that it had acquired years ago, and to prevent its confiscation and to eject trespassers therefrom.

county. As shown by the record, the plaintiff held the title to the property for more than a year after Curry was designated its Section 2792, Rev. Codes, contains provi- agent, and prior to the time that he removed sions in regard to foreign corporations, and from the state of Idaho to the state of Washamong other things provides that no con- ington. The defendant Henkel was the movtract or agreement made in the name of, or ing spirit to get the plaintiff corporation to for the use or benefit of, such corporation take hold of the property involved in this suit, prior to the making of such filings as first and it appears that they expended more than therein provided, can be sued upon or enforc- $20,000 in procuring title and placing imed in any court of this state by such corpora-provements thereon. Henkel at one time tion. In construing said section 2792, this quitclaimed all of his right, title, and interest court held in Katz v. Herrick, 12 Idaho, 1, 86 in and to the said mining claims to the plainPac. 873, that a foreign corporation which tiff corporation, and the trial court was fully fails to comply with the requirements of said justified in holding that the mortgages and section cannot maintain a suit in any of the liens held by Henkel ought to be canceled and courts of this state for a breach or violation released under the facts of this case. of a contract entered into during the time the corporation failed to comply therewith. As before stated, the plaintiff is not suing upon a contract, nor to recover for the breach or violation of a contract, but to protect its title to property that it acquired when it clearly had a right to acquire it, because of its compliance with the provisions of the Constitution and laws of this state. On this question, see, also, Reynolds v. Crawfordsville Bank, 112 U. S. 412, 5 Sup. Ct. 213, 28 L. Ed. 736, and the cases there cited.

[5] The evidence is amply sufficient to support the findings of the court.

We therefore conclude that the judgment of the trial court must be affirmed; and it is so ordered. Costs awarded to the respondents.

BUDGE, J., concurs. MORGAN, J., did not sit at the hearing of this case, and took no part in its decision.

MCLEOD v. MILLER & LUX et al.
(Nos. 1944, 1967.)

(Supreme Court of Nevada. Dec. 11, 1915.) 1. EVIDENCE 472- OPINIONS - ULTIMATE FACT-EXCLUSION.

[4] The provisions of our law respecting foreign corporations and their designation of agents are applicable only to actions brought for the enforcement of contracts, and have no applicability whatever to actions such as this brought by a foreign corporation to protect its own property that it had acquired at a Where, in an action for the overflow of time when it had a perfect right to acquire witnesses testified in detail to the facts as to plaintiff's ranch by defendants' dam, nonexpert title to such property. As before stated, the previous overflows, and the location of various designated agent did not remove from the dams and ditches was minutely described by state of Idaho until after the plaintiff had them, the opinion of such witnesses as to whether defendants' dam caused the overflow should acquired title to this property, and by a sup- have been excluded, since witnesses cannot testify plemental transcript, filed at the time of the to matters of ultimate fact, except where it is hearing, it appears that on June 28, 1914, sub-impossible for them to detail the evidentiary facts so as to enable the jury to draw a conclusequent to the trial of this action, and prior sion. to the rendering of the decision by the trial court, one Harry Coffield, a resident of Orofino, Clearwater county, was designated the agent of this company, and is now the duly qualified and acting agent of the plaintiff corporation.

[Ed. Note. For other cases, see Evidence, Cent. Dig. §§ 2186-2195, 2248; Dec. Dig. 472.]

2. EVIDENCE

TATION.

588-PHYSICAL LAW-REFU

Where the testimony of witnesses is refuted by physical law or matters of common knowledge, no probative force can be allowed such testimony.

Cent. Dig. § 2437; Dec. Dig. 588; Witness[Ed. Note.-For other cases, see Evidence, es, Cent. Dig. § 1164.]

