MUNICIPAL CORPORATIONS-CONTINUED.
tion of such lines, inasmuch as the power of regulation
and control is amply conferred by Bal. Code, § 739, subd.
7.-State ex rel. Telegraph Co. v. Spokane....
2. Defective Street-Absence
Where a city maintains a street, elevated from three and
one-half to six feet above the adjacent land, without a
guard rail to protect teams from shying off the roadway
in case of fright, it is liable for negligence when a gen-
tle horse, driven with ordinary care by an experienced
driver, becomes frightened at the sight and noise of es-
caping steam blown off at that point of the street through
pipes passing thereunder from an electric power house
operated by the city, and backs the buggy to which it is
harnessed off the roadway, causing serious injuries to
the driver.-Taylor v. Ballard....
3. Same--Instructions-Reasonable and Ordinary Care.
An instruction which charges a jury that the law im-
poses on municipalities the duty of ordinary care in
maintaining their streets in safe condition for ordinary
travel is not erroneous on the ground that the law merely
requires the exercise of reasonable care in such cases,
since there is no distinction between ordinary care and
reasonable care.-Id.
4. Contracts-Whether Payable out of Indebtedness or Cur-
rent Expense Fund-Construction of Statute. Under Laws
1897, p. 222, requiring cities of less than 20,000 inhabi-
tants to maintain a "current expense fund," correspond-
ing to what had theretofore been known as the "general
fund," and an "indebtedness fund" against which should
be chargeable "all outstanding warrants, certificates and
all other obligations and indebtedness of the city, for
the payment of which no provision is made by law," the
indebtedness described as "all other obligations and in-
debtedness" must be construed as limited to the same
class as the particular words which precede, and hence
where plaintiff had a claim creating a general liability
of the city, but the amount of which was not finally
fixed and ascertained at the date of the creation by law
of the indebtedness fund, plaintiff could compel by writ
of mandate the issuance to it of warrants upon the cur-
rent expense fund in payment of the indebtedness due
it.-Townsend Gas & Electric Light Co. v. Hill...... 469
MUNICIPAL CORPORATIONS-CONTINUED.
5. Street Improvements Reassessment — Objections-Es-
toppel-Where a city council has regularly assessed abut-
ting property for street improvements, and has given no-
tice to property owners to file objections to such assess-
ment, within a certain time, as required by statute, an
owner who fails to so object cannot afterwards dispute
the validity of the assessment in an action to remove the
cloud on his title created by a sale of the property upon
foreclosure of the assessment ien.-McNamee v. Ta
6. Same-Constitutionality of Statute-Laws 1893, p. 226,
providing for the reassessment of property "with refer-
ence to the benefits received." where the original assess-
ment for street improvement has been declared invalid,
complied with the doctrine that assessments for public
improvements must be tested by the benefits conferred,
and hence is not unconstitutional on the ground of au-
thorizing the taking, under the guise of taxation, of pri-
vate property for public use without compensation.—
Id.
See LIMITATION OF ACTIONS, 2; WATERS AND WATER-
COURSES, 2.
1. Non-navigable Streams-When Public Highways-Float-
ability for Logs.-A stream eighteen miles long, with an
average width of one hundred feet and depth of three
feet, which can, during annually recurring freshets, be
used profitably for the floating of logs to market, must
be held to be a public highway for the purpose of float-
ing logs and timber products, within the contemplation
of Bal. Code, §§ 4378-4386, which provide that, for the
purpose of booming and floating logs and timber pro-
ducts, all navigable waters in the state shall be deemed
public highways.-Watkins v. Dorris...
2. Same-Persons Entitled to Use.-The statutes of this
state which declare non-navigable streams upon which
logs can be made floatable public highways and authoriz-
ing their use as such by corporations organized for boom-
ing and floating logs, must be held as conferring the
same rights upon individuals.-Id...
NAVIGABLE WATERS-CONTINUED.
3. Same-Ownership of Bed of Streams.-Art 17, § 1, of
the constitution, which reserves title to the state in the
beds of all navigable streams below the line of ordinary
high water mark, has reference only to such streams as
are navigable for general commercial purposes, and not
to those which are public highways merely for the float-
ing of logs and timber products.-Id.....
4. Same-Rights of Riparian Owner. Although a non-nav-
igable stream upon which logs are floatable may be a
public highway so far as the floating of logs is con-
cerned, persons or corporations using it for that purpose
have no right to interfere with the bed of the stream, or
with its banks, for the purpose of removing obstructions,
without the riparian owner's consent, or the exercise of
eminent domain, where title to the bed of the stream is
in such riparian owner.-Id...
