work could not be done equally well in such manner as would not produce the in-
jurious result. Id.

22. NUISANCE-PUBLIC ROAD-PARTIES.-In an action to abate a nuisance caused by
the interference of private individuals with a public road, neither the county nor
its supervisors are necessary parties. Such county is not responsible for injuries
suffered by private parties, because it did not restore the road to its former con-
dition. Id.

23. POSSESSION AS EVIDENCE OF TITLE-NUISANCE.-Actual possession of land is evi-
dence prima facie of ownership; and one in possession may maintain an action
upon a nuisance which injuriously affects his enjoyment of the possession. Id.
24. RIGHTS OF PERSONS TO USE AND ENJOYMENT OF PROPERTY.-Any person may use
his own property in such lawful manner as to him may seem fit, having reference
always to the right of others to use their property. But a person can not use his
own property, even in and about a business in itself lawful, if it be used in such a
manner as to seriously interfere with another in the enjoyment of his property.
Tuebner et al. v. California Street Railroad Co. (Cal.), IV, 529.

25. THE SAME

NUISANCE-STREET-RAILROAD-LICENSE, WHEN NOT A JUSTIFICATION. The defendant corporation operated a street-railroad along a street in that portion of San Francisco usually devoted to dwelling purposes, and, for the purpose of using steam as a motive power in propelling its cars by means of a cable, constructed a building on a lot adjoining the plaintiff's premises for use in connection with its street-railroad, as a car and engine house. Such use produced a loud and continuous noise; caused the plaintiff's house to be constantly shaken and jarred; cracked the plastering in his rooms, and covered his premises and furniture with soot. Held, that such acts of the defendant constituted a nuisance for which it was liable, although the municipality of San Francisco had granted it a franchise to operate its road, and all its structures and machinery were necessary to that end, and were properly constructed. Id.

26. ABATEMENT OF PENDING ACTION-DAMAGES.-In an action to recover damages for
injuries caused by such nuisance, the fact that the defendant has, since the com-
mencement of the action, remedied the evil complained of does not interfere with
plaintiff's right to recover for injuries sustained before the commencement of the
action. Id.

27. MEASURE OF DAMAGES-VALUE OF INJURY.-In such action the plaintiff need not
prove his injury by value; it is for the jury to determine a reasonable sum as proper
compensation. Id.
See ACQUIESCENCE, 1; SAN FRANCISCO, 1.

NUL TIEL RECORD.
See JUDGMENT, 61.

OAKLAND SEWER.
See CONSTITUTIONAL LAW, 19.

OATH.

See JURY AND Jurors, 24.

OBLIGATION,

See CONTRACTS, 12.

OBSTRUCTING THE MAIL.

1. OBSTRUCTING THE PASSAGE OF THE MAIL-The defendant and others, discharged railway laborers, to the number of one hundred and fifty, assembled at Pendleton, Oregon, and by threats of violence prevented the daily train of the Oregon Railway and Navigation Company, including the mail-car with the United States mail therein, from proceeding to Portland, because the conductor would not permit them to ride thereon to Portland free of charge, on the ground that they had no money, and the company having "passed them up," ought to "pass them down;" and for the same reason, and by the same means, prevented the conductor from detaching said mail-car from said train and sending it to Portland with the United States

mail therein. Held, that whether the company was under any legal obligation to carry the defendant to Portland free of charge or not, he had no right to prevent the conductor from sending the mail-car on to Portland, as he did; and that the conduct of the defendant and his associates being unlawful, and necessarily causing the passage of the mail to be obstructed, the law imputes to him an intention, whatever the primary purpose of his conduct was, to cause such obstruction, and therefore he is guilty of obstructing and retarding the passage of the mail, contrary to section 3995 of the revised statutes. United States v. Kane (U. S. Cir. Ct., Or.), I, 653.

2. PASSENGER ON TRAIN.-A person who is entitled to travel on a railway car may go upon the same peacefully, and remain therein until he arrives at his destination; and if the conductor undertakes to put him off on the ground that he is not entitled to travel thereon, he may resist force with force; but if the conductor stops the train on his account, and undertakes to detach the mail-car therefrom and send it on with the mail, he has no right to prevent him from so doing, and if he does his act is unlawful. Id.

OCCUPATION.

See POSSESSION.

OPINION OF COURT.

See JURISDICTION, 4.

ORDERS.

See APPEAL, 12-16; CERTIORARI, 13; NEW TRIAL, 27.

ORDINANCE.

See CORPORATIONS, 57; EMINENT DOMAIN, 6; LAUNDRY ORDINANCE; PLEADING AND

PRACTICE, 6.

OREGON DONATION ACT.

