main and the right and power to condemn the lands of plaintiff herein and the perpetual right to flood and overflow the same and back and overflow water thereupon and thereover."

Within 30 days after the findings of the master, the appellant deposited with the clerk of the court the amount of the award and costs, and thereafter, on December 28th, the respondent filed his acceptance of the award and made a motion for an order directing the clerk to pay over the money, both parties appearing, and at the same time the

erence, to appear before the master on the
24th of August, 1908, and submit evidence
in conformity with the order. The respond-
ent appeared at the time noticed and again
renewed his objection to the jurisdiction of
the master on the ground that the court had
no jurisdiction to order a reference or change
the issues in the case or to deprive the re-
spondent of a jury trial, and that the answer
did not state facts sufficient to entitle the
appellant to condemn the lands of the re-
spondent, and on August 26th, under protest
of counsel for respondent, the trial proceeded
before the master, and evidence was intro-appellant filed its motion for leave to with-
duced by the respondent in support of the al-
legations of his complaint and in support of
the issues framed by the order of August
3d, referring the cause. A large number of
witnesses were examined on behalf of the
parties. Both parties having introduced all
the evidence they desired, the master took

draw the funds theretofore deposited in
court. All parties appearing before the court,
on December 28th an order was made short- .
ening the time of notice and fixing the date
of final hearing for December 31, 1908, and
on that date, all parties appearing before the
court, the respondent filed a supplemental
acceptance of the award and accompanied
the same by a deed in writing, duly executed
and acknowledged by respondent, conveying
to the appellant a perpetual easement to
back and overflow with water said 342 acres
of land, and delivered said deed to the clerk
of the court for the use and benefit of ap-
pellant upon its payment to the respondent
of the award of the damages, which deed
was at that time deposited with the judge of
the court. On December 31st the case was
finally submitted and by the court taken un-
der advisement, and thereafter, on March 13,
1909, final judgment was entered confirming
the report of the master, and denying the
application of appellant to withdraw the
fund, and granting the application of re-
spondent for an order directing the payment
to him of the amount deposited, and direct-
ing the respondent to make, execute, ac-
knowledge, and deliver a good and sufficient
deed for the lands sought to be overflowed,
granting to the appellant in perpetuity the
right to overflow said land. Thereupon the
appellant moved for a new trial, which mo-
tion was denied. This appeal is from the
judgment and order denying the motion for
a new trial. At the time of taking the testi-
mony before the master, the case was at is-
sue on the complaint and answer. The re-
spondent did not demur to the answer until
after said amendment was allowed on Octo-
ber 1, 1908. The hearing before the master

the case under advisement and thereafter on
November 18, 1908, made his findings of fact
and conclusions of law, awarding to the re-
spondent $1,600 for the permanent overflow
of 342 acres of said land, and $750 damages,
resulting injury to other lands, and $202.85
for the hay crop of 1907, alleged to have been
destroyed a total of $2,552.85, besides costs.
On October 1st, and after the submission
of the cause, the appellant procured an order
from the judge of the district court permit-
ting it to amend its answer by inserting at
the end of paragraph 3 of page 20 of the an-
swer, and before the prayer, an additional
allegation, as follows: "That the defendant
is now, and at all of the times hereinmention-
ed has been, a corporation organized and ex-
isting under and by virtue of the laws of
the state of Washington, and is now, and at
all of the times herein mentioned has been,
authorized to hold real property and to do
business within the state of Idaho by vir-
tue of a compliance with the laws of the
state of Idaho relating to foreign corpora-
tions. That heretofore, and before the filing
of this suit, the defendant complied with all
the laws of the state of Idaho relating to
foreign corporations, and did file a certified
copy of its articles of incorporation with the
recorder of Shoshone county and a certified
copy thereof with the Secretary of State of
the state of Idaho, and designated a statu-
tory agent residing at Wallace, Shoshone
county, Idaho, upon whom papers and pro-
cess could be served, and filed the said desig-was concluded September 1, 1908.
nation in the proper offices as required by
It will be observed from the foregoing
corporations. That the defendant has power, statement of facts that the action was
among other things, under its articles of brought to recover damages for destruction
incorporation, to erect, construct, maintain, of a crop of hay by the overflowing of plain-
and operate electric railways, electric power tiff's land and for an injunction. The an-
and transmission lines, and to do all things swer denied the allegations of the complaint
necessary and incident thereto, including the and set up as a defense that the appellant
right and power of eminent domain. That and the plaintiff had entered into an agree-
under the laws of the state of Idaho and the ment whereby the appellant had agreed to
articles of incorporation which have been fil- pay the respondent $20 per acre for a per-
ed as aforesaid in the state of Idaho, defend-petual right to flood said lands, and as a fur-
ant has the right and power of eminent do- ther defense averred that its grantors and

