they agreed to assume, a large amount of property, and directed the defendant Mann to convey to them the lot so bonded, which was accordingly done by a deed absolute in form, but which was understood and agreed between plaintiff and Heilner and Cohn to be a mortgage. That on December 19, 1879, and before the time for redemption had expired, Heilner and Cohn sold and conveyed to Mann the property in dispute in this suit for the sum of $675, ever since which time Mann has been in the possession of the some, and receiving the rents and profits thereof. The plaintiff, being unable to arrive at a satisfactory settlement of his affairs with Heilner and Cohn, on the 12th of September, 1881, commenced a suit against them for an accounting, and to compel them to reconvey to him all the property which had theretofore been conveyed to them as security for his indebtedness, and thereafter such proceedings were had that on June 11, 1885, a final decree was entered in said suit, in which it was adjudged and decreed that all of said indebtedness to Heilner and Cohn had been fully paid, and it was further decreed that Heilner and Cohn should reconvey to plaintiff the whole of lot 2 in block 2, upon the payment to them of the sum of $675, the amount received by them from Mann. Manaudas v. Heilner, 12 Or. 335, 7 Pac. 347. As soon as the decree of this court was filed in the court below, the plaintiff, in compliance therewith, paid to Heilner and Cohn the sum of $675, and received from them the deed to the whole of lot 2, and immediately demanded possession from Mann, which being refused, he began an action to recover such possession. This action was pending in the courts for some considerable time, but was finally dismissed upon plaintiff's motion, and this suit commenced against Mann and Heilner (Cohn having in the meantime died) to compel a conveyance of the property in dispute. A demurrer to the complaint being sustained in the court below, on appeal to this court the decree was reversed, and the cause remanded with permission to the defendants to apply for leave to answer, on condition that they deposit with the clerk the sum of $675, and interest from the time it was paid to Heilner and Cohn by the plaintiff, in pursuance of the decree made in June, 1885. Manaudas v. Mann, 22 Or. 525, 30 Pac. 422. The defendants, having complied with the order of the court, and made the necessary deposit, were permitted to answer, and denied some of the allegations of the complaint, and the defendant Mann, for a further defense, averred that the purchase by him from Heilner and Cohn was made in good faith, supposing them to be the owners of the property, and without knowledge of plaintiff's claim thereto, or that it was held only as security, and, further, that the sale was made by the consent and direction of the plaintiff. The defendant Heilner admitted that he received from plaintiff the sum

of $675 in pursuance of the decree of this court, but averred that he did not convey, or intend to convey, to him the property in question, and also that Mann purchased the same in good faith. The cause, being at issue, was referred to W. F. Butcher, Esq., to report the facts and the law. After hearing the testimony, the referee found that the sale to Mann by Heilner and Cohn was made with the knowledge, and by the direction, of the plaintiff; that Mann was a purchaser in good faith and for value,-and recommended that the complaint be dismissed as to him, but that plaintiff have a decree against Heilner for the $675 paid to Heilner and Cohn on November 14, 1885, and interest, and that the money on deposit be applied on said decree. The court below affirmed the report as to Mann, and decreed accordingly, but set it aside as to Heilner, dismissed the complaint, and directed the clerk to pay the money on deposit to Heilner, and from this decree the plaintiff appeals.

There are but two questions presented by this record, and they are: (1) Was the sale by Heilner and Cohn to Mann made by the direction and consent of the plaintiff? and (2) if not, was Mann a bona fide purchaser for value without notice? Both of these are pure questions of fact, and, while the find-, ings of the referee and court below are infavor of the defendants, we have reached the conclusion, after a careful examination, that such findings are not sustained by the testimony. The defense that the sale was authorized by the plaintiff is made in this case for the first time, although this controversy, in one form or another, has been in the courts for more than 10 years, and the circumstances by which the witnesses fixed the time when the alleged consent was given show clearly that it was long after the sale had been made. Hence, in view of these circumstances, and the fact that plaintiff unqualifiedly denied in his testimony that he ever authorized or was consulted about the sale, or knew anything about it until long afterwards, we are impelled to the conclusion that it was made without his authority or consent. The defendants claim, and so testify, that Mann purchased the property in good faith, without any knowledge of the character in which Heilner and Cohn held it, or plaintiff's claim thereto; but in this they are contradicted, not only by the entire circumstances of the case, but the positive testimony of disinterested witnesses, who testified unqualifiedly that Mann was informed of the condition of the title and of plaintiff's rights, and advised not to buy; that he said he did not care anything about plaintiff, as Heilner was good to him for any money he might pay for the property. Without recapitulating the testimony, it is sufficient to say that in our opinion, from the overwhelming weight of the evidence, the defendant Manu took the deed from Heilner and Cohn with knowledge of the facts and circumstances.

