oath the making of the promises relied on to bring the cause of action within the statute. The action was barred then, unless the plaintiff prove such promises. The defendant might have paid the note notwithstanding it was barred. And, if true, he had a right to so plead, and also to prove the fact. But, as the plaintiff failed to offer any proof to bring the cause of action within the statute of limitations, the defendant was not called on to prove payment. He could rest on his right to recover judgment for costs, on the ground that the plaintiff showed no cause of action within the statute of limitations.

The plaintiff insists that he was entitled to judgment on the special finding of the jury. The jury found simply the amount of the note. They did not find that the defendant owed that sum to the plaintiff, but, on the contrary, found that the plaintiff had no cause of action against the defendant. When there is no conflict between a special finding of the jury and the general verdict, it is not error for the court to enter judgment on the general verdict. The case of Lemon v. Dryden, 43 Kan. 477, 23 Pac. Rep. 641, settles both of these questions against the plaintiff. We therefore recommend that the judgment of the trial court be affirmed.

PER CURIAM. It is so ordered; all the justices concurring.

(48 Kan. 617)

HEALEY V. DEEPWATER CLAY Co. (Supreme Court of Kansas. May 7, 1892.) APPEALABLE ORDER-PETITION IN ERROR.

Where a judgment has been rendered by a justice of the peace against a corporation, and afterwards an execution has been returned "not satisfied," and afterwards an order upon proper notice has been made by the justice of the peace under section 32, art. 4, of the act relating to corporations, awarding an execution in favor of the plaintiff and against a stockholder of such corporation, an appeal will not lie from such order of the justice of the peace to the district court, but the order can be reviewed in the district court only upon a petition in error. (Syllabus by the Court.)

Error from district court, Sedgwick county; C. REED, Judge.

Action in justice court by the Deepwater Clay Company against the Wichita Exposition & Interstate Fair Association, and judgment for plaintiff. Execution being returned unsatisfied, the justice granted a motion for an execution against P. V. Healey, a stockholder of defendant, and he attempted to appeal to the district court. On motion of plaintiff the appeal was dismissed, and Healey brings error. Affirmed.

Dale & Wall, for plaintiff in error. George L. Douglas, for defendant in error.

VALENTINE, J. The only question involved in this case is as follows: After a judgment has been rendered by a justice of the peace against a corporation, and after an execution has been returned "not satisfied," and after an order upon proper notice has been made by the justice of the peace under section 32, art. 4, of the act relating to corporations, awarding an

execution in favor of the plaintiff and against a stockholder of such corporation, will an appeal lie from such order of the justice of the peace to the district court? Said section 32 reads as follows: "Sec. 32. If any execution shall have been issued against the property or effects of a corporation, except a railway or a religious or charitable corporation, and there cannot be found any property whereon to levy such execution, then execution may be issued against any of the stockholders, to an extent equal in amount to the amount of stock by him or her owned, together with any amount unpaid thereon; but no execution shall issue against any stockholder, except upon an order of the court in which the action, suit, or other proceeding shall have been brought or instituted, made upon motion in open court, after reasonable notice in writing to the person or persons sought to be charged; and upon such motion such court may order execution to issue accordingly, or the plaintiff in the execution may proceed by action to charge the stockholders with the amount of his judgment." It appears that on July 20, 1888, the Deepwater Clay Company commenced an action before a justice of the peace of Sedgwick county against the Wichita Exposition & Interstate Fair Association for the recovery of $176.04 and interest. On August 6, 1888, a judgment was rendered in favor of the plaintiff and against the defendant for $180.50. Execution was issued thereon, and returned "not satisfied." The plaintiff then made its motion before the said justice of the peace for an execution against P. V. Healey as a stockholder of the defendant, an alleged corporation. Proper notice was given, and the motion was heard before the justice, and the justice awarded an execution against Healey. Afterwards, and within 10 days, Healey filed an appeal bond, attempting to take an appeal to the district court. Afterwards the Deepwater Clay Company filed a motion in the district court to dismiss the supposed appeal, upon the ground that no appeal will lie in such a case, and that the district court could not obtain jurisdiction to hear and determine the case, and the district court sustained the motion, and dismissed the supposed appeal; and for the purpose of reversing this ruling of the district court dismissing such supposed appeal, Heale, as plaintiff in error, brings the case to this court, making the Deepwater Clay Company the defendant in error. In our opinion, the decision of the district court is correct. After the plaintiff in the justice's court had obtained its judgment, and after the execution against the defendant corporation was returned "not satisfied," the plaintiff then had one or the other, at its option, of two remedies, against the stockholders,-one by a motion, and the other by an action. Such remedies are as follows: One by a "motion in open court, after reasonable notice in writing to the person or persons sought to be charged, and upon such motion such court may order execution to issue accordingly, or [the other remedy] the plaintiff in the execution may proceed by action to charge the stockholders with the amount

