and requires all the water in the stream during those months for its irrigation. Fred Intermill testified that while farming the Swift place in 1900 he asked Estes for some water, which was turned down for the irrigation of his garden. Otto Lambert testified that he lived on the J. B. Gardner ranch from 1884 to 1888, when Mrs. Irland had it, living there one year with his father, and during that time irrigating the farm with water taken from Washington gulch; that, when there was not sufficient water, witness' father was ordered by the person in charge to go and turn it down, and he would sometimes tear the dam out; that Mr. Estes was around the road near there, and would sometimes ask what they were doing, etc.; that this occurred nearly every season, and on such occasions they would get most of the water; that when they would cut the Estes dams the water would sometimes run a day, and again it would not run that long; that this occurred each year he was there; and that, when they would tear out the dams, they would not speak to Estes about it, but he would go and turn the water back and use it for irrigation.

Henry Lambert and a number of other witnesses on behalf of plaintiff testified to like interruptions having occurred at various times from 1884 to the date of the commencement of this suit.

The testimony was taken before the court, resulting in a decree in favor of plaintiffs, by which Mary S. Gardner and Edna Stuchell, jointly, were decreed an eighth interest, and A. V. Swift, one-fourth of the entire stream, and enjoining defendant from interfering with plaintiffs' use to the extent of three-eighths' interest, jointly, in Washington creek during all seasons of the year. Frou the decree so entered plaintiffs appealed, and defendant filed a cross-appeal.

J. N. Hart, for appellants. C. A. Johns, for respondent.

KING, C. (after stating the facts). It is unnecessary to determine whether the court erred in sustaining plaintiffs' motion to strike out defendant's averment concerning riparian ownership, since the evidence as taken does not indicate an intention to rely upon this defense. Plaintiffs, through their predecessors in interest, claim the entire flow of Washington creek by prior appropriation, which is asserted through the Estes and Dill deed given to Gordon and Manville in 1864, wherein the appropriation is expressed as having been first made by these grantors in June, 1862. The defendant, as indicated by the evidence adduced in his behalf, relies on adverse possession through his grantor, Estes, for more than the statutory period, having its inception in an appropriation made in the spring of 1863, which

is alleged to be prior in time and superior in right to any valid claim of plaintiffs.

It is urged by defendant, and testified to by Estes, that there was no intention of conveying any water rights by the deed referred to, except a right to the surplus water flowing below defendant's lands; but the covenants in the deed, when construed in connection with the water notice of Dill, then on record, convey and warrant the title to the entire stream, to the extent that it may be applied to a beneficial use on the land, to which right of possession was therein conveyed, whether such use should be for irrigation or for other purposes. The showing made to that effect in support of the allegations of the complaint, in the absence of other evidence, establishes, as against defendant, a prima facie right to the use of the water in plaintiffs to the extent that they may have suc ceeded to the interests named in the Estes and Dill deed. To overcome this proof defendant insists that he has established his right to the use of the stream (except as to the surplus water) by adverse possession for more than 40 years. Plaintiffs maintain that defendant, through his grantor, is estopped by the covenants in the deed from asserting this defense. It appears well settled that a subsequent possession by a grantor of premises conveyed, under claim of ownership, etc., for the period prescribed by the statute of limitations, will not necessarily inure to the benefit of his grantee, and title by adverse possession for such period may be acquired by such grantor. 16 Cyc. 697; Jones v. Miller (C. C.) 3 Fed. 384; Stearns v. Hendersass, 9 Cush, Mass.) 497, 57 Am. Dec. 65; Hines v. Robinson, 57 Me. 324, 99 Am. Dec. 772; Sherman v. Kane, 86 N. Y. 57; Horbach v. Boyd, 64 Neb. 129, 89 N. W. 644. In the case last cited, the Supreme Court of Nebraska on this point say: "It must be evident that, if the grantor subsequently makes an entry upon the possession of the grantee, there is no presumption that the new possession so acquired is permissive or subordi nate to the grantee. nate to the grantee. This would be more obvious where several years intervene between the grant and the entry. Whatever the rule may be where the possession of the grantor continues after the conveyance, in such a case the new title may be established by proof of open and notorious adverse possession, as in other cases."