under which they held the premises, and therefore took the title as a trustee for the plaintiff, and cannot claim the protection due to a bona fide purchaser. He stands in the shoes of Heilner and Cohn, and, the plaintiff having established his right to the property as against them by the decree of this court (12 Or. 335, 7 Pac. 347), it necessarily follows that he must prevail in this suit. The decree of the court below is therefore reversed, and a decree will be entered here that the defendant Mann, within 60 days after the entry of the decree of this court in the court below, execute and deliver to the plaintiff a good and sufficient deed to the property in controversy, free from all liens or incumbrances placed thereon, or suffered to be placed thereon, by him, and, in case of a failure so to do, the decree shall stand for such conveyance; and that plaintiff have judgment against him for the rental value of the said premises from November 14, 1885, at $15 per month, amounting, in the aggregate, to the sum of $1,555.50, and against both defendants for his costs and disbursements in this suit.

(25 Or. 559)

McBROOM v. THOMPSON et al. (Supreme Court of Oregon. June 28, 1894.) PAROL LICENSE-REVOCATION-ESTOPPEL.

1. A parol license to divert part of the water of a stream cannot be revoked after the licensee has expended money and labor in pursuance of the license.

2. Where, for eight years, riparian owners and their grantors have acquiesced in the diversion, by a person who is not a riparian owner, of a part of the stream, and such person has yearly aided in keeping the channel of the stream open, and expended money on his farm, which would be worthless without the water, a court of equity will not enjoin a further diversion of the water at the suit of such riparian

owners.

Appeal from circuit court, Umatilla county; Morton D. Clifford, Judge.

Suit by P. G. McBroom against James Thompson and others. There was a decree for plaintiff, and defendants appeal. Reversed.

This is a suit to enjoin the defendants from diverting the waters of a branch of the Walla Walla river, in Umatilla county, Or. The evidence shows that on December 13, 1882, Henry Nichols obtained a patent from the United States for the S. W. 4 of section 26, in township 6 N. of range 35 E. of the Willamette meridian, and on June 18, 1883, he and his wife conveyed a 15-acre tract from the northwest corner thereof to R. B. Crego, who on October 10, 1887, conveyed it to the plaintiff; that the Walla Walla river flows in a northerly direction to a point near the town of Milton, where it divides into two branches, the eastern being known as the Tum-a-lum, and the western as the Little Walla Walla, which flows through plaintiff's land, situated about two

miles below the fork; that the defendant Thompson, being the owner of the land above plaintiff's, through which the Little Walla Walla flows, on February 28, 1884, granted to his codefendants the right to divert the water of said stream, and conduct it in a ditch across his premises, to be used in irrigating theirs; that the defendants, having obtained Crego's consent thereto, dug a ditch about 2 miles in length from a point on the Little Walla Walla river, just below the said fork, and have since 1884 diverted and appropriated water to irrigate their lands, no part of which is returned to said stream; that the Tum-a-lum has a greater fall and swifter current than the Little Walla Wallą, and the winter freshets fill up the head of the latter stream with rock, gravel, and other material, seriously obstructing the flow of the Walla Walla into it, and causing the greater quantity of water to flow into the Tum-a-lum; that the persons owning lands on the banks of the Little Walla Walla river, together with the defendants, whose lands are irrigated by water from said ditch, have by common consent and understanding, each year, removed by their own labor the obstructions from the channel of the Little Walla Walla river, and built dams in the Tum-a-lum, by which about one-half of the volume of water has been made to flow in each stream, for which service the defend. ants were to have the privilege of withdrawing water to irrigate their lands; that the plaintiff, prior to his purchase of the land from Crego, saw the said ditch, and knew that the defendants were diverting water from the stream running through the tract he intended to purchase; that he aided the defendants and others in removing such obstructions, and placing the dams aforesaid, with knowledge of said understanding, and of the facts that the defendants were laboring and expending their means in improving and cultivating their lands, which would be valueless without irrigation, and never made any objection to the use of said water by them till this suit was commenced. The plaintiff alleges in his complaint that he is a riparian proprietor on the Little Walla Wal la river, and entitled to the flow of said stream in its natural channel; that the defendants are not riparian proprietors on said stream, and have no right to divert the waters thereof, which he needs for irrigation and domestic purposes. The defendants, after denying the material allegations of the complaint, allege the foregoing facts as an equitable estoppel. After the issues were completed the cause was referred to R. M. Turner to take testimony, which having been done, the court, at the hearing thereof, decreed a perpetual injunction against the diversion and the use of the water of said stream, and awarded plaintiff his costs and disbursements, from which decree the defendants appeal.

