MENT. deliberation, and premeditation on the part 3. PLEADING (§ 237*) - COMPLAINT AMENDof the slayer.' This instruction omits the qualifying words, but should read: 'It is only necessary that the act of killing be preceded by and the result of a concurrence of will,' etc. This instruction was squarely passed upon by the Supreme Court of California in People v. Maugns, 149 Cal. 253, 86 Pac. 187, and held to be reversible error." Instruction No. 4 in question contains about 700 words and appears to have been drafted to cover the law of murder in the first de In an action for rent under a lease, an amendment to the complaint to conform to the evidence, and consisting in the allegation that defendant occupied the premises longer than was alleged in the original complaint, was proper; such fact being admitted in defendant's answer and testimony. [Ed. Note.-For other cases, see Pleading, Cent. Dig. §§ 614, 615; Dec. Dig. § 237.*] 4. PLEADING (§ 237*) - COMPLAINT - AMENDMENTS TO CONFORM TO EVIDENCE. An amendment to the complaint to conform to the proofs was not prejudicial to defendant as changing the issues and preventing him from disproving the allegations of the amended com amendment was allowed, that he had or could supply evidence to disprove such allegations, and from the testimony it could not be presumed that he could have produced such evidence. [Ed. Note.-For other cases, see Pleading, Cent. Dig. § 606; Dec. Dig. § 237.*1 gree. What the full instruction was, which was given in People v. Maughs, supra, does not appear in the decision. Taking the in-plaint where he made no showing, when the struction as a whole, we cannot see how the jury could have been misled by it, even if we might indulge in the presumption that the jury would resort to the minute analysis of language indulged in by the court in the Maughs Case regarding the instruction then under consideration. Had defendant in this case been convicted of murder in the first degree, we would have gone into a more careful consideration of the point made, and its possible effect upon the minds of the jury. In the Maughs Case the defendant was convicted of murder in the first degree; the defendant in this case, of murder in the second degree. For the crime for which the defendant was convicted, the instruction, in any event, could not have been prejudicial. We think there is sufficient evidence to support the judgment, and, as the other assignments of error discussed are covered by the views already expressed, our opinion is that the judgment be affirmed. It is so or dered. SWEENEY and TALBOT, JJ., còncur. FINNEGAN v. ULMER et al. (No. 1,818.) (Supreme Court of Nevada. Sept. 23, 1909.) 1. APPEAL AND ERROR (§ 294*)-REVIEW OF EVIDENCE. Where there was no assignment that the judgment was not supported by the evidence, and no motion for a new trial or statement on motion for a new trial under which the evidence could be reviewed by the trial court or the Supreme Court, the question whether the evidence supports the judgment is not properly before the Supreme Court. [Ed. Note.-For other cases, see Appeal and Error. Cent. Dig. §§ 1727, 1728; Dec. Dig. 8 294.*] Appeal from District Court, Esmeralda County. Action by Lillian May Finnegan against Bert Ulmer, William Mulholland, and others. Judgment for plaintiff, and defendant Mulholland appeals. Affirmed. Bartlett, Thatcher & Gibbons and James Donovan, for appellant William Mulholland. TALBOT, J. The appeal is taken by the defendant Mulholland from a judgment in favor of the plaintiff for rent or the value of the use, and for the restitution, of the possession of leased premises. The record contains the judgment roll and a bill of exceptions. The only specification of error is to the order of the court allowing the complaint to be amended to conform to the evidence, made after the trial and before final entry of judgment. It is claimed that this order was erroneous (1) because upon the pleadings and evidence the defendant Mulholland was entitled to judgment against the plaintiff; (2) because there was no evidence sustaining the allegations contained in the amendment allowed to be made; (3) because the amendment changed the issues in the action, and prevented the defendant from answering and introducing evidence to disprove the allegations contained in the amendment; (4) because the defendant Donnelly conveyed his interest in the lease, and gave possession of the premises to the defendant Mulholland; (5) because the amendment injected into the case an issue which the defendant Mulholland had no opportunity to refute; and (6) because the allowance of such amendment was a gross abuse of discretion of the court, and deprived the defendant from meeting the issues thereof. whether the evidence supports the judgment It is said that this court may determine without any specification of error stating wherein the evidence is insufficient. This For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes 104 P.