ducted for Hospital Fund. the injury or asked for a physician, but it does appear that his superiors knew of the injury at the time it was received, and that it was serious, on account of which he was unable to perform regular work, and that he was receiving medical treatment. The company had no hospital and did nothing toward furnishing him needed attention, and he was justified in seeking proper medical aid, the expense of which should have been paid out of the hospital fund. The defendant recognized this fact in paying the first bills, namely, the bill of Dr. Leonard, for medical service and the expense of three Xray photos of the fracture, thus approving plaintiff's act in choosing his own physician. The case of Miller v. Beaver Hill Coal Co., 48 Or. 136, 85 Pac. 502, upon which defendant rests his case, is not at all in point here. In that case no contract was proved. But a hospital which was at the service of defendant was maintained by the company with a competent surgeon in charge, and the company was under obligation to do nothing more. Neither was it shown that there were hospital funds available, which was the limit of the company's liability. In the case at bar we have a contract and sufficient money available in the hospital fund, but no hospital nor medical attendant offered or available; and plaintiff was justified in seeking the necessary medical attention. The motion for nonsuit was properly denied. Payment for | ability resulting therefrom. Plaintiff does each month's labor to be made on the 12th not say he gave defendant formal notice of day of the following month. I agree to the above. George Jackson. H. H. Steward, Supt." The by-laws of the Hospital Fund Association of defendant are stated, in substance, in the answer of defendant as follows: "On or about the first day of March, 1903, the defendant herein * * created what is known as the Hospital Fund, said fund being for the benefit of its employés. By the rules and by-laws of said Hospital Fund it was provided that all persons employed by the Pacific Coast Condensed Milk Company at its factory located at Forest Grove, Oregon, should be considered members of the Hospital Fund Association, and, if a member in good standing and otherwise properly entitled thereto under the rules and by-laws of the said association, should receive the benefits of the Hospital Fund Association. It was further provided that the initiation fee to said association should be $0.50 and that monthly dues of the said association should be $0.50. It was further provided that the membership of any employé in the Hospital Fund Association and his right to the benefits thereof should be terminated by the discharge of any such employé by the defendant herein or by the discontinuance of work by any of the employés. It was further provided that the benefits to be derived by the injured or sick members of the Hospital Fund Association * * were that medical attention and drugs should be furnished to such member without expense to said member." It is admitted by defendant that the hospital fund is not a separate fund or organization, but is in the hands of the defendant company, and that there are sufficient hospital funds to satisfy any judgment rendered in this case. The employment card signed by plaintiff and the company constituted the plaintiff a member of the Hospital Fund Association, and entitles him to any benefits authorized thereby, and the dues which the defendant retained out of his wages was the consideration therefor. The employment of plaintiff and the payment from his wages of 50 cents per month, together with the stipulations of the by-laws, make a complete contract whereby defendant undertook to furnish to plaintiff medical attendance and drugs without expense to plaintiff in case of sickness or injury. We also find that the injury was received by plaintiff while in the employ of defendant, and therefore he was within the provisions of the by-laws. It SATTLER v. KNAPP et al. (Supreme Court of Oregon. Jan. 16, 1912.) 1. MECHANICS' LIENS (§ 281*)-PROCEEDINGS TO ENFORCE EVIDENCE. In proceedings to foreclose a mechanics' lien, defendant counterclaimed for damages to a hot water furnace in the building which he alleged plaintiff used under a license from defendant's architect, and which was injured in a evidence held insufficient to sustain answer. stated amount through plaintiff's negligence, [Ed. Note. For other cases, see Mechanics' Liens, Dec. Dig. § 281.*] 2. MECHANICS' LIENS (§ 310*)-PROCEEDINGS TO ENFORCE-ATTORNEY'S FEE. Where, in proceedings to foreclose a mechanics' lien, the complaint alleged, and the answer denied, that $50 is a reasonable attorney's fee, and no testimony was introduced on that question, no fee should be allowed. [Ed. Note.