MINES AND MINING.-Continued.

proximity to other mines. The evidence did not show but that
the ground within the boundaries of the claim was all of equal
value, or that a partition by metes and bounds would result
in great prejudice to any of the co-owners. Held, susceptible of
partition by metes and bounds. Ryan v. Egan, 241.

8. Statute of Limitations. Revised Statutes United States, sec-
tion 2332 [U. S. Comp. St. 1901, p. 1433], provides that where a
party has held and worked his mining claim for a period equal
to that prescribed by the statute of limitations for mining
claims of the State where it is, evidence thereof shall be suffi-
cient to establish his right to a patent to the claim. Comp.
Laws 1888, section 2997, subdivision 2 (Revised Statutes 1898,
sec. 2498, subd. 10), provides that the words "real property"
as used in the Code of Civil Procedure, shall include possessory
rights and claims. Revised Statutes, section 2859, provides that
adverse possession of real estate for seven years shall be a bar
to a recovery thereof. Held, that a party who has failed to
institute an action to recover possession of a mining claim
within seven years after possession by another is barred from
maintaining such action. Lavagnino v. Uhlig, 1.

MOTION FOR NEW TRIAL.

See HOMICIDE, 9; NEW TRIAL, 4; PRAC-

TICE, DISTRICT COURT, 12, 13.

MUNICIPAL CORPORATIONS:

1. Appointment by Mayor-Consent of Council. Where the office
of chief of police was previously created, and the salary fixed
by city ordinance, the confirmation by the city council of an
appointment to the office by the mayor created a contingent
liability against the city, and the consent of a majority of the
council was necessary. State v. Sheets, 105.

2. Indebtedness. Constitution, article 14, section 3, providing
that no indebtedness in excess of the taxes for the current
year shall be created by any city except by vote of the qualified
electors, and section 4, providing that no city shall become in-
debted to an amount exceeding four per cent of the taxable
value of the property therein, provided that any city when
authorized as provided in section 3, may be allowed to incur a
larger indebtedness, not exceeding four per cent additional, for
supplying such city with water, artificial light, or sewers, vest
the Legislature with power to authorize cities to create an
additional indebtedness for light, water, and sewer purposes,
not exceeding four per cent of the value of the taxable property
therein. State v. Quayle, 26.

MUNICIPAL CORPORATIONS-Continued.

3. Power of City Council.

4.

A city council can not authorize a
permanent switch track, for a private business only, along a
street and across a sidewalk, from a steam railroad in the
street, to the detriment of people residing on the street, and to
the damage of their abutting property; the streets being dedi-
cated to public use. Cereghino v. Railroad Co., 467.

Under Revised Statutes 1898, section 206, as amended
by Session Laws 1901, page 133, chapter 124, and section 207,
Revised Statutes 1898, providing that the power of a city coun-
cil to grant franchises to railroad companies to maintain a track
in a street can only be exercised by ordinance duly passed, or
resolution or by-law enacted in the same way, a resolution con-
ferring the right, to be valid, must be passed in accordance with
the formalities provided by law. Id. 467.

5. Relief of Poor-Recovery from County. Where the board of
county commissioners upon proper application being made to it,
refuses to provide necessary relief for an indigent sick or de-
pendent poor person found within the county, in accordance
with the duty imposed on it by statute, and such relief is fur-
nished by a city, the city may recover from the county the ex-
penses necessarily incurred by it in furnishing the relief. Ogden
v. Weber, 129.

6.

A complaint alleging that a non-resident, seventy-four
years of age, sick, destitute, in need of food, clothing, and
medical attendance, and having no means of furnishing himself
with the necessaries of life, applied to plaintiff city for relief,
and was cared for by it, on the refusal of the county com-
missioners to take charge of him, showed a sufficient emergency
to authorize plaintiff to act, and entitle it to recover from the
county for money necessarily expended in the relief of the
applicant. Id. 129.

NEGLIGENCE:

1. Burden of Proof.

The burden of showing contributory negli

gence is on defendant. Holland v. Railroad Co., 209.

2. Evidence Insufficiency. In an action for the death of a coal
miner from suffocation caused by a fire in the mine, evidence
examined and held not to show contributory negligence on the
part of the deceased. Trust Co. v. Coke Co., 299.

3.

Sufficiency. In an action for the death of a coal miner
from suffocation caused by a fire in the mine, evidence of de-
fendant's negligence in permitting combustible materials to
remain in the mine, which were subject to be ignited from the

NEGLIGENCE-Continued.

miners' open lamps, held sufficient to justify a verdict in favor
of plaintiff. Id. 299.

4. Instructions. In an action for injuries to a servant, an in-
struction that it was not necessary that negligence should be
established by direct evidence, but that it might be proved by
circumstances, if they were such as to establish by fair and just
inference to unbiased minds the existence of negligence, was
not error. Black v. Telephone Co., 451.

5. Railroads. Where persons engaged in loading a freight car on
a side track had no notice of an intention on the part of oper-
atives of a freight train to back the train on the side track and
against the car, and from a position near the car the switch
leading on to the side track was not visible, the mere ringing
of the bell on the locomotive did not constitute notice of the
railroad's intention to back the engine on the side track.
Copley v. Railroad Co., 361.

6.

7.

