1. Comp. Laws, p. 67, § 263, provides that in
actions for the recovery of real property "the is- See "Carriers."
sues of fact arising therein shall be tried by a
jury, unless a jury trial is waived." Other stat-
utes provide that in case a jury is waived the
trial may be by the court. Held, that where, in
an action for the recovery of a mining claim, See "Criminal Law," 9, 10.
part of the material facts alleged in the petition
were admitted and part denied in the answer, it
was error to dismiss the action on motion and
affidavits supporting defendant's claim, and deny
plaintiff the right to a trial on the issues.-Friend
V. Oggshaw, 59.
2. An agreement of counsel will not be recog- On appeal, see "Appeal," 9-11.
nized, unless on a stipulation in writing.
Spencer v. McMaster, 105.
3. The supreme court will not recognize an
agreement of counsel to dispense with a com-
pliance with one of the rules of the court.-Spen-
Promissory Notes.
See "Negotiable Instruments."
Service by publication, see "Writs," 2.
Inclosure-Constitutional law.
1. Defendant, owning a number of sections of
land designated by odd numbers, the title to the
alternate or even-numbered sections being still
in the government, undertook to inclose a part
of its lands by a series of fences erected wholly
within the limits of its own property, the prac-
tical effect of which, however, was to inclose
with it many of the even-numbered sections of
public land. In a proceeding by the United
States for injunction, under Act Cong. Feb. 25,
1885, (23 U. S. St. 1883-85,) declaring unlawful
Substitution of party defendant, see "Par-
Appeal from finding in replevin, see "Appeal," 1.
REPORT AND CASE MADE.
Reserved case.
Sess. Laws 1888, c. 66, § 1, providing that,
when an important or difficult question arises
in the district court, the judge of that court
may, on motion of either party, or upon his own
motion, cause the same to be reserved to the
supreme court, is still in force under the pro-
vision of the state constitution that all territo-
rial laws not repugnant thereto shall continue
in force until they expire by their own limita-
tion, or shall be altered or repealed by the state
legislature; and a question as to the validity of
$55,000 worth of Crook county bonds, bearing
date May 1, 1891, is sufficiently important and
difficult to authorize its reference to the su-
preme court. Board County Com'rs Crook
County v. Rollins Investment Co., 470.
the inclosure of public lands made by any per- Of contract, see "Vendor and Purchaser,” 1-3.
son without claim or color of title to any por-
tion of the lands so inclosed, held, (per Saufley,
J.,) that the statute, so far as it forbids, as a
nuisance, the erection by defendant of a fence
wholly within the limits of its own land, is not See "Report and Case Made."
a legitimate exercise of the police power, but an
unwarranted invasion of private property, and
is unconstitutional and void.-United States v.
Douglas-Willan Sartoris Co., 287.
2. Per Corn, J. Notwithstanding the appar- See "Judgment," 3.
ent meaning of the language used, the act of
February 25, 1885, was not intended to forbid
the erection by a landowner of a fence wholly
within the limits of his own land.-United States
v. Douglas-Willan Sartoris Co., 287.
SPECIFIC PERFORMANCE.
Contracts enforceable.
1. Complainant went onto land in possession
of defendant's husband under a desert-land en-
try, and erected buildings, on his promise,
made for the purpose of encouraging the build-
ing of a town on the land included in his entry
that on acquiring title he would sell and convey
to him the portion occupied by such improve-
ments at a nominal price. After the husband's
Stipulation waiving, see "Practice in Civil death she made a contract with the people of
Cases," 2.
Of county treasurer, see "Counties," 1.
See, also, "Vendor and Purchaser."
The fact that the vendor in a bill of sale of
cattle fails to comply with an agreement to rent
the brand contained therein does not prevent
title from passing to his vendee.-Hecht v.
Johnson, 277.
SCHOOLS AND SCHOOL DIS-
TRICTS.
Organization in new county.
By Act 1884 the county of Fremont was
formed out of the county of Sweetwater. The
county school superintendent of Fremont coun-
ty undertook to divide the county into school
districts, and designated as school district No.
1 what had been substantially school district
No. 5 in Sweetwater county. Held that, al-
though from Rev. St. § 3978, providing that
when any new county is formed the trustees of
any school district previously elected shall hold
their offices until their successors are elected, it
appears that school districts are not dissolved
by the formation of a new county, and that
consequently the act of the county school su-
perintendent was void, yet school district No. 5
continued to exist, and its electors could meet
and vote money for the purpose of erecting a
schoolhouse.-Baldwin v. Nickerson, 208.
See "Criminal Law," 12, 13.
the town, which was signed by her individually,
but which recited that she, as administratrix of
her deceased husband, agreed, on obtaining a
patent, to sell to the parties in possession cer-
tain lots on terms and conditions therein given.
Thereafter a patent was issued in her deceased
husband's name, accruing to the benefit of his
heirs. Held that, even if the condition on
which she was to convey was satisfied, the con-
tract was made on the mistaken supposition
that she would then be able to sell the land as
administratrix, and therefore it would not be
enforced against her as to land obtained by her
on distribution of the estate.-Metcalf v. Hart,
513.
2. In such case, on account of the elements
of uncertainty as to the value of improvements
to be made, the exact amount of land to be
deeded, and the price to be paid, this could not
be specifically enforced as a contract.-Metcalf
v. Hart, 513.
Laches of complainant.
3. Where part of the time prior to the bring-
ing of the suit has been occupied with mutual
negotiations for settlement, and complainant
has all the time been in possession of the land,
he cannot be charged with laches in bringing
his suit for specific performance, where it was
brought immediately after the commencement
of the action to eject him.-Metcalf v. Hart,
513.
