ing the years of 1878, 1879, 1880, 1882, and 1883. They did, however, find that he used said waters during the year 1881; and the testimony shows that there was not water enough to work mines during certain of the years mentioned. We do not think that those facts establish an abandonment by the defendant. The judgment of the court below, denying the first relief demanded, is fully sustained by the evidence.

at least to nominal damage, and upon that ground also asks for a judgment of reversal. It would seem to be the law that one who establishes a nuisance is entitled to nominal damage at least; and then, in most cases, an injunction follows to prevent future damage of the same nature. But the case of Atchison v. Peterson, already cited, declares that the injunction does not follow as a matter of right in cases like the present, and we can see no reason why this case should be sent to the court below merely to direct a judgment for one cent in favor of the plaintiff; for, as to the other demands, we are of the opinion that the judgment of the court below is correct.

As to the second demand, there is evidence tending to show that some of the sand, gravel, and tailings do run into the ditch, and upon the land of the plaintiff; that this is not due to any cause not a necessary incident to the use of water in placer mining; and also that no damage results therefrom to the plaintiff. One more alleged error is much relied on We are not to be understood as declaring by appellant, who claims that this is an eqthat the owner of a placer mine may disre-uity case, and that the jury should not have gard the rights of others owning property ad- been asked or allowed to return a general jacent to his. But the public policy of this verdict, and cites as authority cases from the territory demands that a trifling-a nominal California reports. The respondent, on the -damage shall not be ground sufficient to other hand, insists that there is a combinadestroy one of its leading industries. The tion of a common-law action with a suit in laws of the United States, from which power equity, and that the question of damages was the plaintiff obtains his right, granted to de- properly made the subject of a general verfendant the right to use the water for placer dict, and cites as authority Basey v. Gallamining purposes, and we think we have no gher, 20 Wall. 680. This might, perhaps, afpower to deprive him of that right by enjoin- ford a subject for learned discussion, but sureing him from doing that which is a necessary ly it should not be allowed to disturb a solemn incident to the enjoyment thereof; certainly judgment. In what respect was the plaintiff not at the request of one who is a subsequent purchaser from a common grantor. We think the court below properly refused a restraining order upon these facts, and for authority we rely upon the case of Atchison v. Peterson, 20 Wall. 507. That was an appeal from the supreme court of this territory. The plaintiff asked for an injunction against a subsequent appropriator, so that in that respect the case would present a stronger claim for injunction than does the case under consideration, in which it is a subsequent appropriator who seeks the remedy. The court say: "But whether upon a petition or a bill asserting that his prior rights have been thus invaded, a court of equity will interfere to restrain the acts of the party complained of will depend upon the character and extent of the injury alleged, whether it be irremediable in its nature, whether an action at law would afford adequate remedy, whether the parties are able to respond for the damages resulting from the injury, and other considerations which ordinarily govern a court of equity in the exercise of its preventive process of injunction."

injured by the return of a general verdict? The record shows that the jury did return special findings; that the judge below, sitting as an equity judge, did solemnly accept this formal aid to his conscience, and did approve of this special finding; and the record further shows that upon such acceptance and approval judgment was entered in favor of the defendant. The judgment and order appealed from are affirmed, with costs.

MCCONNELL, C. J., and DE Wolfe, J., concur.

(8 Mont. 265)

SANKEY v. ST. MARY'S FEMALE ACADEMY. (Supreme Court of Montana. Feb. 2, 1889.) INJUNCTION TRESPASS - IRREPARABLE INJURY. Defendant commenced the erection of a fence on plaintiff's land, the effect of which would be to both light and air, thereby rendering the house unentirely close the windows of her house, excluding fit for habitation. Held, that equity would enjoin the threatened trespass, on the ground that the damage caused thereby would be irreparable.

Appeal from district court, Lewis and Clarke county.

