DAILY CAPITAL JOURNAL, 8ALEH, OREGON, TUESDAY, JANUARY 2, lilt
vAot rm
ANNUAL
Clearance and White Sale
10' per cent less on any and all WHITE articles in the Store. Wonderful bargains in ev
every department. We only mention a few. '
I Sfcin of Beauty Ts a Joy forever
D
Values to
$1.50
in New
Muslin Night
Gowns.
98c
The gowns are
of good muslin,
daintily trimmed.
Broken
Lines
of
Shoes
20o
Discount
Our
Handsome
Tailored
Suits
for Women
1-2
Price
$1.25
Black Petticoats
98c
Children's Men's 8
Clothing 8
Coats . I
25 I
to I
1-3 50
per cent
Less Less
I Y
OREGON SUPREME
COURT DECISIONS
Lone; and Hewitt v. Hoedle, et al,
Marion County. ;
Decided, December 26, 1911.
A. W. Long and J. A. Hewitt, re
spondents, v. Chas. Hoedle, Geo. Sak
uler, and' John Koeneke, defendants,
George Sakuler and John Koeneks,
appellants. Appeal from Marion
county. The Hon. Geo. H. Burnett,
judge. Argued and submitted Dec,
14, 1911. A. O. Condit, for respond
ents. Carey P. Martin, for appel
' lants. McBrlde, J. Reversed and
new trial ordered.
Thla Is an action to recover on a
promissory' note. Defendants answered,-denying
the execution of the
note. They Introduced some testi
mony tending to show that the Instru
ment was a forgery.
Among other instructions the court
gave the following: "The plaintiffs
allege this was for a valuable con
sideration; that Is a presumption of
the law. But this is a disputable pre
sumption, and may be overcome by
other evidence." The court further!
instructed the Jury:
"It is presumed that the private
transactions about this note have
been fair and regular, and that is a
disputable preumptlon, and may be
overcome by other evidence. These
are pieces of evidence which the
plaintiffs are entitled to rely upon:
that the transaction of taking the
note was fair and regular. But the
defendants would be entitled to show
that the contrary was true."
McBrlde, J. Where the execution
of a note Is denied, there Is no pre
sumption in favor of the fairness or
regularity of the transaction, and the
instruction given was misleading and
erroneous: Sears v. Daly, 43 Or. 346,
and cases there cited.
No error appears in other rulings
At Fountains & Elsewhero
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IIORLICK'S"
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The Food-drink for All Ages.
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Take no imitation. Just say "HORLICK'S."
(lot in Any FJJiSk Trust
made and excepted to on trial. The
judgment Is reversed and a new trial
ordered.
Mr; Justice Burnett took no part In
this decision.
Xutt t. Iscnsce, Mnltnomnh Counfj,
Decided December 26, 1911.
N. G. Nutt, . respondent, v. Win.
I sen see, appellant Appeal from
Multnomah county. Hon. W. N. Ga
tens, judge. Argued and submitted
December 19, 1911. V. K. Strode and
F. E. McGlnnls, for respondent. (Also
Mark O'Neill, on brief). A. T. Lewis
and (E. S. J. McAllister, on brief) for
appellant. McBrlde, J. Affirmed.
This is an action for damages for
Jersonal injuries. The complaint al
eges, in substance, that In June,
1909, plaintiff was employed by de
fendant common laborer in de
fendant's blacksmith shop; that while
so employed he was directed by de
fendant to operate a machine; called
a ."Shears and Punch;"-which was
antiquated, defective, and worn out;
that Its parts were loose and inse
cure; its keys, bolts and rivets so in
securely fastened as to be dangerous
and unsafe while in operation; and
particularly that an iron key was
left by defendant without being se
curly fastened to the main machin
ery; that these defects were known
to defendant but were unknown to
plaintiff; that at the date mentioned,
while plaintiff, under defendant s di
rection, was attempting to operate
the machine, the key loosened from
its position and was projected from
its place with great force, striking
plaintiff in the face and eyes, and se
verely Injuring him.
The answer is a general denial,
coupled with a plea of assumption of
risk and contributory negligence.
Defendant's counsel requested the
following Instructions, which the
court refused:
"2. The court further Instructs
you that the Injury to plaintiff's
chest, testified to by Dr. Rockey, can
not be considered In this case as an
element of damages, but said testi
mony may be considered an element
In determining the credibility of the
plaintiff's testimony."
