to the district court to modify the order appealed from, by striking therefrom all allowance for commissions, with leave to the respondent to move for an allowance of his reasonable proportion of the commissions upon a final settlement of the estate. As thus modified, the order will stand affirmed. Neither party to have costs.

MCCARTY, C. J., and STRAUP, J., con

cur.

(49 Or. 609)

GARDNER et al. v. WRIGHT. (Supreme Court of Oregon. July 30, 1907.) 1. ADVERSE POSSESSION-ACQUISITION OF TITLE BY GRANTOR.

Subsequent possession by the grantor of land under claim of ownership, etc., for the period prescribed by the statute of limitations, will not necessarily inure to the grantee's benefit, and title by adverse possession may be acquired by the grantor; but, if possession is held in subserviency to the grantee's title, it will inure to his benefit.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 1, Adverse Possession, §§ 333-338.]

2. ESTOPPEL-BY DEED-PERSONS WHO MAY CLAIM BENEFIT-PAROL TRANSFEREE-WATERS.

E. conveyed to M. and G. possessory title to public land, including the right to the full use of a stream, and G. orally transferred his interest to M. Held, that no diversion of water having been made prior to G.'s parol conveyance, nor until after a diversion by E. on land above, defendant, as E.'s successor in interest, was not estopped to claim subsequent rights acquired by E. as to G.'s interest in the water rights previously conveyed.

8. SAME.

Where one assumes to convey property by deed, he may not, to defeat his grantee's title, say that at the time of the conveyance he had no title, and that none passed by the deed, nor may he deny to the deed its full effect.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 19, Estoppel, § 63.]

4. ADVERSE POSSESSION - SUBSEQUENT PosSESSION By Grantor.

One relying upon adverse possession as against his grantee must show that there was a change in the relation of the parties respecting the rights involved; any unexplained possession being presumed to be subservient to the title conveyed, and, in order to avail himself of the laches of the grantee or his assigns or limitations, the grantor must show he brought home to the grantee and his assigns actual or constructive knowledge of the change in the relations.

WATER

[Ed. Note.-For cases in point, see Cent. Dig. vol. 1, Adverse Possession, §§ 313, 656.] 5. WATERS AND WATER COURSES RIGHTS ADVERSE POSSESSION. Where one granted the full use of a stream, and afterwards openly used the water on land above under notices posted, with general knowledge thereof in the vicinity, while not sufficient to establish ownership, showed a claim of ownership, and indicated open and adverse possession against the grantee.

[Ed. Note. For cases in point, see Cent. Dig. vol. 48, Waters and Water Courses, § 150.] 6. SAME-WHEN LIMITATIONS RUN.

Where it appeared one intended to claim and hold possession of the use of a stream for a beneficial purpose in defiance of rights claimed by his grantees and their assigns, limitations

Rehearing denied September 3, 1907.

commenced to run, if such intention was accompanied by acts of diversion sufficient to indicate a purpose to carry the determination into effect.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 48, Waters and Water Courses, §§ 148-156.] 7. SAME.

Where one permits 10 years to elapse without regaining control of water rights which he has permitted his grantor to invade, complete title revests in the grantor, unless it appears that such use was permissive, or of such character as not to constitute an invasion of the other's rights.

[Ed. Note. For cases in point, see Cent. Dig. vol. 48, Waters and Water Courses, 88 148150.]

8. ADVERSE POSSESSION - CLAIMANT'S GOOD

FAITH-MATERIALITY.

Title by adverse possession may be acquired, regardless of the claimant's good faith, if accompanied by a claim of title.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 1, Adverse Possession, §§ 488-490.]

9. WATERS AND WATER COURSES - WATER RIGHTS-ADVERSE POSSESSION-EVIDENCEADMISSIBILITY.

Where one granted the full use of waters from a stream, to support title to the water claimed to have been afterwards acquired by adverse possession for use on land above, he could show he intended to convey no more than the surplus water after use on the land above. 10. SAME-INTERRUPTION OF POSSESSION.

Adverse use of the waters of a stream, as a defense to a suit to determine rights thereto, may be defeated by showing that the use during the irrigation seasons for the statutory time was not continuous or by proof that such use did not substantially interfere with plaintiff's rights.

