the same person acts as agent for the borrower who obtains the money from the lender, he shall be deemed to be the agent of the loaner also.

Usury defined. 10, 541 (7 N. W., 289). Burden of proving usury is on him who pleads it. But when usury is proved, the holder, to avoid it, must show that he is a bona fide purchaser before maturity. In case stated, person negotiating loan was held agent of lender and not of borrower, notwithstanding a recital in the application to the contrary. 11, 487 (9 N. W., 650). Plea of usury is not such a set-off or counter-claim as can be retained and tried after action is dismissed by plaintiff. 12, 505 (11 N. W., 753). Where borrower goes into a court of equity to obtain relief from usurious contract, he must tender principal and lawful interest. 24, 82 (37 N. W., 941). Negotiable promissory note in hands of bona fide purchaser without notice before due is not subject to defense of usury. And a mortgage securing such a note is discharged of all equities which may exist between the original parties. 14, 416 (16 N. W., 471). Defense. of usury cannot be set up against an innocent purchaser before maturity. 9, 228 (2 N. W., 339). Defense of usury is personal to the borrower and cannot be set up by mere purchaser of equity of redemption. 27, 404 (43 N. W., 178). Where usury is shown in original transaction, burden is upon holder of notes to show that he is a bona fide purchaser. Payments of interest on usurious loan will be applied to principal. 24, 633 (39 N. W., 786). Not necessary to state rate of interest in note. Surety may plead. 7, 58. Where legal rate charged, contract not tainted with usury if a greater than legal interest charged after debt matures. 9, 454 (4 N. W., 51). When a legal rate of interest is agreed upon, and the maker afterwards agrees to pay a greater rate, such agreement does not affect the first agreement. 4, 207. It is immaterial in what form the extra charge is made, whether it is taken as a gift, etc., or straight per cent. 3, 259; 4, 205; 6, 154. Every subsequent security given for a loan originally usurious, however remote or often renewed, is usurious, and court will apply all payments of interest upon such usurious loan as a payment, pro tanto, of the principal. 11, 465 (9 N. W., 648). Contract made for legal rate to second party who has note made to third party. taking a less sum in cash than the contract called for, not usury. 9, 15 (2 N. W., 353). Where agent of lender exacts bonus or commission in addition to lawful interest, contract is usurious. 5, 263; 6, 154; 8, 426; 12, 189 (10 N. W., 698); 13, 158 (12 N. W., 916). Employer takes usurious contract subject to all instrumentalities employed by his agent in its consummation. 14, 94 (15 N. W., 214). Where borrower agrees to pay agent a stipulated sum for negotiating a loan for him of which principal is ignorant, contract not tainted with usury. 3, 260; 24, 817 (40 N. W., 415); 27, 880 (44 N. W., 41). 'Costs;" this means costs of the whole action. 17, 307 (22 N. W., 565). Stipulation in a promissory note for "attorney's fee" is void. 11, 96 (7 N. W., 857); 11, 399 (9 N. W., 475). See 8, 50; 27, 269 (42 N. W., 116).

2026. Any person charged with taking illegal interest may be required to answer touching the same, on oath, in any civil proceeding.

2027. Relief to a complain[an]t in case of an usurious loan may be given without payment or tender by him of the principal sum.

2028. Any officer or agent of a person or a corporation, whether interested or not, may be summoned as witness in any action for usury against such person or corporation, and required to disclose all the facts of the case, but the testimony of such witness, or the answer of the party as required in section 6 [2026], shall not be used against such witness or party in any criminal prosecution for perjury.

2029. When in any law, or in any instrument in writing specifying a rate of interest, no period of time is mentioned for which such rate is to be calculated, it shall be deemed to be by the year.

2030. All warrants issued by the proper authorities of the state, county, city, town, or other municipal subdivision less than a county, shall draw interest from and after the date of their presentation for payment at the rate of seven per cent per annum, and all bonds issued by any county, city, township, precinct, or school district, shall not draw interest at a rate exceeding eight per cent per annum.