4. Under Rev. St. § 3008, providing that the
"heirs at law or devisees of a person who pur-
chased an interest in land by written contract,
and died before conveyance thereof to him, may
compel such conveyance as the deceased might
have done," the administrator of a deceased
vendee cannot sue for specific performance.-
Boburg v. Prahl, 325.
State Auditor.
See "States and State Officers."
Mandamus to, see "Mandamus," 2.
Of corporations, transfer, see "Corporations," 1. Powers of counties-Limitation of an-
1. Taxes levied for the support of common
schools of the county are not taxes for "county
purposes," within the meaning of Rev. St. §
3768, which provides that county commissioners
may levy a tax for the support of common
schools, not to exceed three mills on the dollar,
but that the aggregate tax "for territorial and
county purposes" shall in no case exceed six- | have found place in the Revised Statutes.-Fron-
teen mills on the dollar per annum, and are not tier Land & Cattle Co. v. Baldwin, 764.
to be considered in determining whether such
tax is excessive.-Powder River Cattle Co. v.
Board Com'rs Johnson County, 597.
Property subject-Stock of post trader.
2. The stock in trade of a post trader on an
Indian reservation is the property of a United
States agency, and is not subject to taxation by
the authorities of the county in which the reser-
vation lies.-Fremont County v. Moore, 200.
3. Cattle kept by the post trader on the Sho-
shone Indian reservation are not subject to
taxation, as this might necessitate entry, by
the tax collector on the reservation, in viola-
tion of the treaty with the Indians, which ex-
cludes from the reservation all persons not spe-
cially authorized by law to enter thereon.-
Fremont County v. Moore, 200.
Remedies for overassessment.
4. Defendant corporation sued to recover
back taxes, alleging that it had no property
subject to taxation in the county when the
taxes were levied, but that the assessor wrong-
fully levied on horses and cattle and other
property of defendant. It was found by the
court, and no exception thereto was taken by
defendant, that defendant had some property in
the county, and on that a tax was properly lev-
ied. Held that, the case being one of over-
assessment, and not one where the assessors
had no jurisdiction whatever to assess, the
courts, in the absence of any allegation or evi-
dence of fraud on the part of the assessor,
could afford no relief, but defendant should
have sought to have the excessive assessment
corrected by the board of equalization provided
by statute for such purpose.-Board of Com'rs
of Johnson County v. Searight Cattle Co., 777.
Action to recover taxes paid.
5. In an action to recover back taxes, the tax
collector, and not the county, must be sued. 29
Pac. Rep. 361, affirmed.-Powder River Cattle
Co. v. Board of Com'rs of Johnson County, 597.
6. Rev. St. § 3843, provides that any live stock
driven into any county of the territory, for the
purpose of grazing, at any time previous to the
last day of December in any year, shall be as-
sessed for the year in the same manner as though
it had been in the county at the time of the reg-
ular assessment, but that, if assessed for taxa-
tion the following year, there shall be remitted
a just proportion of the tax first mentioned, ac-
cording to that portion of the year during which
the stock remained in the territory. Section 3845
provides that on any personal property remaining
in the territory for more than 30 days and less
than 6 months before the time of the assessment
there shall be levied but a half year's tax. Held,
that the two sections are inconsistent, and that,
since section 3845 is the later enactment, and
provided in its original form for the repeal of all
inconsistent legislation, section 3843 should not
7. Rev. St. § 3055, provides that actions to re-
cover back taxes must be brought against the
officer who made the collection, or his personal
representative, with a proviso that when the mon-
ey derived from such taxes has been paid over
to a municipal corporation, for whose use and
benefit it was levied, then the action shall be
brought against such corporation. Held, in an
the term "municipal corporation" does not in-
action to recover back an illegal county tax, that
clude counties, and that the action should have
been brought against the county treasurer, as col-
lector, and not the county.-Powder River Cattle
Co. v. Board Com'rs Johnson County, 597.
8. Rev. St. § 3055, provides that actions to
recover back taxes and assessments must be
brought against the officer who made the col-
lection or his personal representatives, except
that when the money derived from such taxes
or assessments has been actually paid over to
any municipal corporation for whose use it was
levied, then the action shall be brought against
such corporation. Held, that under this section
no action for the recovery of taxes illegally as-
sessed can be brought against a county, a coun-
ty not being a municipal corporation within the
meaning of the statute. Conaway, J., dissent-
ing.-Board of Com'rs of Johnson County v.
Searight Cattle Co., 777.
TERRITORIES.
Territorial courts, see "Courts," 1-3.
Legislative powers.
1. Const. U. S. art. 1, § 8, subd. 4, providing
that congress shall have power to establish
"uniform laws on the subject of bankruptcies
throughout the United States," does not qualify
the plenary legislative power of congress over
the territories; and hence Rev. St. U. S. $
1851, providing that the "legislative power of
every territory shall extend to all rightful sub-
jects of legislation not inconsistent with the
constitution and laws of the United States,"
authorized the legislature of Wyoming to pass
Rev. St. § 118, declaring that any creditor ac-
cepting a dividend from the property of an as-
signor shall release him from all further lia-
bility on the claim.-Downes v. Parshall, 425.
Taxation on Indian reservation.
2. Rev. St. U. S. § 1839, provides that "noth-
ing in this title ["The Territories"] shall be
construed to impair the rights of person or
property pertaining to the Indians in any terri-
tory so long as such rights remain unextin-
guished by treaty,
or to include any
territory which by treaty with any Indian tribe
is not, without the consent of such tribe, em-
braced within the territorial limits or jurisdic-
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