[Ed. Note. For cases in point, see Cent. Dig. vol. 48, Waters and Water Courses, § 149.] 11. SAME-BURDEN OF PROOF.

Though an adverse right cannot grow out of mere permissive enjoyment, the burden of proving possession thus claimed to have been held by permission or subserviency, or not to have been continuous, is upon him attempting to defeat the claim. 12. SAME.

Where the use of water by grantees of water rights was necessary, and they were deprived of its benefit by a landowner above for more than 10 years, a claim of adverse possession was established.

[Ed. Note. For cases in point, see Cent. Dig. vol. 48, Waters and Water Courses, §§ 148150.]

13. SAME-EFFECT OF TITLE ACQUIRED.

When title is once acquired by adverse possession, it remains in the person acquiring it as completely as if acquired by deed, and hence, where water rights were so acquired, interruptions were of no avail unless open, exclusive, continuous, and adverse under claim of ownership for the statutory period.

[Ed. Note. For cases in point, see Cent. Dig. vol. 48, Waters and Water Courses, §§ 148-152.) 14. SAME-USE OF STREAM-DURING DIFFERENT PARTS OF YEAR.

One may establish a right to use water of a stream during one part of a year, while another may at the same time acquire a perfect right to use the water for the remainder of the

season.

[Ed. Note. For cases in point, see Cent. Dig. vol. 48, Waters and Water Courses, § 152.] 15. SAME-ADVERSE USE-INTERRUPTION.

In a suit to determine water rights, defended on the ground rights were acquired by adverse use, plaintiffs may not avail themselves

of any interruption of defendant's use by persons not parties to the suit. 16. SAME.

Under the express terms of B. & C. Comp. 4, plaintiffs could not sue to determine water rights, unless they or their predecessors were possessed of the property within 10 years before the commencement of the suit, and such possession must have been such a re-entry or recapture of the use of the water as can be termed complete control; slight interruptions not affecting the running of the statute against one in adverse possession.

17. SAME-PRIOR APPROPRIATION-Burden of PROOF.

In a suit to determine rights to waters from a stream, the burden was upon plaintiffs to prove all the elements essential to their rights claimed under prior appropriation.

18. SAME-EVIDENCE-WEIGHT.

Evidence, in a suit to determine rights to waters from a stream, held to show defendant's appropriation was prior in time to plaintiffs'. 19. ESTOPPEL-EQUITABLE-NATURE.

The doctrine of estoppel is intended to preclude fraud, and imposes silence on one, when in conscience and honesty he should not be allowed to speak.

[Ed. Note.--For cases in point, see Cent. Dig. vol. 19, Estoppel, § 124.]

20. WATERS AND WATER COURSES RIGHTS-ABANDONMENT.

WATER

Where the grantees of inchoate rights to use waters of a stream delayed several years in perfecting them, they were abandoned and subject to appropriation by others.

21. ESTOPPEI-BY DEED-GROUNDS OF ESTOPPEL-SUBSEQUENTLY ACQUIRED TITLE.

An after-acquired title to water rights by the grantor will not inure to the benefit of the grantee, where the grantee knew at the time of the transfer that the grantor had no title and did not expect him to procure one, or where the title purported to be conveyed is an inchoate interest, the completion or forfeiture of which depends upon some acts to be performed, or diligence to be exercised by the grantee.

against George F. Wright. Plaintiffs appeal from the decree, and defendant cross-appeals. Modified.

This is a suit to determine the right to the use of the waters of Washington creek, in Baker county, Ore., brought by Mary S. Gardner, Edna V. Stuchell, A. V. Swift, A. B. Swift, and L. L. Swift, against George F. Wright. By stipulation it is agreed that A. V. Swift has succeeded to all the interests of the other Swifts named, and that he, with Mary S. Gardner and Edna V. Stuchell, are the sole plaintiffs in interest.