It must be conceded, however, that, notwithstanding the rule stated, if such possession is held in subserviency to the title of the grantee, the possession thereof would inure to the grantee's benefit. The circuit court held, in effect, that, when Estes reacquired the water rights above the Swift farm, any interest so obtained inured to the successors in interest of Manville by reason of the covenants in the deed given to Manville and Gordon in 1864, and that defendant, through

Estes, his grantor, is estopped from asserting his claim to the subsequently acquired water rights to the extent that plaintiffs have succeeded to the interest of Gordon and Manville; but held that, since Gordon made only an oral transfer to Manville of his interest in the possessory title to the property acquired under the Estes deed, upon which water had not been diverted at the time of the conveyance, nor prior to the diversion by Estes, the estoppel could not be invoked as to Gordon's half interest in the property described in the deed. The court accordingly held that defendant, as successor in interest to Estes, was estopped to the extent of only one-half of the water right previously conveyed, and found in favor of plaintiffs for one-half of the rights claimed and demanded by each of them. Since no diversion was made prior to the time of the parol conveyances by Gordon, nor until after the diversion and use subsequently made by Estes, it is clear that the court did not err in this holding in respect to Gordon's interest, although a different rule applies where actual appropriation has been made. Nevada Ditch Co. v. Bennett, 30 Or. 59, 45 Pac. 472, 60 Am. St. Rep. 777. We are then confronted with the question: Was Estes estopped to assert title adversely as to the remaining interest claimed by the successors in interest of Manville? The general rule is recognized to be that, when a person assumes to convey property by deed, he will not be heard, for the purpose of defeating the title of the grantee, to say that, at the time of the conveyance, he had no title, and that none passed by the deed. Nor can he deny to the deed its full operation and effect as a conveyance, and such deed conveys all after-acquired titles. 16 Cyc. 686, 689, 701; Taggart v. Risely, 4 Or. 235; Wilson v. McEwan, 7 Or. 87; Raymond v. Flavel, 27 Or. 219, 40 Pac. 158. From the foregoing authorities it is clear, under the prima facie showing made by plaintiffs by the deed and Dill notice of location of water right, that defendant, by reason of receiving his title through Estes, would be estopped from asserting that, at the time of the execution of the deed from Gordon and Manville, the grantors had no authority to convey more than the surplus waters of the stream; that, notwithstanding they had previously sold an interest therein to Abner Smith, they were estopped in equity from setting up such sale as against any claims of the grantees, or their assigns. This would preclude defendant, as grantee of Estes, in the absence of other testimony, from asserting any title to the water through any rights that may have been received, if any, through the marriage of Estes to Mrs. Smith; but, as to whether Estes or his grantee are estopped by the covenants in the deed from claiming title by adverse possession against Manville's grantees, another and different question arises.

There can be no doubt, under the law, that

it is incumbent upon a person relying upon a claim of adverse possession, as against a grantee in a warranty deed, to clearly show that there was a change in the relation of the parties with reference to the rights involved before such right can be maintained. Any unexplained possession, therefore, is presumed to be in subserviency to the title placed on record by the deed, from which it follows that the grantor, in order to avail himself of the laches of the grantee or assigns, or of the limitations prescribed by law, must show that he brought home to the grantee and his assigns knowledge, either actual or constructive, of such change in the relations of the parties. Jones v. Miller (C. C.) 3 Fed. 384; Sellers v. Crossan, 52 Kan. 570, 35 Pac. 205; Schwallback v. Chicago, M. & St. P. Ry. Co., 69 Wis. 292, 34 N. W. 128, 2 Am. St. Rep. 740.

An

It is incumbent, therefore, upon defendant to show, to the satisfaction of the court, that his possession was not in subserviency to the grantee. The authorities are practically unanimous in support of this view, which appears to be the strong contention of plaintiffs' counsel. We will then examine into the status of the case before us on this point. examination of the testimony discloses no question as to the character of the holding, not only as to the possession of the defendant, but of his predecessor in interest, Estes. We find that Estes and Dill conveyed all the water, so far as the language of the deed is concerned, to plaintiffs' predecessors in interest, and that possession was surrendered to them under the deed, although, prior to such conveyance, they had sold the land above with a water right in the stream to Smith. Three years after the execution of the deed to Gordon and Manville, at a point on the same stream above their lands and for the irrigation of the farm previously sold to Smith, upon which Estes afterwards filed as a homestead, Estes began to assert a separate and distinct right and to use the water for the irrigation of his homestead. Five years later, presumably for the purpose of further protecting and maintaining his claim to the water, he, at the diversion points, posted and recorded the notices mentioned. When considered under the issues, as pleaded, together with the fact that the Estes farm was being irrigated by the use of the ditches mentioned, that a large orchard had been planted, which, with crops of hay and grain, were necessarily being sustained by the use of the water of this stream, all of which notices, with the other facts and circumstances stated, were sufficient to establish a disclaimer, under the covenants given, and bring home to the knowledge of the grantee full notice of the change in their relations. Petrain v. Kiernan, 23 Or. 455, 32 Pac. 158; Horbach v. Boyd, 64 Neb. 129, 89 N. W. 644. The testimony showing the open use of the water under the notices posted,