predecessors in interest had the right to per- | sistently, and that they will not be heard to petually flood said lands, and that it pro- complain of errors which they have themcured said right by grant from them. After selves committed, or have induced a trial the issues had been made up, on the applica- court to commit." This court held in Farmtion of appellant, it appears that the theory ers' Co-operative Ditch Co. v. Riverside Irof the case was entirely changed from one rigation District, 14 Idaho, 450, 94 Pac. 762, of damage and injunction by the plaintiff to that one who invites error will not be allowone of condemnation by defendant, and re- ed a reversal of the judgment on that acferred to a master to take the evidence up- count, and in support of that rule cited 3 on the theory of condemnation and to re- Cyc. 242; Borden v. Croak, 131 Ill. 68, 22 port his findings and conclusions. N. E. 793, 19 Am. St. Rep. 23; Gumaer v. Draper, 33 Colo. 122, 79 Pac. 1040; Aaron v. Holmes (Utah) 99 Pac. 450.

We think the evidence is amply sufficient to sustain the judgment.

If the defendant had intended to stand on its other defenses, there certainly was no need of having the case referred to a referee While the reference was not made exactly to ascertain the damages to be awarded for in accordance with the request of counsel the flooding of said land, and the order re- for appellant, so far as the detail of the refquested and prepared by counsel for appel-erence was concerned, it was made exactly lant, and also the order made by the court, in accordance with such request as to the provides for the appointment of a master to issues to be tried by the referee, which issues take testimony as to the extent of plaintiff's were entirely inconsistent with the special land overflowed by reason of defendant's defenses attempted to be set up by the andams and the value of said land at the time swer. The court made an error without any of the overflow in 1907, and to find and as- law whatever in its support when it deprived sess the damages that plaintiff is entitled to; the respondent of the right to trial by jury "that is, the same damage and measure of of his action for damages to his hay crop, damages that plaintiff would be entitled to if and this error was invited and made at the defendant was condemning the right to flood request of counsel for appellant, and it was and overflow plaintiff's land permanently and such an error as clearly indicated the waivperpetually." The only party objecting to er by the appellant of the special defenses the order made was the respondent, and it pleaded in its answer. That being true, the is contended that the court made said order appeal must be disposed of by this court on upon the authority of New York City v. Pine, the theory that the case was tried by the 185 U. S. 93, 22 Sup. Ct. 592, 46 L. Ed. 820, trial court at the invitation and request of and Pappenheim v. Metropolitan Elevated the appellant as a condemnation case withRy. Co., 128 N. Y. 436, 28 N. E. 518, 13 L. out a jury. The appellant must be held to R. A. 401, 26 Am. St. Rep. 486. In our view have waived each and every of the special of the case, it matters not upon what author- defenses pleaded. ity the court made said reference. The reference was made at the instance and request of the appellant, and it was for the purpose of ascertaining the number of acres of land overflowed and to determine the damages that plaintiff was entitled to recover according to the rule and measure of damages in condemnation proceedings. The court was evidently misled by counsel for appellant, and. instead of proceeding upon the theory on which the case was begun and the pleadings framed, proceeded upon the theory that it was an action for condemnation. This was clearly error, and the plaintiff by it was prevented from having a jury trial in his action to recover damages for the loss of his hay crop. However, by the acceptance of the award, the respondent has waived the error and has not appealed from the judgment. The error having been brought about at the request of the appellant, it does not now occupy a position to have the case reversed for the reason that it procured the court to make the error; it invited the error. A party will not be heard to complain in this court of an error which was committed by the trial court at his instance and request. The court said in Walton v. Chicago, St. P., etc., Ry. Co., 56 Fed. 1006, 6 C. C. A. 223, as follows: "It is a well-established doc

In the view we take of this case, it is not necessary for us to pass upon or determine any other of the errors assigned.

The judgment must be affirmed, and it is so ordered, with costs in favor of respondent. STEWART and AILSHIE, JJ., concur.

On Petition for Rehearing.

AILSHIE, J. Appellant has filed a petition for a rehearing, and insists that the court has invoked against it the rule of waiver and invited error, under a misapprehension of the full extent of the order appellant requested the trial court to make in this case. This contention seems to be made chiefly upon the following statement contained in the original opinion: "The only change as made was that the sum so paid in should be subject to the order of the court, and leaving out the provision that in case the defendant failed, neglected, or refused to pay said sum into court, he should be restrained and enjoined from flooding said land." It appears, however, that in fact the order made by the trial court also omitted the fourth paragraph from the requested order. That paragraph reads as

SULLIVAN, C. J., and STEWART, J., con

cur.

