son Street, said thirty feet being the west half of street, except on that portion of the street where the fill exceeds two feet in depth in which case macadam is to be used; said pavement except where macadam is mentioned to be hard surface not to exceed one dollar and twenty-five cents per square yard, exclusive of grading, curbs, sidewalks, catch-basins, etc.

"It is also desired that the trestle at the south city boundary be filled and that the trestle near Adam Street be replaced with a concrete structure.”

The following provisions appear in the charter of the town:

"Section 47. The council, whenever one or more owners of property abutting upon a street or part thereof sought to be improved, petition for any kind of specific improvement for said street or part thereof, is hereby authorized and empowered to order the whole or any part of the street of the city so petitioned for to be improved in accordance with said petition; to levy and collect an assessment upon all lots and parcels of land abutting upon such improvement, to defray the whole or any portion of the costs and expense thereof."

Section 48 requires in substance that whenever the council shall deem it expedient or necessary to improve a street or any part thereof by reason of any petition, as stated in Section 47, it shall first obtain from the city engineer plans, specifications and estimates of the work to be done which if satisfactory to the council it shall approve, and thereupon declare by resolution its purpose of making the improvement, describing it. Provision is made in the charter for posting notice of the intention to improve and for remonstrances against the same. It is said in Section

56:

"The cost of grading and preparing the street or part thereof proposed to be improved, for paving or

macadam, preparing for sidewalks, gutters, etc., shall be assessed pro rata the whole length of the street or part thereof to be improved in accordance with the proportion as hereinafter fixed; and the cost of furnishing the material, and completing the improvement, including street intersections, shall be assessed to the property in front of which the improvement is made to the center of the street."

In Section 50 it is prescribed that:

"Abutting property' shall be construed to mean between the street and center of the block; in blocks having an alley parallel with the street 'abutting' shall mean to the line of the alley nearest the street, and in tracts not laid out in blocks 'abutting' shall mean within a line 100 feet back from the street."

It is required in Section 48 that:

"The improvement of each street, or part thereof, shall be made under separate proceeding.'

1, 2. It appears in the record that in the plan of improvement of Front Street, that thoroughfare was divided longitudinally in front of the plaintiff's property and the betterment was confined to the west half of the street, whereas his property abuts upon the east side. Thus it is that within the meaning of Section 47, supra, plaintiff's property does not abut upon the part of the street sought to be improved and hence is not liable to an assessment for such an improvement. It appears that the council, however, in its subsequent proceedings attempted to make the plaintiff's realty respond to an assessment for the improvement of the opposite side of the street and carried its operation so far as to enter the charge on the docket of city liens. As his property is not liable to such an impost in the proceeding described, the record thus made constitutes

a cloud upon his title which he is entitled to have removed.

The decree of the Circuit Court is affirmed.

AFFIRMED.

MR. CHIEF JUSTICE MCBRIDE, MR. JUSTICE BENSON and MR. JUSTICE HARRIS concur.

Submitted on brief February 1, reversed and remanded February 20, rehearing denied March 20, 1917.

WILLIAMS v. GOOSE LAKE VALLEY IRR. CO. (163 Pac. 81.)

1. The inclosed land of any person is his kingdom, cannot be invaded by a stranger to the title except in case of necessity, such as to escape bodily injury or to obtain therefrom personal property found thereon without the owner's privity or fault, or, in some cases, to avoid an obstacle rendering the highway impassable or in the exercise of a right of entry to make preliminary surveys.

Eminent Domain-Taking Without Authority-Liability for Trespass in Addition to Compensation.

2. Article I, Section 18, of the Constitution, declares that private property shall not be taken for public use without compensation first assessed and tendered, and that no person's property shall be taken by any corporation under authority of law without compensation being first secured as provided. An irrigation company without authority invaded the land of plaintiff and constructed its ditch thereon. In an action for damages for the trespass, the company set up its right to condemn and sought to defend by condemnation in the trespass suit. Held, that while it is the general policy of the law to settle, if possible, in a single suit, all conflicting claims of adverse parties, such defense was not allowable.