The complaint, in effect, alleges that plaintiffs, under and by virtue of prior appropriation of the waters of Washington creek, as well as by reason of a certain deed executed to their predecessors in interest, are the owners jointly of the right to the use of threefourths of the waters of the creek named, of which it is alleged that Mary S. Gardner and Edna V. Stuchell are the owners of onefourth, and A. V. Swift one-half. Defendant denies plaintiffs' right to the use of any of the waters of Washington creek, except the surplus, and alleges that he is the owner of the exclusive right to the entire stream for the irrigation of his lands, all of which it is claimed is necessary for the proper irrigation thereof, and has been used continuously for such purpose during the last 40 years, with the full knowledge and consent of plaintiffs and their grantors. Defendant alleged, in support of his title, prior appropriation, riparian ownership, and adverse possession since 1863; but the averment relative to riparian ownership was stricken out on motion of plaintiffs.

22. WATERS AND WATER COURSES OF WATER REQUIRED.

AMOUNT

Where one is entitled to the use of water from a stream, and has between 60 and 70 acres of land in cultivation, including an orchard, it will be assumed that a flow of 60 inches of water is ample for his irrigation and domestic requirements.

23. SAME-MEASUREMENT.

Any certain number of inches of water, awarded under 60-inch pressure, should be determined on the basis of what is termed by engineers as "second feet," or the quantity of water flowing past at a given point in a given space of time.

24. SAME-RIGHTS OF APPROPRIATORS.

Where more than one person owns a right to the use of waters of a stream, it is the law that, regardless of who may have the first right. thereto, when the water is not actually required by one, the quantity not needed nor in actual use should be at the disposal of the other for irrigation and domestic use, when needed by such other person or persons.

25. APPEAL REVIEW-DISCRETION OF COURT -COSTS.

The trial court having discretionary powers in taxing costs, a decree in respect thereto will not be cisturbed unless the discretion is abused.

Appeal from Circuit Court, Baker County: Robert Eakin, Judge.

Action by Mary S. Gardner and others

on, pleads an estoppel against defendant, by reason of a certain deed with covenants of warranty therein given by H. W. Estes (defendant's grantor) and Frederick Dill to their predecessors in interest, which, omitting the signatures and acknowledgment, is as follows: "This indenture made this 9th day of September, A. D. 1864, between Harding W. Estes and Frederick Dill of the county of Baker and state of Oregon, parties of the first part, and Oscar L. Gordon and George W. Manville of the same place, parties of the second part: Witnesseth, that the said parties of the first part for and in consideration of the sum of one thousand dollars to the parties of the first part in hand paid by the parties of the second part, the receipt whereof is hereby acknowledged, have granted, bargained, sold, conveyed, and quitclaimed and by these presents do grant, bargain, sell, convey and forever quitclaim unto the said parties of the second part their heirs and assigns forever, all the right, title, interest, and claim of the said parties of the first part in and to a certain ranch or possessory claim to agricultural lands and the improvements thereon lying and being in said county and state and described as follows, to wit: That certain ranch or land claim on

Washington creek in Powder River Valley below and adjoining Gray's ranch which has been improved by the parties of the first part and upon which they have resided from the month of June, A. D. 1863, to the past summer, and bounded as follows, to wit: Commencing at a stake about three rods south of said creek and about thirty rods in a southwesterly direction from the log house built by said parties of the first part and occupied by them as a residence; thence east along a fence one hundred and sixty rods; thence north along a fence one hundred and sixty rods; thence west along a fence one hundred and sixty rods; thence south along a fence one hundred and sixty rods to the place of beginning; together with the right to the full and free use of the water of said Washington gulch and all privileges connected with the same, the said water having been taken up and appropriated by the parties of the first part, for the use and benefit of said ranch in the month of June, A. D. 1862, at the time said ranch was located and claimed. To have and to hold the said premises. together with all and singular the rights, privileges, tenements, appurtenances, and improvements thereunto belonging or in any manner appertaining. And the said parties of the first part hereby covenant with and to the parties of the second part. their heirs and assigns, that they are the lawful possessors of saiu and or ranch and the sole owners of the improvements thereon and of the water right above mentioned, and that they have a full and perfect right to sell and dispose of the same, and that the title to the same they will forever warrant and defend against all persons whomsoever claiming by, through, or under them, or either of them. In witness whereof the said parties of the first part have hereunto set their hands and seals this the day and year first above written."