-For other cases, see Mechanics' Liens, Cent. Dig. 88 651-654; Dec. Dig. § 310.*] Appeal from Circuit Court, Multnomah County; W. N. Gatens, Judge. [2] It is contended by defendant that plaintiff chose his own physician, and that it should not be held liable as plaintiff did Suit by Martin Sattler against L. H. not apply to defendant for treatment. Knapp and another to foreclose a mechanic's appears that defendant knew of the injury lien. From a decree declaring that the lien at the time it was received and of the daily was void and dismissing the suit, plaintiff increasing suffering it caused and the dis-appeals. Reversed, and decree entered. For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r indexes BURNETT, J. (after stating the facts as above). [1, 2] A careful reading of the testimony renders it unnecessary for us to condemurrer to the answer. The defendant himself does not pretend to have had any agreement with the plaintiff about the use of the furnace. His whole affirmative an swer depends upon the license which the architect is alleged to have given the plaintiff to use the furnace and the condition imposed upon the plaintiff by that license. In our judgment the defendant fails to produce a preponderance of the evidence sustaining the alleged license or the terms thereof, and it is not clear whether the pipes were frozen on account of the negligence of Sattler or of some one else, even if the plaintiff was responsible at any time for their care. An extended quotation from the testimony would serve but little purpose as a precedent in the reports. This is a suit to foreclose a mechanic's ( attorney's fees. After a hearing on the lien upon certain real property described in issues involved, the court made findings of the complaint said to have been incurred for fact and conclusions of law and entered a services and material furnished in painting decree declaring that the lien of the plaina house thereon amounting in reasonable tiff is null, void, and of no effect, and disvalue to $425, no part of which has been missed the suit, and hence this appeal. paid, except $200. The complaint alleges, J. W. Reynolds (Flegel & Reynolds, on the and the answer denies, that $50 is a reason-brief), for appellant. L. E. Crouch, for reable amount to be allowed as attorney's fees spondents. in the suit. The plaintiff made Olivia H. Failing a party defendant, alleging her to have some lien or claim upon the premises subsequent and inferior to the lien of the plaintiff. There is practically no dispute as to the performance of the services, the fur-sider the question of law involved by the nishing of the material, and the filing of the notice of lien within the time prescribed by law. The principal controversy arises upon the validity of the counterclaim pleaded by the defendant. In the house in question there was a hot water furnace, and about that the answer alleges: "That heretofore, and on or about the day of January, 1909, this defendant's architect, at plaintiff's request and in order and to the end that plaintiff might continue and complete his said contract of painting defendant's house, as set out in paragraph 2 of plaintiff's complaint, and for plaintiff's sole use and benefit, and without charge, licensed, permitted, and allowed plaintiff to use a certain hot water furnace and system then installed in this defendant's house, upon which plaintiff was performing his said labor. * That by the terms of said license and permission to plaintiff to use said furnace system, as aforesaid, the plaintiff undertook and agreed to take proper care of and prevent said system from freezing or from damage in any manner whatsoever." In substance, the answer then alleges that by reason of the plaintiff's negligence in the management of the furnace he allowed the fire to die out, as the result of which the water froze in the heating plant and caused the boiler, pipes, and radiators to burst so that they were of absolutely no value, that the defendant was compelled to expend $215.91 in repairing the damage done by plaintiff's negligence. The defendant "That the contract price between the plaintiff and the defendant agreed for the painting of this defendant's house was $425; that this defendant paid plaintiff February 16, 1909, the sum of $200; that this defendant has a counterclaim against the plaintiff on account of said repairing in the sum of $215.91; and that there is now due and owing to the plaintiff from the defendant the sum of $9.09." He then alleges a tender of $9.09 and $1 for filing the lien and takes the same into court. A general demurrer to the new matter in the answer having been overruled, a reply was filed denying the same. The defendant Failing defaulted. There was no testimony on the subject of avers: It is enough to say that the decree of the court below is reversed, and a decree here entered according to the prayer of the complaint but without attorney's fees. CITY OF NEWBERG v. KIENLE. (Supreme Court of Oregon. Jan. 23, 1912.) 