As to the question of damages. It appears Action by Georgiana M. F. Sankey against from the findings that the ditches of the plain- St. Mary's Female Academy, to enjoin the tiff have been filled by sand and mud, part erection of a fence on plaintiff's land. A perof which is due to the placer mining of de-petual injunction was granted, and defendant fendant. The witnesses for plaintiff esti-appeals.

mate the damage at sums varying from $200 Sanders, Cullen & Sanders, for appellant. to $500. They base their estimate upon the Alex. C. Botkin, for respondent. whole damage done. The jury, on the other hana, declare that only part of this is caused LIDDELL, J. The plaintiff is the undisby the mining operations of defendant, and puted owner of certain lots fronting on Rodthen declare that no damage was caused there-ney street, in square No. 28, in the city of by. The plaintiff insists that he is entitled Helena, while the defendant is the admitted

edies as the test and limit of injunctive jurisdiction; but in applying this criterion the modern decisions, with some exceptions among the American authorities, have certainly held the injury to be irreparable, and the legal remedy inadequate, in many instances and under many circumstances where Chancellor KENT would probably have refused to interfere. It is certain that many trespasses are now enjoined which, if com

owner of those lots in the same square which | fessed to adopt the inadequacy of legal remadjoin the plaintiff's property on the rear end. Between the premises of the parties there has existed an alley-way, of some eight feet or more in width, which afforded access to the rear of the lots occupied by the plaintiff. Her dwelling-house stands directly on the eastern line of the fence along the neutral ground, and has windows in that side next the premises of the defendant, and which overlook the playgrounds used by the pupils of the academy. Recently the defendant en-mitted, would fall far short of destroying the tered upon the plaintiff's side of the alleyway, which, however, has never been dedicated to public uses, and belonged in equal portions to the owners of the adjacent lots, and commenced the erection of a fence, which, if allowed to be consummated, would entirely close the windows of the plaintiff's house, excluding both light and air; thereby rendering the house uncomfortable, unhealthy, and undesirable for habitation. Setting forth these facts, and the irreparable injury she would suffer if the defendant were allowed to consummate its designs, the plaintiff applied for and obtained an order on the defendant to show cause why an injunction should not be granted restraining the act complained of. After a hearing of the parties, the writ was granted, but in such a way as to permit the defendant to erect its fence not nearer than four feet to the wall of the plaintiff's house, and from that order the present appeal is prosecuted.

property, or rendering its restoration to its original condition impossible. The injunction is granted, not merely because the injury is essentially destructive, but because, being continuous or repeated, the full compensation for the entire wrong cannot be obtained in one action at law for damages. While the same formula is employed by the courts of equity in defining their jurisdiction, the jurisdiction itself has practically been enlarged. Judges have been brought to see and to acknowledge-contrary to the opinion held by Chancellor KENT-that the common-law theory of not interfering with persons until they shall have actually committed a wrong is fundamentally erroneous; and that a remedy which prevents a threatened wrong is in its essential nature better than a remedy which permits the wrong to be done, and then attempts to pay for it by the pecuniary damages which a jury may assess. ideal remedy in any perfect system of adWithout recapitulating the evidence ad- ministering justice would be that which abduced upon the trial, we may rest with say-solutely precludes the commission of a wrong, ing that it satisfactorily establishes the al- and not that which awards punishment or legations of the complaint, and is ample to satisfaction for a wrong after it is commitsustain the order, if, under such circum-ted."

