the trial a written notice stating that it was his intention to appeal from said judgment. Unless such notice be filed the action of the trial court in granting the divorce cannot be reviewed by proceeding in error. La Due v. La Due, 23 Okl. 323, 100 Pac. 513; Orcutt v. Orcutt, 25 Okl. 855, 108 Pac. 373. This requirement is mandatory, and must be complied with, in order for this court to acquire jurisdiction in a proceeding in error to review the same.

In

not handle it for less than $2 per acre. reply, the clerk told him that the company would have to have $35, and he was then asked by plaintiff if it would be possible for plaintiff to get his commission and get a purchaser for $37.50, would the company accept; and he was informed by the clerk that it would be all right, if plaintiff wanted to get his commission out of the purchaser. Plaintiff thereupon contracted the land to the prospective purchaser at $37.50 per acre;

DENCE.

(Syllabus by the Court.) TRIAL (§ 139*)-DIRECTION OF VERDICT-EVIWhen the evidence. given at the trial in favor of plaintiff, with all the inferences that the jury can reasonably and legally draw from it, is insufficient to support a verdict for the plaintiff, a demurrer to the evidence should be

sustained and a verdict directed for defendant.

[Ed. Note.-For other cases, see Trial, Cent. Dig. §§ 183-188; Dec. Dig. § 139.*]

Error from Superior Court, Muskogee County; Farrar L. McCain, Judge.

Action by H. E. Bell against the LyndeBowman Darby Company. Judgment for defendant, and plaintiff brings error. Affirmed. George A. Murphey and W. W. Noffsinger, both of Muskogee, for plaintiff in error. Roach & Bradley, of Muskogee, for defendant in error.

HAYES, C. J. This action was commenced in the court below by plaintiff in error, hereinafter referred to as "plaintiff," as a real estate broker to collect a commission for the sale of a tract of land for defendant in error, hereinafter referred to as "defendant." At the trial, the court sustained a demurrer to plaintiff's evidence; and this act of the court constitutes the sole ground urged for reversal of the cause.

to the proposed purchaser. Plaintiff does not contend that he has any right to recover under the original contract by which the land was listed with him, but under his contract as modified by the subsequent conversations with the defendant's clerk or agent over the telephone. The trial court sustained a demurrer to plaintiff's evidence upon the ground that it failed to establish that the clerk, by whom plaintiff's original contract with defendant was modified, had any authority to make such agreement for the company. After careful examination of the record, we are of the opinion the court committed no error in so holding. The clerk, with whom plaintiff claims to have modified the original contract, testifies relative to his authority as follows: "Q. Tell the jury what answer the telephone; made searches at the was the scope of your duties there? A. To abstract offices, looking over abstracts to see the condition of the titles to land, and when no one else was there, I was just in charge of the office; that was all. I did not have any authority to make any deals or anything of that kind. Q. Did your authority there, or not, include the selling of lands belonging to the company, or making of terms for the sale of land? A. No; it did not."

* * *

There is no evidence contradicting the foregoing testimony of the clerk; and such other evidence as is in the record bearing upon this question tends to confirm his testimony. He was not an officer of the company; nor was there any evidence introduced tending to show that he had generally exercised the authority, or had been held out by the company as its agent, empowered to exercise the authority which the evidence of plaintiff tends to establish he attempted to exercise in this case. It is plain that if he was without authority to modify the contract under which the land was originally listed for sale with plaintiff, since there is no compliance with the original contract, plaintiff was not entitled to recover, and the trial court committed no error; for, when the evidence given at the trial, with all the inferences that the jury can reasonably and logically draw from it, is insufficient to support a verdict for the plaintiff, if such verdict is returned, a demurrer to the evidence should be sustained, and a verdict directed for the defendant. Pringey v. Guss, 16 Okl.

Defendant is a corporation, and, in the month of August preceding the trial of this cause, it listed with plaintiff in error for sale certain tracts of land, among which was one quarter section listed at $40 per acre, with the agreement that, if plaintiff sold same at that price, he was to receive as his commission the sum of $5 per acre. The evidence establishes that plaintiff procured a prospective purchaser, who offered $35 per acre. Plaintiff attempted to submit this proposition to the defendant company over the telephone, but was unable to obtain the officers of the company. He submitted his proposition to a clerk in the office, who asked plaintiff if he would take $1 per acre as his commission for the sale at $35 per acre; whereupon plaintiff informed him that he could

R. A. (N. S.) 1089, Ann. Cas. 1912A, 1265. The judgment of the trial court is affirmed. All the Justices concur, except DUNN, J., not participating.