By stipulation it was admitted that A. V. Swift is the owner in fee of the S. E. 4 of section 2; that Mary S. Gardner and Edna V. Stuchell have succeeded to the interest of J. B. Gardner, deceased, in and to the N. E. 1/4 of section 11; and that George F. Wright is the owner in fee by purchase from H. W. Estes of the lands described in the answer, viz.: W. 1⁄2 of S. W. 4, section 11; E. % of S. E. 14, section 10; N. E. 4 of N. E. 14, section 15-all the lands so described being in township 9 S., range 39 E., W. M.

Washington creek is a natural stream fed by springs and snow in the mountains west of Baker City, and flows in a northeasterly direction through Washington gulch across defendant's premises and through Gardner and Stuchell's lands onto the Swift farm, where it spreads out and disappears. It varies in quantity from a flow of 10 miner's inches in the low-water season to 150 inches during the early spring freshets. In 1862 Estes and Dill settled upon what is now defendant's farm, and in the following spring took possession of some lands lower down

the stream, now constituting the farm of A. V. Swift; the latter farm being the premises referred to in the deed to Gordon and Manville. The first place named is known as the "Estes Farm," and the second as the "Swift Ranch." In the spring of 1863 a ditch was constructed by Estes and Dill tapping Washington creek, through which water was conveyed onto the Estes place for the purpose of irrigation, and on April 25th of the following spring they located a water right for the lower Swift farm by posting a notice thereof on the channels of the stream, which was on that date recorded with the county clerk of that county, as follows: "Washington Gulch. Know all men that the undersigned hereby claims all the water of Washington gulch for the purpose of using the same on his land claim in Powder River Valley. Said ranch joins Gray's ranch on the east. And the water hereby claimed is the natural water of said gulch that flows in its natural channel through said land claim, which is thus claimed for the purpose of preventing the same from being abstracted in its flow at any point above said claim. Frederick Dill."

In February, 1864, the Estes farm was sold to Abner Smith, who resided there until his death, which occurred in the fall of 1865. His family continued to live there, and in 1867 his widow married Estes, one of the former owners of the farm. At that time all the land on Washington creek was unsurveyed public land of the United States. In 1869 Estes filed a homestead on the land, to which the right of possession had been sold to Smith, as stated, and about two years later made final proof thereon, receiving his patent in 1878. After his marriage, Estes continued the cultivation of the crops, which he irrigated with water diverted from Washington creek through the ditches previously constructed for that purpose; and, in order to publicly announce and record his claim thereto, posted a notice at the head of the ditch constructed in 1863, which he caused to be recorded in the county clerk's office, as follows: "Washington Creek. Notice is hereby given that I, Hardin W. Estes, hereby claim 75 inches of the waters of Washington creek for mining, mechanical, and irrigating purposes, the same having been heretofore taken, appropriated, and diverted from said stream by a certain ditch constructed by the undersigned in 1863, tapping said creek at a point about a quarter of a mile above what is known as the 'Washington Ranch' in Baker county, Oregon, and claimed and used by the undersigned since said date. Dated and signed at Washington ranch, Baker county, Oregon, March 19, 1872. Hardin W. Estes." On the same date, and recorded at the same time, another notice of like import was posted farther down the creek by him on his land, claiming an additional 75 inches of water through a ditch tapping the creek on his premises "at a point opposite what is known

as Washington ranch house," alleging diversion from that point through a ditch constructed in June, 1866.

In support of their claims, plaintiffs, at the trial, introduced deeds, showing the record evidence of title to their respective interests from the date of the first written instrument executed by Estes and Dill to plaintiffs' predecessors in interest. Witnesses were then called, who testified to the use of the water of the stream for irrigation of plaintiffs' lands in the production of hay, grain, vegetables, and some orchard at various times since the year 1884, but not prior to that time, except that M. J. Hindman referred to some irrigation on the Swift place in 1867, but did not state to what extent and for what purpose used, but that hay and grain were raised on the premises during that year. With this exception, no evidence was offered tending to show an appropriation prior to 1884, except in so far as an appropriation might be inferred from wild hay raised on the land, the moisture for which was produced by the waters of Washington creek spreading over and sinking into the ground, and from springs rising below defendant's farm.