The

stances, the law permits the use of the writ. In section 926 of Story's Equity JurispruThe right to the writ is opposed by the de-dence we find him announcing the rule that fendant, because, as it contends, the facts an injunction will be granted where the inshow a mere trespass which can be compen- jury is irreparable, or where loss of health or sated by damages, and the injury, therefore, permanent ruin to property will ensue from is not irreparable. This position is un- the wrongful act or erection; and in section doubtedly correct under the authority of some 928 he says that it is upon similar grounds very eminent jurists; particularly that of that courts of equity will interfere in cases of Chancellor KENT, as set forth in his opinion, trespass. "Formerly," he says, "courts of Jerome v. Ross, 7 Johns. Ch. 315. But the equity were extremely reluctant to interfere, contrary opinion is held by equally as eminent even in cases of repeated trespasses. But authority; and it cannot be doubted that the now there is not the slightest hesitation, if tendency of that distinguished jurist to limit the acts done, or threatened to be done, to and restrain the use of the writ to a com- the property, would be ruinous or irreparaparatively few aggravated cases of trespass ble, or would impair the just enjoyment is opposed to the weight of modern decisions of the property in futuro. If, indeed, of the highest ability and authority. In 3 Pom. Eq. Jur. § 1357, quoting from the same paragraph, the author says: "If the trespass is continuous in its nature; if repeated acts of wrong are done or threatened, although Our statute authorizing the use of the writ each of these acts, taken by itself, may not be merely formulates the principles announced destructive, and the legal remedy may there- in the elementary works on equity jurisprufore be adequate for each single act if it stood dence. The second paragraph of section 173 alone, then also the entire wrong will be of the Code of Civil Procedure says that the prevented or stopped by injunction on the writ may be granted when it shall appear by ground of avoiding a repetition of similar ac- the complaint or affidavit that the commistions. In both cases the ultimate criterion sion or continuance of some act during the is the inadequacy of the legal remedy. All litigation would produce great or irreparable the cases, English and American, have pro-injury to the plaintiff. Formerly acts like

courts of equity did not interfere in cases of this sort, there would be (as has been truly said) a great failure of justice in the country."

the latter cause, the judgment in this case is reversed, with costs, and the cause is remanded to the court below for a new trial. MCCONNELL, C. J., and LIDDELL, J., con

WELCH et al. v. KEENE.

(8 Mont. 305)

(Supreme Court of Montana. Feb. 12, 1889.) JUDGMENT-AMENDMENT.

The district court has power, on motion, to amend a judgment for a specified quantity of water, "miners' measurement," so as to relieve it of uncertainty of the term "miners' measurement;" such amendment being based on all the testimony in the cause, made a part of the motion papers, and in no way contradicted.

Appeal from district court, Lewis and Clarke county.

that complained of were not considered as
causing irreparable injury, and the plaintiff's
remedy was held complete at common law;
but the modern tendency is to grant the writ
in all cases where it is necessary to protect
the applicant in the beneficial use and enjoy- | cur.
ment of his own property. The law some-
times lays us open to wounds because it is
supposed to possess the imaginary power of
healing all wrongs; but it would be a traves-
ty on justice to permit the defendant to close
up the windows in the house of the plain-
tiff, thereby depriving it of light and air, and
destroying it as a habitation, and then rele-
gate the plaintiff to a suit at law for dam-
ages. The inadequacy of the remedy at law,
under such circumstances, is too apparent
for argument; for how shall the inconven-
ience, the uncomfortableness, the loss, per-
haps, of health, be satisfactorily measured in
such an action? While the mere act of dam-
age to the house, and the use of that part of
the lot, could be ascertained in a suit for dam-
ages, there would yet remain to be consid-
ered the other elements of injury above men-
tioned. If the injury sought to be warded
off is not of that character which is denomi-
nated irreparable, it would be difficult to im-
agine a case which would come more com-
pletely under the rule. The plaintiff is
entitled to the protection of the law in the
use and enjoyment of her property; and the
writ, we think, was properly issued to pre-
vent the defendant from erecting the fence
upon the land of the plaintiff in such a way
as to close up the windows in her house. She
not only had no speedy or adequate remedy
at law, but the injury complained of would
have been irreparable and continuing; and
when such is the case the relief should be
granted. Mayor v. Groshon, 30 Md. 436;
Grant v. Crow, 47 lowa, 632; Marion v.
Johnson, 22 La. Ann. 512. There is no error
in the order appealed from, which is there-
fore affirmed, at cost of appellant.

DE WOLFE and BACH, JJ., concur.

(8 Mont. 279)

THOMPSON v. NORTHERN PAC. R. Co. (Supreme Court of Montana. Feb. 2, 1889.) RAILROAD COMPANIES - KILLING STOCK-CONSTI

TUTIONAL LAW.