of his judgment." See said section 32. The plaintiff in the execution in the present case chose to proceed upon a motion and notice, and not by an action and a summons, and it procured only an order and not a judgment. Now, is there any appeal from this order? The statute relating to appeals, (section 120 of the justice's act,) provides as follows: "Sec. 120. In all cases, not otherwise specially provided for by law, either party may appeal from the final judgment of any justice of the peace to the district court of the county where the judgment was rendered." This statute provides only for an appeal from a "final judgment," and there is no statute any where to be found providing for an appeal from a final order or from any order. As to final orders, sections 540, 543, of the Civil Code, provide as follows: "Sec. 540. A judgment rendered, or a final order made, by a justice of the peace, or any other tribunal, board, or officer exercising judicial functions, and inferior in jurisdiction to the district court, may be reversed, vacated, or modified in the district court.' Sec. 543. An order affecting a substantial right in an action, when such order, in effect, determines the action and prevents a judgment, and an order affecting a substantial right, made in a special proceeding, or upon a summary application in an action after judgment, is a final order, which may be vacated, modified, or reversed, as provided in this article." Now, Healey might have take the ruling of the justice of the peace in the present case to the district court for review upon a petition in error, but he could not take the ruling or the case to the district court upon an appeal, for no statute can be found authorizing the same. The judgment of the district court will be affirmed. All the justices concurring.

46

(3 Idaho [Hasb.] 398)

LATAH COUNTY V. PETERSON. (Supreme Court of Idaho. June 6, 1892.) CONSTITUTIONAL LAW-ESTABLISHMENT OF PRIVATE ROADS.

Section 933, Rev. St. Idaho, providing for laying out private or by roads, held to be constitutional.

(Syllabus by the Court.)

Appeal from district court, Latah county: W. G. PIPER, Judge.

Action by the county of Latah against E. G. Peterson to condemn a right of way for a road. From a judgment entered on a verdict awarding him $100 damages, defendant appeals. Affirmed.

Freund & Loughary, for appellant. Mitchell & West and Forney & Tillinghast, for respondent.