-2 might be true if the defendant brought the ev- this state," which provides: "During the progress of a cause a party may take his bill of exceptions to the admission or exclusion of testimony, or to the ruling of judges on points of law, and it shall not be necessary to embody in such bill anything more than sufficient facts to show the point and pertinency of the exceptions taken. The presiding judge shall sign the same as the truth of the case may be, and such bill shall then become a part of the record, and a party against whom judgment is rendered may appeal from such judgment without any further statement or motion; and on such appeal it shall only be necessary to bring to the Supreme Court the transcript of the pleadings, the judgment and the bill or bills of exception so taken." It is not claimed that there is any error on the face of the judgment roll itself, and therefore we are limited under the only specification in the bill of exceptions to determining whether the court properly made the order allowing the amendment. Does an examination of the amendment in connection with the original complaint, the answer, and the evidence show that the court erred in making the order? The original complaint alleged that a lease had been executed by the plaintiff to the defendant Ulmer, and different transfers thereof, and that appellant entered and occupied the premises under the defendants Ulmer, Toohey, and Donnelly, who had entered under the original lease, which indicated that the appellant had obtained his possession by reason of this lease and the possession obtained thereunder. The amendment alleged a much earlier possession by plaintiff and grantors than was asserted 102 in the original complaint, but under either a prior possession by plaintiff was acknowlAs there was no assignment that the judg-edged, or implied by the lease, and such priment was not supported by the evidence, or possession by plaintiff, if for only a day, and no motion for a new trial nor statement on motion for a new trial under which the evidence could be reviewed by the trial court or this tribunal, consequently the question whether it supports the judgment which has been extensively argued is not properly before us under the rule so often laid down. Candler v. Ditch Co., 28 Nev. 163, 80 Pac. 751; Burbank v. Rivers, 20 Nev. 81, 16 Pac. 430, and cases cited; Simpson v. Ogg, 18 Nev. 28, 1 Pac. 827; Hayne on New Tr. & App. § 96. There is good reason for this practice because questions relating to the facts and sufficiency of the evidence are more directly for the consideration of the trial court, which is in a better position to observe the demeanor of the witnesses and has a better opportunity to properly determine and review these questions. Section 195 of the civil practice act allows as one of the grounds for a new trial the insufficiency of the evidence to justify the verdict or decision, or that it is against law. Here it appears that the appellant has proceeded under section 3860 of the Compiled Laws or section 4 of "An act to would give as complete a right at law as if it were held for the longer time set out by the amendment. The amendment went more into detail regarding the holding of possession by the appellant, but it is not necessarily or materially in conflict with his own testimony. Even if his contentions relating to notice, abandonment, and rights under the townsite act, which are treated at length in the briefs, could be considered and upheld if the case were before us on an appeal from an order denying a motion for a new trial, the amendment allowed, to which exception is confined, would not have injured the appellant under his own evidence, the original complaint, and the answer, with the possible exception of the allegation that he had occupied the premises longer than was stated in the original complaint-a fact that he admitted by his testimony and answer, thereby making the amendment in that regard proper. In alleging an earlier possession the amendment was also supported by the evi dence, and the fact that plaintiff's grantor had lived upon and occupied the premises terest from whom the appellant acquired his claim to possession was apparently conceded, so that the amendment did not allege any new material facts against the appellant which were not supported by the allegations of the original complaint or answer or by testimony given by himself and others. therein, etc., or with Civ. Prac. Act, § 68 (Comp. Laws, § 3163), authorizing the court to allow amendments, etc., was properly stricken out on motion. Cent. Dig. § 1111; Dec. Dig. § 356.