Comp. St. Mont. § 713, providing that every railroad corporation within the territory which shall damage or kill any horse by running against it with an engine shall be liable to the owner for its value, is unconstitutional and void, as creating a conclusive presumption of negligence from the injury.

Appeal from First district court.
Sanders, Cullen & Sanders, for appellant.
A. R. Joy, for respondent.

At the October term, 1881, of the district court of the county of Meagher, the respondents recovered a judgment against appellant for 225 inches of the waters of Duck creek, "miners' measurement." The judgment followed the language of the complaint, and was based upon the special finding and evidence in the case. Appellant, feeling aggrieved, in due time made his motion, and filed his statement of the evidence, for the purpose of obtaining a new trial. On the 4th day of October, 1883, the court overruled said motion for a new trial, and the appellant thereupon appealed to the supreme court, where the same remained pending until 1884, when such appeal was dismissed. After the dismissal of this appeal, respondents obtained, as soon as practicable, an execution, and, upon motion of appellant, said execution was quashed by the court, upon the ground that the term "miners' measurement" was not specific and certain enough to enable said decree to be executed. This motion was sustained on the 18th day of December, 1884. Before the next term of court respondents filed their motion, notice of motion, and petition for correction of the decree, which were duly served. Appellant appeared, and the case was transferred to the county of Lewis and Clarke for the purpose of hearing said motion and petition. No counter-affidavits were filed, and no answer made to said petition and complaint. The hearing of the motion remained in that court until the 25th day of November, 1887; when the court, upon the motion, petition, affidavits, and evidence so preserved in the records of said cause, amended said decree so as to relieve it of the ambiguity or uncertainty complained of, and enable the same to be executed. The only question presented to this court is, did the court below have jurisdic

tion to amend the decree?

Chumasero & McCutcheon, for appellant. Shober & Adams and E. W. Toole, for respondents.

BACH, J. The appeal from the judgment in this cause presents for review the same question already decided at this term in the case of Bielenberg v. Railroad Co., 20 Pac. BACH, J., (after stating the facts as Rep. 314. For the same reasons assigned in above.) We do not doubt the soundness of

the rule that the trial court cannot at a sub

sequent time so modify a judgment that the
modification is in effect a reversal. That is
the province of the appellate court. But the
trial court has the power to modify or cor-
rect the judgment or record to such an ex-
tent that the relief granted may be such as
was intended to be granted. This doctrine
has already been announced by this court in
several cases. See Territory v. Clayton, 8
Mont. -
-> 19 Pac. Rep. 293, and cases there-
in cited. The court below, in granting this
motion, based its action upon all the testi-
mony in the case; which testimony was a
part of the motion papers, and was in no
way contradicted by affidavits filed by appel-
lant. Upon such a state of facts, that would
be a severe rule which would deprive the
successful party of the judgment which had
been judicially awarded him, because the
clerk had failed to enter the judgment in
proper form. It is the duty of the clerk, and
not of the court, to enter judgment; and a
liberal rule should be adopted to the end that
the carelessness of clerks shall not defeat
justice. In some jurisdictions the power to
amend a judgment is confined to what ap-
pears from the record to have been the judg-
ment intended; in others, the propriety of
the amendment may be based upon a petition
and affidavits. The latter rule is approved
by Mr. Freeman in his work on Judgments,
and also by the supreme court of the United
States, which latter authority is binding up-
on this court. In Matheson v. Grant, 2
How. 279, the judgment was entered at a
subsequent term, and the motion was based
upon an affidavit setting forth the evidence
in the case. In that case the motion papers
were similar to those which were before the
judge granting the amendment in this case.
See, also, cases cited at the end of section 72,
Freem. Judgm.

TERRITORY v. GODAS.

(8 Mont. 347)

(Supreme Court of Montana. Feb. 12, 1889.)