Where a railroad places cars on a side track to be
loaded by shippers, failure of the company to notify persons
engaged in loading the cars of its intention to run an engine
or other cars on the side track, and against those being loaded,
constitutes negligence justifying a recovery for injuries sus-
tained by persons so engaged in loading the cars. Id. 361.

Where deceased was engaged in loading a freight car
on a side track, he not being notified of the intention of oper-
atives of the train on the main track to back the engine against
other cars on the side track and the car being loaded, the fact
that deceased attempted to cross the switch track by going be
tween the car being loaded and certain other cars, instead of
going around two other cars beyond the car in question, in
which event he would not have been injured, did not constitute
contributory negligence as a matter of law. Id. 361.

8. Telegraph Company. A telegraph company, having received
messages for transmission, is legally bound to use ordinary
diligence and promptness in sending them as directed, and
when it fails to do so, the burden is upon it to excuse or justify
its omission. Brooks v. Telegraph Co., 147.

9. When Question of Law. Contributory negligence is a question
of law only when the testimony is not conflicting and is such
as permits no reasonable difference of opinion as to its effect.
Holland v. Railroad Co., 209.

NEW TRIAL:

1. Chance Verdict. On a motion for a new trial on the ground
that the verdict was determined by a resort to chance, the
burden is on the movant to show such fact. Archibald v. Kolitz,
226.

2.

On a motion for a new trial on the ground that the
verdict, which was for plaintiff, was returned by chance, affi-
davits of two jurors were to the effect that they were not in
favor of a verdict for plaintiff; that each of seven of the jurors
by secret ballot voted the amount he was willing to allow plain-
tiff, and the verdict was reached by dividing the sum of such
amounts by seven. Counter affidavits by each of the other six
jurors denied the above affidavits, and stated that the question
of recovery was determined in favor of plaintiff, and then ex
pressions of opinion were taken as to the amount of recovery,
which ranged from $200 to $500, and after discussion a com
promise at $375 was agreed on, not by chance, but by the jurors
lowering or raising their estimates to that sum. Held, insuffi-
cient to show that the verdict was determined by chance. Id.
226.

3. Misconduct of Juror. Under Revised Statutes 1898, section
3292, subdivision 2, providing that, when any one or more of
the jurors has been induced to assent to a verdict by resorting
to the determination of chance, such misconduct may be proved
by the affidavit of any one of the jurors, misconduct other than
that specified can not be established on a motion for new trial
by the juror's affidavit. Black v. Telephone Co., 451.

4. Newly Discovered Evidence. Where newly-discovered evidence
alleged as a ground for a new trial authorized by Revised Stat-
utes 1898, section 4952, subdivision 7, was cumulative and im-
peaching in character, and was not such as would probably
change the result, the motion was properly denied. State v.
Haworth, 310.

5. Oral Evidence. In a prosecution for homicide it was not error
for the court to refuse to permit defendant to introduce oral
evidence in support of his motion for a new trial. State v.
Mortensen, 312.

6. Prejudice of Community. Under Revised Statutes 1898, sec-
tion 3292, prescribing the grounds for a new trial, a new trial
can not be granted on the ground of prejudice of the people of
the county where the action was tried to such extent that an
impartial jury could not be obtained. Anderson v. Mining Co.,
357.

NEW TRIAL.-Continued.

7. Prejudice of Juror. When a juror on his voir dire fails to dis-
close a material fact as to his relations to either of the parties
in answer to questions adequate to elicit the same, the party
asking the questions, if he and his attorney are ignorant of the
facts, is deprived of the benefit he should have from the exam-
ination, and is entitled to a new trial, under Revised Statutes
1898, section 3292, subdivision 3, making accident or surprise
which ordinary prudence could not have guarded against
ground for a new trial. Tarpey v. Madsen, 294.

8. Relation of Debtor and Creditor. Where a juror on his voir
dire states to defendant's counsel that there is no relation of
debtor and creditor between himself and plaintiff, and that he
knows of no reason why he can not render a just verdict, when
in truth the juror has a suit pending between himself and
others and the plaintiff to compel the plaintiff to convey certain
land, etc., the defendant, on discovering such facts after trial,
is entitled to a new trial, under section 3292. Id. 294.

9. Review of Evidence. See PRACTICE, SUPREME COURT, 13.

NONSUIT. See PRACTICE, DISTRICT COURT, 15-17.

NUISANCE. See INJUNCTION; EVIDENCE, 21.

OFFICERS AND OFFICES:

1. Consolidation. At a county election but one candidate was
nominated by each party for two offices, and his name only
appeared on the ballots for such offices. These ballots were
voted and canvassed without objection by any one. Held, that
a presumption of the formal consolidation of those offices arose,
with the further presumption that such consolidation was regu-
lar, and this was not overthrown by evidence that an attempted
consolidation was ineffectual because of failure to make proper
publication, there being nothing to show that at some other
time a proper consolidation was not effected. State v. Wool-
fenden, 167.

2.

Revised Statutes 1898, section 542, provides that in
counties where the commissioners, by proper ordinance, shall
so elect, the duties of officers mentioned in the preceding sec-
tion may be consolidated, and, where consolidated, the board,
by proper ordinance, may separate the duties, and reconsolidate
them in any manner, or may separate them without reconsoli-
dation, provided that no such ordinance shall be passed to take
effect within less than three months, and shall take effect on the
first Monday of January succeeding a general election. Section
543 provides that when offices are consolidated, but one person