W. C. Hindman testified that he has resided in the vicinity of the property and been familiar with it since 1863; that in the fall of 1863 he bought hay on the Swift farm from Estes and Dill; that hay and grain lands in that vicinity are usually irrigated until some time in July of each year, and lands along Washington creek require about one inch per acre for their proper irrigation; that on the place now owned by Swift the land is naturally damp. When asked whether three-fourths of the water from Washington creek would properly irrigate plaintiffs' lands, he answered: "There might be enough in a season where there was a flow of water, but in a dry season there would be a scarcity. I don't think that it would be (sufficient) at present. It might at one time. There was several years there that the miners threw down sometimes 1,000 inches, from 500 to 1,000 inches, and It has carried an immense deposit of débris onto his ranches, and since that it has taken more water than it formerly did."

Mary S. Gardner testified that she was the wife of J. B. Gardner, deceased, and the mother of Mrs. Stuchell, one of the plaintiffs; that in 1897 she had a conversation with H. W. Estes, in which he admitted both had rights in the waters of Washington creek; that Estes said his right was given him by the court in his suit with Sparks, the amount of which was 75 inches.

J. P. Kennison testified that he has lived in Baker county since 1862, and has been familiar with the Washington gulch at all times since; that he cut wild hay on the Swift place in August, 1863, but there were no ditches there at that time; that the wa

91 P.-19

ter spread out over the ground when it reached the place, covering about 80 acres, which condition does not exist on the Estes place and could not without dams to divert the flow from the channel.

C. M. Foster deposed that he has known the farms on Washington creek since 1862, seeing them at various times every year since; that on request of Estes he surveyed the ditch on the south side of the creek on the Estes place many years ago; that the ditch would probably carry 75 inches of water; that he also saw a ditch on that farm in 1863 or 1864, which would carry from 30 to 50 inches of water, then used there for irrigation purposes; that the altitude of the Estes ranch is about 100 feet higher than that of the Swift farm, and was one of the first settled in Baker county, and since in the early sixties has been irrigated and used for raising hay and all kinds of fruits and vegetables; that the orchard covers from 15 to 20 acres, and has been there so long he cannot tell when it was first set out; that he bought hay on the Swift ranch in 1865; that the creek flows down onto the Swift place and spreads out over 50 to 70 acres, where the creek and channel disappears.

H. Kennison testified to having known the premises since 1863, and substantially corroborates the statements of the two witnesses last quoted.

David Littlefield testified to having mined and known the farms in that locality since 1862; that he noticed the Estes farm being cultivated during each season at all times since 1863, during which year the road passed in front of the house and crossed the ditch going west, which ditch has been used ever since for irrigating the garden, orchard, and ranch generally; that the orchard was small at first and increased in size from year to year, and has been there over 30 years: that he first saw the ditch on the J. B. Gardner ranch in 1875, which place was then occupied and owned by Mrs. Irland, who, at that time, wanted to sell the farm to him, stating she owned one-fourth of the water coming down the gulch, but that the neighbors were taking it away, and said: "We have no claim on Mr. Estes' water, but we have all the water below that Mr. Estes don't use." Witness also stated that he never saw any ditches of any kind on the Swift place prior to 1875 or 1876.

H. W. Estes testified to having been in partnership with Dill in the lands owned by the parties to the suit, to having located the water rights and selling the lands, etc., as hereinbefore given, and substantially cor roborated the statements of Kennison, Foster, and Littlefield; that at all times since 1863, vegetables, fruit, hay, and grain have been raised on the Estes place, and all the waters of Washington gulch were used in the irrigation thereof, whenever needed, and without interruption; that sometimes he turned the