ber, 1890, and view and survey and mark out said road, and estimate the damages accruing to nonconsenting landowners. The said viewers met as directed; surveyed and marked out the road; platted and mapped the same; made their report to said board, which thereupon ordered the road overseer to tender to defendant, who was a nonconsenting landowner, the sum of money awarded to him, which sum the defendant refused To accept. Thereupon this suit was commenced. The cause was tried before the Hon. W. G. PIPER, Judge, and a jury. The jury assessed the damages accruing to defendant at $100. Judgment of condemnation was thereupon entered. Defendant appealed from said judgment to this court. The principal contention of the appellant is that the act of the territorial legislature, to wit, section 933, Rev. St. Idaho, is unconstitutional, for the reason that it attempts to take private property for private use. It is a general rule that the right of eminent domain does not imply a right in the sovereign power to take the property of one citizen, and transfer it to another, even for a full compensation, where the public interest will be in no way promoted by such transfer. This doctrine, in the absence of any constitutional provision, is established by a long line of decisions not necessary here to enumerate. Among other decisions, the appellant cites Osborn v. Hart, 24 Wis. 89. The statute of Wisconsin authorized the laying out of private roads upon the application of any freeholder, such applicant to pay all damages and costs. To this was added by the same statute the further provision that "such private road, when solaid out, shall be for the use of the applicant, his heirs or assigns, **norshall the owner of the land through which such roads shall be laid out be permitted to use the same as a road, unless he shall have signified his intention of so doing, * * before the damages were ascertained." The court held in above case that, inasmuch as the public could not use such road, and had no interest in it, and the owner of the land could not use it, the law could not be sustained. It will be noticed that our statute (section 933 et seq.) contains no such exclusive provisions, but a private road, when opened, can be used for any purpose to which it is adapted by the general publie and by any individual thereof. In the same case the court say: "In some of the states it has been held that these roads, although termed 'private,' yet were in fact public, roads, so far as the right to use them was concerned, and upon this ground the power of the legislature to authorize them to be laid out has been sustained." Osborn v. Hart, 24 Wis. 91; Perrine v. Farr, 22 N. J. Law, 356; In re Hick. man, 4 Har. (Del.) 580. In case of Witham v. Osburn, 4 Or. 318, also cited by appellant, the court hold that private property cannot be taken for exclusively private use, whether compensation be made or not; but the court also hold that the legislature may provide for the establishment of private roads, or "by ways," as they are termed in our statute, by providing that they shall be public instead of

*

private roads, and that they may be used by the public. It will be noticed that the decree of the court, in the case at bar, directs that the said highway shall be opened for the use and benefit of the said P. N. Lunstrum, the applicant, and the general public, so that the decree itself provides that it shall be a public, as well as a private, road.

In Nesbitt v. Trumbo, 39 Ill. 110, and Crear v. Crossly, 40 Ill. 175, the court hold that section 93 of the act of 1861 (St. Ill. p. 263) is unconstitutional, for the reason that it transfers the use of the land condemned to the person for whose use the road was established, his heirs and assigns, forever. The owner is deprived of its use, and the other acquires its use perpetually. For all practicable purposes, this amounts to a transfer of the land. It will be seen that this statute is very different from section 933, Rev. St. Idaho. The owner of the soil and the general public has as much interest in and the right to the use of such private road, as fully and completely, as the person upon whose application it is opened; and the effect would be that, if the use of the land for such purpose should cease, it would revert to the owner of the soil. In the two last-named cases Mr. Justice LAWRENCE, one of the most eminent jurists of his time, dissents from the opinion of the court, and giving his reasons, in Crear v. Crossly, he says: "If the government, after making a grant, owns all the surrounding lands, the grantee takes a right of way over the surrounding land to the public highway as an incident to his grant; and if the government retains the title to a tract of land, having sold the land surrounding it on every side, a right of way to a public road is reserved by implication. This right of way continues in both cases, both in favor of and against subsequent grantees, for it is a right created by operation of law, and from necessity, to enable owners to enjoy their lands. I consider our statute in regard to private roads as simply based on this cominonlaw right, and regulating its exercise. The right existed before the act was passed, by the established rules of the common law in regard to the construction of grants." These reasons apply with equal force to our own statute, and in our opinion would be sufficient reason for upholding it, were there no other au thority. There is abundant authority, however, for sustaining the statute in the decisions of the courts. Where the road, though laid out upon the application and paid for and kept in repair by a particular individual, who is especially accommo. dated thereby, is, in fact, a public road, and for the use of all who may desire to use it, then it is regarded as accomplishing a public purpose for which land may be condemned. Lewis, Em. Dom. § 167; Shaver v. Starrett, 4 Ohio St. 494; Ferris v. Bramble, 5 Ohio St. 109; Denham v. Commissioners, 108 Mass. 202; Sherman v. Buick, 32 Cal. 241, and cases there cited; Monterey County v. Cushing, 83 Cal. 507, 23 Pac. Rep. 700; Brock v. Town of Barnet, 57 Vt. 172. The constitution (article 1, § 14) substantially recognizes the