*] 2. APPEAL AND ERROR ( 103*)—APPEALABLE An order striking an amended complaint from the files for failure to comply with manthe district court regarding amended pleadings datory requirements of the statute and rules of is not appealable. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. 8 704; Dec. Dig. § 103.*] Appeal from District Court, Washoe County. Action by B. C. Weir against the Washoe Hardware & Supply Company, a corporation. From an order striking an amended complaint from the files, plaintiff appeals. Appeal dismissed. O. H. Mack, for appellant. Boyd & Salis SWEENEY, J. The record discloses that The claim that the amendment changed the issues and prevented the appellant from refuting and disproving its allegations is also met by the fact that he did not make any showing to the court at the time the amendment was allowed that he had or could supply any evidence which could disprove them, and, in view of the testimony given by the appellant and others on the trial, it cannot be presumed that he could have produced any such evidence, or that he was deprived of his rights, and not given an opportunity to disprove something which he did not claim that he could prove, and which would apparently have been in conflict with his own testimony. The practice of allowing plead-bury, for respondent. ings to be amended during and after trial to conform to the proofs is so common and proper as to hardly need the citation of authorities for its support. In McCausland v. the above-entitled action was commenced in Ralston, 12 Nev. 202, 28 Am. Rep. 781, it the Second judicial district court of the was said: "Courts in allowing pleadings to state of Nevada in and for the county of be amended are necessarily clothed with dis- Washoe by filing a complaint therein on the cretionary powers which cannot, owing to 5th day of May, 1908, and the issuance of the varying circumstances of each particular a summons thereon. On the morning of the case, be governed by any general rule. The 20th day of May, 1908, the plaintiff, through vital question is whether the court has gross- his attorney, O. H. Mack, had a default enly abused its discretion in this respect, or tered in said action against defendant, and, whether, by the allowance of the amend- upon the submission of his evidence, the ments, manifest injustice has been done to court ordered a judgment by default entered appellant. ♦ There is no showing that against defendant. At 1:30 o'clock p. m. appellant was mislead to his prejudice, or of the same day the defendant, through its that he was deprived of introducing any tes- counsel, appeared, and moved that the judgtimony that he might wish to offer in consement by default entered in the morning quence of the amendments. This against his client be set aside on the ground court has always been quite liberal in sustain-of insufficient service of summons, and the ing the action of the lower courts in al-court granted the motion and ordered the lowing or refusing amendments to pleadings, default and judgment set aside. The plainto the end that substantial justice may be tiff caused a new summons to be issued and done between the parties. served on defendant, whereupon the defendant filed a general demurrer to the complaint upon the ground that the complaint did not The judgment is affirmed. NORCROSS, C. J., and SWEENEY, J., con- state facts sufficient to constitute a cause of cur. (31 Nev. 528) WEIR v. WASHOE HARDWARE & SUP- action. The demurrer coming on to be heard on the 27th day of June, 1908, counsel for the defendant not appearing, the demurrer was overruled without argument. Defendant then interposed its answer, denying the liability of its client to plaintiff, and interposed as a further separate defense to (Supreme Court of Nevada. Sept. 24, 1909.) plaintiff's cause of action that the complaint 1. PLEADING (§ 356*)--AMendments-StRIKING OUT. on file did not state facts sufficient to constitute a cause of action. An amended complaint filed by plaintiff without asking leave of court or in any way The court, after listening to the argument complying with District Court Rule 17 (24 Pac. of counsel upon the sufficiency of the plainx), providing that, where the right to amend tiff's complaint, at the conclusion of the any pleading is not of course, the party desir- testimony introduced on behalf of the plaining to amend shall serve with the notice of application to amend an engrossed copy of the tiff, made the following finding: "The court pleading, with the amendment incorporated finds as a matter of law that the complaint •For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes (18 Wyo. 53) (Supreme Court of Wyoming. Oct. 5, 1909.) 1. EASEMENTS (§ 61*)-ACTIONS TO ESTABLISH -PETITION-SUFFICIENCY. In an action to establish ways of necessity over defendant's lands, it cannot be assumed that plaintiff has no access to his lands from a public highway in the absence of some allegation in the petition to that effect. [Ed. Note.