1. HIGHWAYS (§ 14*)-ESTABLISHMENT BY USER-PRESUMPTION AS TO EXTENT of Use. road laid out by the county builds a fence on Where the owner of land abutting on a the line claimed by him, the public use of the road will be presumed to extend to the fence. [Ed. Note.-For other cases, see Highways, Cent. Dig. § 21; Dec. Dig. § 14.*] 2. MUNICIPAL CORPORATIONS (§ 654*) STREETS ESTABLISHMENT BY USER — ÉVIDENCE OF LOCATION. Evidence in an action to enjoin an abutting owner from extending a building into a city street held sufficient to show that certain trees indicated the line of a fence built by the predecessors of the abutting owner and which served for more than 24 years as a boundary of a public road. [Ed. Note.-For other cases, see Municipal Corporations, Dec. Dig. § 654.*] 3. MUNICIPAL CORPORATIONS (§ 697*)-OBSTRUCTION OF STREET-ACTION FOR INJUNCTION-ESTOPPEL. In an action by a city to enjoin defendant, an abutting owner, from extending a building in the course of erection beyond the line of the street where defendants had not occupied the property beyond the line or been induced by the city to do any act or make any ex •For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes penditure upon the grounds outside of such line, and where defendant had sufficient knowledge to put him on inquiry as to the city's right, there was no estoppel against the city. [Ed. Note.-For other cases, see Municipal Corporations, Dec. Dig. § 697.*] Appeal from Circuit Court, Yamhill County; William Galloway, Judge. Action for injunction by the City of Newberg against Edward J. Kienle. Judgment for defendant, and plaintiff appeals. Reversed. S. B. Huston and Clarence Butt, for appellant. McCain & Vinton (F. W. Fenton, on the brief), for respondent. center of the road at the time he platted the with reference to the plat, it does not aid us the owners whose lands front thereon, as indicated by the monuments and fences which they themselves place upon the ground, and the lines which they fix for the same in making conveyances of their property." In Kruger v. Le Blanc, 70 Mich. 79, 37 N. W. 882, it is said: "Highways by user are based upon the implied dedication by the owner of the land; and, where there is nothing to indicate a contrary intention, the presumption is that the owner intended to dedicate the land to the full legal width. Bumpus v. Miller, 4 Mich. 159. But where the owner has placed fences or other means, during the time the statute is running, within the statutory width, it indicates an intention not to dedicate to the full width, and the public is only entitled to claim the part which it has been permitted to use." See, also, Bumpus v. Miller, 4 Mich. 159. [1] It appears that the county made some effort in April, 1871, to lay out and establish the road as a county road under the statute, but it is practically conceded that what was done in that matter was insufficient to establish a road, and the record does not aid plaintiff's case other than it operates as EAKIN, C. J. The city of Newberg by color of title in the use of the road thereaftthis proceeding seeks to enjoin defendant er. It is to be noted that the building of the from extending into the street a building he fence was approximately at the time of this is erecting on block 12 of Everests' addition attempt by the county to lay out the road, to Newberg, and the dispute is as to the lo- and the use by the public will be presumed cation of the northwest line of the street now to extend to the fence. It is said in Washcalled "Dayton avenue," formerly known as ington Borough v. Steiner, 25 Pa. Super. Ct. the "Dayton-Portland road," which we will 392, that: "Where the right to a public highhereafter refer to as the road. It was trav- way is acquired by adverse user, an impor eled as a road long prior to 1866, passing ap-tant element in determining the width thereof proximately north 47 degrees 10 minutes is the recognition of the limits of the way by east, diagonally across the northwest corner of the Rogers donation land claim, which is now within the city of Newberg. In March, 1866, David Everest purchased from the heirs of Rogers 17 acres in the northwest corner of the claim, including that part