2031. The rate of interest fixed by this chapter shall not affect interest on purchase money of school, university, and agricultural college lands, or on lands delinquent or sold for the non-payment of taxes.

CHAPTER 24.-IRRIGATION.

ARTICLE I.-WATER RIGHTS.

Secs. 2032 to 2061. "An act to provide for water rights and irrigation, and to regulate the right to the use of water for agricultural and manufacturing purposes, and to repeal sections 158 and 159 of chapter 16 of the Compiled Statutes of 1887, entitled 'Corporations."" 1889, p. 503.

In force March 27.

2032. The right of the use of running water, flowing in a river or stream, or down a canyon or ravine, may be acquired by appropriation by any person or persons, company, or corporation organized under the laws of the state of Nebraska; Provided, That in all streams not more than fifty feet in width the rights of the riparian proprietors are not affected by the provisions of this act.

2033. The appropriation must be for some useful or beneficial purpose, and when the appropriator or his successor in interest ceases to use it for such a purpose, the right ceases.

2034. No tract of land shall be crossed by more than one ditch, canal, or lateral without the written consent and agreement of the owner thereof, if the first ditch, canal, or lateral can be made to answer the purpose for which the second is desired or intended.

2035. All ditches, canals, or laterals used for the purpose of irrigation shall be exempt from all taxation, whether for state, county, or municipal purposes.

2036. The person, company, or corporation entitled to the use may change the place of diversion if others are not injured by such change, and may extend the ditch, flume, or aqueduct by which the diversion is made to places beyond that where the first use was made.

2037. The water appropriated from a river or stream shall not be turned or permitted to run into the waters or channel of any other river or stream than that from which it is taken or appropriated.

2038. As between appropriators the one first in time is first in right.

2039. A person, company, or corporation desiring to appropriate water must post a notice in writing in a conspicuous place at the point of the intended diversion, stating therein: 1st. That he, they, or it claims the water there flowing to the extent of (giving the number) inches, measured under a four inch pressure, and accurately describing the point of diversion. 2d. The purpose for which he, they, or it claim it and the place of intended use. 3d. The means by which he, they, or it intend to divert it, and the size of the flume, ditch, pipe, or aqueduct in which it is intended to divert it. A copy of the notice must within ten days after it is posted be recorded in the office of the county clerk of the county in which it is posted.

2040. Within sixty days after the notice is posted the claimant must commence the excavation or construction of the works in which it is intended to divert the water, and must prosecute the work diligently and uninterruptedly to completion unless temporarily interrupted by snow or rain.

use.

2041. By completion is meant conducting the water to the place of intended

2042. By compliance with the above rules, the claimant's right to the use of water relates back to the time the notice was posted.

2043. A failure to comply with such rules deprives the claimant of the

right to the use of the water as against a subsequent claimant who complies herewith except as provided in the next section.

2044. All ditches, canals, and other works heretofore made, constructed, or provided, by means of which the waters of any stream have been diverted and applied to any beneficial use, must be taken to have secured the right to the waters claimed to the extent of the quantity which said works are capable of conducting and not exceeding the quantity claimed without regard to or compliance with the requirements of this chapter.

2045. [Proceedings to perfect rights.]-Persons who have heretofore claimed the right to water and who have not constructed works in which to divert it, and who have not diverted it nor applied it to some useful purpose, must, after this title takes effect and within ninety days thereafter, proceed as in this title provided, or their right ceases.

2046. The county clerk of each county must keep a book in which he must record the notices provided for in this title.

ARTICLE II.-RIGHT OF WAY FOR DITCHES.

2047. All persons, companies, and corporations, owning or claiming any land situated on the banks or in the vicinity of any stream are entitled to the use of the waters of such stream for the purpose of irrigating the land so held or claimed.