-For other cases, see Easements, Dec. Dig. § 61.*] 2. EASEMENTS (§ 61*)—ACTIONS TO ESTABLISH -PETITION-SUFFICIENCY. does not set forth facts sufficient to constitute a cause of action." Whereupon a re- McILQUHAM v. ANTHONY WILKINSON cess was taken until the further order of LIVE STOCK CO.. the court. (Statement on Appeal, p. 10, line 22.) So far as the record discloses, the court never entered at the time any judgment whatever in the case, and there is no record to this date of any judgment having been entered or final disposition made of the cause. Counsel for plaintiff thereafter, to wit, on the 15th day of October, 1908, without asking leave of court, or without in any way complying with rule 17 of the rules of the district court (24 Pac. x), and section 68 of The allegation, in an action to establish our civil practice act (Comp. Laws, § 3163), ways of necessity over defendant's lands, that filed an amended complaint, to which amend- plaintiff cannot reach either of the county roads mentioned in his petition without going through ed complaint the attorneys for defendant up-defendant's fences, is not equivalent to an allegaon due and proper notice moved the court for an order striking it from the files of the court, which the district court, in view of the premises, very properly granted. Undoubtedly if, upon a proper showing, counsel 3. EASEMENTS (§ 18*)-WAYS OF NECESSITY. A party having one way whereby he can for appellant had asked the court the privi- reach a public highway, and affording him realege of amending his complaint, the permis-sonable facilities for enjoying his premises, is sion would have been granted. In the case not entitled to another way as a way of necessity. of Horton v. Ruhling & Co., 3 Nev. 498-503, this court held that in a case where the com plaint failed to state a cause of action, where there had been a trial, the court below should either have dismissed the action without prejudice or given the plaintiff an opportuni- An examination of the record presented makes it manifest that counsel for the appellant in view of the absence of any judgment or appealable order ever to this date having been rendered against his client by the lower court in the present status of the case is, to say the least, premature in his appeal to this court, and that the motion of the respondent to dismiss the appeal must be granted. It is so ordered. NORCROSS, C. J., and TALBOT, J., con cur. tion that he has no other means of access to a public highway from his lands. [Ed. Note.-For other cases, see Easements, Dec. Dig. 61.*] [Ed. Note.-For other cases, see Easements, Cent. Dig. § 53; Dec. Dig. § 18.*] 4. PUBLIC LANDS (§ 17*)-PASTURING LIVE STOCK-RIGHTS ACQUIRED. The use of uninclosed and unoccupied gov ernment lands for pasturing live stock is merely permissive, creates no title, and may be terminated at any time. [Ed. Note.-For other cases, see Public Lands, Dec. Dig. § 17.*] 5. ADVERSE POSSESSION (§ 22*)-PASTURING LIVE STOCK-RIGHTS ACQUIRED. The use of uninclosed private lands for pas- Cent. Dig. 88 50-55; Dec. Dig. § 18.*] NATURE OF. [Ed. Note.-For other cases, see Easements, Cent. Dig. 38 50-55; Dec. Dig. § 18.*] 8. EASEMENTS (§ 18*)-WAY OF NECESSITY. The fact that a person has more cattle than can be supported on his own lands, and raising and used the public range, does not any that for many years he has engaged in stock more entitle him to ways of necessity over surrounding lands than any other cattle owner in order that his cattle might pasture upon the would be, whether he owns real estate or not, public domain, or than would be a resident of a town, owning a cow, that the same might reach some particular section of public land, though it could not be reached in any other way. [Ed. Note. For other cases, see Easements, Cent. Dig. §§ 50-55; Dec. Dig. § 18.*] Error to District Court, Laramie County; ment sections, and access to and from the Roderick N. Matson, Judge. Action by John J. Mcllquham against the Anthony Wilkinson Live Stock Company. Judgment for defendant, and plaintiff brings error. Affirmed. W. R. Stoll, for plaintiff in error. Herbert V. Lacey, John W. Lacey, and C. W. Burdick, for defendant in error. on error. same and to and from said stream are necessary in the conducting and carrying on of his business of stock raising. That to the north and west of plaintiff's lands the government and railroad sections have been used as a sheep range upon which cattle will not graze. That about July 19, 1901, the defendant through mesne conveyances from the Union Pacific Railway Company acquired title to the odd-numbered sections surrounding BEARD, J. The plaintiff in error, who was plaintiff's lands, and thereafter inclosed said plaintiff