3. EVIDENCE
FACTS.

506-EXPERTS - ULTIMATE

In the case of War Eagle Con. Min. Co. v. Dickie, 14 Idaho, 534, 94 Pac. 1034, this court held that a corporation, having rightfully acquired title to property, which had failed to comply with subsequent enactments of the Legislature, where no forfeiture of its title to the property had been judicially declared, will be allowed to sue in our courts to protect its title and right of possession as against a private party who trespasses thereon or seeks or attempts to appropriate the same to his own use or benefit. At the time the plaintiff corporation was organized and filed its articles of incorporation in Nez Perce county and FLOWAGE-INDEPENDENT ACTS LIABILITY. designated its agent, Clearwater county was Where the dam of other parties in conjunca part of, and was included in, Nez Perce tion with that of defendants caused the overflow

Where, because they are unknown, it is impossible to apply fixed natural laws to the solution of an issue, expert testimony may be considered as well as facts established by the testimony of other witnesses as the best means available of determining the truth. Cent. Dig. § 2309; Dec. Dig. 506.] [Ed. Note. For other cases, see Evidence,

4. WATERS AND WATER COURSES 171 —

of plaintiff's ranch, defendants were not liable for the whole damage, since, when two or more parties act each for himself introducing the result complained of, they cannot be held liable

for the acts of each other.

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

5. WATERS AND WATER COURSES 179 OVERFLOW-FUTURE INJURY-PROPHECY.

In an action for injury to plaintiff's ranch caused by an overflow from defendants' dam, it was error to allow testimony of a mere prophecy made by a third person to the witness several years before the action that the dam if constructed higher would ruin plaintiff's land. [Ed. Note.-For other cases, see Waters and Water Courses, Cent. Dig. 88 244-250, 256-259, 263, 264; Dec. Dig. 179; Trial, Cent. Dig. § 858.]

6. EVIDENCE DAMAGE.

471-OPINIONS-EXTENT OF

COLEMAN, J. This is a suit instituted by respondent against appellants to recover judgment for alleged damages in the sum of $48,450, and to obtain a decree of the court abating a certain dam in Walker river, known as the Spragg, Alcorn & Bewley dam, which, it is claimed, is responsible for the overflow of the Walker river, and the consequent damages. From a judgment in favor of plaintiff in the sum of $25,475 damages and a decree directing defendants to reduce the height of the dam, and from an order denying a motion for a new trial, this appeal is taken. The plaintiff was, at the time the suit was instituted, and for a number of years theretofore, the owner of a ranch of 940 acres, through which the Walker river flows for a distance of over 21⁄2 miles. Defendants own ranches on the river below the ranch of plaintiff. Between the years 1871 and 1873, one Mason, the then owner of the land upon which the dam is situated, and which is now owned by plaintiff, erected, in conjunction with others, at and upon the extreme lower end of what is now plaintiff's ranch, the Spragg, Alcorn & Bewley dam, for the purpose of diverting the water from the river 7. DEPOSITIONS 104-READING BY OTHER into a ditch for irrigation purposes. Almost PARTY-OBJECTION BY PARTY TAKING. Where testimony legally objectionable in a mile above the Spragg, Alcorn & Bewley substance was elicited from the plaintiff on dam there was erected in 1873 a dam known cross-examination by his attorneys in his depo- as the Merritt dam, to be used for the same sition taken by defendants, and the deposition was read in evidence by plaintiff as provided purpose, which, though washed out in 1883, for by Comp. Laws, § 3504, thereby making the was rebuilt. Some distance above the Merdeposition plaintiff's own evidence under the ritt dam, possibly from one-third to one-half provision to that effect of section 3505, an ob- mile, is the Perazzo ditch, which takes wajection made by defendants on the trial to the ter from the river, and which, with the conadmission of such objectionable testimony should have been sustained, though the deposition was sent of plaintiff, was constructed in 1903. taken on defendants' motion, since, under a There are several other ditches, either on or further provision of section 3504, the evidence just above the McLeod ranch, which take taken in a deposition is subject to all legal ex-water from the river for irrigation. It also ceptions.

In an action for the overflow of plaintiff's ranch from defendants' dam, it was error to allow a witness to give his opinion as to the extent of the damage done; the proper method being to have the witness testify to the value of the ranch before and after the overflow. [Ed. Note. For other cases, see Evidence, Cent. Dig. § 2149-2185; Dec. Dig. 471; Witnesses, Cent. Dig. §§ 833-836, 988.]