of the claim northwest of the road. Until purchased by Everest, and for a few years thereafter, this portion of the Rogers donation claim evidently was not inclosed. Richard Everest, a son of David Everest, says that about three years after his father traded for the 17-acre tract he fenced it, namely, about the year 1871, which, so far as appears, was the only fence ever built along the northwest side of the road and inclosed the Everest tract, and which remained there until about the year 1895, when it began to disappear. On March 1, 1888, Everest platted the tract into lots, blocks, streets, and alleys. The notes of the survey of the platting, if any, are not in evidence, and there is nothing on the plat to indicate the location of the southwest line of the platted ground. All the blocks bordering on the road are fractional blocks, and their dimensions cannot be determined from the plat, but the southeast lines of the blocks are indicated thereon by heavy black lines adjacent to the road. The tracing of the survey of the 17acre tract, given in evidence by Herring, as taken from the deed, discloses that it included a portion of the road as now recognized, namely, about 15 feet. If the blocks and lots were staked on the ground when the addition was platted, it was not shown in the evidence nor has there been any attempt to locate the corners or lines of the blocks bordering on the road. If Everest owned to the It is conceded by defendant that this road was a legal county road, and is now a city street by user, and he only questions its location or the location of its northwest boundary. These statements eliminate all the questions involved, except the location of the boundary of the road as acquired by user. Adverse possession of the ground cannot aid defendant, unless his possession continued for 10 years prior to the 25th day of May, 1895, when the state and county were exempted from the operation of the statute of limitations, and defendant makes no contention of such possession except by virtue of the original fence built in 1871 by Everest, and plaintiff seems to admit that the location of that fence is the northwest boundary of the road, and is the true boundary of the road, and we will attempt to ascertain the original For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r indexes location of the fence, referred to as a "rail say was out from the fence a little way as worm fence." At the time of the trial there the one evidenced by the stump. The other was none of the fence remaining, and plain-witnesses state that the tree in the fence tiff seeks to establish its original location by row bore yellow apples, while the Everests persons who were familiar with it. Many say that the tree they have in mind bore witnesses identify an apple tree as having striped apples, and their testimony is not stood within the worm of the fence on the convincing. The evidence tends to show ground that is now a part of defendant's lot. that there were three apple trees, two in or the stump of which is now intact and within near the fence and one lower and out from defendant's building. A great deal of the the fence a little, and the Everests must testimony for both parties centered around have had in mind the one out from the fence. this tree. They also identify a haw tree, [2] And we conclude that these trees, eswhich is still standing on block 12 and near pecially the haw tree and apple tree stump, defendant's lot, farther southwest, as having indicate the line of the fence which was stood in the fence line. There are many oth- built in 1871, and stood there until probably er trees that are identified as either having 1895 or later, a period of more than 24 years, stood in the fence line or very near it, most and has served as a barrier or boundary of of them still farther southwest, which are the road on the northwest as traveled and all very persuasive as to the location of the used by the public. fence. The apple tree mentioned is the most important, as it is within defendant's lot, and, if identified, determines the line at the immediate point in controversy. Wilson's testimony is to the effect that he lived there about 21 years and used to get upon the fence and pick apples from that tree; that it was very close to the worm of the fence. He also identifies the other trees and briars, and other indications on the ground, of the fence line. Jesse Edwards, who has been there 29 years, testified as to a haw tree that indicates distinctly where the fence was, its limbs having spread between the rails; that the apple tree stood in the corner of the fence, and the rose briars along the fence all