MURDER-INDICTMENT.

in the first degree, a charge in an indictment that 1. Under the Montana statute defining murder defendant feloniously, willfully, etc., assaulted E.. and feloniously, willfully, and of his deliberately premeditated malice aforethought inflicted upon E. died, is not defective as failing to charge an inE. a mortal injury or a mortal sickness of which tent to kill.

2. Nor is the indictment bad in that the words read "mortal bruise or mortal wound."

"mortal injuries and a mortal sickness" should have

Appeal from First district court.

The defendant, George Godas, was found guilty of murder in the first degree, under the tenth count of an indictment, which count reads as follows: "And the grand jurors aforesaid, upon their oaths aforesaid, do further find and present that the said George Godas on the 8th day of September, A. D. 1887, at the said county of Lewis and Clarke, with force and arms, in and upon one John Embody, in the peace of God and the territory of Montana, then and there being, feloniously, willfully, and of his deliberately premeditated malice aforethought, did make an assault; and in some way and manner, and by some means, instruments, and weapons, to the grand jurors unknown, he, the said George Godas, did then and there, feloniously, willfully, and of his deliberately premeditated malice aforethought, inflict on and create in the said John Embody certain mortal injuries and a mortal sickness, a further description whereof is to the jurors aforesaid unknown, of which said mortal sickness and injuries, so to the jurors aforesaid unknown, the said John Embody then and there instantly died. And so the said George Godas did, in the manner and form aforesaid, feloniously, willfully, and of his deliberately premeditated malice aforethought, kill and The appellant relies upon the case of Steam- murder the said John Embody, against the Ship Co. v. Railroad Co., 32 Fed. Rep. 533. peace and dignity of the territory of Montana, That case is not similar to this. The order and contrary to the form of the statute in such did not modify the judgment so that the lat- case made and provided." The defendant ter might represent or contain what was moved for a new trial upon various grounds. originally intended, but the order was to The motion was denied, and the defendant modify the judgment so that it might repre-appeals from the judgment, and the order sent or contain what became the subsequent denying a new trial. opinion of the court. The principle which guides our ruling in this case, and which, we think, is the rule to be applied to the facts in this case, is contained in the following language, quoted from the opinion of Chancellor WALWORTH: "A decree cannot be varied in substance, on petition, without a rehearing. But it may be corrected or amended, on motion or petition, as to mere clerical errors, or by the insertion of any provision or direction which would have been inserted as a matter of course, if asked for at the hearing, as a necessary or proper clause to carry into effect the decision of the court." See Clark v. Hall, 7 Paige, 382–384. The order appealed from is aflirmed, with costs.

DE WOLFE and LIDDELL, JJ., concur.

Thomas H. Carter and W. H. Hunt, for appellant. W. E. Cullen, Atty. Gen., for the Territory.

BACH, J. The appeal in this case is based upon one ground only, which, briefly stated, is that the tenth count of the indictment does not state facts sufficient to constitute the crime of murder in the first degree, because it does not allege that the assault was made with the willful, deliberate, and premeditated purpose and with intent to kill. If this case was one of first impression in this court, and if the intent was not alleged, we might reach a conclusion different from our present decision. There seems to be much force in the position taken by the counsel for defendant, which is about as follows: Our statute

defines murder in the first degree, and changes the common-law definition of that kind of murder the penalty of which is death. Therefore, murder in the first degree being a statutory crime, an indictment charging only what was required at common law will not sustain a verdict of guilty of murder in the first degree.

of his deliberately premeditated malice aforethought inflicted upon B. a mortal injury and a mortal sickness, of which B. died, is practically to charge that the death of B. is the result of the willful, deliberate, and premeditated killing by A.

It is insisted, however, that the expression "mortal injuries and a mortal sickness" is not sufficient; that it should read "mortal bruise or mortal wound." This, we think, is a distinction too refined. The statement was sufficient to notify the defendant of the nature of the crime charged against him. The judgment and order of the court below are affirmed; said judgment to be carried into effect as directed by a warrant to be issued by this court to the sheriff of Lewis and Clarke county, commanding him to do execution of the sentence at such time as shall be appointed therein, as provided in section 398 of the Code of Criminal Procedure.