1. "OREGON DONATION ACT," TITLE Under. - Under this act, by which there "is granted" to every man answering to a certain description, or if married, to him and to his wife in equal parts, a tract of land of specified area, upon certain prescribed conditions of selection, and in consideration of residence and cultivation for a certain period, the United States holds the position of seller and the donee that of purchaser. As soon as the necessary selection has been made, and the prescribed residence and cultivation completed, the transaction is closed, so far as the sale is concerned. Final proof is no part of the consideration which the grantee gives, but is merely evidence to satisfy the land-office that the right of the grantee is perfect, and entitles him to a patent. The act, and not the patent, works the transfer of title. The patent is formal and solemn evidence, and when issued relates back as of the date when a fit grantee, rendering full consideration, had appeared. Title under this donation act is always complete before a patent issues, and the patent issues by virtue of a title complete, and not otherwise. Brague v. Schofield et al. (W. T.), II, 485.

2. THE SAME-PARTITION BY MINORS-ACQUIESCENCE-ESTOPPEL.-Previous to 1853, Amos Short, who was married, had duly selected, under the Oregon donation act, a tract of land, which is the subject-matter of the present controversy, and with his wife had resided upon and cultivated it in full compliance with said act, so as to entitle himself and wife to a patent, subject to survey by the United States surveyor. In 1853 he died, leaving a widow and children. All the requirements of said act had been complied with, and the widow and children of Amos Short held, prior to and in the year 1855, in undivided shares, all disposable interest in and to said tract of land, and were entitled to a patent therefor from the United States. In 1855 they agreed to make, and did make, a parol division or partition of this whole tract into halves; the east half was assigned to the widow, and the west half to the children. This partition was, of course, subject to the survey and division made by the surveyor-general, and to the division line which he might determine. The children, assuming that the west half belonged to themselves, pro

ceeded in 1856 to make a partition of it and to determine their own shares in severalty. To this end, those who were of age applied personally, and those who were minors applied by guardian, to the proper probate court for a partition. Proceedings were thereupon had, by which the probate court, in form at least, decreed a partition of the west half among the children. To this partition all of the children actually and willingly consented by each, either personally or by guardian, taking possession and control of his or her portion in severalty, and by mutually paying and accepting owelty sufficient to fully equalize all the allotments. In 1874 the United States surveyor-general divided the land between the widow and the heirs. and among the heirs themselves, in exactly the same manner in which they themselves had partitioned it in 1856. Under these partitions, G. H. Short, one of the minor children, became entitled to and possessed of a share of said west half known as lot 7, which is the land in controversy. He held and used that lot as his own until 1865. La that year, his guardian, acting under direction of the court of probate, sold said lot to the appellee, Schofield, for a fair price, which, under direction of the court, was applied in paying a mortgage upon the premises and other debts proved and allowed against said minor's estate. G. H. Short became of age in 1866. In 1878, twelve years after attaining his majority, during which interval he had not, by word or act, objected to any of the foregoing proceedings, he gave to the appellant's grantor a quitclaim deed of all his right, title, and interest in the said donation claim; and about the same time the other heirs gave to the appellant's grantor similar deeds of their respective interests. At the execution of these latter conveyances, periods varying from one to twenty-one years had elapsed since each one of the heirs had become of age, during which times none of them had made any objection to the various proceedings above described. Meanwhile the appellees have put upon the premises permanent improvements of great value. Held, that even if the proceedings in the probate court for the partition and for the sale were irregular, the said heirs were estopped by their long acquiescence, after attaining their majority, from objecting to the regularity and validity of the partitions which had been made, or of the sale of the land by order of the probate court; and that their quitclaims to appellant's grantor conveyed no right, title, or interest in the premises. Id.

See PUBLIC LANDS, 11, 12.

OUSTER.

See EJECTMENT, 7.

OWNERSHIP.

See LARCENY, 11; STREETS AND HIGHWAYS, 18.

PARENT AND CHILD.

See CHINESE RESTRICTION ACT, 4, 9.

PAROL EVIDENCE.

See EVIDENCE.

PARTICULARS.

See BILL OF PARTICULARS.

PARTIES.

1. AN ACTION ON A FORTHCOMING BOND MAY BE BROUGHT in the name of the sheriff, for the use and benefit of the real parties in interest, against the sureties on such bond, without joining their principal, and without showing that judgment has been obtained against the principal or that the plaintiff has exhausted his remedies against him. Wagner v. Romero (N. M.), II, 269.

2. DEFECT OF PARTIES IN ACTION AGAINST PARTNERSHIP.-In an action against a partnership a defect of parties, consisting in a failure to name the individuals composing the firm, is waived by the appearance of the defendants, without specifically objecting to the defect. Baxter et al. v. Scoland et al. (Wash.), II, 552.