2048. When any such owners or claimants to land have not sufficient length of frontage on a stream to afford the requisite fall for a ditch, canal, or other conduit on his own premises for the proper irrigation thereof, or where the land proposed to be irrigated is back from the banks of such stream, and convenient facilities otherwise for the watering of said lands cannot be had, such owner or claimants are entitled to a right of way through the lands of others for the purpose of irrigation; Provided, That in the making, constructing, keeping up, and maintenance of such ditch, canal, or conduit through the lands of others, the person, company, or corporation proceeding under this section, and those succeeding to the interests of such persons, company, or corporation, must keep such ditch, canal, or conduit in good repair, and are liable to the owners or claimants of the lands crossed by such work or aqueduct for all damages occasioned by the overflowing thereof, or resulting from any neglect or accident (unless the same be unavoidable) to such ditch or aqueduct.

2049. In case of the refusal of the owners or claimants of any land through which such ditch, canal, or other works are proposed to be made or constructed to allow the passage thereof, the person, company, or corporations desiring the right of way may present to the county judge of the county in which said lands are situated, a petition describing the lands to be crossed, the size of the ditch, canal, or works, the quantity of land which is required to be taken, and setting forth the names of the owners or parties interested in the lands to be crossed, and praying for the appointment of five appraisers, disinterested freeholders of said county, to ascertain the compensation to be made to such owners or parties interested. Upon the filing of said petition the county judge must give notice by publication in a newspaper of general circulation in said county, if there is such printed in said county, or if there be none, by posting such notice in three (3) of the most public places in the county, one of which must be at the county seat, that at a time and place specified in said notice, said petition will be heard and said appraisers appointed, unless good cause be shown by the parties adversely interested, why the said petition should be denied. Said notice must be published or posted for not less than thirty (30) days prior to the hearing thereof, and the expenses of the publication or posting of the same must be defrayed by the petitioners.

2050. The said appraisers must, before entering upon the duties of their office, take an oath to faithfully and impartially perform the duties as such appraisers, and make a true and just award of the amount of compensation to be paid for the right of way over, and use of the lands to be crossed by such ditch, canal, or other conduit. They must hear the allegations and proofs offered by the respective parties, and after viewing the lands and premises, ascertain and certify the amount of compensation which in their judgment it is just and proper to make to the parties owning or interested in the lands to be crossed for the use of the same, and for damages, if any, on account of injury to other portions of the tract of land of any owner or interested party, after making allowance, and deducting for real and direct benefits which such owner or party interested will derive from the making of such ditch, canal, or other works. The appraisers or a majority of them must subscribe to such certificate, and the same must be filed with the county judge, who upou the payment of the fees therefor shall cause a certified copy to be recorded, together with all the proceedings had, in the office of the county clerk, and upon the payment of the compensation and damages, if any, or the tender thereof to the proper parties, or in the absence of such parties from the county, then upon the deposit of the amount in the county treasury to the credit of the said parties, the persons, company, or corporation petitioners have the right of entry upon and of way for the proposed ditch, canal, or other works; Provided, That either party may have the right to appeal from such assessment of damages to the district court of the county in which said lands are situated within sixty days after such assessment is filed as aforesaid. And in case of such appeal the decision and finding of the district court shall be transmitted by the clerk thereof duly certified to the county clerk to be filed and recorded in his office. But such appeal shall not delay the prosecution of the work upon said ditch, canal, or works, if such persons, company, or corporation shall first pay or deposit with such county treasurer the amount so assessed by said appraisers such persons, company, or corporation shall in all cases pay the costs of the first assessment; Provided, That if on appeal the appellant shall not obtain a more favorable judgment and award than was given by said appraisers, then such appellant shall be adjudged to pay all costs made on such appeal; Provided further, That either party may appeal from the decision of the district court to the supreme court of the state, and the money so deposited shall remain in the hands of the county treasurer, until a final decision be had subject to the order of the supreme

court.