indicated the fence row. Hoskins, who lived there since 1879, says: "There was a fir tree stood well up to where that road junctioned with the Portland road, up close to the corner (the northeast corner of block 12), *** farther down, probably six rods there was an apple tree; and still farther down, but a little east or a little west, was another apple tree, but before you get to that apple tree there was a haw bush or thorn, crab-tree, or something stood between the apple tees. * * ** * We have before us, also, the county surveyor's field notes of the road filed in the road proceedings in 1871, and it is conceded that the portion of the survey between angles 20 and 21 is the portion of the road involved here, and in those notes the course is given "N. 461⁄2 degrees E.” Witness Herring, who gives us his tracings of the Everest tract, runs that line on the course north 47 degrees, 20 minutes east, being 50 minutes east of the county surveyor's course. This also tends to corroborate plaintiff's contention as to the location of the fence at block 12. This is further corroborated by the location of a blacksmith shop built at the present site of the new building. Smith testified that this new building is longer than the old shop. "This building is a great deal longer (it extends farther south), * * ** especially the east part of it extends a great many feet * * ** farther back than the other part. The east part of the old building was short.” Furguson gives the dimensions of the old shop on the west side as 9 feet 2 inches shorter north and south than the new building, and 10 feet 6 inches shorter on the east side, indicating that it was wholly inside the *line of the old fence; and it was built when The lower apple tree was inside of the field. the location of the fence could not have been ** The fir tree and the first in doubt, thus indicating that defendant's apple tree was very nearly the corner of the acts in extending the new building were the lock of the fence. The thorn tree first encroachments at that point beyond the was out in the field a little." And except the line of the fence. Everest and his successors one apple tree they were in the line of the in interest are bound by the location of the fence. fence as indicating the northwest boundary of the road. Oliver, Butler, C. J. Edwards, Vestal, Hagey, and Smith all testify more or less defi- [3] Defendant pleads estoppel against the nitely as to the briars, the thorn tree, apple city, but the estoppel alleged is that plaintiff trees, and the fir, as indicating the line of has recognized the fence for more than 10 the fence. The testimony of W. R. Everest years as the northwest line of the road, but, and Granville Everest, sons of David Ever- as we have found that the fence was the est, tends to contradict the location of the ap-northwest boundary of the road, we need not ple tree, the stump of which is still standing enter into any discussion of the estoppel. within defendant's building. It had been Neither defendant nor his predecessors have since they moved away from occupied the lot beyond the fence line as here their father's place and they have not no- found nor been induced by any acts of the ticed the trees much since, and evidently | city to do any act or make any expenditure identified the tree that the other witnesses upon the ground beyond the fence line. The deed from Everest to Force, a prior judgment for plaintiffs may be given for the owner of defendant's lot, does not give the possession or the value thereof, in case a deexact dimensions of the lot conveyed, but livery cannot be had, and damages for the detention thereof. Held that, where a mortgagee conveys to the center of the road "subject to brings replevin to recover possession of mortall road claims." Defendant knew that there gaged hops because of condition broken by the was a question as to the location of the mortgagor, he can recover the property, or in street line; talked about it with the chair-judgment for the value of his property, which case recovery cannot be had, he is entitled to man of the street commission before he had value is measured by the amount which would done more than lay the foundation of the make him whole for what he has suffered by building. He had sufficient knowledge to put the breach of the conditions of mortgage. him on inquiry, and what he did thereafter Mortgages, Cent. Dig. § 308; Dec. Dig. § 172.*] [Ed. Note.