land was submerged," etc, and by reason thereof respondent was damaged.

The appellant filed a general demurrer to the complaint, which was overruled by the court, and appellant excepted. Answer and replication were filed, the answer denying all the allegations of the complaint. The cause was tried to a jury, and verdict and judgment rendered for respondent.

Appellant filed its motion for new trial, which was overruled. Whereupon appellant appealed from the order overruling motion for new trial, and from the judgment of the court below.

On the trial of the case counsel for appellant requested. the court to give the jury the following instruction: "The plaintiff's action is based on the alleged negligence of the defendant in the conduct of its business upon Deep creek. There is no presumption that it was unlawful for defendant to float logs down this steam, and the plaintiff can recover of defendant in this action only by showing that it was guilty of a want of ordinary care and prudence in the conduct of its business upon this stream, and that the plaintiff has sustained damage because of such lack of care." The court refused this request, and instructed the jury as follows: "There is no presumption that it 225 was unlawful for defendant to float logs down this stream. The defendant had the right to use such stream for such purpose, and they were engaged in a legitimate business, but while engaged in such business the defendant was obliged to conduct its business in such manner as not to cause injury to the plaintiff. And if you believe from the evidence that in July, 1891, the defendant had placed in Deep creek above the lands of the plaintiff a large quantity of logs to be floated down said stream to their mill, which had jammed together, forming a gorge, and such jam obstructed and retarded the natural flow of said stream in large quantities, so that such jams and gorges were suddenly released, causing said stream to swell and raise above the level thereof, thereby submerging plaintiff's land with water, and thereby caused large quantities of water, logs, and rubbish to flow over said plaintiff's land, and his growing crops were destroyed by reason thereof, you will find for the plaintiff in whatever damages you may believe from the evidence he has sustained."

The action of the trial court in refusing the request of appellant and in giving the instruction quoted above is the principal error assigned in the record.

The gist of this action is negligence; and until some negligence is shown there can not be said to be any liability: Bielenberg v. Montana Union Ry. Co., 8 Mont 271.

We think the instruction requested by appellant correctly stated the law of the case, and should have been given: Carter v. Thurston, 58 N. H. 104; 42 Am. Rep. 584; Field v. Apple River L. D. Co., 67 Wis. 569. The instruction given by the court practically ignored the question of negligence, and told the jury to find for the respondent for whatever damages he had sustained by the acts of the appellant in placing the logs in said stream, whether the appellant was guilty or not of any negligence or want of care in the conduct of its business, or whether the damage resulted from causes beyond appellant's control, and this, too, after instructing the jury that the appellant had a right to place its logs in said stream, and that it was engaged in a legitimate business. Ordinarily, if a person is engaged in a legitimate business, he is only liable to another for such injuries as result from negligence or the want of 226 ordinary care and prudence in the conduct and management thereof. Tested by this rule, we think the instruction given by the court below did not correctly state the law governing the case.

There are other errors assigned, but we do not deem it necessary to consider them.

The order of the court below denying a new trial is overruled, the judgment reversed, and the cause remanded for new trial.

HARWOOD, J., and DE WITT, J., concur.

WATERCOURSES-RIGHT TO FLOAT LOGS. -One has a right to use a public stream in a proper and reasonable manner to float his logs, and if they strand on the land of a riparian owner he is not liable for any injury thereby to the land unless negligent: Carter v. Thurston, 58 N. H. 104; 42 Am. Rep. 584; Davis v. Winslow, 51 Me. 264; 81 Am. Dec. 573, and extended note; and a mere jam of logs in a river does not of itself constitute negligence on the part of the booming company running logs in such river: Witheral v. Muskegon Booming Co., 68 Mich. 48; 13 Am. St. Rep. 325, and note. In the absence of prescription or user it is not a public right to float logs down a non-navigable stream which is only fit for that purpose during periodical freshets. The bed and banks of such a stream are under the abso lute ownership and control of the riparian owner: Hubbard v. Bell, 54 Ill. 110; 5 Am. Rep. 98, and note.

BONNER V. MINNIER.

[13 MONTANA, 269.]

A HOMESTEAD IS NOT EXEMPT FROM A LIEN IN FAVOR OF A MATERIALMAN who furnished materials to be used in the improvement thereof and can, therefore, be directed to be sold in satisfaction of such lien.

Brantley and Scharnikow, for the appellant.

