in Schmisseur v. Penn, 47 Ill. App. 278, and the subject is very fully discussed and many cases cited, and, in reviewing such cases and their application to the facts, the court said: "The evidence shows that the way was originally opened as a private way and intended as such, and for many years gates were maintained, until the stock law was adopted in that county, and the fact of maintaining gates would exclude the presumption of a dedication to the public. Ill. Ins. Co. v. Littlefield, 67 Ill. 368; Heminway v. City of Chicago, 60 Ill. 324; Luecken v. Wuest, 31 Ill. App. 506. Neither does it appear that it had been used uninterruptedly for a requisite length of time by the public as against the assertion of the owner of his right to fence the same and actually placing gates therein; nor was it either kept in repair or taken charge of by proper officers. That it was not a public highway by prescription, see Toof v. City of Decatur, 19 Ill. App. 204; Grube v. Nichols, 36 Ill. 92. And there is no claim that it was laid out as a public highway in pursuance of the statute. The evidence, however, clearly establishes the existence of an easement in Mrs. Needles as appurtenant to her farm to pass over the land of the defendant as a right of way, and that easement in her is an incumbrance." In the case of Eller v. Moore, 48 App. Div. 403, 63 N. Y. Supp. 88, the Supreme Court of New York enters into a very clear discussion of the subject as to whether or not a private right of way over granted premises was a breach of a covenant to warrant and defend contained in a conveyance, and in that case the court holds: "I am of the opinion that the existence of such an easement, and its use by Brown under such conditions, constitutes a breach of the covenant for quiet enjoyment contained in the plaintiff's deed. In Rea v. Minkler, 5 Lans. 196, it was held that the existence and use of a private right of way over the granted premises, to which they were subject at the time of the conveyance, was a breach of a covenant to warrant and defend, contained in such conveyance. It was also there held that the covenant ‘of warranty' is the same as a covenant for 'quiet enjoyment,' and, 'while it may be conceded that an eviction is essential to constitute a breach of either of the covenants of quiet enjoyment or warranty, it is not necessary that there should be an absolute expulsion of the covenantee from the land, but it is enough that there has been a disturbance of the free and uninterrupted use of the land. This, in law, is an eviction, and constitutes a breach of the covenant.'" In the case of Perry v. Williamson, 47 S. W. 189, the court of Chancery Appeals of Tennessee, in discussing a private road as to its being an incumbrance, says: "The jury found that defendant 'knew the road was there, but not as a right of way owned by Nix,' and he knew it was a farm passway.' We take this to mean that the deed of complainant to Nix conveyed to him a passway across the land, and that when defendant bought the farm he saw the trail or road mark across the land, but did not know that the road belonged to Nix. The error assigned is based upon defendant's knowledge of the physical existence of the trail. It is said that in case of public roads there is no breach of the covenant against incumbrances if there be upon the land a public road known at the time to the purchaser, and that the same rule ought to be held applicable to private roads. In the case of Haynie v. Investment Co. (Tenn. Ch. App.) 39 S. W. 860, 867, we held that a public road, fenced up by the adjoining owners, and not in actual use as a public road, yet still legally existent, but its existence unknown to the purchaser at the time of his purchase, was an incumbrance. However, if the public road be open and in use by the public at the time, the result is otherwise. 10 Am. & Eng. Enc. Law, 369. But a private easement upon the land is an incumbrance; as, for example, a right of way in another. 10 Am. & Eng. Enc. Law, 368, and notes; Huyck v. Andrews, 113 N. Y. 81, 20 N. E. 581, 3 L. R. A. 789, and notes, 10 Am. St. Rep. 432. We need not decide what would be the effect if defendant had known of the legal existence of the easement, as the finding of the jury shows he did not know it. Certain it is that his knowledge merely of the physical existence of a trail across the land would not deprive him of the right to object to the legal existence of this trail as an incumbrance when such existence was subsequently ascertained. Defendant's deed contained covenants of seisin, of general warranty, and against incumbrances. The covenants of seisin and against incumbrances were broken as soon as the deed was made by virtue of the existence of the incumbrance. Note to Huyck v. Andrews, 