"3. The court Instructs you that If
you believe from the evidence that
the plaintiff had knowledge of the de
fective condition of the shears and
punch while he was using It, and if
you further believe that he was a
man of ordinary or average Intelli
gence, he cannot recover although
you find that the defendant knew of
the defective condition of the ma
chine." "D. The court instructs you that if
you believe from the evidence that in
operating the punch when pressuels
applied the key or plat could not,
from the nature of the machine, fly
out, then. In that case, you must find
for the defendant"
"6. The court instructs you that
machinery often gets out of order,
that It is not negligence on the part
of defendant to work the shears and
8. T. FEUX COURACD'S ORIENTAL
CREAM OR MAGICAL BEAUTIFIES
RtraovM Tu, Ptnpltt,
Freckle, Mutb Paichea,
man ertty Diemun
oa beauty. au4 U
flet detection. It
hw stood tba teat
o( 00 Tear, and
U to hum lea wt
Uale It to be unit
U properly nada,
Accept no counter
feit of atBiklar
Bamt. Dr. L. a.
Parr tald to a
lady of the bant
ton (ft patient);
At yon ladle
wlU dm them.
I rvcoancna
riad'a Craam' u the least barmfu of all U
akin preparations." For tale by all droicjciaU aid Faacy
OoiMU lair 1ft thft U&lUd Slate, Catuulft and Zuropa.
FaiT.HOPLKS, frta, 37 Brut Jane Street lewTorl
punch without the pin is in the key
or plate, if you believe from the evi
dence that when pressure Is applied
the key or plate could not fly out
"7. The court Instructs you that if
you believe from the evidence that
plaintiff inserted a wedge or a flat
piece of Iron In the machine to make
the punch go deeper and it was the
wedge that flew out and struck the
plaintiff, or that both wedge and
plate flew out at the same time and
that the. wedge Inserted In the ma
chine was the cause of the injury,
then plaintiff cannot recover."
, Counsel also requested the follow
ing Instruction, which thecourt gave,
Interpolating therein the words, "pro
vided the old machine be a reasona
bly safe one, '"which are Included in
brackets: "The cou instructs you
that every employer has the right-to
choose the machinery to be used in
his business, and to conduct that
business in a manner most agreeable
to himself . He may select the appli
ances and run his shop with old or
new machinery just as he may ride
In an old or new carriage or navigate
an old or new vessel, and he is not
obliged to change his machinery
from old to new In order to secure
the greater safety of his employes
(provided the old machine be a rea
sonably safe one) and an employe
who enters his service with the
knowledge of circumstances attend
ing his employment cannot complain
of his master's customs or habits, nor
recover for Injuries In and resulting
from that particular service."
Counsel excepted to the instruction
as amended.
The testimony of Dr. Rockey, re
ferred to, was Introduced by defen
dant and was to the effect that about
two weeks after the injury plaintiff
visited him professionally, in regard
to an alleged Injury to his chest,
which he claimed to have received
while working in defendant's shop, as
the result of having been struck by
a half-moon shaped piece of Iron
which projected from a machine he
was operating. It does not appear
that counsel, at the time the testi
mony was introduced, attempted to
limit Its effect to any particular pur
pose but Introduced It generally.
Plaintiff had a verdict and judg
ment for ?300 and defendant appeals.
McBrlde, J. We have carefully ex
amined the record In this case and
find It free from any material error.
Without consuming space In the re
ports by a discussion of the testi
monial In detail, It is. sufficient to
say that, In our judgment, there was
testimony tending, in some degree, to
sustain the allegations of the com
plaint and, therefore, the court did
not err In its. refusal to sustain a
motion for a nonsuit. It is true that
the testimony was contradictory but
the jury was the Judge of its value
and effect.
There was no substantial error
committed In the refusal of the court
to give defendant's requested Instruc
tion No. 2, relating to the effect to be
given to Dr. Rockey's testimony. The
court in its general charge expressly
told the Jury that plalntiTs recov
ery must be limited to the particular
Injury alleged In the complaint and
the Instruction requested amounted
merely to a repetition of the same in
struction In different language. We
are of the opinion that the subject
was sufficiently covered by the in
structions given. i
Instruction No. 3, requested by de
fendant, does not correctly state the
law. It Is not sufficient to defeat a
recovery that plaintiff should have
known that the machine was defec
tive. He must also have known or
had reason to believe that the defect
was a probable source of danger. As
said by Justice Lord In Roth v. N. P.
L. Co. 18 Or. 205, "it Is to be borne
In mind that there Is a difference be
tween a knowledge of the facts and a
knowledge of the risks which they In
volve. One may know the facts, and
yet not understand the risk; or, as
Mr. Justice Byles observed, 'A ser
vant knowing the facts may be utter
ly Ignorant of the risks.'"
To the same effect Is Johnson v.
O. S. L; Ry. Co., 23 Or. 94.
There was no error In the court's
modification of requested Instruction
No. 4. Taken In connection with the
general charge, the law Is correctly
stated. Request No. 5 is substan
tially covered by the general charge.
Request No. 6 was properly denied.