-For other cases, see Chattel he did at his peril. He admits that he left 3. CHATTEL MORTGAGES (§ 23*)—VALIDITY— the construction of the back end of the buildMORTGAGE TO SECURE PAYMENT OF DAMing to the last and put in an extra force AGES. of workmen to rush the work before he could be stopped, and he cannot now be heard to complain. And we conclude that the apple tree stump, now within a part of defendant's building, and the haw tree southwest of it and on block 12, indicate approximately the line of the fence as originally built and determines the northwest boundary of the road adjacent to block 12; that is to say, that the two trees mentioned indicate the inside line of the fence worm referred to in the evidence as a four-foot worm, while the outside line of the worm must be the boundary of the road. Judgment of the lower court is reversed. McNEFF et al. v. SOUTHERN PAC. CO. et al. (Supreme Court of Oregon. Jan. 16, 1912.) 1. CHATTEL MORTGAGES (§ 172*)-BREACH OF CONDITION-REPLEVIN BY MORTGAGEE. A hop grower contracted to sell her crop at a specified rate per pound, and gave a chattel mortgage on the crop to secure any advances by the purchaser under the contract, and any damage to him by breach of the contract by the grower. The mortgage provided that it should be foreclosed in the manner provided by law. L. O. L. § 422, provides that a mortgage lien shall be foreclosed, and the property adjudged to be sold to satisfy the debt secured by a suit. Section 7411 provides that on breach of the conditions of a chattel mort A mortgage on a crop of hops given by the grower to the purchaser, who has agreed to make advances on the crop, to secure the payment of the advances and damages which would result from a breach of the contract by the grower, is valid. [Ed. Note.-For other cases, see Chattel Mortgages, Cent. Dig. § 70; Dec. Dig. § 23.*1 4. CHATTEL MORTGAGES (§ 112*)-CONSTRUC TION AMOUNT SECURED. A hop grower sold her crop and gave a mortgage thereon to the purchaser to secure advances and damages which might result from breach of the contract by the grower by sale the grower's breach of contract. Held, on of the hops to another person, that the amount secured by the mortgage consisted of the unpaid advances and the difference between the market value of the hops and the contract price. [Ed. Note.-For other cases, see Chattel Mortgages, Cent. Dig. § 196; Dec. Dig. § 112.*] Appeal from Circuit Court, Multnomah County; E. C. Bronaugh, Judge. Action by J. McNeff and others against the Southern Pacific Company and J. McGillivray. Judgment for plaintiffs, and defendant Reversed and reMcGillivray appeals. manded. By the complaint, in the usual form of replevin, in this action, the plaintiffs seek to recover from the defendants the immediate possession of 53 bales of hops alleged to be of the reasonable value of $2,800. The action was dismissed as to the Southern Pacific gage it may be foreclosed in the manner there Company. The defendant J. McGillivray anin provided and not otherwise. Section 7410 provides that on breach of the condition of a swered admitting that the hops were in his chattel mortgage, the mortgagee shall be en- possession in Multnomah county, Or., that titled to the immediate possession, and if the the plaintiffs demanded them of the defendpossession is not delivered on demand, he may recover possession as provided by Code Civ. ants, and that the defendants refused delivProc. tit. 4, c. 2 (L. O. L. §§ 283-294), which ery, but otherwise denied all the allegations chapter relates to the recovery of possession of of the complaint. On the issues thus formed personal property, and provides that during the action was tried by the court without a pendency of the action the property may be delivered to plaintiff upon a writ, commonly jury. It appears in substance from the findknown as the writ of replevin. Held that, on ings of fact made by the court that Mrs. C. breach of the contract with the hop grower, H. Bozarth, a hop grower in Yamhill county, the purchaser could maintain replevin to re-entered into a Janus-faced contract, common cover the hops, although he might have brought suit to foreclose the mortgage, making parties in the hop-growing industry, which in one defendant of all who claimed to have any inter- aspect amounted to an executory contract for est in the hops. the sale of her hops to the plaintiffs at the price of 10 cents per pound, and in the other aspect was a chattel mortgage as se FORM OF JUDGMENT. [Ed. Note.-For other cases, see Chattel Mortgages, Cent. Dig. § 306; Dec. Dig. § 172.*] 2. CHATTEL MORTGAGES (§ 172*)-REPLEVIN-curity for the advances which the plaintiff L. O. L. § 198, provides that in an action might make to the grower, under the provirecover possession of personal property, sions of the contract, and for any damage *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes to |