(37 Okl. 448)

ST. LOUIS & S. F. R. CO. v. RAMSEY.

W. F. Evans, of St. Louis, Mo., R. A. Kleinschmidt and Fred E. Suits, both of Oklahoma City, for plaintiff in error. Henry S. Johnston, of Perry, for defendant in error.

BREWER, C. This suit was brought to recover damages to certain crops grown during the years of 1907-08 and grew out of

(Syllabus by the Court.)

1. TRIAL (8 3211⁄2*)-VERDICT NUMBER OF JURORS ASSENTING.

In a cause of action for negligence occurring prior to statehood, but where suit is brought since statehood, it is not error to instruct the jury that three-fourths of their number concurring may sign and return a verdict. [Ed. Note.-For other cases, see Trial, Cent. Dig. 8 742; Dec. Dig. § 3212.*] 2. DAMAGES (§ 112*)-MEASURE CROPS.

GROWING

pany in diverting waters onto plaintiff's land. Four propositions are urged in appellant's brief for a reversal: (1) Insufficiency of the evidence. (2) Errors of law as to measures of damages. (3) Instructing the jury that nine of their members might return a verdict. (4) The statute of limitations.

[2, 3] This case is a companion case to that of St. Louis & S. F. Ry. Co. v. Dale, de

[Ed. Note. For other cases, see Damages, Cent. Dig. §§ 281-283; Dec. Dig. § 112.*] 3. WATERS AND WATER COURSES (§ 171*)-OBSTRUCTION OF SURFACE WATER-LIABILITY OF RAILROAD.

If a railroad company so constructs its roadbed and ditches as to divert surface water from its usual and ordinary course and by its embankment, ditches, or artificial channels causes such water to be conveyed to a particular place, and thereby to overflow the land of another proprietor which, before the construction of such road, ditches, or channels, did not overflow, the company will be liable to such proprietor for the injury. Following St. Louis & S. F. Ry. Co. v. Dale, 128 Pac. 137.

[Ed. Note.-For other cases, see Waters and Water Courses, Cent. Dig. §§ 216-222; Dec. Dig. § 171.*]

4. DAMAGES (§ 110*)-JUDGMENT (8 598*) LIMITATION OF ACTIONS ($ 55*)-MEASURE PERMANENT CAUSE OF IN

OF DAMAGES

JURY.

ported in 128 Pac. 137. The negligent construction complained of is the same in both cases. The farms adjoin. Recovery is had for the same floods in the same years, and, as regards the sufficiency of the evidence and the kind of evidence offered to show the damages, the two cases are in all substantial respects the same. So on the two first propositions urged the decision in the Dale Case is controlling, and the reasoning thereof will not be repeated further than to quote the first syllabus written by the court, which is: "If a railroad company so constructs its roadbed and ditches as to divert surface water from its usual and ordinary course, and by its embankment, ditches, or artificial channels causes such water to be conveyed to a particular place, and thereby to overflow the land of another proprietor which, before the construction of such road, ditches, or channels, did not overflow, the company will be liable to such proprietor for the injury."

[1] The third proposition arose over the

(a) When a cause of an injury is abatable, either by an expenditure of labor or money, it will not be held permanent.

(b) When not permanent, the statute of limitations does not begin to run until the injury is suffered.

[Ed. Note.-For other cases, see Damages, Cent. Dig. §§ 273-278; Dec. Dig. § 110;* Judgment, Cent. Dig. § 1113; Dec. Dig. § 598;* Limitation of Actions, Cent. Dig. §§ 299-306; Dec. Dig. § 55.*]

Commissioners' Opinion, Division No. 2. Error from District Court, Noble County; W. M. Bowles, Judge.

Action by John Ramsey against the St. Louis & San Francisco Railroad Company, a

of their members concurring might sign and return a verdict. A portion of the damages recovered in this case occurred before statehood, a portion since; but the suit was not instituted until after the erection of the state of Oklahoma. Therefore this point falls fairly within the rule announced in Independent Cotton Oil Co. v. Beacham, 31 Okl. 385, 120 Pac. 969, and later cases, and must be decided against the appellant.