It was not the business of the court
to Instruct the Jury that "machinery
often gets out of order," etc. The
jury was considering the evidence in
regard to the machine ' operated by
plaltlff and, as to it, there was no
evidence that such machines are lia
ble to often get out of order, but
there was no evidence that such ma
chines are liable to often get out of
order, but there was strong evidence
tending to show that, with ordinary
care and attention used in fastening
the key or friction plate to the ma
chine. It was not likely! to get out of
position or fly off. '
The last instruction requested Is
sufficiently covered in the general
charge, which -' was 'admirable and
covered all the Issues. A party is
not entitled to have an . instruction
given In language suggested by him
self If the substance of, it Is covered
by other instructions framed by the
court i i ;
In this case the court was exceed
ingly fair to the defendant and we
are sure that no instruction, refused
or given, resulted In any substantial
Injury, and the verdict of 300 seems
to us to have been based upon ex
ceedingly moderate ' estimate of
plaintiff's injuries. ;
The Judgment is affirmed.
M I -
If TO
Dienua
HARD WHEAT
f PATtWT
I fTTTTtTiTiHn
miluc ir
EIEEAUKIttire CI
ucuuaiitiii
HE
LIE
Blended Hard Wheat
FLOUR I
Made from Selected Bluestem and White 1
Winter Wheat
Five full bushels of the best of wheat used In each barrel of Flour, all residue going to feed most flour Is
made from only 4 bushels of wheat that's the reason Helmet makes the purest, whitest and best bread, 1
cakes and pastry. I
Milled under the most perfect limitary condition! by water power, hence the most HEALTHFUL and T
NUTRITIOUS.
Sold at $1.40 the Sack
A special Introductory price. In stock now with jour grocer.
-I Rkkreall Milling Co., Rickreall, Ore. :
M-Mt '
McCoy and McCoy t. Huntley, Wheel
er lounty.
Decided, December 26, 1911.
G. J. McCoy and H. R. McCoy, re-'
spondents, v. Charles Huntley, appel
lant Appeal from the; decree of the
circuit court for Wheeler county.
The Hon. H. J. Bean, Judge. Argued
and submitted Oct 30, 1911. Pendle
ton Term. W. H. Wilson (and H. H.
Henrrlcks, on brief) for respondents.
Jay Bowerman, for: appellant. Mc
Brlde, J. Affirmed.
This isa suit to restrain defen
dant from diverting and using more
than one-half of the waters of Pine
Creek in Wheeler county.
Plaintiffs, whose land adjoins that
of defendant lower down the creek,
claim in substance by their com
plaint, that In 1883 William Clarno,
their predecessor In Interest, appro
priated 30 inches, miner's measure
ment, of the waters of Pine creek
for the purpose of irrigating his land,
and that such appropriation was prior
to any appropriation by defendant;
that defendant in the years 1903, 1904,
1905 and 1906, during the season of
low water, diverted all the water of
the creek upon his own land, with
out plaintiffs' consent and refused to
turn back into the stream any por
tion of the water so diverted, but
used it unnecessarily and wastefully,
and suffered It to sink upon his own
land, leaving plaintiffs without wa
ter for irrigation or for domestic
purposes. It is alleged tljat one-half
of the water of the creek used all
the time, or all of the water used al
ternately, week about, upon the land
of plaintiffs and defendant, is suffi
cient for the needs of each.
A preliminary Injunction was Is
sued defendant to alternate with
plaintiffs In the use of the water
week about until the final hearing.
The defendant answered, claiming a
prior appropriation by himself and
continued use by him of all the water
of Pine creek in the dry season when
necessary, and denied a wrongful di
version or wasteful use.
Upon the hearing, the court, after
viewing the premises, found for
the plaintiffs and decreed to them the
right to alternate week about with
defendant In the use of the water,
and from this decree defendant ap
pals. Other facts appear in the opin
ion. '
McBride, J. It appears from the
testimony that the land occupied by
plaintiffs was originally settled upon
about the year 1871 by Harrison
Huntley, a brother of defendant, and
that about the same time defendant
settled upon the lands now occupied
by him. While the testimony Is not
clear, we conclude that the first ap
proprlaion was made for the purpose
of irrigating the Harrison Huntley
tract, that Is to say, a small portion
of It, and later the land of defendant.