It is insisted by the appellant that an assault may be made willfully, deliberately, premeditately, and with deliberately premeditated malice aforethought, and yet may not have been made with any intent to kill; and that, in such case, the crime of murder in the first degree would not have been committed, even though death had ensued as the result of such an assault. We can see much force in the argument of counsel that the intent to kill is a fact which is a necessary ingredient of the crime, and that, for that reason, it ought to be stated in the indictment. We cannot refrain from expressing our surprise that prosecuting attorneys do not insert a clause, the absence of which from indictments has been the ground of appeal in so many In the case of Territory v. Stears, 2 Mont. 324, the supreme court of this territory held that it was not necessary to charge (Supreme Court of Washington Territory. Jan.

cases.

LIDDELL and DE WOLFE, JJ., concur.

(1 Wash. St. 572) ELLIS et al. v. POMEROY IMP. CO.

WATER-COURSES

Term, 1889.)

APPROPRIATION - ESTOPPELPUBLIC LANDS.

1. E., in May, 1878, entered upon public lands, and made his pre-emption filing. In 1880, he made final proof, and on November 10, 1882, a patent was issued, containing the usual exemption of vested and accrued water-rights, provided for in act Cong. July 26, 1866. In 1878, E. had entered into a partnership for operating a planing-mill, the waa stream which ran through a corner of the land ter-power to operate the same to be obtained from pre-empted by him. About $300 were expended in ditches, etc., E. being the active agent in locating that year the whole plant was sold to one D., who the ditches, dams, and mill-sites, and in August of completed the construction, and commenced opera

under his pre-emption, and was paid a price for such claim. Held, that E. was estopped from asserting any claim to such water-rights by reason of his patent.

the intent to kill in an indictment for murder in the first degree. This decision was twice affirmed,—once in Territory v. McAndrews, 3 Mont. 158; again in Territory v. Young, 5 Mont. 242, 5 Pac. Rep. 248. And similar indictments have been upheld in other courts of high repute. In this territory, since the decision in the Young Case, the soundness of the doctrine has never been questioned until now, although many cases of the same grave nature have been before us upon similar indictments. The decision now has, the force of a well-established precedent; and it would be vain for us to say that an indictment of the same character does not in this jurisdictions in September, 1878. Later, E. set up a claim tion notify the accused of the nature of the crime charged against him. The tenth count of this indictment, however, contains allegations which were not included in the indictment in the case of Territory v. Stears. In the latter case it will be observed that the words "willfully, deliberately," etc., do not qualify the allegation which declares that the defendant inflicted a mortal wound. The tenth count of this indictment is contained in the statement of facts, and it will be observed that it charges that the defendant “willfully, and of his deliberately premeditated malice aforethought, did make an assault, and in some way and manner and by some means, instruments, and weapons, to the grand jurors unknown, * did then and there, feloniously, willfully, and of his deliberately premeditated malice afore- ALLYN, J. Appellants insist that this is thought, inflict on and create in the said John a suit to quiet title to a certain water-right Embody certain mortal injuries and a mortal and right of way for a water-ditch across the sickness, * * * of which said mortal N. of the S. of section 32, township 10 sickness and injuries * * the said N., of range 42 E., in Garfield county, and John Embody then and there instantly died." that, possession not being unqualifiedly asTo charge that A. feloniously, willfully, etc., serted, the action must abate. In this action assaulted B., and feloniously, willfully, and an injunction is also prayed to restrain the

*

* *

2. A mere entry upon public lands gives no vested rights against the government until final proof, and lands thus occupied are subject to the acquisition of prior water-rights under local customs and appropriations up to the time of final proof, and hence the patent does not relate back beyond the time of final proof.

Appeal from district court, First district. Action by Townsen T. Ellis and Martha E. Ellis against the Pomeroy Improvement Company. Judgment for defendant, and plaintiffs appeal.

W. A. George, for appellants. M. F. Gose, Elmon Scott, and Allen & Crowley, for appellee.