court, to determine in the first instance. We, the owner, in my judgment this court not are bound to say that there was evidence in only has the power but it would be its duty the case, although of an indirect character, to set aside the verdict. which the plaintiff was entitled to submit to the triers of the fact, as against the direct evidence of the defendants' witnesses. Thus it is written in the law which we have no authority to change, as against the contention that the court should have directed a verdict. Under the rules of evidence in the Code, it is clear that there was testimony pro and con on the issue involved, the weight and preponderance of which was to be determined by the jury. The analysis of the sections of the Code noted above as applied to the evidence supports the doctrine of West v. Kern to the effect that proof of the ownership of the automobile inflicting the injury in a negligent manner makes a prima facie case in favor of the plaintiff. The precept must therefore be reiterated. In the instant case it sustains the action of the court in refusing to direct a verdict. Other reasons for the rule are stated in our own precedents to which allusion has been made and need not be repeated here. The purpose of the present opinion is merely to point out statutory grounds for the conclusion that proof of ownership of a vehicle negligently operated to the injury of another makes a prima facie case in favor of the injured party. This disposes of the only question presented in the brief of the defendant company and argued at the hearing. It leads to an affirmance of the judgment of the circuit court. JOHNS, J. (concurring specially). It appears from the record that J. W. Shearer was in the actual employ of the Hazelwood Company daily between 8 a. m. and 6 p. m; that he was authorized by the company, after working hours, to take, and that he did take, the automobile to his own home, keep (90 Or. 15 ) HELTZEL et al. v. BAIRD. (Supreme Court of Oregon. Nov. 19, 1918.) 1. REFORMATION OF INSTRUMENTS 13(2)— MUTUAL MISTAKE AS TO LAND RESERVED. terest of vendee's assignee in contract for purWhere defendant, when he purchased inchase of land, knew that written contract had been modified by oral agreement so as to reserve a bridge and additional land as part of roadway specified therein, and thereafter a written vendors which, because of mutual mistake, failcontract was entered into between him and the ed to reserve the bridge and additional land, vendors were entitled to reformation. 2. SPECIFIC PERFORMANCE SHORTAGE IN LAND SOLD. 94-DEFENSE Vendee will not be allowed to rescind because vendors are unable to convey title to one-tenth or one-half of an acre of a tract of about 12 acres, where land was not purchased for a specific purpose. Department 2. Appeal from Circuit Court, Marion County; George G. Bingham, Judge. Action by I. S. Baird against James G. Heltzel and another. To defeat the action, defendants filed a complaint in the nature of From a cross-bill praying equitable relief. decree sustaining cross-bill, Baird appeals. Affirmed. James M. Slyter entered into an executory On January 4, 1910, the plaintiffs and contract for the purchase and sale of about 20 acres of land out of the Jesse Adams donation land claim in Marion county. On December 9, 1910, Slyter sold and assigned to S. W. Cooley and G. W. Small his right, title, and interest in the contract. Thereafter it was verbally agreed that Small should relinquish his rights and be released from his obligations; that all of the 20-acre tract, excepting about 11.87 acres, should be exempted from the written contract and restored to the plaintiffs; and that the 11.87 acres should be purchased by the said Cooley in accord with the terms of the written agreement and the verbal modifications thereof. In the original contract a strip of ground only 10 feet in width, along the east line of the property, was reserved. it there over night, and use it in returning to his labors the following morning. He was therefore lawfully in possession of the machine, with the knowledge and consent of the Hazelwood Company, and the jury would have a right to infer that if he had authority to use it after working hours for one purpose he might have authority to use it for other purposes, and for such reason I concur in the opinion affirming the judgment. But where a third person has unlawfully obtained possession of an automobile from its owner, and while in such unlawful possession he injures another with the automobile, notwithstanding the case of West v. Kern, 88 It is alleged that after the execution of the Or. 247, 171 Pac. 413, 1050, and the authori- contract it was discovered that the 10-foot ties cited in this opinion, I do not believe reservation was not wide enough to include that the owner of the automobile should be the bridge located near the northeast corner held liable for the negligence of the third of the tract; that it was verbally agreed beperson who is in the unlawful possession of tween the plaintiffs and Cooley, who then the automobile. Under such a state of facts, held the contract, that the reservation thereif the jury should return a verdict against in for roadway purposes should be enlarged feet reserved for road purposes, contending that the plaintiffs should be estopped to claim or assert that any mistakes were made in the execution