Landlord and Tenant-Injury to Reversion-Remedy of Landlord.

3. Where defendant, trespassing on plaintiff's land, committed a depredation injuring the reversion, plaintiff's action for damages, the facts being pleaded, cannot be defeated on the ground that plaintiff was not the real party in intercst because the land was rented, it appearing that the tenant's possessory right was but little injured, for Section 1, L. O. L., having abolished the distinction between actions at law, and while plaintiff could not have maintained trespass quare clausum fregit, not being entitled to possession, he could, at common law, have recovered for injury to the reversion.

[As to liability of third person to landlord for injury to leased premises, see note in Ann. Cas. 1912D, 120.]

Landlord and Tenant-Injuries to Reversion-Action for Damages.

4. While the tenant of demised lands is the only one entitled to recover for an interference with the possession, the landlord may, where a trespasser constructed an irrigation ditch across his land changing its physical aspect and injuring the reversion, recover damages therefor.

Landlord and Tenant-Injuries to Reversion-Exemplary Damages.

5. Where defendant, without authority, entered upon plaintiff's land and constructed an irrigation ditch, but there was no indignity to plaintiff's tenant, plaintiff himself being without jurisdiction, exemplary damages cannot be allowed; such damages being allowable in an action for trespass upon real property only when the act complained of is aggravated by some indignity to the person in posses

sion.

Eminent Domain-Unauthorized Taking-Defenses.

6. It is no defense to an action for damages for trespass upon land by an irrigation company having the right of eminent domain that the company desired to complete the ditch so as to be able to furnish water for the ensuing year.

From Lake: BERNARD DALY, Judge.

This is an action by F. L. Williams against the Goose Lake Valley Irrigation Company, a corporation, to recover actual and exemplary damages alleged to have been sustained by the construction of a ditch across the plaintiff's land without securing his consent or condemning a right of way for the conduit. From a judgment for plaintiff in the sum of $500, the defendant appeals.

Submitted on brief without argument under the proviso of Supreme Court Rule 18: 56 Or. 622 (117 Pac. xi). REVERSED AND REMANDED.

For appellant there was a brief over the names of Mr. W. Lair Thompson and Mr. Arthur D. Hay.

For respondent there was a brief over the names of Mr. Thomas S. Farrell and Messrs. Batchelder & Combs.

Opinion PER CURIAM.

1, 2. It is contended that an error was committed in striking from the answer averments showing the defendant's right to appropriate the land occupied by the ditch, and in not permitting the jury to determine the compensation to be paid for the easement required. The part of the answer thus eliminated stated all the facts necessary to be alleged in a complaint in an action for condemnation. The question to be considered is whether such a defense is proper in an action of this kind. If the entry upon the plaintiff's premises had been made pursuant to his license, or if an honest mistake had been made by the defendant as to the reputed owner of the land with whom it settled and to whom it paid a reasonable compensation so as to justify the trespass, the compensation to be paid for the real property taken and the damages sustained by the entry might have been determined in the same suit or action: Oregon R. & N. Co. v. Mosier, 14 Or. 519 (13 Pac. 300, 58 Am. Rep. 321); Larsen v. Oregon R. & N. Co., 19 Or. 240 (23 Pac. 974); Oregon R. & N. Co. v. McDonald, 58 Or. 228 (112 Pac. 413, 32 L. R. A. (N. S.) 117, note). The inclosed land of any person is his kingdom, which realm, without his consent, cannot legally be invaded by a stranger to the title, except in case of necessity, such as to escape bodily injury or to obtain from the premises personal property found thereon without its owner's privity or fault; or, in some states, to avoid an obstacle which renders the highway impassable; or when the right of entry is given by statute to make preliminary surveys, and in such instances the entry must be made with the least possible injury and conducted for only a reasonable time: Lewis, Em. Domain (3 ed.), § 228. The organic law declares that: