Another instruction was asked relative to the amount defendant was entitled to recover on account of the repairs and improvements made, basing it upon the present market value of the materials used after their removal. The answer alleged, in effect, that plaintiff agreed to pay defendant the value of the repairs if he was not permitted to remove them. This means their value as contained in the wharf, and not as secondhand material. So it is apparent that the instruction was unsound, as applied to the facts under the pleadings.

This disposes of all the errors assigned, and, being favorable to respondent, the judgment of the trial court will be affirmed.

(41 Or. 145)

THIESSEN v. WORTHINGTON et al. (Supreme Court of Oregon. April 7, 1902.) UNASCERTAINED BOUNDARIES-SETTLEMENI BY AGREEMENT-RECOGNITION. Where the boundary line between adjoining proprietors is unascertained, and they agree on a true division line, and take possession accordingly, and acquiesce therein for about 14 years, the line so agreed on is binding on the parties and their privies, and an owner of the adjoining property is entitled to a reformation of his deed so as to make the line the boundary of his land.

Appeal from circuit court, Clackamas county; Thomas A. McBride, Judge.

Suit by Henry Thiessen against T. R. Worthington and others. From a decree for plaintiff, defendants appeal. Affirmed.

This is a suit to reform a deed. The facts, in brief, are that in July, 1874, Wm. Atkinson and Thomas and Pilgrim Neil purchased 400 acres of land in Clackamas county under an agreement that Atkinson should take the title to the entire tract, and convey to the Neils the east half thereof. The land was accordingly deeded to Atkinson on the 8th, and on the next day, without any survey having been made, or any steps taken to ascertain the division line, Atkinson conveyed to the Neils what was supposed and intended to be the east half thereof. In the spring of 1876, at the instance of Atkinson and the Neils, the county surveyor established the division line, and it was understood and agreed that the line so located should constitute the true line dividing their respective premises. Very soon thereafter Thomas Neil sold and conveyed his interest in the east half to his brother, describing it in accordance with the description furnished by the surveyor. On October 3, 1879, Pilgrim Neil sold and conveyed the entire east half to the plaintiff by the description in his deed from Thomas. The division line as run by the county surveyor and agreed upon by the parties was about 2 rods west of the line called for in the deed from Atkinson to the Neils made in July, 1874, but after it had been established the respective parties occupied and lived up to it and recog

nized it as the true boundary line. In November, 1878, Atkinson sold his part of the land to Thomas Neil, but by mistake used the description furnished by the scrivener who drew the deed from him to the Neils in July, 1874, instead of that furnished by the surveyor. On April 6, 1880, Thomas Neil sold to one James Wetzler, using in his conveyance the same description as in the deed to him from Atkinson, and Wetzler afterwards sold to the defendant according to the same description. The division line agreed upon was, however, recognized by all the owners of the property from Atkinson and the Neils down to the plaintiff and defendant, until some time in 1890, when a survey was made by another surveyor, and it was found that the boundary of the tract described in the deed from Atkinson to the Neils and in the deeds under which the defendant holds did not conform to the agreed division line, but was some 2 rods east thereof. The defendants thereupon brought an action against the plaintiff to recover possession of the tract between the two lines, and upon a trial the plaintiff was defeated, and thereupon brought this suit to correct the deeds so that they might conform to the agreed line. Plaintiff had a decree in his favor, and the defendants appeal.

D. C. Latourette and L. L. Porter, for appellants. A. S. Dresser and E. Mendenhall, for respondent.

BEAN, C. J. (after stating the facts). The facts are practically undisputed. Atkinson and Thomas Neil, two of the original parties to the transaction, testify that it was the understanding and agreement that the line run by the county surveyor in 1876 should be the true division line between their premises, and the evidence shows beyond controversy that the respective owners thereafter occupied up to such line without question until the resurvey in 1890. It is familiar law that, while the title to land cannot be transferred by parol, an agreement made by proprietors of adjacent tracts settling a disputed boundary, or one that is uncertain or unascertained, is not within the statute of frauds, and, if followed by corresponding possession, is binding on the parties, not because it passes title, but because it determines the location of the estate of each, and places beyond future doubt the true line of separation between them. 4 Am. & Eng. Enc. Law (2d Ed.) 859; Tyl Bound. 254; Newell, Eject. p. 556, § 22; Yates v. Shaw, 24 Ill. 367; Cutler v. Callison, 72 Ill. 113; City of Bloomington v. Bloomington Cemetery Ass'n, 126 Ill. 221, 18 N. E 298; Harn v. Smith, 79 Tex. 310, 15 S. W. 240, 23 Am. St. Rep. 340. "This principle proceeds upon the ground," says Mr. Justice Craig in Cutler v. Callison, supra, "not that title can pass by parol agreement, but that the extent of the ownership of the land of each has been agreed upon, settled, and

finally determined [citing authorities]. The courts always look with favor upon the adjustment of controverted matters of this character by agreement of the parties in interest; and when an agreement to establish a boundary line is fairly and clearly made, and possession of the land held according to the line so agreed upon, no reason is perceived why such agreement should not be conclusive." When a disputed, uncertain, or unascertained boundary is thus settled by agreement of the parties, and is followed by occupation in accordance therewith, it is not only binding upon the immediate parties to the contract, but on those claiming under them. Pickett v. Nelson, 71 Wis. 542, 37 N. W. 836; Jacobs v. Moseley, 91 Mo. 457, 4 S. W. 135; Atchison v. Pease, 96 Mo. 566, 10 S. W. 159. Within the doctrine of these cases the division line agreed upon by Atkinson and the Neils must be regarded as the true boundary line between the two tracts of land. It was a boundary uncertain and unascertained, and it was competent for the parties to locate it by parol; and such location, having been acquiesced in and recognized, is conclusive and binding upon the parties and their successors in interest.

A contention is made on behalf of the defendant that the purpose of the survey by the county surveyor in 1876 was not so much to locate the boundary as to ascertain the line dividing the tract into two equal parts, and there are some statements in the testimony of Atkinson and the Neils which, taken by themselves, lend color to such contention; but when testifying directly as to the purpose of the survey and the agreement of the parties they state positively that it was understood and intended at the time that the line so run and marked on the ground should be the true division line, and should mark the boundaries of the two tracts of land. Having been so established and acquiesced in for at least 14 years, it ought not now to be disturbed; for, as said by the supreme court of Illinois in a somewhat similar case: "Many of the most skilled and experienced surveyors differ more or less in determining where they [lines] were located. Lines and corners that are supposed to be fixed and established by one surveyor are overturned or left in doubt by another at a subsequent period. In all matters of uncertainty and dispute the parties may, without doubt, compromise, and end the dispute. And they may as certainly fix, by agreement, the boundary lines separating their lands as other disputes. And when they have thus agreed upon the position of such boundary, and have acted upon it as the true line, they should be estopped from asserting another and different line." Yates v. Shaw, supra.

From these views it follows that the decree of the court below should be affirmed, and it is so ordered.

On petition for rehearing. Denied.
For former opinion, see 67 Pac. 1013.

.BEAN, C. J. Where, as in Laning v. Railroad Co., 49 N. Y. 521, 10 Am. Rep. 417, relied upon by the defendant, there is evidence tending to show that the servant had a reasonable excuse for remaining in the employment of the master, notwithstanding his knowledge of the incompetency of a fellow servant, it is a question for the jury as to whether he was guilty of contributory negligence in so doing. In this case, however, there is no such evidence. No testimony whatever was given by the defendant, and that of the plaintiff shows that he had been acquainted with Nelson for several years prior to the accident, had worked with him not only in the quarry of the defendant company, but in quarries belonging to other parties, was familiar with the manner in which he did his work, and must necessarily have known of his incompetency, if he was in fact incompetent, notwithstanding which he continued to work with him without complaint. Under such circumstances, the question of defendant's liability to the plaintiff for an injury sustained in consequence of Nelson's incompetency is a question of law, and not of fact. There was no case for the jury, and the plaintiff was not entitled to have it submitted to them. 12 Am. & Eng. Enc. Law (2d Ed.) 920.

The petition for rehearing is therefore denied.

(41 Or. 149)

HOWARD v. CLATSOP COUNTY. (Supreme Court of Oregon. April 7, 1902.) DIVORCE-FEE OF DISTRICT ATTORNEY-REPEAL OF STATUTE.

Hill's Ann. Laws, § 1074, requiring plaintiff in divorce suit to deposit $10 with the clerk of court, to be paid the district attorney as his fee, is repealed, except as to the Fourth judicial district, where the fee is continued in force for the benefit of the county by Sess. Laws 1898, p. 7, § 8, and by Sess. Laws 1899, p. 184. which by section 3 provides that no compensation shall be paid the district attorney except his salary, and by section 5 repeals all acts in conflict therewith.

Appeal from circuit court, Clatsop county; T. A. McBride, Judge.

Action by Sam Howard against Clatsop county. Judgment for defendant. Plaintiff appeals. Reversed.

Claud Strahan and Waldemar Seton, for appellant. Harrison Allen, for respondent.

WOLVERTON, J. The plaintiff was required, as a condition to the commencement of a suit for divorce, to pay to the clerk of Clatsop county a fee of $10. This sum he now seeks to recover as an unlawful exaction, and the single question presented is whether the district attorney or the county is now entitled to such fee. Under section 1074, Hill's Ann. Laws, the plaintiff in every divorce suit is required to deposit $10 with the clerk of the court in which the suit is instituted, which must be paid to the district attorney as his fee in such suit, when allowed by the court. This fee, as determined in State v. Moore, 37 Or. 536, 62 Pac. 26, is to be collected by the clerk from private parties for services rendered by the district attorney, and as a part of his compensation. In 1898 an act was passed to regulate and fix the compensation of the district attorney in the Fourth judicial district, wherein he was allowed $3,500 per annum, in addition to the yearly salary of $500, in full compensation for services rendered by him. Sess. Laws 1898, p. 7. It was also provided (section 2) that he should receive no other salary, fees, percentages, or compensation of any kind, and by section 8 that the fees, percentages, commissions, and charges now established by law, or in any manner allowed, for the performance of any act or duty by or required of the district attorney (except for services rendered for or on behalf of the state or Multnomah county, for which no charge shall be made), shall continue and remain the established fees, percentages, etc., for such an act or duty, which are required to be collected and paid over to the county treasurer. Under this act it was held (State v. Moore, supra) that a party instituting a suit in Multnomah county for divorce was still required to pay the fee of $10, as a condition to filing the complaint, but for the use of the county. The act is local in its operation, and applies to Multnomah county only, as it composes the Fourth judicial district. In 1899 the legislature passed a general act (Sess. Laws 1899, p. 184) amendatory of sections 2301 and 2304, Hill's Ann. Laws, extending the term of office of the district attorneys, in the several judicial districts, from two to four years, and fixing their salaries. By section 3 it is provided that no salary, fees, percentages, or compensation of any kind shall be allowed or received by them, except as therein provided, and section 5 repeals all acts, or parts of acts, in conflict therewith. The act contains no clause or provision corresponding to section 8 in the act of 1898, supra, continuing in force the established fees, percentages, commisslons, and charges for the acts or duties of

the district attorney, and this is wherein the two acts differ, and distinguishes this case from State v. Moore. The $10 fee required to be collected from a private party, under section 1074, being one to which the district attorney was entitled, as a prerequisite for a duty performed by him, the act of 1899 putting him upon a salary, and expressly denying to him any further salary, fees, etc., must be held to supersede, and thereby to repeal, section 1074 as to such fee in judicial districts other than the Fourth, as the two provisions are utterly inconsistent, one with the other, and both cannot stand. Plaintiff is entitled, therefore, upon the face of his complaint, to recover from the county, and the demurrer should have been overruled.

The judgment of the trial court will therefore be reversed, and the cause remanded with directions to overrule the demurrer; and it is so ordered.

(41 Or. 82)

TUCKER v. NORTHERN PAC. TERMINAL CO.1

(Supreme Court of Oregon. April 7, 1902.) RAILROAD EMPLOYE-DEATH IN COUPLING CARS-ASSUMPTION OF RISK-PLEADING-NECESSITY.

1. In an action for the death of an employé, the answer need not allege that he assumed the risk that caused his injury, if the hazard was ordinary.

2. A railroad employé was used to coupling flat cars loaded with iron rails, which usually shift in transit. In an action for his death, it appears that, while thus employed, a flat car was "kicked" toward a loaded car, and, while endeavoring to couple them, he was caught between the projecting rails and the moving car. No one saw the accident, but it occurred before sunset, and his view of the cars was unobstructed, though what his position was before the cars came together was not shown. It was apparent that he must have stooped to avoid the danger at the time of the accident. Held, that it was an ordinary risk of his employment, which he had assumed.

Appeal from circuit court, Multnomah county; Alfred F. Sears, Jr., Judge.

Action by Jane Tucker, administratrix of James A. Tucker, deceased, against the Northern Pacific Terminal Company. tiff was nonsuited, and she appeals. ed.