3 L. R. A. 790, citing numerous authorities; Haynie V. Investment Co. (Tenn. Ch. App.) 39 S. W. 867." In 11 Cyc. 1106, the author lays down the general rule as follows: "The existence and use of a private right of way over granted premises to which they were subject at the time of the conveyance is a breach of the covenant of warranty." We think, therefore, that under the authorities there is a clear distinction between the case now under consideration and the case of Schurger v. Moorman, and that in the cases in which it is held that a public highway is not an incumbrance, such decisions have so held by reason of the peculiar nature of the highway easements, or the understanding between the parties with reference to the same, and that the courts have only gone to the extent of holding that even a public highway is not an incumbrance, except in such cases where the public highway is of such a character as to publicly give his security. If open, visible and notorious notice of its public character and use, and easements are to be excepted from the opbecause of such public character the pur-eration of covenants, it should be the duty of chaser deals with the property recognizing that an easement has been created across or over such land. The distinction is apparent, therefore, between this case and the Schurger-Moorman Case and the cases cited in the latter case. We think, under the rule of law as announced and the authorities, that the existence of the easement as described in the deed was a breach of the covenant against incumbrances as provided for in the contract for exchange, and that the respondent was not compelled to accept the deed tendered by reason of the reservation contained in such deed. [4] It is also contended by appellant that the trial court erred in refusing evidence offered by the appellant showing oral conversations entered into between the appellant and respondent in which the appellant called the attention of the respondent to the right of way now being considered, and its use, and showing the existence of such right of way, and full knowledge of the respondent of the same and the use made of it. In Eller v. Moore, supra, the Supreme Court of New York enters into a very thorough discussion of this question and says: "It is claimed, however, by the defendant, that the existence of this easement was apparent, and that the plaintiff had full notice thereof when he purchased, and that, therefore, he cannot recover in this action. The record shows that the plaintiff knew when he purchased that there was a traveled way across the lot from Brown's land to the highway. It was also apparent to him that Brown had no other way out from his premises. But it does not appear that he knew that Brown had any conveyance of such a right of way, or what his right or title thereto was, if he had any whatever. From the mere user, it would not appear but that Brown used it under a license that might be revoked at any time by the owner of the premises over which it passed. It can hardly be said, therefore, that the plaintiff must be deemed to have purchased the premises knowing of the easement which it is now conceded Brown then had. But, even if he had knowledge of the existence of that easement, it would seem that such fact furnishes no defense to this action. It was squarely held in Huyck v. Andrews, above cited, that knowledge of the existence of an easement upon the premises purchased, except that of a public highway opened and in use, did not furnish a defense to an action upon a covenant against incumbrances. The reason for such holding is therein given, at page 90, 113 N. Y., at page 585, 20 N. E., and page 794, 3 L. R. A. (10 Am. St. Rep. 432), in the following language: 'We think that the safer rule is to hold that the covenants in a deed protect the grantee against every adverse right, interest, or dominion over the It the grantor to except them, and the burden should not be cast upon the grantee to show that he was not aware of them. The security of titles demands that a grant made without fraud or mutual mistake shall bind the grantor according to its written terms. should not be incumbent upon the grantee to take special and particular covenants against visible and apparent defects in the title or incumbrances upon the land, but it should be incumbent upon the grantor, if he does not intend to covenant against such defects and incumbrances, to except them from the operation of his covenant.' The covenantee has the same right to rely upon the one covenant as the other, and, when he has proven a breach of either, he should no more be called upon to show that he was not aware of the existence of the easement in the one case than in the other. If there is an outstanding mortgage upon