bordering on the Missouri river, except the counties of Bon Homme, Yankton, Clay, and Union."

The act of 1873, c. 16, § 26, bounds Buffalo county by the Missouri river. But appellants contend that, because that portion of Buffalo county bordering on said river is Indian reservation, said county does not extend to said river. Counties are the creatures of statute; and, as the law creating Buffalo county extends it to and bounds it on one of its sides by the Missouri river, the position taken by counsel for appellants, that it is not so bounded, is clearly untenable. The fact that a portion of the county is Indian reservation cannot and does not, in our opinion, change the boundary thereof.

We are therefore of the opinion that the registry law of this territory is valid, and a compliance there with constitutes a qualification of suffrage; that Buffalo county is not exempt from its provisions, and that the law was in no respect adhered to or complied with in the said election; and that said election was consequently void and of no effect. The judgment of the district court is in all things affirmed.

All the justices concurring.

LANGNESS, Appellant, v. PETTIGREW, Respondent.

In an action for damages in exceeding a right to construct a dam for a water-power of a certain number of feet head, where the difference at the trial was the method to be employed in measuring the number of feet head, the distinction between the general or apparent and the efficient head of water-power is immaterial; it appearing no such distinction was known or recognized at the time of the grant between the parties.

2. Same

Special Finding-Instructions.

In an action for overflowing lands in excess of a grant to construct a "dam to be for a water-power of eight feet head," where the differ

ence at the trial was the method of measuring the number of feet head, - whether it was by taking the difference between the water level above the dam and that below in the tail-race under the wheel, when the water was quiet, and the mill not in operation, or when it was running, the question for a special finding: "At an ordinary stage of water, was there more than eight feet difference between the level of the water in the pond above the mill-wheel and the level of the water below the mill-wheel in the race, while the mill is in operation?"—is proper and material. It did not have the effect of instructing the jury to ascertain the number of feet head by one method, when the court in its charge called attention to both, and told them they were to ascertain the proper one from the evidence before them.

3. Same-Trial.

In an action for damage in having exceeded a right to construct a 66 dam * * * eight feet high from a certain rock at the edge of the river where the dam crosses," it was proper to submit to the jury, for a special finding of fact, the question: "Was the dam erected more than eight feet high from the point of the rock designated in the deed?" It did not inform them "the point of the rock" from which to make the measurement, though none was named in the deed.

(Argued May 11, 1887; affirmed May 26; opinion filed February 14, 1888.)

Appeal from the district court of Minnehaha county; Hon. C. S. PALMER, Judge.

Wynn & Young, for appellant.

Two material issues were made by the pleadings:

1. Had the defendant, Pettigrew, built a dam in a manner that exceeded the restriction in the deed?

2. Were the lands of the plaintiff, Langness, overflowed and damaged by reason of the defendant building a mill-dam in a manner exceeding said restriction?

In addition to this, it appears by the record the construction of the clause in the deed was a subject of controversy.

The court erred in excluding the testimony of R. S. Alexander as to the difference between the general and efficient head of water-power.

The main question is the proper method of determining the number of feet head of water-power. It appears by the evidence two distinct modes of determining this were urged on the trial.

It appears that there is a difference between the general and efficient head. This witness states that he can explain the difference, and his competency is shown. "A contract may be explained by reference to the circumstances under which it was made and the matter to which it relates." C. C. § 938.

The actual and efficient water head also varies. Plaintiff's witnesses testify to the general head of water-power as shown by the height of the dam. Now, was it the general or efficient water-power that was contemplated in the deed in question, and which rule of measurement should be applied in this case? The court would not permit plaintiff to show the difference between the two. It is only by evidence of this character that the jury could intelligently and justly ascertain the true principle of measurement to be applied.

The appellant further insists that there was error in the submission of the special findings to the jury.

The questions were objectionable in form. The first was limited to an ordinary stage of water, and there was nothing in the evidence by which the jury could find the number of feet head of water-power at an ordinary stage of water, except in the evidence of defendant's witness. By the plaintiff's theory and mode of measurement the number of feet head of waterpower would be the same at any stage of water. The limitation in the question, "at an ordinary stage of water," was suggestive at once of the defendant's theory of measurement.