DIGEST I-IV. 11

3. ASSIGNEE-REAL PARTY IN INTEREST.-An assignee of a note and account sued on is the real party in interest, within the meaning of the code of civil procedure, although the consideration for the assignment is a payment to be made to the assignor after recovery in the suit. Bassett v. Inman (Col.), II, 534.

4. "PARTY," MEANING OF.-The word "party" imports the person or persons having a joint right or liability, whether one or more. People v. O'Loughlin (Utah), I, 164. 5. FORECLOSURE OF MORTGAGE-PARTIES TO ACTION FOR.-In an action to foreclose a mortgage, after a conveyance of the mortgaged premises and the death of the mortgagor, when no judgment against the estate of the latter is asked for, it is unneces sary for the mortgagee to present the note and mortgage to the administratrix of such estate for allowance. The mortgagee may maintain such action against the grantee of the mortgaged premises alone, without serving the administratrix, as she was not a necessary party to the action. Rickards v. Hutchinson (Nev.), I, 659. 6. THE INFANT SUCCESSORS IN INTEREST OF DECEASED DEFENDANTS IN AN ACTION FOR PARTITION may be substituted for such defendants on motion, without the issuance of a summons to bring them in. Such infants may appear by their general guardians, or by guardians ad litem appointed for them, and where the record is silent as to their manner of appointment, the regularity of such appointment will be presumed. Emeric v. Alvarado (Cal.), I, 708.

7. MISJOINDER OF PLAINTIFFS IN A MORTGAGE FORECLOSURE SUIT.-In a suit to foreclose a mortgage, where, in addition to the proper plaintiffs, other parties were unnecessarily and improperly joined as co-plaintiffs, and a demurrer was interposed to the complaint on that ground, the supreme court, on appeal, may render a final judgment in favor of the proper plaintiffs, and direct the court below to amend the complaint by striking out the parties improperly joined as co-plaintiffs, with such provisions as may be necessary to protect their rights. De Celis v. Porter (Cal.), I,

575.

8. PLAINTIFF WHO IS NOT THE REAL PARTY IN INTEREST in an action on a promissory note can not assign the same so as to entitle his assignee to prosecute such action in his own name. Skewes v. Dunn (Utah), I, 628.

9. SUBSTITUTION OF A DIFFERENT PLAINTIFF WILL NOT BE ALLOWED when it woul1 result in injury to any right of the defendant. Id.

10. SUBSTITUTION OF A WIFE AS PLAINTIFF IN THE PLACE OF HER HUSBAND SHOULD NOT BE ALLOWED, when the effect of such substitution would be to permit her to testify in her own behalf, unless such substitution is made on condition that she does not testify. Id.

11. PRINCIPALS AND SURETIES ON AN INJUNCTION BOND MAY BE SUED TOGETHER in an action for the breach of the conditions thereof, and the damages assessed and awarded in such action. Duckett v. Price (Col.), I, 495.

12. TENANTS AT WILL OF A TRUSTEE ARE NOT NECESSARY OR PROPER PARTIES in an action against the trustee to compel a conveyance of the trust estate. Reynolds v. Lynch (Cal.), I, 344.

13. HEIRS OF A DECEASED MORTGAGOR NEED NOT BE MADE PARTIES in an action against his executor or administrator to foreclose the mortgage. Bayley v. Muche (Cal.), I, 125, 263.

14. ONE TO WHOM LANDS ARE GRANTED FOR THE PURPOSE OF MAINTAINING AN ACTION connected with the ownership thereof may prosecute such action in his own name, notwithstanding there is an oral agreement between him and his grantors that upon the termination of the litigation he would reconvey such lands to his respective grantors. Smith v. Logan (Nev.), I, 391. 15. IN AN ACTION BETWEEN CERTAIN APPROPRIATORS OF WATER TO DETERMINE THEIR RELATIVE RIGHTS THERETO, another appropriator, higher up the stream, who returns the water taken by him, undiminished in quantity, before the stream reaches the appropriator whose rights are interfered with, is not a necessary party. Id. See APPEALS, 16, 31, 73; CANCELLATION, 6; CORPORATIONS, 27; FRAUD, 7-9, 15; InsurANCE, 2; JUDGMENT, 38, 39; LEASE, 3; LIBEL; MARRIED WOMEN, 7, 8; MORTGAGE, 11, 24, 31; NEGLIGENCE, 32; NEGOTIABLE INSTRUMENTS, 1-3; NUISANCE, 11, 13, 22; PARTNERSHIP, 15; PLEADING AND PRACTICE, 32; STREETS AND HIGHWAYS, 16, 17; SUPPLEMENTARY PROCEEDINGS, 3, 4; SWAMP LANDS, 8, 9; TRUSTS; WATER RIGHTS,

20.