of the written contract between them. so as to include the bridge and the land ly-, fied the written contract as to the east 20 ing between the northwest end thereof and the county road; that for such purpose it was orally agreed that the reservation for roadway should be 20 feet instead of 10; that it was the intent of the parties to make such reservation wide enough to include the Testimony was taken in open court before whole of said bridge; that it was then ver- the trial judge, who made findings of fact bally agreed between all of the parties that which in legal effect sustained all of the mathe bridge and the land on which it was lo- terial allegations of the plaintiffs' cross-bill, cated should be excepted from the premises and, based thereon, rendered a decree correctcovered by the contract and considered a parting the description in the contract to conform of the roadway; that in August, 1911, while to the verbal agreements and calling for a Cooley held the contract, the county court of specific performance of the contract as corMarion county, on the petition of Cooley and rected. From the decree, the defendant prosothers, duly laid out and established said ecutes this appeal. road; that the defendant had knowledge of all such matters when he acquired Cooley's interest in the contract through assignment on September 12, 1914, after which it was verbally agreed between the plaintiffs and the defendant that, as a substitute for the original written agreement and the modifications thereof, a new written contract should be drawn, containing the covenants of the original agreement and such verbal exceptions and modifications thereof, so that such written agreement should clearly specify and define the rights of the parties as modified by such verbal agreements; and that a new agreement was executed, but that through mutual mistake and oversight it did not correctly express or define the actual modified contract between the parties. The defendant tendered the balance of the purchase price of the property and demanded a deed under the terms of the written contract, and for the failure and neglect of the plaintiffs to execute and deliver a warranty deed conveying to the defendant in fee simple, free of any charge or lien, the whole 11.87-acre tract, including the roadway and the ground upon which the bridge is located, he elected to rescind and commenced an action in which he alleged that the plaintiffs did not have a fee-simple title, and asked for a judgment against them for the moneys paid by him and his predecessors in interest, and the amount alleged to have been expended for improvements, in the aggregate sum of $1,334.58. To defeat the action, the plaintiffs here filed a cross-bill alleging the above verbal agreements made with Cooley and that there was a mutual mistake in the omission of such verbal agreements from the written contract with the defendant, asking for a decree of reformation, that when reformed the contract should be specifically enforced, and that the defendant should be required to pay the balance due on the contract. The defendant filed his answer to the cross-bill, in which he admits that he purchased Cooley's interest and filed an action for the $1,334.58, but denies all of the material allegations of the complaint, and alleges that on or about February 13, 1915, he and the plaintiffs modi Walter C. Winslow, of Salem, for appellant. James G. Heltzel and Roy F. Shields, both of Salem, for respondents. JOHNS, J. (after stating the facts as above). There is a sharp conflict in the testimony. The trial judge heard all of the evidence and in legal effect found that in September, 1914, the defendant personally inspected the tract of land in question; that Cooley pointed out the corners to him; that they passed along the roadway on the east and across the bridge to the county road on the west, then along such county road to the southeast corner of the lands; that it was believed by Cooley and the defendant that the bridge near the northeast corner of the property was within the reservation made for the road; that in August, 1911, while Cooley was the owner of the contract, the county court of Marion county, based on the petition of Cooley and others, had duly laid out and established the roadway over said lands; that in the increase of the reserved strip from 10 to 20 feet in width it was the intent of all the parties to make such reservation wide enough to include the bridge and the land on which it was located; that the ground between the northwest end of the bridge and of the roadway and reserved and excluded the county road should be considered a part tion of the premises, and with full knowledge of all such understandings and agreements between the plaintiffs and Cooley, the defendant purchased Cooley's interest in the con from the contract; that after his examina tract. It was further found that, the original contract was drawn between the plaintiffs contract having been lost or mislaid, a new and the defendant about September 12, 1914, which was intended to carry out the Cooley contract as modified between him and the plaintiffs; that a mistake as to the lands to be reserved and excluded from the 11.87-acre tract was made in the preparation of the contract; and that such mistake was mutual between the parties. The defendant filed an answer in which he admits his