[Ed. Note. For other cases, see Depositions, Cent. Dig. §§ 300, 301; Dec. Dig. 104.] 8. DEPOSITIONS 105-TESTIMONY-OBJEC

TION AT TRIAL. The objection to such substantially inadmissible evidence was properly made at the trial instead of at the taking of the deposition, under the provision of Comp. Laws, § 3504, that depositions may be used upon the trial subject to all legal exceptions.

[Ed. Note. For other cases, see Depositions, Cent. Dig. 88 302-305; Dec. Dig. 105.] McCarran, J., dissenting.

Appeal from District Court, Lyon County; Frank P. Langan, Judge.

Action by Angus McLeod against Miller & Lux, Pacific Live Stock Company, John B. Gallagher, and J. C. Snyder, administrator of the estate of Charles Snyder, deceased. From a judgment for plaintiff, defendants appeal. Reversed.

W. A. Massey, of Reno, Edward F. Treadwell, of San Francisco, Cal., and Cheney, Downer, Price & Hawkins, of Reno, for appellants. Mack & Green, of Reno, for respondent. Samuel Belford, of Reno, amicus curiæ.

appears that the river, as it flowed through the ranch of plaintiff, was very crooked, and the plaintiff made several cuts for the purpose of straightening it. These cuts were through sandy soil, and, as a rule, were only about two feet wide; it being left to the river to wash out so much more of the soil as was necessary to carry the waters of the stream. The upper point of overflow, which is alleged to have caused considerable damage, was over two miles up the river from the Spragg, Alcorn & Bewley dam. The fall in the river is about 1 foot to the 1,000, which would make the bed of the river at the Spragg, Alcorn & Bewley dam, about 101⁄2 feet lower than at the upper point of overflow. Overflows from the river and upon plaintiff's land took place in the years 1862, 1868, 1876, 1881, 1884, 1886, 1890, 1902, 1903, 1904, 1905, 1906, and 1907. This suit is to recover for damage alleged to have been caused by the overflows in the years 1904, 1905, 1906, and 1907.

It is urged by appellants that the case should be reversed for the reason that it appears from the evidence that it was physically impossible for the Spragg, Alcorn &

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

Prof. Thurtell, formerly of the University of Nevada, and some time state engineer, and Other witnesses testified to the same efnow chairman of the Fourth Section Board fect. It is this line of testimony which coununder the Interstate Commerce Commission, sel for respondent, notwithstanding the adafter making a survey of the stream, testi-mitted facts that the water which overflowfied that the deposit of silt would not be ed just above the Perazzo ditch went back affected more than 200 feet above said point into the main stream below the Merritt dam of intersection. and above the Spragg, Alcorn & Bewley dam, and that there was no overflow between the Merritt and the Spragg, Alcorn & Bewley dams, think should be sufficient to establish their case by a preponderance of the evi

"Q. Now, then, assuming that the Spragg, Alcorn & Bewley dam is six feet in height, I am speaking now of the original bed of the river, where would that line, if drawn up the riv-dence. er, meet the original bed of the river? A. Six [1] Counsel for plaintiff call our attention feet? Q. Six feet in height? A. Six feet in to the case of Hand v. Catawba Power Co., 90 height. Six thousand feet. * * Q. Assuming that the dam was seven feet in height, how high up would it strike the bed of the river? A. Seven thousand feet, theoretically. Q. If the dam was 72 feet in height, how high

munity for a number of years. Witness Ral-possible for a witness to detail all of the pertinent facts in such a manner as to enable lins testified, over the objection and excep

the jury to form a conclusion, the witness may give his opinion. The facts in that case no doubt justified the ruling of the court. "It is not proper to allow one who is not an expert to express an opinion in any case upon a question with relation to which all the facts may be placed before the jury; and to receive as evidence the opinion of a lay witness upon the precise issue submitted for trial in such case would permit the witness to usurp the province of the court or jury trying the cause." The witness Martin testified, over the ob- Amer. T. & T. Co. v. Green, 164 Ind. 349, 73 jection and exception of defendants:

"Courts are not so deaf to the voice of nature, or so blind to the laws of physics, that every utterance of a witness in derogation of those laws will be treated as testimony of probative value simply because of its utterance." 1 Moore on Facts, § 160.