PARTITION.

1. PARTITION OF GRANT BY JUDGE OF FIRST INSTANCE-POWER OF, TO MAKE. —In a proceeding before the judge of first instance for the partition of land granted by

the Mexican government to several grantees within larger and unlocated boundaries, the attempt of such judge to fix the boundaries of the land granted could give no additional force to the judgment of partition. If juridical possession had previously been given, its effect would be to confine all the rights of the grantees within the limits of such juridical possession, and the judge could not, pendente lite, or by his judgment, extend their rights beyond such limits. If juridical possession had not been given, the right of the grantees or their assigns to the temporary pos session of all the lands, as the same appeared from the diseño and grant, could not be extended beyond the exterior limits thus appearing. Mound City Land and Water Association v. Phillips (Cal.), I, 579.

2. SUCH JUDGMENT OF PARTITION was binding and conclusive, if at all, only with re spect to its subject-matter. It affected merely the right to the temporary possession previously held in common. The lands beyond the boundaries which the United States, as successor of Mexico, established, continued to be government property until such boundaries were established. The right of the grantees to possess the same was not an equitable right which ripened into a legal title to the same lands upon final measurement; it was contingent, and limited in time, as to the lands which should be excluded by the final measurement. Id.

3. SUCH PARTITION AS TO LANDS WITHOUT THE LIMITS OF THE FINAL SURVEY AFTERWARDS MADE had effect, even as to the parties to it, only while their occupation lasted with the consent of the government, and ceased to operate, as a whole, if it made no provision for the separate disposition of the specific portion with respect to which the rights of the grantee ultimately became perfect, when the boundaries of such specific portion were determined. Id.

4. IN ALL ACTIONS FOR PARTITION, INCLUDING THOSE PROVIDED FOR IN SECTION 760 of the Code OF CIVIL PROCEDURE, BEFORE ANY PARTITION IS ORDERED OR CAN BE MADE, the interests and shares of all the parties must be determined and adjudged by the court, and also the moieties in which the land is to be divided. Such moieties must be specified in the interlocutory judgment, so that the referees appointed to make the partition may have no question of title to determine, and may intelligently discharge the duties as to making the allotments devolved on them by the decree. An interlocutory decree which fails to observe such requirements is erroneous. Emeric v. Alvarado (Cal.), I, 708.

5. EVIDENCE OF THE PETITION OF A TESTAMENTARY EXECUTOR TO THE BOARD OF LAND COMMISSIONERS for the confirmation of a Mexican grant to his testator, is admissible in an action for the partition of such grant, when offered along with a copy of the will attached to the petition, the opinion of the board confirming the claim, and the decree of confirmation. Id.

6. AN ATTEMPTED PARTITION OF A MEXICAN GRANT, THE BOUNDARIES OF WHICH HAD NEVER BEEN DETERMINED by the United States, in pursuance of a written agreement for partition, in which all the tenants in common of such grant are named as parties, is null and void when it appears that some of such parties never executed such agreement, or where a much larger tract of land was included in such attempted partition than was included within the boundaries of such grant as the same were finally determined by the survey approved by the United States courts. And the same is true of all other deeds and transactions between such parties, the object and purpose of which are to facilitate and perfect such partition, when the same is the only consideration on which they are founded. Id.

7. PARTITION-TENANCY IN COMMON--PARTNERSHIP.-A tenant in common of land is entitled to a partition, although he has never been in actual occupancy, and notwithstanding his grantor and the defendant co-tenant were copartners in the crops raised on the land. Voce v. Daveggio (Cal.), III, 491.

8. A SUIT TO SET ASIDE A DECREE FOR THE PARTITION OF LAND SHOULD BE BROUGHT in the county where such land is situated. Bent v. Maxwell etc. Co. (N. M.), III, S. 9. PENDENCY OF A SUIT FOR PARTITION IN THE STATE COURTS, such suit being in the nature of a proceeding in rem, is a bar to a subsequent suit for partition of the same land in the United States courts, brought by a successor in interest, pendente lite, of some of the parties to such former suit against the successors in interest of the other parties. Martin v. Baldwin et al. (U. S. Cir. Ct., Cal.), II, 8.

See APPEAL, 75, 76; FRAUD, 15; MISTAKE, 5; MINES AND MINING, 49; OREGON DONATION ACT, 2; RECEIVERS, 1; STATUTE OF LIMITATIONS, 20.

PARTNERSHIP.

L. PARTNERSHIP, HOW CREATED ESSENTIAL ELEMENTS OF.-A partnership is a contract between two or more competent persons to place their money, effects, labor, and