purchase of Cooley's interest and "The small difference of 3.75 acres in the estimated acreage upon which the amount of the consideration was probably based is so slight in comparison with the total that it does not lead to a presumption of mistake or fraud; and, none such being pleaded, there could be * * * That is to no relief for this cause. say, the purchase was not made for any specific or particular purpose whereby the exact quantity of land estimated to be contained in the tract described became a material element in the transaction." The trial court heard all of the evidence and rendered a decree in favor of the plaintiffs. We are of the opinion that the decree should be affirmed, without costs to either party on appeal. the execution of the written contract between part of the consideration paid, and for an himself and the plaintiffs; that he relies up-accounting and recovery for expenditures on the terms and conditions of such written made in improving the premises," and in contract; and that he filed an action in which the court denied the relief asked for which he sought to rescind and to recover and rendered a decree of specific performfrom the plaintiffs $1,334.58, which is the ance, holding thatamount of the purchase price and the alleged value of the improvements made upon the property. He further alleges that on February 13, 1915, the contract was modified between the parties, to the effect that, in lieu of the east 20 feet reserved for. road purposes, the plaintiffs should exclude from their deed a strip of land 15 feet wide off and from the south side of said premises, and that plaintiffs should deed to the defendant on the completion of the contract a strip of land along the east side of said premises. In the answer the defendant also pleads a breach of the written contract, in that the plaintiffs cannot convey a fee-simple title. [1-3] After a careful reading of the testimony, we are convinced that the defendant acquired his interest in the contract with full knowledge of all of its terms as modified by the oral agreement between the plaintiffs and Cooley, and that the defendant was far more interested in rescinding the contract and recovering the money which he had paid and expended on improvements, than he was in obtaining a specific performance of the contract. This is apparent from his own testimony. While it is true that the defendant will not receive the full 11.87 acres, yet it appears from the testimony of the plaintiffs that the amount of the shortage is about one-tenth of an acre, and, according to the testimony of the defendant, about one-half of an acre. It is not claimed that the realty was bought for any specific purpose, or that the land embraced within the shortage has any material value for any purpose. In fact, it appears from the record that a portion of it is under water. The defendant relies up on his right to rescind and does not claim any reduction in the price on account of the shortage. In the written contract between them, executed September 12, 1914, it was agreed that, when the defendant complied with the terms and conditions by him to be kept and performed, the plaintiffs would then execute "a warranty deed conveying said premises in fee simple," and there was no provision that the property should be free and clear of any charge, lien, or incumbrance. It also appears from the record that the only lien upon the property was a mortgage in favor of the state land board, and that a release from such mortgage was executed and tendered as to the tract in question. The legal questions here involved are very similar to those in the case of McCourt v. Johns, 33 Or. 561, 53 Pac. 601, in which the plaintiff sought "a rescission of the bond or contract of sale, for the recovery of the MCBRIDE, C. J., and BEAN and OLSON, JJ., .concur. BOYER v. ANDUIZA. (90 Or. 163) OF (Supreme Court of Oregon. Nov. 19, 1918.) 2. TRESPASS 20(1, 4)-POSSESSION. Defendant in a suit for trespass cannot as- MENTS OF ERROR-SUFFICIENCY. Under Supreme Court Rule 12 (173 Pac. x), be considered unless arising upon the assignquestions as to evidence or instructions will not ments of error. In Banc. Appeal from Circuit Court, Malheur County; Dalton Biggs, Judge. Action of trespass quare clausum fregit by J. S. Boyer against E. Anduiza. Judgment for plaintiff, and defendant appeals. Affirmed. Davis & Kester, of Vale, for appellant. BEAN, J. The plaintiff in his complaint claims damages, by defendant's sheep, to the grass, verdure, and forage growing on 320 acres of land in Malheur county, during September, 1917. The defendant denies the complaint, but further pleads that his sheep necessarily passed over the lands from one range to another without doing damage. As stated by the learned counsel for defendant, the case turns upon the question of the plaintiff's possession, actual or constructive. Plaintiff leased the lands for the year 1917, of Mrs. Ella Woodruff, the widow and administratrix of the estate of the late owner of which the premises constitute a part. The arrangement for the lease is evidenced by two letters from Mrs. Woodruff, and a canceled check which are in the record. A portion of the rent was paid by plaintiff in the construction of fences on the premises. Mrs. Woodruff in her letter to the plaintiff stated that, if she should sell the place before the year was up, she would