below, brought this action against odd-numbered sections with fences, thereby the defendant in error, which was defendant preventing plaintiff's cattle from going from below, praying that plaintiff might have cer- his lands to said government sections, and tain ways of necessity over and across the from returning from the same to his land lands of defendant. A general demurrer was for water. That, prior to the inclosure by filed by defendant to the amended petition of defendant of its said lands, both the governplaintiff, which demurrer was sustained by ment and railroad sections were uninclosed, the district court, and, the plaintiff electing and that plaintiff's cattle had habitually to stand on his amended petition, the court roamed over and pastured upon the same at dismissed the action and rendered judgmen: will. "That plaintiff himself and his family in favor of defendant and against plaintiff for all purposes of personal enjoyment and for costs, and plaintiff brings the case here attending to his business in connection with his said ranch, home, and homestead are preThe plaintiff challenges the correctness of vented from reaching a county road which the ruling of the district court in sustaining lies eight miles west of his aforesaid describthe demurrer, and that is the only questioned lands, and which is the nearest county road presented here. A condensed statement of the substance of the allegations of the petition, which is quite lengthy, will suffice to present the issues. It is alleged: That the plaintiff is now and has been since about the year 1890 the owner in fee simple and in possession of certain lands situated in Laramie county, and has had during said time his home and homestead, outbuildings, stables, corrals, and other property used in connection with his home and homestead located upon said lands, and during said period has been continually engaged in the business of raising live stock and marketing and selling the same. That he has been since 1890 the owner and in possession of live stock consisting of about four or five hundred head, all of which during said entire period of time, until prevented by defendant, had been in the habit of ranging and pasturing upon his own lands and upon all other sections of land in that vicinity; the even numbered sections being at all times government sections and the odd numbered sections having theretofore, and since about July, 1862, been granted by the government of the United States to the Union Pacific Railway Company, and over all of which sections his said cattle have roamed at will, passing over the same without hin-ed and travel to and from the same unmolestdrance or molestation, and having free and ed and free from obstruction and interferunobstructed rights of way to and from the ence." same. That there is a stream of water running through plaintiff's lands which has been used habitually as the principal supply of water for his cattle, and they have habitually passed over the lands of defendant in going from the government and railroad sections to said stream and in returning to said sections from said stream, and that the grasses on said sections, and particularly the govern lying west of the same, or the county road which lies twelve miles east of his aforesaid lands, and which is the nearest county road lying east of the same, or a county road lying nine miles south of his aforesaid lands, and which is the nearest county road lying south of his said lands, for the purpose of traveling to and from the county seat of the county of Laramie and other places at which he has been in the habit of purchasing his supplies and necessaries for himself, his family, and his business as ranchman and stock raiser, without going through the aforesaid described fences, which form a permanent and continuous obstruction to the free access of the said plaintiff to said county roads from his said lands and from the same." Plaintiff prays that he may have three ways of necessity for his cattle, easterly, southerly, and westerly, from his said lands to certain described government sections and to said water, over and across defendant's lands, "and that he himself may have rights of way to and from his said lands through the fences constructed by the said defendant and over the lands owned by the defendant and the government of the United States, so that he may reach the county roads hereinbefore describ It is not alleged in the petition that the plaintiff has not access to his lands from a county or public road or highway, and we cannot assume that he has not such access in the absence of some allegation to that effect. The allegation that he cannot reach either of the county roads mentioned in the petition without going through the defendant's fences is not equivalent to an allegation that he has |