Pine creek, at that time, was a
stream running near the level of the
adjoining land, and it Is probable
that a portion of the land to some ex
tent was sub-Irrigated by the natural
percolation of the waters of the
stream. Later a cloud burst or a
succession of such deepened the chan
nel,' so that the water In the stream
Is from 10 to 20 feet deep below the
level of the adjoining land and sub
irrigation Is not possible, and Irri
gation by means of dams Is much
more difficult than when the place
was first settled. For a time the two
Huntleys used the same ditch and
there does not seem to have been any
scarcity of water on either place for
several years. In 1879 It transpired
upon survey that the land occupied
by Harrison Huntley -yns a school
section and he conveyed his possess
ory rights to Charles Huntley who,
on January 14, 1879, received a deed
from the state to the lands now oc
cupied by plaintiffs. In 1880 Charles
Huntley conveyed a portion of this
tract by warranty deed to W. Lair
mil, .iv h. uates and f rank Clarno,
and In 1882 conveyed the remainder
of the tract to Hill and Gates by
warranty deed. Plaintiffs deralgn
title from Hill, Gates and Clarno. We
do not think that the evidence indi
cate a prior appropriation by defen
dant And as water, in the arid
parts of the state, Is the life of the
land, we believe that Hill, Gates and
Clarno took the land In view of the
tillable Improvements upon it, Includ
ing the ditches and water facilities
placed there by Harrison and Charles
Huntley, and that the right to use the
water, as Harrison and Charles had
theretofore used it, became and was
appurtenant to the land.
It not appearing that Charles Hunt
ley ever did any act which notified
plaintiffs or their grantees that he
Intended to claim the right to con
stantly divert and use all the waters
of the stream, or to deny their right
to use the same share that had been
employed beneficially while he and
Harrison Huntley occupied the land,
the statute of limitations would not
attach from the mere fact that at
times defendant used all the water of
the creek since such . was his privi
lege unless the grantors of plaintiffs
were in need of It. Nor is adverse
users as such specifically pleaded,
the1 defendant making his case upon
prior appropriation, which he has
failed to prove. We see no reason
why, even In cases involving prior
and subsequent appropriations of wa
ter, the courts cannot require the ap
proprlators to alternate In the use of
the water. The time when water may
be used recklessly or csrelessly haB
passed In this state. With increas
ing settlement water has become) too
scarce and too precious to justify
any but an economical use of it. An
appropriator has only the right to
use so much as his needs require
and at the time his needs require.
And if these are satisfied by a use of
the whole flow every other day, or
every alternate week, he ought not
to be heard to complain. , It is evi
dent that from some cause or from
a variety of causes the waters of
Pine creek are diminishing in volume
at the point where the. parties to this
controversy are residing. It Is now
probable that to divide the water,
without ; alternating, would Injure
both parties. A test, since the pre
liminary order was made in this case
'in 1906, indicates that by the method
adopted, both parties can raise good
crops and both prosper.
It must be conceded that there Is
a paucity of authority on the subject
of requiring rotation in the use of
water between annronrlaiora. The
remedy has frequently been applied
In cases of dispute between riparian
proprietors and It Is difficult to dis
cern any difference In principle be
tween the rights of a riparian pro
prietor -and those of an appropriator
In the beneficial use of water. The
trend of the later decisions Is to ap
ply this method where practicable.
In Helphery v. Perrault, 12 Idaho
451, the court observes:
"Rotation in irrigation undoubtedly
tends to. conserve the waters of the
state and to - Increase and enlarge
their duty and service, and Is, conse
quently, a practice that deserves en
couragement In so far as It may he
done within legal bounds." In Wig
gins v. Muscupieabe Land & Water
Co., 113 Calif. 182, which is cited
with approval in Hough v. Porter, ill
Or. 318, the court required riparian
proprietors to rotate in the use of
water and In. Becker v. Marble Irr.
Co. 15 Utah 225, which was a suit be
tween approprlators, the court ap
plied the doctrine of rotation.
The weight of evidence Indicates
that there is no material difference in
character between the lands of
plaintiffs and defendant and if de
fendant Is unable to produce as good
crops on his land as plaintiffs are
producing with the .same quantity of
water upon double the acreage, It
must be attributed to his methods of
farming and Irrigation, rather than
to the lack of water. The decree Is
affirmed.
Bean, J., took no part In this de
cision. o
Housework Drudgery
nOusework ii drudgery for tbe wetk woman. She brush
es, dusts tad scrubs, or is oa ber feet ell day tteodinf to
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Dr. Pierce is perfectly willing to let every one know what
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ingredients on the bottle-wrapper. Do not let any unscrup
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Dr. Pierce's Pleasant Pellets eurea liver ills.
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Footprints on the sands of time are
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Groceries and Meats
Fresh Country Mcnts, S:!iish(to,
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Nice Sweet Potatoes,
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Pink Beans, 5 lbs. for 23c
Home made Hominy. .. ,10c qt.
Country Sauerkraut per
gal 35c
All kinds of vegetables and
fruits.
Remember we deliver all or
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close In or not Out auto de
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on time we respectfully so
licit . your business for this
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Foster & Baker
339 N. W1 St,
Phone 259.
The Danger ot La Grippe
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o
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o. ..,
The Portland district reports the
lumber cut for 1911 as about 750,
000,000 feet.
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CASTOR I A
Por Infanta and Children.
The Kind You Have Always Bought
Bears the
Signature
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