premises, of which the grantee knows when he takes a conveyance of them, we do not presume that a covenant to warrant and defend their possession is not operative to protect him against the mortgage because he had such knowledge of it. We rather presume that he exacted the covenant in order to be protected against that very mortgage. And so with all easements that the grantee may know are existing as to the property." The general rule thus announced has been modified to a certain extent by the case of Schurger v. Moorman, but only to the extent of easements or rights of way granted or created over or across land to be conveyed, and where such easements are open, visible, and notorious. But where the easement is a private right of way, and its general nature and character are not open, visible and notorious, or the rights under the easement are not clearly and fully disclosed to the purchaser, it will not be presumed that when the respondent purchased said property he did so with knowledge of the particular easement claimed or reserved in the conveyance, and especially of such as is disclosed in the deed tendered in this case. It will be observed that these conversations occurred along about the 20th day of May, 1909. This was after the first contract was made and before the contract of May 21st and the letter of June 1st were entered into, and are presumed to have been merged in the writings made between the parties after such time. It is a rule of law well recognized by this court that conversations and agreements between the contracting parties prior to or contemporaneous with the signing of the written contract, and relating to the same subject-matter contained in the contract, are presumed to be merged in the final written contract. Jacobs v. Shenor, 3 Idaho (Hasb.) 274, 29 Pac. 44; First Nat. Bank v. Bews, 5 Idaho, 678, 51 Pac. 777; Idaho Fruit Land Co., Ltd., v. Great Western | of the appellant to make the title good, and Beet Sugar Co., 18 Idaho, 1, 107 Pac. 989. the respondent had a right to depend upon the contract providing for a clear title, and his going into possession in no way waived his rights under the contract, or prevented him from insisting upon its terms being kept by the appellant; and when the appellant failed to make a deed in accordance with the contract, he had a perfect right to rescind the contract and to refuse a conveyance of the property. In the case of Lloyd v. Farrell, 48 Pa. 73, 86 Am. Dec. 563, the Supreme Court of Pennsylvania, in discussing this question, held: "Where the vendor contracted by the articles of agreement to convey the land in fee simple clear of all incumbrances, parol testimony that at the time of the execution of the agreement the understanding was that the vendee should take whatever title the vendor had at his own risk, was held inadmissible to contradict the written instrument, and incompetent to destroy its covenants." [5] It is also urged upon this appeal that the respondent, by going into possession of the California property and making slight improvements and arranging for future improvement of the property, is estopped from making the claim that the appellant had not fully complied with all the terms and conditions of the contract on his part. This claim of estoppel cannot be recognized in this case. Prior to the time the respondent went to California, in May, 1909, he had been a resident of Idaho, and had not seen or made any examination whatever of the lands he was to receive in exchange for his Idaho lands. He was placed in possession by the appellant, and about such time the agreement of May 21, 1909, was executed, and in this agreement it was provided, "I am to give him a clear title to this property and to take care of the mortgage on it myself." Here was a guaranty of clear title, and shows very clearly that at the time he went into possession he did not waive his right to insist upon having a clear deed to the property, and on June 1st he signed the paper heretofore referred to and thereby acknowl-ed to accept the same in compliance with edged that the final papers in the trade had not yet been executed, but that the trade was made as shown in another set of papers, and would be signed as soon as the full details could be arranged. Thus this latter paper clearly shows that final arrangements between the parties was to be evidenced by proper deeds of conveyance for the respective pieces of property; and this paper also refers to another set of papers, evidently referring to the previous writings entered into between these parties. It is clear that the respondent's taking possession of the California ranch was in contemplation of receiving a deed to be made in accordance with the contract entered into by the appellant and the