pay him back, or make it right with him; but there is no evidence tending to show that any repayment had been offered, or that plaintiff had been dispossessed of the land. The land was leased for grazing purposes, the plaintiff residing upon adjoining land. Neither Mrs. Woodruff nor any one claiming under her is making any claim to the right to the pasture or possession of the land. Plaintiff testifies that he was in possession of the premises in September, 1917, when the trepass was committed. It is contended on behalf of defendant that the agreement between the plaintiff and the administratrix which is the basis of plaintiff's right is insufficient upon which to base constructive possession. At the close of plaintiff's case in chief, counsel for defendant interposed a motion for nonsuit, and at the close of all the testimony moved the court for a directed verdict in favor of defendant. The refusal to grant these motions are assigned as errors which may be considered together. Under our statute, a formal written lease of real estate for the term of one year is not required. Sections 804, 808, subdivision 6, L. O. L. Section 1185, L. O. L., provides in part that: "The executor or administrator is entitled to the possession and control of the property of the deceased, both real and personal, and to receive the rents and profits thereof until the administration is completed, or the same is surrendered to the heirs or devisees by order of the court or judge thereof. Section 1304, L. O. L., declares as fol lows: "The real property of the deceased is the property of those to whom it descends by law or is devised by will, subject to the possession of the executor or administrator. * Where an injury is done to real estate, the administrator and not the heirs is entitled to recover for damages done. Mast v. Sapp, 140 N. C. 533, 53 S. E. 350, 5 L. R. A. (N. S.) 379, 111 Am. St. Rep. 864, 6 Ann. Cas. 384. [1, 2] Mrs. Woodruff, being entitled to the possession and control of the premises in question as the administratrix of her deceased husband's estate, had the right to evidence shows she did. It is the general rule in America that either actual or constructive possession is sufficient to maintain trespass, although one of these two kinds is necessary at the time of the trespass. 38 Cyc. 1005, 1006, note 91. Whatever right to the possession and use of the land Mrs. Woodruff had was transferred to the plaintiff. In a note to Beaufort Land & Investment Co. v. New River Lumber Co., 30 L. R. A. (N. S.) 243, at page 255, we find the following: * * "The occupancy by a widow of land of which band was held in Byrne v. Van Hoesen, 5 Johns. she took possession upon the death of her hus66, to be sufficient to enable her to maintain an action of trespass quare clausum fregit for entering the close and cutting down trees, on the theory that she is entitled to possession. "A person who contracted with the owner of a close for the purchase merely of a growing crop of grass thereon was held in Stevens v. Adams, 1 Thomp. & C. 587, to have such an exclusive possession of the close, though for a limited purpose, as to entitle him to maintain an action of trespass quare clausum fregit against any one entering the close and taking the grass, even with the assent of the owners of the soil." [3] The possession of the plaintiff pursuant to the authority conferred by Mrs. Woodruff as shown by the record in the case was sufficient to maintain the action of trespass. There was no error in the refusal to grant a nonsuit or to direct the jury to find a verdict for the defendant. Counsel for the defendant filed a motion for a new trial upon the ground inter alia that the damages assessed by the jury, $350, were excessive. The trial court required the plaintiff as a condition to sustaining the judgment to remit $100 of the amount thereof. Defendant assigns such ruling as error. The evidence of the plaintiff tended to show that the damages amounted to $500. Section 3 of article 7 of the Constitution of this state ordains in part that: "No fact tried by a jury shall be otherwise re-examined in any court of this state, unless the court can affirmatively say there is no evidence to support the verdict." [4] If there was any error in reducing the judgment, it was favorable to the defendant, and he cannot complain. Upon the trial, defendant offered evidence tending to show title to the premises in question in a third person. Upon this point, see 38 Cyc. 1058, note 10. Defendant claimed no interest in the land or the grass thereon. The court rejected the evidence tendered by defendant. [5] The assignments of error in defendant's printed abstract are not based upon any ruling of the court in regard to evidence, nor upon any instruction of the court. Under rule 12 of this court (173 Pac. x), we are not required to consider such a question unless it arises upon the assignments of error. Finding no error in the record, the judg (90 Or. 167) STEPHENS v. CITY OF EUGENE. (Supreme Court of Oregon. Nov. 19, 1918.) 1. WATERS WATER COURSES 51 RIGHTS OF RIPARIAN OWNER-ACCUSTOMED FLOW. AND Riparian owner of land, abutting on both banks of a slough, is entitled to have water flow as it is naturally accustomed to flow. 2. EMINENT DOMAIN 276-REMEDY OF RIPARIAN OWNER-INJUNCTION-FLOWAGE. Where city constructed power plant, and for operation thereof conducted water from river and discharged it in large quantities into slough, materially increasing the accustomed flow, to the damage of lower riparian owner of land on both banks of slough, such discharge constituted a continual trespass, which riparian owner could have enjoined. 