Again, the second question was objectionable in form. "Was the dam more than eight feet from the point of the rock designated in the deed from Langness to Pettigrew ?"

The contro

No point of a rock was designated in said deed. verted clause is as follows: "Said dam to be for a water-power of eight feet head, or eight feet from a certain rock at the edge of the river where the dam crosses."

The first question was not pertinent or material to any of the issues, and could determine no issuable fact.

The serious error in submitting this question to the jury was that it instructed them to ascertain the number of feet head

of water-power by the mode of measurement urged by the defendant.

Its submission to the jury was material error, as its effect. would be to press upon their minds the mode of measurement urged by the defendant, and that it was the correct one. Hawley v. Chicago, B. & Q. R. Co., 29 N. W. Rep. 87.

An instruction which assumes as correct one of two aspects of the case, upon which there is conflict in testimony, or which gives prominence to certain facts, ignoring other facts of equal importance, is erroneous. Watson v. Gray, 43 N. Y. 385; Le Roy v. Park F. Ins. Co., 39 N. Y. 56; Downs v. Sprague, *41 N. Y. 57; Calef v. Thompson, 81 Ill. 478; Westchester F. I. Co. v. Earle, 33 Mich. 143; Jones v. Jones, 57 Mo. 138.

L. S. Swezey, for respondent.

The inquiry of the witness Alexander was not upon any point in issue, and is irrelevant, incompetent, and immaterial. It is much involved and complicated. It includes the descriptive words "general," "apparent," "efficient" head of water-power. "General" means (1) pertaining to a class or order; (2) comprehending many things or persons; (3) not restrained or limited to any precise import, not specific, lax in signification,a general expression. "Apparent" means (1) capable of being seen, visible to the eye, within sight or view; (2) appearing to the view, but not real. "Efficient" means causing effects, producing results, operative. Webster.

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The party could not be prejudiced by a ruling of the court concluding such an inquiry. And there was no offer or explanation to show by such inquiry what was expected or proposed to be proved.

The form of the special verdict was in accord with the evidence and the law of the case.

The suggestion of counsel that the second question submitted to the jury is objectionable in form, in the words, "point of the rock," is not well made; for all the evidence on the subject of

the rock designated in the deed, on both sides, tends to explain and make certain the point of the rock mentioned in the deed, and there is no dispute about that.

The other objections to the submission of those questions may be considered together. They seem to be predicated on the theory that the mere submission of a question to the jury, to be answered "yes" or "no," is in the nature of an instruction or direction to the jury; in effect is a sort of duress "upon their minds," as argued by counsel. This is a misapprehension, or a misstatement of the matter.

We have examined the cases cited by counsel on this subject, and do not find them authority against the action of the court.

THOMAS, J. This is an action for damages. The complaint alleges that on the 26th of October, 1882, the plaintiff and his wife conveyed by deed to the defendant a small piece of land in Minnehaha county, describing it; and also the right to construct a dam upon or below the land thus conveyed for a waterpower, and the right to flow or set back the water upon certain other lands of the plaintiff; "said dam to be for a water-power of eight-foot head, or eight feet high from a certain rock at the edge of the river where the dam crosses.' The complaint further alleges that about the middle of December, 1882, the defendant constructed a dam at the point designated, but wrongfully constructed said dam to the height of nine feet ten inches, or so as to afford a water-power of nine feet ten inches head, thereby overflowing and damaging large tracts of plaintiff's lands, the which would not have been done had the dam been erected as provided in the deed; for which plaintiff claims damages to the sum of $4,000.

The answer admits the execution and delivery of the deed, but alleges that all of the overflow and damage, if any, claimed by plaintiff, were the necessary and lawful result of the building of said dam pursuant to the deed; and further alleges that the cause of action did not accrue within two years from the commencement of the suit. The case was tried to a jury beV.5DAK-4