W. H. Trippett, for the respondent.

269 HARWOOD, J. This action was brought to obtain judg ment, and foreclose a lien to enforce payment, for materials furnished and used in the construction of a certain house in the village of Champion, Deer Lodge county. It appears that said house was built upon a piece of land theretofore vacant, being part of a quartz lode mining claim, purchased by defendant Minnier from one Baudet, which purchase was originally evidenced by a bill of sale 270 executed by Baudet to Minnier. But it appears to be conceded that the money used in said purchase belonged to defendant Mrs. Minnier; that, while the title to the property stood in that condition, the defendant Minnier, with the knowledge and approval of his wife, commenced the erection of a house on said land, and purchased from plaintiff, and used in said structure, certain lumber and other materials; that, to secure payment for said building material, plaintiff filed his account thereof, and notice of lien on said property, as provided by law; that, some time after the commencement of the construction of said house, a formal conveyance of said premises was made by said original owner, Baudet, and defendant Minnier, to his wife, Mrs. Min, nier. Said house appears to have been constructed and arranged so as to be used for residence purposes, or as a place of business, or for both such purposes; that, as soon as the house was sufficiently constructed to admit of habitation, defendant and his wife moved therein, and occupied the same continuously as their home, and Mrs. Minnier also fitted up and operated a barber's-shop in one room of said house; that defendants own no other real property as a homestead or otherwise; that defendants failed to pay for said building materials, wherefore this action was brought to foreclose said lien, and subject said premises to sale to enforce such payment. There was no controversy raised in the action as to the furnishing of said building materials by plaintiff, or the use thereof by

defendants in the erection of said building, and the nonpayment therefor, as alleged.

The only defense set up was that defendants claimed said. premises as their homestead, and that the same, being a homestead, was not subject to a lien for said building materials so purchased and used in the improvement thereof. There was some controversy in the case as to whether said premises constituted the home of defendants at the time said materials were furnished and used in the improvement thereof; but the trial court sustained the contention of defendants that said premises constituted their homestead, and the court further held that the statutes of this state exempt homesteads from the charge of a lien for building materials procured and used in the erection of improvements thereon, and judgment was rendered accordingly, 271 from which judgment, and an order overruling plaintiff's motion for a new trial, this appeal was prosecuted.

274 We think under the facts shown in this case the premises in question were properly held to constitute defendant's homestead.

The important question of law involved in this appeal is whether a homestead is exempt from foreclosure and sale to satisfy a lien created by law in favor of one who furnishes materials purchased and used by the owners of such homestead in the improvement thereof. It is not disputed that by the provisions of chapter 82, page 1028, of the Compiled Statutes of this state, a lien is expressly created in favor of parties furnishing materials contracted for and used by the owners of land in making improvements thereon, without any exception in favor of homestead premises. But it is contended by respondents that, notwithstanding the provisions of that statute, the statute providing exemption of homesteads and other prop. erty from forced sale on execution (Code Civ. Proc., secs. 321330) 275 withholds the homestead from the operation of such lien if it accrued for material alone, furnished and used in the improvement of the homestead.

To maintain this proposition, respondents rely on a strict and very narrow interpretation and application of the clause of section 323 of the Code of Civil Procedure, which provides that "such exemption shall not affect any laborer's or mechanic's lien, or extend to any mortgage thereon lawfully obtained." It is argued that this provision is not broad enough to include the lien declared by statute in favor of one who simply fur

nishes materials used in the improvement of a homestead; and that, consequently, the plaintiff, who furnished material only, which was procured and used by defendants in the improvement of their homestead, is barred of relief, by way of enforcement of said lien.

In the case of Merrigan v. English, 9 Mont. 113, the court refused to so construe and apply the provisions of the exemption statute just cited as to deny the enforcement of a lien on a homestead for material furnished-namely, a mantel-in favor of the mechanic who furnished the same, as well as the labor involved in setting said mantel in the building. The only real difference between that case and the one at bar appears to be that, in the former case, the lien claimant occupied the position of furnisher of material, as well as labor, on the premises, in shaping the material so furnished into the building; whereas, in the case at bar, the lien claimant furnished and delivered material, without any labor towards the . erection of the building on the premises. If the view urged by respondents is adopted the effect of such holding would appear to be that one who manufactured, hauled, and delivered the brick, or quarried, cut, hauled, and delivered the stone, or went into the forest, cut, manufactured, transported, and delivered the lumber contracted for, and used in the erection of improvements on a homestead, would be denied enforcement of the lien which the law declares he shall have to secure payment for such materials, because he would be simply the furnisher of material for the structure, like the plaintiff, and would, according to such construction and application of the exemption statute, not be included within the meaning and intent of the legislature in 276 declaring that such exemptions shall not affect the liens of laborers and mechanics. We do not think such a view gives effect to the. intent of the legislature, as manifest in these statutes. Even without any further expression of the legislative intent on this point than the clause of section 323 above referred to, we could not adopt the view urged by respondents as giving effect to the intent of the law. We are satisfied that, in providing that such exemptions shall not affect any laborers' or mechanics' liens, the legislature referred to the liens for material and labor provided for by the statutes of this state commonly mentioned as the "Mechanic's Lien Law." Such improvements, in fact, comprise labor bestowed upon material, both on and off the premises where the improvement is placed.