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waived his right to have such preliminary question determined in the proceeding. Such being the circumstances of this case, we cannot as an appellate court determine that the trial court erred in holding that the defendant company had waived its right to a trial of the preliminary issue. For aught that appears in the record, that court may have been justified in assuming that it was feasible and practicable for petitioners to secure the proposed right of way through the defendant company's ditch, since the company had not insisted upon the trial of such question in apt time and manner. Bigelow on Estoppel, 4th ed., chap. 24; Sedgwick on Statutes, 2d ed., p. 87; Leonard v. Rogan, 20 Wis., 543.

It is urged by counsel in argument, that a large amount of the testimony introduced before the jury upon both sides, related to the question of necessity, that such question was not waived but treated throughout the trial as an issue of fact to be determined by the jury. The trouble with this argument is that it is not sustained by the record filed in this court. As above stated, the bill of exceptions does not purport to contain all the evidence. In fact, it contains only certain documentary evidence introduced in behalf of the defendant company, including an affidavit setting forth what certain absent witnesses would swear to, which seems to have been admitted to avoid a continuance under the statute. None of the evidence introduced in behalf of the petitioner is preserved in the record. We cannot, therefore, say how the question of feasibility and practicability was treated by the parties and the court during the trial. So far as appears, no expression of opinion by the court upon that subject was had until the charge was given to the jury. The application for the appointment of commissioners was not made until the jury had retired. The court may properly have considered the application as coming too late.

Our conclusion is, that the appropriate method for trying and determining the question of necessity, or of feasibility and practicability, in proceedings of this kind, is by the appointment of a board of commissioners by the court as the

law directs, and that the several parties have a right to have such methods observed to the exclusion of any other, when they request the same in apt time. But we must not be understood as holding that, by consent or by voluntary acquiescence, such question may not be otherwise determined or disposed of. Parties may modify as well as waive a statutory privilege.

3. One further matter assigned for error requires consideration. As we have seen, the petitioner sought to procure a right of way for the conveyance of certain water for his individual use through the defendant company's ditch, alleg ing that such right of way was feasible and practicable. In its answer the defendant, among other things, alleged that its ditch was barely sufficient to convey the amount of water actually and necessarily carried therein to supply those already entitled to the use thereof, and that the conveyance of additional water for the petitioner was physically impracticable. To this, petitioner, among other things, replied, in substance, that if the ditch was not of sufficient capacity to carry the additional water as prayed for, it was nevertheless capable of easy enlargement for such purpose as contemplated by the statute.

The verdict of the jury in addition to a description of the property taken, was as follows:

"2d. The value of said property so taken is one hundred dollars, to cover right-of-way and enlargement of said seventyfive and one half rods of ditch.

"3d. The damages to cover value of work done on bed of Sand Creek from point where ditch of said respondents enters same, to point where water is diverted from bed of same as above described, twenty-five dollars.

"4th. The damages awarded to cover construction of a suitable measuring flume at the point where ditch of said respondents is diverted from Sand Creek in the n. w. quarter of sec. 34 above described, shall be fifty dollars.

"5th. The damages to the residue of said property are

none.

"6th. The amount and value of the benefits are none."

The verdict thus given did not conform to the statutory requirements. It did not state the value of the property actually taken. The property taken, or sought to be taken, was a right of way through defendant's ditch. Such right of way was the property of the defendant. It is true, petitioner did not seek to deprive defendant of its right of way altogether; but he sought to acquire an interest therein to be used in common with the defendant. Such right of way had a money value, and the interest which petitioner sought to acquire therein also had a money value, which should have been ascertained and specified in the verdict, without qualification. Stating a gross amount as the value of the property taken to cover right of way and enlargement for a certain distance, certainly was not a compliance with the statute. Neither can the other amounts assessed as damages to cover certain work and improvements be regarded as an ascertainment of the value of the property taken.