[4] The fourth contention, briefly stated, is that inasmuch as the railroad was constructed more than two years prior to the bringing of the suit, and as the railroad and its embankment and ditches were permanent structures, therefore whatever damage was done was of a permanent nature and occurred at the completion of the road, and that a right of action was therefore barred within

Under the facts of this case, this position is unsound. The facts bring it fairly with

in the rule announced by this court in the case of City of Ardmore against Orr (decided January 21, 1913) 129 Pac. 867. The syllabus in that case is all that needs to be repeated. The case itself goes into the subject and its different phases with much care, and the rule announced is stated thus: "For negligent injuries to realty which result from a cause susceptible of remedy or abatement, the owner is entitled to recover therefor only such damages as had accrued on account of the impaired or lost use of his property up to the time of the commencement of his action. For injuries resulting from permanent cause, the owner may recover in a single action his entire damages, to wit, that amount which represents the permanent depreciation of the realty in value in consequence of the injury. When a cause of an injury is abatable, either by an expenditure of labor or money, it will not be held permanent." It follows that, when not permanent, the statute of limitation does not begin to run until the injury is suffered.

No other point raised needs discussion, and the cause should be affirmed.

PER CURIAM. Adopted in whole.

(37 Okl. 444)

ST. LOUIS & S. F. RY. CO. v. WOOTEN.

and that, if plaintiff was injured as alleged, he was guilty of contributory negligence. The issues thus presented were submitted by the court to a jury, which heard the testimony of numerous witnesses, and a general verdict was returned by nine jurors in favor of the defendant. Within proper time the plaintiff filed a motion for a new trial, setting up a number of grounds therefor, viz.: That the verdict was contrary to law; that it is contrary to the evidence; that the court erred in refusing to admit certain evidence; that the court erred in giving certain instructions at defendant's request and over plaintiff's objection, and because of various errors of law occurring at the trial, and which were duly excepted to.

At a hearing of a motion for a new trial, the court granted the same and entered the following order: "On this, the 13th day of November, 1909, came on to be heard the plaintiff's motion for a new trial in the above cause, and the court, after consideration of the same, finds that the same should be sustained and the plaintiff granted a new trial." This was followed by a general order setting aside the verdict of the jury and ordering a new trial of the cause. As the order shows, no reason is given by the court for this action,

Beginning with the early opinions of the Oklahoma Territorial Supreme Court, it has been held in an unbroken line of decisions that, in the matter of granting a new trial,

(Syllabus by the Court.)

APPEAL AND ERROR (§ 977*)-DISCRETIONARY RULING GRANTING OF NEW TRIAL.

The discretion of the trial court in granting

a new trial is so broad, that its action in so doing will not be disturbed on appeal unless the record shows clearly that the court has erred in its view of some pure and unmixed question of law, and that the order granting a new trial is based upon such erroneous view of the law.

[Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 3860-3865; Dec. Dig. § 977.*1

Commissioners' Opinion, Division No. 2. Error from District Court, Pontotoc County; A. T. West, Judge.

Action by W. W. Wooten against the St. Louis & San Francisco Railway Company. From an order setting aside a verdict for defendant and granting a new trial, defendant brings error. Affirmed.

W. F. Evans, of St. Louis, Mo., and R. A. Kleinschmidt, of Oklahoma City, for plaintiff in error. Stone & Maxey and John I. MeCoole, all of Ada, for defendant in error.

BREWER, C. This suit was brought to recover damages for a personal injury by W. W. Wooten, as plaintiff below, alleged to have been caused by the negligence of the defendant. The railway company filed its an

indeed, that it is so extensive that its action in doing so will not be set aside on appeal unless it clearly appears that in granting the new trial it has taken an erroneous

view of some pure, unmixed question of law, and that this erroneous view resulted in the order. Trower v. Roberts, 17 Okl. 641, 89 Pac. 1113. Since statehood this rule has been followed in a multitude of decisions; the latest, perhaps, being the case of Hughes v. C., R. I. & P. Ry. Co., 130 Pac. 591, written by Justice Williams, and handed down February 18, 1913, and not officially reported. The syllabus of that case is as follows: "Trial courts are invested with a very large and extended discretion in the granting of new trials, and new trials ought to be granted whenever in the opinion of the trial court the party asking for the new trial has not probably had a reasonably fair trial, and has not in all probability obtained or received substantial justice, although it might be difficult in many instances for the trial court or the parties to state the grounds for such new trial upon paper so plainly that the Supreme Court could understand them as well as the trial court and the parties themselves understood them. Following Trower v. Roberts, 17 Okl. 641, 89 Pac. 1113." To the same effect are the following decisions: State