* * *

right of the legislature to provide for laying out private roads or byways, as follows: "The necessary use of lands for reservoirs or storage basins, for the pur. poses of irrigation, or for rights of way for the construction of canals, ditches, flumes, or pipes, or any other use necessary to the complete development of the material resources of the state, * * is hereby declared to be a public use. This provision is certainly sufficient to authorize the legislature to provide for the establishment of by ways, or pent ways, as they are sometimes called, or private roads, which are for the use of any one who may desire to use them. The necessity for such private roads is appar ent when it is stated that it would be impossible to improve very many valuable tracts of land in this state which are not reached by public highways, unless this power existed. Such roads are therefore necessary to the complete development of the material resources of the state. We are therefore of the opinion that section 933, Rev. St. Idaho, is constitutional.

The appellant complains that the decree of the court authorizes the condemnation of a strip of land only 30 feet wide, instead of 50 feet, which is required for the width of highways. It would seem that the person whose land is condemned cannot be heard to complain that the court did not take 50 feet of land instead of 30 feet. It is hardly consistent with his posi tion, since he appears here complaining that any was taken.

The appellant also makes the point that the complaint does not state facts sufficient to constitute a cause of action. We think this point cannot be sustained. The ultimate facts only are necessary to be alleged, and these are sufficiently set forth. The respondent in this case complains that the court below rendered a judgment in form against P. N. Lunstrum for the amount of the damages and one half the costs, while it is undoubtedly true that no judgment can be rendered against one not a party to the suit. As neither the respondent, the county of Latah, nor Lunstrum, nor Peterson has taken any appeal from this part of the judgment, it is not before this court. The condemnation is made substantially upon condition that said Lunstrum shall pay the defendant, Peterson, the damages and one half the costs, (into court,) and, upon such payment or tender, the decree can be enforced. Judgment affirmed.

owner, the name of the persons by whom claimant was employed and under whom he worked, and the total amount due, after deducting all credits, without specifying the particular kind of labor performed. Malter v. Mining Co., 2 Pac. Rep. 50, 18 Nev. 212, distinguished.

Appeal from district court, Washoe county; R. R. BIGELOW, Judge.

Action by H. G. Maynard against W. H. Ivey and another to foreclose a laborer's lien. From a judgment for defendant Ivey on demurrer, plaintiff appeals. Reversed.

Robert M. Clark, for appellant. liam Webster, for respondent.

Wil

MURPHY, J. This action was commenced to foreclose a mechanic's and laborer's lien against the property of the Willow Creek Mining Company, a corporation doing business in Washoe county, Nev. W. H. Ivey was made a party defendant, as having or claiming to have an interest in the property by judgment and execution, alleged to be subsequent to plaintiff's lien Ivey demurred to the complaint, upon the ground that it did not state facts sufficient to constitute a cause of action against him. The demurrer was sustained, and this appeal is taken from the order sustaining the demurrer and dismissing the action as to Ivey. We are left in doubt as to which portion of the complaint the demurrer was sustained, and it will necessitate an examination of the entire pleadings to determine therefrom if it is a compliance with our lien law. The plaintiff filed with the county recorder of Washoe county, within the time required by law, a statement of his account, in which is set forth the number of days work performed, the price per day that had been agreed upon, the dates between which the work and labor were performed, together with the amount received by him, and by whom paid. The statement of the plaintiff's account is a sufficient compliance with the statute. The mere fact that he has included in his statement charges for which the law allows no lien will not defeat that portion of his claim for which he is entitled to a lien, when the charges are separately stated. Allen v. Smelting Co., 73 Mo. 692; Dennis v. Smith, (Minn.) 38 N. W. Rep. 695; Johnson v. Building Co., 23 Mo. App. 548: Hubbard v. Brown, 8 Allen, 590; Harmon v. Railroad Co., (Cal.) 22 Pac. Rep. 407; Albrecht v. Lumber Co., (Ind. Sup.) 26 N. E. Rep. 157; Gaskell v. Beard, (Sup.) 11 N. Y. Supp. 399.