W. 342, 113 Am. St. Rep. 444, on appeal to U. S. Sup Ct. (decided May 27, 1907) 206 U. S. 482, 27 Sup. Ct. 769, 51 L. Ed. 1148; Johnson v. Gorham, 38 Conn. 521; Northern Pac. Ry. Co. v. Ely, 25 Wash. 384, 65 Pac. 555, 54 L. R. A. 526, 87 Am. St. Rep. 766; Longley | v. Warren, 11 Tex. Civ. App. 269, 33 S. W. 304. To gain possession it must be such a re-entry or recapture of the use of the water as can be termed complete. Possession by permission of Estes was insufficient for this purpose, and a mere temporary cutting of his dams, without his knowledge, whether to his injury or not, would be insufficient. It would not be seriously contended if A. takes possession of land, fences it, constructs and occupies a residence thereon under a claim of ownership, etc., for 10 years, and B. at different short intervals forced himself onto the land. placing his tent there and remaining until discovered, or until dispossessed as soon as discovered, that such interference and possession would be sufficient to stop the running of the statute. In discussing the question as to whether an unsuccessful action in ejectment would toll the statute, it is given as the rule that "prosecutions to stop the running of the statute must be successful, and lead to a change of possession." Moore v. Greene, 19 How. (U. S.) 69, 15 L. Ed. 533. So it might also be said that an attempt to regain possession of a water right, the use of which had been under the actual control and in the possession of another, must be successful and lead to a change in its control before it can defeat such claim under the statute. In order to have affected the legal status of Estes as an adverse claimant, so as to prevent the statute from running, he must not only have had knowledge, actual or implied, that the interference was taking place; but there must also have been at least an implied yielding thereto; or, if not, then there should have been such an entry as would have challenged this right to such extent as would ordinarily have been termed successful, and not possession for merely such time as to enable Estes to learn of the removal of the dams and replace them. Angell, Watercourses (6th Ed.) § 211; Workman v. Guthrie, 29 Pa. 495, 72 Am. Dec. 654. The reason and spirit of our statute on the subject does not contemplate that slight interruptions will stop its running in favor of one, who, for all practical purposes, maintains possession of the property, for, if such rule should prevail, so far as applicable to the determination of water rights, it would, in effect, be a mere nullity.

Thus far we have examined only the question of estoppel urged by plaintiffs relative to the defense of adverse possession, relied upon by the defendant, thereby first considering the main points to which our attention has been directed by counsel for the contending parties. But whether intended as

a foundation upon which to base the defense of adverse possession, by way of indicating the origin of the "claim of right" of his grantor, or as a separate. complete, and sufficient defense, defendant pleads and maintains that his claim is prior in time and superior in right to plaintiffs', and, these averments being consistent, it becomes immaterial as to which is intended. A similar allegation relative to priority of their appropriation is made and urged by plaintiffs. This feature, being essential to a complete determination of the effect of the question of estoppel under the issues and evidence relative thereto, will be considered. From the proof it appears that plaintiffs' rights, when considered with reference to their allegation of prior appropriation, independent of the Estes and Gordon deed, did not attach prior to 1875, if prior to 1884. Littlefield testified to having known the various farms on the creek continuously since 1862, and that he first saw ditches on plaintiffs' lands in 1875. The testimony of M. J. Hindman indicates that a garden was irrigated there in 1867, but from what source of water supply is not shown. The ditches observed, so far as appears, may have been constructed to catch the flow from springs testified to as being below defendant's points of diversion, some of which were on plaintiffs' lands. It was incumbent upon plaintiffs, in order to avail themselves of this right, to clearly prove all the elements essential to a right under the doctrine of prior appropriation, and the evidence disclosed is insufficient to establish their diversion and appropriation for that purpose earlier than 1884 (Morgan v. Shaw, 47 Or. 333, 83 Pac. 534), unless the deed referred to is sufficient. In fact it is not clear that plaintiffs are endeavoring to show an actual appropriation of the stream sufficient to maintain their rights in this respect,. earlier than that year, except to the extent shown by the color of title beginning with Estes' deed, already considered. The defendant, however, clearly and without question establishes a diversion for his lands not later than the year 1872, and shows the application thereof to a beneficial use at all times since. It cannot be doubted, therefore, that the appropriation claimed by defendant. is prior in time to plaintiffs' appropriation; but it is maintained that defendant should be and is estopped, by reason of his grantor's deed to their predecessors, from pleading any right or claim to the use of any water from Washington creek as against them, not only by adverse possession, as heretofore discussed, but from pleading a prior right to its use. Estoppel, as here urged, is evidently based on the assumption that defendant, in relying on his claim as prior appropriator, does so on the theory that he obtained his right to divert the water by reason of the interests sold to Smith in 1864, which had its inception in the appropriation made on the Estes