(17 Idaho, 113)

fendant shall not be prejudiced by said pay-| If the appellant has been deprived of any ment into court, and that it shall not thereby of its property or property rights in this be prevented from further taking or prose-case, it has been done by its own initiation. cuting any appropriate action or proceeding It impliedly waived the defense it now urges, relating to any question involved in this ac- and should not be heard at this time to tion." That provision of the order was con- change its theory of the case. We have exsidered by the court; but no mention was amined the evidence in the record for the made of it in the written opinion. The only purpose of ascertaining if it is sufficient to theory upon which that provision could have support the finding of the referee and judgany bearing or effect would be in event it ment of the court in awarding damages. We should receive the construction that, even think the evidence is abundantly sufficient though this reference should be made, it to support the judgment in that respect, and should have no effect if it proved unsatis- so held in the original opinion. factory to the defendant in the action, and The petition is denied. that defendant might take any other action it saw fit to take in the case or in reference to the matter in controversy, however inconsistent it might be with the reference requested. While this paragraph of the order is capable of such a construction, the court is not going to give it a construction that would be inconsistent with good faith on the part of the litigant who requested the order. To give it such a construction would be in effect saying that the appellant was trifling with the court in submitting such A document or paper may be made a part an order and asking such a conditional ref- of a bill of exceptions by reference, without erence. While the proceeding in this case copying the same therein, providing the identification is sufficient, and the paper or document, is open to that construction and might sub-purporting to be thus identified in the bill, is ject appellant to the charge that it was endeavoring to take a short cut to condemn respondent's land and also avoid submitting the question of damages to a jury, and at the same time reserve all legal and technical defenses that it might have as to the validity and extent of respondent's title and right of possession and occupancy, still we are inclined to give it the construction that the appellant was at the time acting in good faith.

STORER v. HEITFELD et al. (Supreme Court of Idaho. Oct. 29, 1909.) 1. EXCEPTIONS. BILL OF (§ 22*)-APPEAL AND ERROR ($ 939*)-BILL OF EXCEPTIONS-PAPERS MADE PART OF BY REFERENCE.

placed in the record; and, in the absence of a showing to the contrary, the court will prethe record is the one identified in the bill of exsume that the document or paper appearing in ceptions.

[Ed. Note.-For other cases, see Exceptions, Bill of, Cent. Dig. § 29; Dec. Dig. § 22;* Ap peal and Error, Cent. Dig. § 3805; Dec. Dig. 939.*]

2. APPEAL AND ERROR (§ 655*)-NEW TRIAL (§ 124*)-RECORD-MATTERS TO BE INCLUDED IN-MOTION FOR NEW TRIAL.

The statute or this state does not require a formal motion to be made for a new trial; yet it contemplates a motion for a new trial, and, when such motion is put in writing and filed as a part of the records in the case, the same will not be stricken.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 2823-2825: Dec. Dig. § 655 New Trial, Cent. Dig. § 250; Dec. Dig. § 124.*]

3. NEW TRIAL (8 153*)-PROCEEDINGS TO PRO CURE-AFFIDAVITS STRIKING FROM FILES.

Under the provisions of section 4441, Rev. Codes, a party intending to move for a new trial must, within 10 days, serve notice, desig nating therein the grounds upon which the mo tion will be made, and whether the same will be made upon affidavits, etc., and under the

A proceeding in condemnation is an admission of ownership of the property and right sought in the person against whom the condemnation is prosecuted. Condemnation was, accordingly, in conflict and inconsistent with the defense set up by appellant that it had already acquired from Frederick W. Post, by and with the consent of the United States government, the right to perpetually flood this land. If it had such right, then respondent had nothing to condemn. Appellant clearly and unmistakably led the court into the procedure adopted in this case and the theory of condemnation as embodied in this order. After it had invok-provisions of subdivision 1 of said section, if ed this procedure and converted the respondent's action for damages and injunction into an action in condemnation on the part of the appellant, and after the evidence had all been taken by the referee, and a report had been made, and the money had been paid into court, the court then properly refused to allow defendant to withdraw the payment and proceed upon another theory of the case that it had impliedly waived in the first instance.

the motion is to be made upon affidavits, the moving party must within 10 days after service thereof, or such further time as the court or judge may allow, file such affidavits with the clerk.

[Ed. Note.-For other cases, see New Trial, Dec. Dig. § 153.*]

4. AFFIDAVITS IMPROPERLY FILED.

And where the notice of intention to move for a new trial does not state that the motion will be based upon affidavits, it is improper to file affidavits, and, if filed, the same will be stricken from the records.

*For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes

5. NEW TRIAL (§ 153*)-PROCEEDINGS TO PRO-, said money was paid by plaintiff to said BuCURE-AFFIDAVITS-TIME FOR FILING.