3. MUNICIPAL CORPORATIONS ~733(1) - 4. EMINENT DOMAIN 303 REMEDY OWNER-DAMAGES. OF Where city diverted water from river for operation of water plant, and discharged it into a slough in large quantities, materially increasing accustomed flow, so that lower riparian owner of land on both banks of slough could not ford the slough, as he had prior thereto been doing, and was compelled to go two miles out of his way to reach his plow land, he was entitled to damages. 5. EMINENT DOMAIN 306-DISCHARGE OF WATER INTO SLOUGH-INJUNCTION-RELIEF. Equity, in action to enjoin city from discharging water used in operation of waterworks into slough, to the damage of lower riparian owner, cannot condemn land for such purposes and fix amount to be paid owner. Department 1. Appeal from Circuit Court, Lane County; J. W. Hamilton, Judge. Action by David Stephens against the City of Eugene, a municipal corporation. From a decree giving him insufficient relief, plaintiff appeals. Modified. been destroyed; that he has been damaged on account thereof in the sum of $400, caused by the loss of the crossing, compelling him to go about two miles out of his way, and through a neighbor's close, to reach his plow land, instead of going directly across the stream, on his own premises. He prays for a decree enjoining the conduct of the defendant thus described and for damages. The city admits the plaintiff's ownership of the land in question and after denying the other allegations of the complaint, except that of its own corporate existence, avers its legislative charter authorizing it to purchase, acquire, maintain, own, manage, and operate waterworks as well as electric and gas lighting systems, and to that end has the right to exercise the power of eminent doIt main for the condemnation of lands. states its municipal legislation to that end, and in substance says it constructed the power plant on its own premises, above the property of the plaintiff, and has engaged in the business of supplying the inhabitants of Eugene with water at rates fixed by the city, as well as electricity for light and power purposes to those who purchase the same. It then makes this averment: "That said power plant is situated on lands owned by the defendant, and that along the southerly line of defendant's premises, upon which the power plant is situated, there is a stream flowing westerly, which leads some distance easterly from the power plant of the defendant, and flows westerly along the south boundary of the defendant's said premises, and through the premises of the plaintiff, and empties into the McKenzie river that said stream has well-defined banks and channel, and is and at all of the times mentioned in the complaint was a well-defined water course. The defendant further alleges that, in the construction and operation of its power plant as afore said, it empties by means of a tailrace the water used in furnishing the power of said plant into the said water course, and permits it to flow through said water course back into the McKenzie river, and the defendant alleges that at no time in the operation of said power plant has it emptied a sufficient quantity of water into said water course to raise the water of said stream out of its banks on the premises of the plaintiff, and that at all times the water in said stream has been confined to the bank and channel of said stream as the same passes through the premises of the plaintiff, and that the construction of said power plant and water system was commenced prior to the 1st day of January, 1909." The plaintiff is the owner of land through which runs a slough originally debouching from the McKenzie river, but now closed from that stream, except in floods, by gravel washed in by the water. Before the defendant's advent in the vicinity, at the usual stage on the plaintiff's land the slough carried a flow of about 16 inches in depth derived from springs and surface water brooks. The reply traverses the new matter in the The plaintiff's buildings are on the north answer in important particulars, and, after side, and his fields on the south side of the a trial before the court, findings of fact fawaterway in question. Ordinarily he obtain- vorable to the plaintiff in a large measure ed access to his farm land by fording the were filed, and a decree was entered to the slough. He alleges, however, that the de- effect that the defendant be enjoined from fendant constructed on its land above his diverting the water of the McKenzie river premises a power plant, to operate which it and causing it to flow through plaintiff's real took out water from the river some miles property, but suspended the operation of the above, conducted it to the plant, and thence decree, provided the defendant should within discharged it in large quantities into the 60 days from the entry thereof commence slough, and has continued and will persist in proper proceedings to condemn the property so doing, with the result that it keeps the of the plaintiff and prosecute the same with water continually so high that his ford has diligence. A motion was made on behalf of |