2051. All persons, companies, and corporations owning or having the passory or other title or right to lands adjacent to any stream, have the right to place in the channel of or upon the banks or margins of the same, rams or other machines for the purpose of raising the waters thereof to a level above the banks, requisite for the flow thereof to and upon the adajcent lands, and the right of way over and across the lands of others for conducting said waters may be acquired in the manner prescribed in the last two sections.

2052. Where the owners of any spring or stream or the appropriators thereof desire to conduct the waters thereof to any lands for purposes of irrigation or to any city or town for the use of the inhabitants thereof, or to any reservoir for the purpose of storing said waters for irrigation purposes, or to any factory, or any distant place with the intent to apply the same to a beneficial use, and to accomplish such object it is necessary to cross with ditches, flumes, or other conduits the lands owned or occupied by others than the owners or appropriators of such spring or stream the right of way over and across the land of others for conducting such water and the condemnation of land for reservoirs for storing said waters tor irrigation purposes may be acquired in the manner above prescribed.

2053. If the owner of any irrigation ditch or canal requires or deems it necessary to enlarge any such ditch or canal, such owner shall be permitted to do so on reasonable terms, and in case the said owner of such ditch or canal and the owner or claimant of the lands abutting said ditch or canal cannot agree as to terms for such enlargement, then the damage, if any, to the owner or claimant of said lands shall be ascertained in the same manner provided for by the appraisers in sections three (3) and four (4) of this title [2049 and 2050].

2054. If any corporation organized under the laws of this state for the purpose of constructing and operating canals for irrigating or water power purposes, or both, may acquire a right of way over or upon any land for the necessary construction of such canal, including dams, reservoirs, and all necessary adjuncts to said canals in the same manner as provided for persons and companies in this act, and such persons, canal companies, and corporations shall have the same power to occupy state lands with their said canals as is given to railroad corporations by section 105, chapter 16, of the Compiled Statutes of 1887 [526]; and such corporations shall also have power to borrow money, and to mortgage all their property and franchises in the same manner and for the same purposes as railroad corporations. And all the laws applicable to railroad corporations in respect to the borrowing of money, issuing of bonds, and giving of mortgages and the manner of so doing, are hereby declared to be applicable to canal or irrigation corporations.

2055. Canals constructed for irrigating or water power purposes, or both, are hereby declared to be works of internal improvement and all laws applicable to works of internal improvement are hereby declared to be applicable to such canals.

2056. The owners or constructors of ditches, canals, works, or other aqueducts and their successors in interest using and employing the same to convey the waters of any stream or spring, whether the said ditches, canals, or aqueducts be upon the lands owned or claimed by them, or upon other lands, must carefully keep and maintain the same, and the embankments, flumes, or other conduits by which such waters are, or may be conducted, in good repair and condition, so as not to damage or in any way injure the property or premises of others.

2057. Nothing in this chapter contained must be so construed as to interfere with or impair the rights to water appropriated and acquired prior to the passage of this chapter. But this reservation in behalf of existing rights does not exempt said appropriators from liability as provided in the last section.

2058. In case the volume of water in any stream is not sufficient to supply continually the wants for irrigating purposes of the owners or proprietors of land in any district or neighborhood in which customs exist for distributing the waters amongst such owners or proprietors, the waters diverted must in such case be held to be a common right in those accustomed to the participation in the use and enjoyment of such distribution, and such customs must be upheld in all courts as conferring such common right in the same. But this section does not affect any prior vested rights.

2059. In case any person, company, or corporation has constructed a ditch for the purpose of diverting the water of any river, creek, canyon, ravine, or spring, for the purpose of selling the water thereof for irrigating purposes, the owners or cultivators of said land along the line of and covered by said ditch or canal are entitled to and have the right to the use of water from said ditch or canal, for the purpose of irrigating said land, so owned or cultivated in the following order: First-All persons through whose land such ditch or canal runs are entitled to the use of the waters thereof in the order of their location along the line of said ditch or canal. Second-After those through whose land the ditch or canal runs, those