The opinion
LATOURETTE, C. J.
(dissenting in part).
I agree with the opinion of the court in all respects save the modification of the decree below by providing for the entry by the Circuit Court of “an award of equitable compensation against the defendants upon application of the plaintiff” or upon the court’s own motion. The plaintiff has not appealed. It is a firmly established rule in this state that the party who has not appealed cannot obtain here a modification favorable to himself of the decree from which the other litigant has appealed. See Crumbley v. Crumbley, 94 Or 617 , 186 P 423 , and cases cited. This is so whether the case be at law or in equity. McCoy v. Crossfield, 54 Or 591, 592 , 104 P 423 . That the court’s decision grants a measure of relief to the plaintiff which she did not receive in the court below seems to me to be plain. I think, therefore, that the modification of the decree violates the rule and goes beyond the power of this court.
I am authorized to say that Mr. Justice Lusk concurs in this opinion.