The name of the owner of the property is set out in the notice of lien as follows: 'Know all men by these presents, that H. G. Maynard, of the county of Washoe and state of Nevada, has performed labor in and upon the mining claim and mill site and grounds of the Willow Creek Mining Company, a corporation of the state of Nevada, situate in the said county of Washoe, as more particularly hereinafter described; that the following is a just and true statement of the demand due H. G. Maynard, after deducting all just credits and offsets; and that it is his intention to claim and hold a lien upon the said mining claim, mill site, and grounds of

the said Willow Creek Mining Company, and upon the improvements, appliances, machinery, and appurtenances, mill and water rights, belonging to or claimed by said corporation, described as follows: Lot No. 37, containing 20.66 acres, in sections 12 and 13, in township 17 north, range 19 east, as shown by the record of the patent of the United States to said mining company at page 303, in Book A of Patents, records of said Washoe county, to which record reference is hereby made; and that certain tract of land commencing at the southwest corner of section 7, in said township and range 20 east; thence running 254 feet east; thence north, along Virginia and Truckee Railroad fence, 1,122 feet; thence west 600 feet; thence south to place of beginning,-all of which land, improvements, superstructures, and appurtenances are charged with this lien. That said work was performed at the special instance and request of C. C. Stevenson, president of said corporation, and of D. H. Bisbe, when superintendent of said corporation, thereto duly authorized by the trustees thereof."

The right to liens given to mechanics and laborers is introduced into the statutory law of the states by positive statutes. These statutes were at first looked upon by the courts to be in derogation of the common law, and hence they were strictly construed. They have now, however, become an integral part of our law, and their justice and beneficence have become so apparent that it was not in-tended by the legislature that laborers' lien statements should be strangled by technicalities, but, being remedial in their nature, they were to receive a broad and liberal construction. Skyrme v. Mining Co., 8 Nev. 221; Hunter v. Truckee Lodge, 14 Nev. 28; Lonkey v. Wells, 16 Nev. 274: Malter v. Mining Co., 18 Nev. 212, 2 Pac. Rep. 50. The purpose of section 3812, Gen. St. Nev., is to secure to owners and others, who are about to advance money or purchase the property, notice of the amount and nature of the lien to which the property is subject, and in whose favor the lien has accrued, and, if that notice is fairly given under the claimant's signature and affidavit, it is a substantial compliance with the statute, which is all the law requires. It would be too rigorous to insist upon formal and technical accuracy from a laborer in filing his statement of lien with the county recorder. We think that the statement filed by the plaintiff in this case meets the requirements of the statute. The stockholders, lien claimants, or a prospective purchaser of the Willow Creek Mining Company property, by an inspection of the statement of lien recorded in the office of the county recorder, would be notified that Maynard claimed to have performed labor on property owned by the Willow Creek Mining Company. The total amount earned is stated. All credits and offsets are deducted therefrom, and the intention of Maynard to claim a lien against the property for the balance due, the names of the parties by whom he was employed, terms and time given, with a description of the property sought to be

charged by the lien, sufficient for identification. In the complaint it is alleged "that at the date of said employment, and at the time said work and labor was performed, the defendant Willow Creek Mining Company was, ever since has been, and now is, the owners of the said Willow Creek mine, mining ground, and the improvements thereon;" describing them as in the notice.