fect the deposit of sand above a dam which, dam was causing above it. Under counsel is further up the stream, when the back- for respondent's theory, the Merritt dam water from the lower dam does not reach must have been causing a deposit of sand the top of the upper dam. If we take the in the bed of the river above that dam for correct view of the situation, it necessarily about 14 years before the Spragg dam could follows that the opinions of the nonexpert possibly have had any effect upon the river witnesses called by plaintiff, even if admis- above the Merritt ditch. According to resible, are of little or no value whatever. It spondent's theory, a deposit of sand is causis said: ed in the stream at the upper point of backwater, thus raising the bed of the river-in effect causing another damming at that point which in turn checks the current still further up the stream, and this process continues indefinitely up the stream. If this theory is correct, a dam in a river carrying silt, when it once starts a deposit of silt, must operate as a continuing cause of deposit up the stream, except as such deposit may be overcome by scouring during certain stages of the river volume. Hence it follows that it is impossible, under respondent's theory, to say that the Merritt dam was not a contributing cause to respondent's injury. A fact that should be borne in mind in considering respondent's theory is that the height of a dam is immaterial so long as it is high enough to cause backwater.

Mr. Justice Marshall, in speaking for the Supreme Court of Wisconsin, in Groth v. Thomann, 110 Wis. at page 496, 86 N. W. at page 181, used the following language:

"When physical situations or matters of common knowledge point so certainly to the truth as to leave no room for a contrary determination, based on reason and common sense, such physical situation and reasonable probabilities are not affected by sworn testimony which, in mere words, conflicts therewith. The fact established by the situation itself and matters of common knowledge, so clearly that no one can reasonably dispute it notwithstanding evidence to the contrary, must stand uncontroverted and uncontrovertible, condemning as false such contrary evidence, either upon the ground of mistake or something worse."

Just here it may not be out of place to say that, while Prof. Merriman, in his Treatise on Hydraulics (9th Ed.), at page 353, takes the position that while many attempts have been made to determine the precise distance a dam will cause backwater, none can be said to have been successful. From the formulas which he gives we understand him to mean that because of the varying dimensions, fall, etc., of a stream, it is difficult to tell the exact point at which the backwater from a dam will affect the flow of a stream. We think there can be no doubt about that proposition; but the matter of a few hundred feet, more or less, makes no difference in this case. The question of approximating the distance with some considerable degree of exactness arises in cases where a dam causing backwater may affect a mill wheel located on the stream above the dam. It is clear, however, from Mr. Merriman's work, that the point of backwater never varies greatly from the point where a horizontal line drawn from the crest of the dam will intersect the surface of the stream. But regardless of Prof. Merriman's view, it appears from the statement in the brief of counsel for respondent, and from the evidence of his expert Mr. Hammond, that there is no substantial difference of opinion between the parties to the suit as to the distance at which the flow of water will be affected by a dam.

Taking respondent's view of the case, however, it is impossible to comprehend that the Merritt dam was not having the same effect in causing deposits of sand in the bed

Assuming the theory of respondent to be correct, and assuming that the Spragg dam did cause the river between it and the Merritt dam to fill with sand so that eventually the sand reached to the top of the Merritt dam, it then is a physical fact that the two dams would thereafter co-operate in causing a deposit of sand in the river above the Merritt dam.

It is to be regretted that the laws of hydraulics controlling the deposit of material carried in suspension in flowing streams have not been demonstrated so far as to establish as a known law whether backwater from a dam will or will not cause a deposit above the point of backwater.

[3] This is the first case where a dam used to divert water for purposes of irrigation has been charged with responsibility for an overflow alleged to have been occasioned by filling the bed of the stream with a deposit of sand far above the point reached by backwater caused by the dam. If scientists had determined these laws so that they could be applied to the facts of this case, courts would be bound to apply them. In so far as experts upon hydraulics have expressed their opinion, both in this case and in the Hand v. Catawba Power Co. Case, cited supra, such opinion has been that the dam would not affect the deposit of sand and silt much above the point of backwater. Where, because they are unknown, it is impossible to apply fixed natural laws to a solution of the problem, courts must resort to the best means available of determining, if possible, the truth of the case. Hence expert testimony may be considered, as well as facts established by the testimony of other witnesses; but, as before pointed out,