant's property Is only fixed by the west line of the church property. Without the Iden tification of that line as being east of the old fence, defendant has shown no right to any of the ground sued for. And unless a better title is shown by defendant, plaintiff's pos session at the time he was ousted is sufficient to entitle hm to recovery. The petition 1b denied. Father's Ventjeance. Would have fallen on any one who at tacked the son of Peter Bondy of South Rockwood, Mich., but be was powerless before attacks of kidney trnuhlA. "rifinlnra ontiM tin katn fc'." he wrote, "so at last we gave him Electric Bitters and he Im proved wonderfully from taking six bottles. Its the best Kidney medi cine I ever saw." Backache, Tired feeling. Nervousness, Loss of Appe tite, wurn of Kidney trouble that may end In dropsy, diabetes or Brlght's Ulhjcase Beware: Take Electric Blt- iters and be safe, Every bottle guar- ant!ei1- J'i'ty cents at J. C. Perry's, A man's education Isn't complete ! until he takes a finishing course from ' his wife. In the Wave of the Measles. The Htle son of Mrs. O. B. Palmer, Llttlo Rock, Ark., had the measles. The result was a severe cough which grew worse and was so severe he could not sleep. She says: "One bottle of Foley's Honey and Tar Compound completely cured him and he has never been bothered since.' Croup, whooping cough, measles) I cough, all yield to Foley's Honey audi Tar Compound. The genuine la la the yellow package. Refuse any substitute. Red Cross Pharmacy. TO CUBE A COLD IN ONE DAT Take LAXATIVE BROMO Quinine. Tablets. Druggists refund money It It fall to cure. E. W. Grove's signa ture Is on each box. Twenty-flv cents. Children Cry FOR FLETCHER'S C ASTO R I A l ' i r i