The allegation, that "he has performed labor in and upon the mining claim and mill site and grounds of the Willow Creek Mining Company," is sufficient. We do not think he is required, under the lien law, to say that he was employed a certain number of days working in the face of a drift, tunnel, or in the bottom of a winze or shaft, as a miner, or that he was running a car or tramway or turning a windlass to carry rock from the mine, or that he was employed in the mill, feeding batteries or attending pans, or mention any particular kind of work that he was called upon to do by his foreman or superintendent. As was said by the supreme court of California in the case of Malone v. Mining Co., 76 Cal. 586, 18 Pac. Rep. 772: "It is sufficient to say that the character of the work should not be scrutinized too strictly. If the labor had a legitimate connection with the working of the mine, it is sufficient, within the meaning of the law." A substantial compliance with the statute is sufficient, and this is shown to exist wherever enough appears on the face of the statement to point out the way to a successful inquiry, but should not be carried to such extremes as serve only to perplex and embarrass a remedy intended to be simple and summary, without adding anything to the security of the parties having an interest in the property sought to be charged with the lien. The question as to how much labor was performed upon the property, and what portion shall be subject to the plaintiff's lien, is one for the court to determine, after hearing all the evidence in the case. A notice of intention to claim a lien may include more property than is subject to the lien, or of greater value than is required to pay the same. Northwestern, etc., Co. v. Norwegian, etc., Seminary, (Minn.) 45 N. W. Rep. 868. The plaintiff's employment may have been such that he is entitled to a lien on all the property mentioned in his statement filed. Wescott v. Bunker, (Me.) 22 Atl. Rep. 388; Silvester v. Mine Co., (Cal.) 22 Pac. Rep. 217; Tenny v. Sly, (Ark.) 14 S. W. Rep. 1091; Sergeant v. Denby, (Va.) 12 S. E. Rep. 402; Phillips v. Gilbert, 101 U. S. 721. The case of Maiter v. Mining Co., 18 Nev. 212, 2 Pac. Rep. 50, is not analogous to the case now under consideration. In that case there was no attempted allegation of ownership; no such a description of the property sought to be charged by the lien whereby the same could be identified. From the record before us it appears that the complaint and the matters therein stated are sufficient. The judgment will be reversed, with instructions to the court below to overrule the demurrer.

BELKNAP, C. J., concurs.

(94 Cal. 601) DOUGHERTY v. AUSTIN. (No. 13,323.) (Supreme Court of California. May 30, 1892.) CONSTITUTIONAL LAW-DELEGATION OF LEGISLA TIVE POWERS-COMPENSATION OF COUNTY OFFI

CER.

Laws 1887, p. 207, providing that whenever, in the opinion of the board of supervisors, the salary of any county officer in certain classes of counties is insufficient to pay a reasonable compensation, the board should allow such officer a deputy at a certain salary, to be paid for by the county, is invalid as an attempt to delegate the power to change a law exclusively confided to the legislature by Const. art. 11, § 5, which provides that it shall provide for the elec tion or appointment of county officers, and regulate their compensation. MCFARLAND and PATERSON, JJ., dissenting. State v. Field, 17 Mo. 529, followed. 28 Pac. Rep. 834, affirmed.

In bank. On rehearing.

Smith & Pomeroy, for appellant. Hepburn Wilkins, for respondent. Works, Gibson & Titus, amicus curiæ.

DE HAVEN, J. In the former decision of this case (28 Pac. Rep. 834) the court, in its opinion, held that the order of the board of supervisors of Marin county, upon which the respondent bases his right to the relief which he asks, was, in effect, an increase of the compensation of the county clerk of Marin county, made after his election to such office, and was for this reason void, as being in conflict with section 9 of article 11 of the constitution of this state; and, secondly, that section 211 of the county government act, as amended in 1887, (St. 1887, p. 207,) under which the board of supervisors acted in making such order, was invalid, as it made the county government act, of which it formed à part, lacking in that uniformity of operation which is required by section 11 of ar. ticle 1 of the constitution of this state. being supposed that the decision thus made would affect officers in other counties who had not been heard, and that the question presented for decision was of sufficient importance to justify it, it was deemed proper by a majority of the members of the court to grant a rehearing, in order to give an opportunity for further argument. The case has been reargued, and upon a reconsideration of the questions involved we adhere to the conclusions announced in the former opinion of Mr. Justice GAROUTTE, and the reasoning by which those conclusions were reached.

It

There is, however, an additional ground which is equally fatal to the right of respondent to maintain this action, which will be briefly referred to. The constitu tion of the state declares: "The legislature, by general and uniform laws, shall provide for the election or appointment in the several counties of boards of supervisors, sheriffs, county clerks. * * * It shall regulate the compensation of all such officers in proportion to duties, and for that purpose may classify the counties by population." Article 11, § 5. Under this section it is made the imperative duty of the legislature to regulate-that is, to fix or adjust-the compensation of all county officers in proportion to their duties. In the exercise of the authority thus