respondent, and that such deed should convey to respondent a clear title to the property, free from incumbrances. There is nothing to indicate any intention on the part of respondent to take the property with any incumbrance, either by reason of the private easement reserved in the deed tendered or any other incumbrance; and there is nothing to show any acts which would constitute an estoppel or deny him the right to stand upon his contract. It was the duty In the case of Dunn v. Mills, 70 Kan. 656, 79 Pac. 146, the Supreme Court of Kansas said: "The remedy of the purchaser, * where the title of the vendor fails, or he is unable to make conveyance as stipulated by the contract, is to rescind the contract, or offer to, and to restore the possession, in which case he may recover the purchase money advanced and the interest, together with the value of his improvements, deducting therefrom such sum as the use of the premises may have reasonably been worth; and, if necessary for his protection, the court will also provide by the judgment that the possession be not surrendered until the amount so recovered shall have been paid or otherwise secured to his satisfaction." Taft v. Kessel, 16 Wis. 273; Walton v. McKinney, 11 Ariz. 385, 94 Pac. 1122; Riley v. Allen, 71 Kan. 625, 81 Pac. 186; Page v. Greeley, 75 Ill. 400; Bensel v. Gray, 80 N. Y. 517. At the trial and as part of appellant's evidence, counsel for appellant tendered a deed to the California property omitting the reservation of the easement contained in the former deed, and asked that it be received in evidence, and that the respondent be requir the contract made between the parties. This was after the respondent rescinded the contract and had returned and taken possession of the property in Idaho which he had agreed to convey, and it was after the appellant had failed to keep his part of the contract for exchange. The mere fact that a deed was tendered, without any reservation of the easement described in the former deed, did not remove the easement or make a clear title to said property. If the easement existed in fact, and was an incumbrance upon the estate of Newmyer, he could not destroy such easement or remove such incumbrance by making a straight warranty deed, and the deed would not have made a title of the kind and character described in the contract. We know of no rule of law or any principle of right or justice which would require him at that time to accept such a convey ance. We find no error in the record, and the judgment is affirmed. Costs awarded to appellant. SULLIVAN and AILSHIE, JJ., concur. HOLLYWOOD v. STATE. (Supreme Court of Wyoming. Jan. 12, 1912.) 1. CRIMINAL LAW ($$ 590, 1151*)-REVIEWCONTINUANCE-DISCRETION OF COURT-RE VIEW. dent, who was armed, was not prejudicial to accused; he being convicted only of manslaughter. Cent. Dig. § 714; Dec. Dig. § 339.*] [Ed. Note.-For other cases, see Homicide, 6. HOMICIDE (§ 339*) - REVIEW - HARMLESS ERROR-EXCLUSION OF EVIDENCE. Where accused was convicted of man that it was decedent's own fault, and that he would not have accused arrested, addressed to accused, was not prejudicial to accused. A motion for a continuance on the ground slaughter, the exclusion of a statement by deof want of time for accused's counsel to precedent, within half an hour after the shooting, pare for trial is addressed to the discretion of the court, and, in the absence of an abuse of discretion depriving accused of his constitutional right of representation by counsel, which includes a reasonable time to prepare its decision will not be disturbed by the Supreme Court. [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 1316, 1317, 3045-3049; Dec. Dig. $$ 590, 1151.*] 2. CRIMINAL LAW (8 590*)-CONTINUANCEDISCRETION of Court. Accused's trial began more than a month after the information was served on him. During that time, he was confined in jail for a week. One of his counsel was present throughout the trial, and the case was tried with ability and skill. An additional counsel was unable for want of time to prepare for the trial. There was no showing of any absent witness or newly discovered evidence. Held, that the refusal to continue the case to enable the additional counsel to prepare for the trial was not an abuse of the court's discretion. [Ed. Note.-For other cases, see Homicide, Cent. Dig. § 714; Dec. Dig. § 339.*] 7. CRIMINAL LAW (§ 1170*)-REVIEW-HARMLESS ERROR-ERRONEOUS EXCLUSION OF EVI Where a professional nurse, who cared for decedent the last few days before his death, used a chart kept by her during the time she was employed to refresh her memory as to de[Ed. Note. For other cases, see Criminal cedent's symptoms, the error, if any, in admitLaw. Cent. Dig. §§ 1316, 1317; Dec. Dig. 8ting the chart in evidence was not prejudicial; 590.