5. Same-Damages as Result of Log Jam. A riparian owner
upon the banks of a stream which is navigable only for
logs in time of freshets, is entitled to damages where his
lands become overflowed by reason of the formation of a
jam in the stream due to the negligence of parties float-
ing logs therein.-Id.....
See CORPORATIONS, 1; WATERS AND WATERCOURSES.
NEGLIGENCE-See DAMAGES, 1, 2; MASTER AND SERVANT,
1, 3-9; PLEADINGS, 4, 6; STREET RAILROADS, 1-3.
NEGOTIABLE INSTRUMENTS-See BILLS AND NOTES.
Newly Discovered Evidence-Discretion of Court. The de-
nial of a new trial to defendant on the ground of newly
discovered evidence does not constitute an abuse of dis-
cretion, when the newly discovered evidence consisted of
statements made by plaintiff's husband differing from
her own testimony, given in a deposition by him, which
was taken on notice, and published during the trial with-
out the knowledge of defendant, when the court gives
full effect to any inferences deducible from the deposi-
tion in overruling the motion for new trial on condition
that plaintiffs remit a portion of their verdict.-Tyler
v. North American Trading & Transportation Co....... 252
See APPEAL, 10, 19, 42; CARRIERS, 1; CRIMINAL LAW,
2, 4, 5.
1. Circulating Indecent Picture—Sufficiency of Informa-
tion. An information which alleges that defendant
"knowingly" distributed a certain indecent picture suffi-
ciently charges knowledge on his part of the indecency
of the picture.-State v. Ulsemer.....
2. Same-Instructions. Where the information charged de-
fendant with knowledge of the indecency of a picture
circulated by him, an instruction by the court that "The
sole questions for the jury to determine are, Did the
defendant knowingly distribute the picture as charged
in the information? and was this picture indecent?"
are sufficiently specific as to the law of the case.-Id.... 657
3. Same-Evidence of Usage. In a prosecution for distrib-
uting an indecent picture, where the statute makes the
jury the sole judges as to whether or not the matter cir-
culated is obscene and indecent, testimony as to the use
of similar pictures in commerce and trade is incompe-
tent.-Id.
1. Holding Over Beyond Constitutional Limitation. The fact
that the incumbent has held office for two terms, and that
the constitution (art. 11, § 7) declares that "no county
officer shall be eligible to hold his office more than two
terms in succession," is immaterial, since his term does
not end until his successor is elected and qualified.-
State ex rel. Meredith v. Tallman..
2. Same-Failure to Give New Bond-Effect. The fact that
an incumbent of a county office failed to give a new bond
after the expiration of the two years would not dis-
qualify him for the office, since Bal. Code, § 1518, makes
the old bond sufficient, during the time such officer shall
continue to hold such office.-Id.....
See APPEAL, 26; COUNTIES, 2; REVIEW, WRIT OF;
SCHOOLS AND SCHOOL DISTRICTS.
Non-Joinder of Defendants
Timeliness of Objection.
Where there is a defect of parties defendant, objection
on that ground should be raised before trial in order to
be available on appeal.-Bignold v. Carr.....
See HUSBAND AND WIFE, 3; INFANTS, 1, 3; JUDG-
MENTS, 6; LIENS, 1.
PARTNERSHIP. See FALSE PRETENSES, 1.
1. Sufficiency of Complaint-Pleading Written Instruments
-Legal Effect. In an action to enjoin stockholders from
interference with plaintiff's exercise of the office of trus-
tee and manager of a private corporation, it is sufficient,
when necessary to plead the articles of incorporation and
by-laws of the corporation, to state them in substance
and according to their legal effect, without setting
them out in haec verba.-Seal v. Cameron........
2. Ambiguity-Construction. Where the language of an
affidavit is capable of two constructions, that which is
plainly consonant with common sense and the actual
facts must be adopted.-Goore v. Goore.
3. Action on Note-Allegation of Conclusions-Waiver of
Demand and Notice. An allegation in a complaint upon
a promissory note against an indorser thereof that at
the time of indorsement "he waived demand and notice,"
is not such a conclusion of law as to render the com-
plaint demurrable for want of facts, since such allegation
is one of the facts, although the facts stated may em-
body a conclusion as well.-Bay View Brewing Co. v.
Grubb
4. Negligence-Evidence Admissible Under General Allega-
tion. Where the complaint in an action to recover for
personal injuries contains a general allegation of negli
gence, any fact tending to contribute approximately to
|