water down to those below when he could spare it for their accommodation; that the water right considered sold and intended to be conveyed by the deed to Gordon and Manville was for water which flowed down to the Swift place after being used on the Estes - place, and he never recognized any other right; that after the first few years he took all the water of the gulch to irrigate the lands in cultivation; that he lived on the place until about 1894, when he rented it and moved to Baker City; that all the water ever used at any time on the farms below him was the surplus passing his farm; that the creek furnishes from 100 to 130 inches in the early spring, and falls as low as 15 inches in the fall; that the irrigation season on defendant's place has been from May to November of each year: that the orchard was set out in 1868, and increased from year to year, having been of its present size for about 12 years, and must be irrigated through August, September, and October of each year, but hay and grain in that vicinity do not need irrigation after July; that the lands cultivated on the defendant's farm are from 60 to 70 acres; that he filed on the Estes place as a homestead in 1869, and made his final proof in 1871: that, after his marriage to Mrs. Smith in 1867, he always claimed the waters of Washington gulch; that he was never interrupted in the use of the water but once, and that was by Mrs. Swift about the year 1893; that he never had any trouble with any one below, and no one ever tore out any of his dams at any time.

The statements of this witness as to the date of commencement, time, manner, and purpose of use is corroborated by Mrs. Estes. She also adds that her first husband, Abner Smith, purchased the water right to the Estes place from Estes and Dill: that she married Estes in 1867; that a large crop has always been raised on the farm, and, so far as she knew, the use of the water by Estes had not been interrupted at any time prior to the date of his conveyance to defendant.

W. H. Kennedy testified to having resided on the J. B. Gardner ranch 13 years. That during that time he has irrigated all the land on the place for which he could get water. being about 90 acres, consisting of pasture, 10 acres; hay, 30 acres; grain, 50 acres. That with water the farm is worth about $4,000. but of little value without it. That he farmed the Swift place from 1886 to 1888. That with water it is worth about $5,000, but without water, about half that value. That while there he occasionally tore out both Estes' dams. That during most of the time he has been on the Gardner place he has done without water on account of persons using it on the Estes place, and "once in a great while" he would go up and tear the dams out. sometimes once, and sometimes twice a week, but

never said anything to either Estes or Wright about it, and when the water was obtained as indicated it would "probably come down one day, and may be not two hours." That the effect was it came near drying them out altogether. That Washington creek flows through the Swift place about a quarter of a mile, and then spreads out over the meadThat the irrigation season begins "as soon as the frost goes out," but for grain they irrigate during June and July. That they quit irrigating about August 1st of each year. That when on the Swift place (86'88) there were 66 acres of grain and 70 acres of hay land. That on the Gardner place there were at that time 60 acres of grain land and 25 acres of hay land, and about the same amount now. That the dams were torn out during the months of May and June. That the creek furnishes insufficient water to properly irrigate the Gardner and Swift places. That in April the water is very high, but in May the supply dwindles down to about 25 inches, and in June will average about 20 inches, but in July not more than 12 inches, which continues about the same. during the rest of the season. That there are some small springs on both the Gardner and Swift places.

Frank Kennedy testified that in 1904 they had no water for irrigation of the Gardner place, but cut about 15 tons of grain and 80 tons of hay; the hay being raised on land which was usually moist. That the usual hay crop is from 70 to 90 tons. That the water is usually turned on the grain land the last of April, from which the hay land situated below is subirrigated.

A. V. Swift testified that he has 120 acres in cultivation; that he irrigates 40 acres of hay land with Washington creek, and there are 80 acres of hay land on the Swift place, which has been there as long as he can remember, and 100 acres on the J. B. Gardner ranch, requiring irrigation.

George F. Wright (defendant) testified that Washington creek flows in well-defined channels northerly through his land; that immediately below his place the combined springs furnish a supply of about 10 inches of water, which is caught by a ditch running onto what is known as the "Rea Place" (not here involved), and is used to irrigate an orchard on the Gardner place, but at times flows down the creek, and, if unobstructed, would continuously flow to plaintiffs' farms; that the amount of water in the creek at his place in April is sometimes 200 inches, in May will average 75 inches, June 50 inches, July 30 inches, and the rest of the season about 10 inches; that it is absolutely necessary to irrigate his orchard through July, August. September, and October. of each year, without which the land is worth not more than $6 per acre, but with the water during those months is worth about $22.000; that the orchard covers about 20 acres