*] because merely cumulative of the testimony of the nurse. 3. HOMICIDE (§ 158*) — EVIDENCE - ADMISSI BILITY. Where decedent and accused and his two brothers had a difficulty at a saloon, and decedent drew his revolver on accused, who with his brothers left the place, but shortly returned, evidence of the statement of accused, while returning, that he would shoot, and that shortly thereafter accused shot decedent, was admissible to show malice and intent to kill decedent, as against the objection that accused's statement did not identify decedent as the one against whom the threat was made. [Ed. Note.-For other cases, see Homicide, Cent. Dig. §§ 293-296; Dec. Dig. § 158.*] 4. HOMICIDE (§ 339*) - REVIEW - HARMLESS ERROR-EXCLUSION OF EVIDENCE. Comp. St. 1910, § 5793, defines manslaughter as the killing of a human being without malice, express or implied, either voluntarily on a sudden heat of passion, or involuntarily, but in the commission of some unlawful act. Held that, where the state showed that accused, in a conversation with his brother, had threatened to kill decedent, the refusal to permit accused to show the entire conversation with his brother, and that he had told his brother that decedent ought to be disarmed, was not prejudicial to accused, his conviction being only for manslaughter, since the part of the conversation proved by the state was directed to the point of malice and intent to kill on the issue of murder in the first and second degrees. [Ed. Note. For other cases, see Homicide, Cent. Dig. § 714; Dec. Dig. § 339.*] 5. HOMICIDE (§ 339*) - REVIEW - HARMLESS ERROR-EXCLUSION OF EVIDENCE. 10. HOMICIDE (§ 215*) – EVIDENCE - DYING DECLARATIONS. Dying declarations, to be admissible, must consist of facts, and not conclusions, mental impressions, or opinions. [Ed. Note.-For other cases, see Homicide, Cent. Dig. §§ 451-456; Dec. Dig. § 215.*] 11. HOMICIDE (§ 215*) — EVIDENCE - DYING DECLARATIONS. Where the facts surrounding a homicide were testified to by eyewitnesses, and there was no question of identity of accused, a dying declaration of decedent that accused was not to blame, but that it was decedent's own fault, was properly excluded as a mere opinion. [Ed. Note.-For other cases, see Homicide, Cent. Dig. §§ 451-456; Dec. Dig. § 215.*] 12. WITNESSES (§ 393*)-CONTRADICTION. Where a state's witness gave evidence on the trial different from that given before a coroner's jury, the court properly permitted the state to examine the witness as to his previous statements. [Ed. Note.-For other cases, see Witnesses, Cent. Dig. §§ 1252-1257; Dec. Dig. § 393.*] Where accused did not rely on self-defense, and the homicide was committed by accused while engaged in an unlawful act, after decedent had been called to the place of the homicide to commit the unlawful act, the exclusion of evidence that, prior to the killing and subsequent 13. HOMICIDE (§ 5*)-LIABILITY FOR DEATH. to a prior difficulty with decedent, accused had Where a wound was unlawfully inflicted on looked for an officer to take charge of dece- a person and contributed mediately or immedi CIDE. ately to his death, the one inflicting the wound | 19. HOMICIDE (§ 125*) — ACCIDENTAL HOMIwas guilty of causing his death; and the fact that decedent used opium or morphine, which contributed to his death, was immaterial, unless it was the sole cause of death. [Ed. Note.-For other cases, see Homicide, Cent. Dig. §§ 7-10; Dec. Dig. § 5.*] 14. CRIMINAL LAW (§§ 489, 1153*)-REVIEWEVIDENCE-CROSS-EXAMINATION OF EXPERT WITNESS-DISCRETION OF TRIAL Court. The extent of the cross-examination of an expert witness as to collateral matters to test the knowledge of the witness is within the discretion of the trial court, and will not be disturbed, in the absence of an abuse of discretion. [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 1078, 3061-3066; Dec. Dig. §§ 489, 1153.*] 15. HOMICIDE (§ 175*)-EVIDENCE-REBUTTAL EVIDENCE. Where physicians for accused testified that the death of decedent did not result from a wound inflicted by accused, but from a disease caused by weakness of the heart, brought on by the use of morphine, the testimony of a physician in rebuttal that in the post mortem examination of decedent no evidence that decedent had used morphine was found was admissible. [Ed. Note. For other cases, see Homicide, Cent. Dig. §§ 375-378; Dec. Dig. § 175.