PlainAffirm

This is an action by Jane Tucker, as administratrix of the estate of James A. Tucker, deceased, against the Northern Pacific Terminal Company, a corporation, to recover damages for a personal injury sustained by her intestate, causing his death. The plaintiff alleges, in substance, that the defendant is in possession of a railroad terminal yard in Portland, Or., and engaged, among other things, in repairing freight cars, readjusting their loads, and in making up trains; that on July 10, 1899, it received from the Southern Pacific Company a freight car in a damaged condition, loaded with iron rails, which had shifted, so that their ends extended over the end of the car from one to three feet; 1 Rehearing denied June 9, 1902.

that the company repaired the car but did not rearrange its load, and four days later, knowing the condition of the car and its load, and that any attempt to couple it to another car would expose a switchman to unnecessary danger, carelessly ordered James A. Tucker, a car coupler and switchman in its employ, to make such coupling; that, not knowing, and unable to ascertain, the distance which the rails extended, unconscious of the danger to which he was exposed, and in pursuance of the command, he undertook to make the coupling, and while thus engaged, and in the exercise of due care, his head was caught between the projecting rail and an iron guard upon the rear end of the approaching car, and so crushed that he died in a few minutes; that the injury was caused by the negligence of the defendant, without any fault or want of due care, skill, prudence, or caution on the part of the deceased. The answer after denying the material allegations of the complaint alleges, in effect, among other things, that it was the business of the defendant to receive cars from railroads terminating in its yard to be made up into trains; that cars loaded with iron rails are frequently received by it, and inspected by persons appointed for that purpose by the railroad companies whose lines of railway connect with its yard, over whose acts the defendant has no control, whose duty it is to inspect the loads upon cars so received by the defendant, and, if found to be in an unsafe or dangerous condition, the inspector should refuse to accept such car, until the load thereon was properly adjusted by the railroad company delivering it; that, while James A. Tucker was employed as a switchman and car coupler, cars loaded with iron rails were frequently received, and in most cases the ends of the rails extended more or less past the end of the car, and such projection is not an unsafe method of loading, if the extended rails do not come in contact with the next car in the train, which fact Tucker well knew, and he was in the habit of coupling cars with loads in substantially the same condition as the car in question; that such cars can be safely coupled by stooping below the projecting rails, which fact he well knew, and that neither he nor any other car coupler was required to make such coupling, if in his judgment he could not do so with safety. That some of the rails on this car extended over the end, but none more than 24 inches, and in such condition the car was not dangerous, and was accepted by the inspector for the Northern Pacific Railway Company, over whose lines it was to be transported; that when a car approaching the car so loaded had reached a point near enough to be coupled to it, Tucker stooped to make the coupling, but carelessly and negligently failed to stoop low enough to permit the rails to pass over his head, and when the cars came together he sustained the injury caus

ing his death, which is the same injury and death mentioned in the complaint; that the injury was caused solely by the negligence and want of attention on the part of Tucker, and without any fault or negligence of the defendant. The averments of new matter in the answer having been put in issue by the reply, the plaintiff introduced her testimony and rested, whereupon the court granted a judgment of nonsuit, and she appeals.

E. B. Watson, for appellant. Rufus Malory, for respondent.

MOORE, J. (after stating the facts). The question to be considered is whether the testimony introduced at the trial, aided by presumptions based thereon and deducible inferences, was sufficient to require the submission of the cause to the jury. An examination of the bill of exceptions shows that Tucker, at the time of his death, was 23 years old, and for more than a year prior thereto had been employed by the defendant in its yard as a switchinan and car coupler; that the defendant owns in Portland, Or., a terminal yard, consisting of a series of railway and side tracks, with which are connected lines of railway, operated respectively by the Northern Pacific Railway Company, the Oregon Railway & Navigation Company, and the Southern Pacific Company, and is engaged in receiving into its yard from said railway companies cars which are uncoupled, and when they are returned or hauled over either of the other lines of railway are made up into trains by the defendant's servants; that on July 10, 1899, the defendant received from the Southern Pacific Company a flat car, 30 feet in length, loaded with iron rails of the same length, which car was to be shipped over the line of the Northern Pacific Railway Company. This car, being out of order when so received, was repaired by the defendant, and set out on one of its side tracks, to be made up into a train for its destination. A flat car, with an automatic coupler, was "kicked” down, to be coupled to the loaded car, which had a common drawhead. No witness was called who saw Tucker when he attempted to make the coupling, so that the manner of his injury is to be inferred from the circumstances. The side track at the scene of the accident runs north and south, at the west side of which his body was found, with the head crushed. In the patent drawhead a coupling link was found fastened, the other end of which was entered in the common drawhead, the pin in the latter having fallen over, and one of the iron rails, extending over the end of the car 29 inches, came within about 3 or 4 inches of an iron cleat surrounding a stake pocket on the end of the car "kicked" down, and blood was discovered upon the end of the projecting rail, and upon this clamp, thus tending to show that the near approach of these blood-marked