Upon overruling the motion for a new trial the court entered its rule and rendered judgment to the effect, that the petitioner, having deposited the compensation and damages awarded, might enter upon and use the defendant's ditch for the purposes described in his petition. This adjudication was supplemented by a further decree which, in substance, commanded the defendant company to forthwith enlarge and repair its ditch from its head so as to safely carry the water belonging to petitioner, as specified in his petition, in addition to the amount already carried for the use of said defendant company; and further commanded said defendant company to construct at a certain specified point on line of said ditch a good, legal and substantial flume, headgate or weir, for the division of water belonging to the petitioner and the defendant company respectively, specifying how such improvements should be placed and used with particularity.

There is nothing in the statute nor in the pleadings in this case to sustain the decree of the court requiring the defendant company to enlarge, improve, or to make other expendi

tures for the purpose of adapting its ditch to petitioner's use. The petitioner, if successful in his proceeding, was entitled, according to his prayer, to take possession of and use defendant's ditch for the purposes specified in his petition. If the ditch required enlargement or improvement in order to adapt it to such purpose, such enlargement and improvement must be made at his own cost and expense. It was not competent for the court to sanction any finding nor to make any affirmative decree imposing such burden upon the defendant. Upon a proper verdict the court could admit the petitioner to possession and use of the ditch for the purposes specified in his petition upon the payment of the compensation and damages awarded therefor. We do not question the power of the court to make reasonable and suitable orders to subserve the convenience of the parties touching the time and opportunity for taking possession and enlarging the ditch, provided such orders do not conflict with the substantial rights of the parties in the premises. Further than this, the court cannot properly go in this proceeding.

In the case of Tripp v. Overocker, supra, the nature and scope of condemnation proceedings to enforce rights under the act of 1881, supra, are discussed. In that case the elements of compensation and damages are also indicated in general terms in harmony with the views here expressed. In this case, we cannot upon the matters assigned for error, without the evidence before us, add anything further upon the question of the proper measure of compensation and damages; nor can the adjudication of the county court be maintained in part, as counsel for appellee suggest. The judgment is accordingly reversed and the cause remanded.

Reversed.

VOL. XVII.-22

17 338

18 35 18 278

17 338 20 415

17 338

21 462

17 338

25 306

25 492 10a 477

CHARLES L. ALLEN, CONTESTOR, V. JAMES GLYNN, CON

TESTEE.

1. AUSTRALIAN BALLOT LAW-ERRORS IN PRINTING BALLOTS.
When public officers are entrusted with the preparation of ballots and
ample provision is made for the correction of errors before election,
it is too late after they have been voted, as a general rule, to interpose
objections to the ballots for mere irregularities in the printing thereof.
2. ELECTION LAWS-PROVISIONS OF, MANDATORY.

All provisions of laws relating to elections are mandatory in the sense that they impose a duty upon those who come within their terms. It does not follow, however, that an election should be invalidated because of every departure on the part of public officers from the terms of the statute.

3. ERRORS ON THE PART OF THE COUNTY CLERK.

Where the law provides severe penalties against county clerks for violation of its provisions, failure on the part of a clerk to make proper publication of nominations, or error in printing the name of candidates under the wrong party device, will not necessarily invalidate the ballots. 4. ELECTION CONTESTS - - RIGHT OF CONTESTOR TO HOLD over not

CONSIDERED.

In a proceeding to contest the election of a district judge, the right of the contestant to hold over, on the ground that he was duly appointed to the office by the governor, and was acting as such judge at the time the contestee assumed to discharge the duties of the office, will not be considered.

Election Contest-Opinions upon Motion to strike out Parts of the Complaint.

THIS is an original proceeding, instituted in this court for the purpose of contesting an election in the Thirteenth Judicial District.

In 1891 the legislature adopted, in a modified form, the Australian Ballot Law. At the recent election, the first held since the provisions of the new law became operative, Charles L. Allen, contestor, James Glynn, contestee, and William T. Skelton, were opposing candidates for the office of district judge of the Thirteenth judicial district of this

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