*] 16. CRIMINAL LAW (§ 789*)-INSTRUCTIONSREASONABLE DOUBT. An instruction which points out the material allegations of the information, and states that the state must prove each of them beyond a reasonable doubt, and declares that if the state has done so the other facts surrounding need not be established beyond a reasonable doubt, and that the state need not establish every fact surrounding the testimony as given beyond a reasonable doubt, but the state need only prove that all facts taken together establish accused's guilt beyond a reasonable doubt, is proper, where the crime was established by the testimony of eyewitnesses. [Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 1846-1849, 1904–1922, 1960, 1967; Dec. Dig. § 789.*] 17. HOMICIDE (§ 309*)-TRIAL-INSTRUCTIONS. Where the testimony of accused showed that the homicide occurred in an attempt by accused, without authority, to disarm decedent, and accused tried his case on the theory that he had a right to forcibly disarm decedent, notwithstanding accused's act was a crime under Comp. St. 1910, § 5898, instructions that, if accused at the time of the shooting attempted by force to cause decedent to hand over to accused a gun, accused was engaged in an unlawful act, and that, if while accused was so engaged the gun in accused's hands was involuntarily discharged, and decedent was shot, accused was guilty of manslaughter, etc., properly submitted the issues. [Ed. Note. For other cases, see Homicide, Cent. Dig. §§ 649-656; Dec. Dig. § 309.*] 18. CRIMINAL LAW (§ 829*)—INSTRUCTIONSREASONABLE DOUBT. Where the court charged that, if the jury had a reasonable doubt of accused's guilt, a verdict of not guilty must be returned, and that the burden of proof was on the state to prove accused's guilt beyond all reasonable doubt, the refusal to charge that it was not necessary that accused should establish his innocence beyond a reasonable doubt, or by a preponderance of the evidence, but that if there was a reasonable doubt of his guilt the verdict of acquittal must be rendered, was not erroneous. [Ed. Note. For other cases, see Criminal Law, Cent. Dig. § 2011; Dec. Dig. § 829.*] Where accused was engaged in an unlawful act at the time of the killing of decedent, the homicide could not be attributed to accident, since the homicide could not have occurred but for the unlawful act in which accused was engaged; and an accidental killing is not a defense, unless caused in the doing of a lawful act. [Ed. Note.-For other cases, see Homicide, Cent. Dig. §§ 189, 190; Dec. Dig. § 125.*] 20. HOMICIDE (§ 5*)-INFLICTION OF MORTAL WOUND-NATURE OF WOUND. The place of the wound inflicted on decedent, and its extent and severity, are properly considered in determining the cause of decedent's death; but the low vitality of decedent may render him unable to stand the shock of the wound inflicted, or even one of less severity, and such wound may hasten his death, in which is guilty of homicide. case the person inflicting the wound unlawfully Cent. Dig. §§ 7-10; Dec. Dig. § 5.*] [Ed. Note. For other cases, see Homicide, 21. HOMICIDE (8 175*) — TRIAL — INSTRUC TIONS. Where the court charged that to convict, the jury must find, beyond a reasonable doubt, that the gunshot wound inflicted by accused caused or contributed to decedent's death, and that, unless so satisfied, there must be an acentertained any reasonable doubt whether the quittal, the refusal to charge that, if the jury wound was mortal, or reasonably calculated from its nature and extent to produce death, or whether death ensued from a disease to which the wound did not materially contribute, accused must be acquitted was not erroneous. [Ed. Note.-For other cases, see Homicide, Cent. Dig. §§ 375-378; Dec. Dig. § 175.*] Error to District Court, Fremont County; Charles E. Carpenter, Judge. John Hollywood was convicted of manslaughter, and he brings error. Affirmed. M. C. Brown, for plaintiff in error. Dillon, for the State. John SCOTT, J. The plaintiff in error (defendant below) upon a charge of murder in the first degree, was tried and convicted of manslaughter, and brings error. [1, 2] 1. It is contended that the court violated defendant's rights in compelling him to go to trial without sufficient time for him or his counsel to prepare for his defense. The crime is alleged to have been committed on the morning of September 30, 1909, at Thermopolis, Fremont county, and 80 or 90 miles from Lander, the county seat and place of the trial. The information was filed October 11th following, and within 14 days of the court within and for that county, served regular November, 1909, term of the district upon the defendant on October 26th. The defendant was arrested on November 10th, and confined in jail until November 17th, when he gave bail. On November 2d, the defendant having theretofore retained the firm of Landfair & Hardin, Mr. Hardin of that firm went to Thermopolis to interview the witnesses and prepare for trial. Having arrived at Thermopolis, he was, on November *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. 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