Cox, Cotton, Teal & Minor, for appellants. Leasure & Stillman, for respondents.

MOORE, J. (after stating the facts). The defendants contend that the ditch was con structed under a parol license from R. B. Crego, plaintiff's grantor, and that after its construction the license became irrevocable. The defendant W. S. Powell testified that after securing the deed from the defendant Thompson the construction of the ditch was commenced, with Crego's consent, but that Henry Nichols then owned the tract of land now owned by the plaintiff. In this the witness is in error, as the record evidence con clusively shows that Crego had obtained his deed from Nichols more than eight months prior to the date of Thompson's deed; and, while Nichols may have objected to the diversion of the water, he then had no right to speak as a riparian proprietor of the premises now owned by the plaintiff.

The ditch having been constructed under a parol license from Crego, the question is presented whether such license is revocable after labor and money have been expended in pursuance thereof. "An executed license," says Lord, J., in Curtis v. Water Co., 20 Or. 34, 23 Pac. 808, and 25 Pac. 378, "is treated like a parol agreement, in equity. It will not allow the statute to be used as a cover for fraud. It will not permit advantage to be taken of the form of the consent, although not within the statute of frauds, after large expenditures of money or labor have been invested in permanent improvements upon the land, in good faith, upon the reliance reposed in such consent. To allow one to revoke his consent when it was given or had the effect to influence the conduct of another, and cause him to make large investments, would operate as a fraud, and warrant the interference of equity to prevent it, under the doctrine of equitable estoppel." In Coffman v. Robbins, 8 Or. 278, it was held that a parol agreement to divide the waters of a stream, that had been acted upon by the parties for several years, under which ditches had been dug and possession given, would be enforced in equity. So, too, in Combs v. Slayton, 19 Or. 99, 26 Pac. 66, it was held that where the riparian proprietor had not claimed the exclusive right to the water of a stream, but had permitted the de fendant to dig a ditch, and appropriate a part thereof, such acts evinced a tacit agreement that each should be entitled to appropriate a just proportion of the water for the purpose of irrigation, and that such agreement should be carried into effect. While it is claimed that the better rule, in view of the statute of frauds, appears to be that, so far as the question of further enjoyment is concerned, the licensor may revoke the parol license after an outlay under it (Bigelow, Estop. 666), the contrary doctrine has, by the foregoing decisions, been firmly estab

lished in this state. The reason for the estoppel in such cases rests upon the principle that the licensee, after the expenditure of money and labor on the faith of the parol license, cannot be placed in statu quo upon its revocation. 2 Herm. Estop. § 982. The defendants having expended their money and labor in digging the ditch upon the faith of Crego's parol license, it follows that he could not revoke it after such expenditure; and the plaintiff, having acquired the title to his premises with notice of the diversion, could obtain no greater interest therein than his grantor possessed, and hence he cannot now revoke the license. Curtis v. Water Co., supra.

The evidence shows that the defendants have each year, since the ditch was constructed, aided the riparian proprietors, including Crego and plaintiff, in removing obstructions from the Little Walla Walla river, and in building dams in the Tum-a-lum, under. a common understanding that in consideration of such aid the defendants were to have the right to divert sufficient water for the irrigation of their lands; that the plaintiff and his grantor have for eight years, with knowledge of the diversion and use of the water, seen and acquiesced in the defendants' improvement of their farms by means thereof under a reasonable expectation that the diversion and use would be continued. And from these circumstances it is contended that the plaintiff is estopped from discontinuing the diversion and use of the water for irrigation. Such acquiescence, if voluntary, and continued for a considerable length of time, constitutes a quasi equitable estoppel, that does not cut off the party's title or legal remedy, but bars his right to equitable relief, and leaves him to his legal action alone. 2 Pom. Eq. Jur. § 817. The case of Dalton v. Rentaria (Ariz.) 15 Pac. 37, illustrates this doctrine. That was a suit to restrain the defendants from preventing the waters of Santa Cruz river, in Arizoną, from flowing in certain acequias, from which plaintiffs' land was supplied with water for irrigation. The plaintiffs had contributed their proportion of labor and expense in maintaining all of said acequias for irrigating purposes equally with the defendants. The defendants, in their answer, admitted that the greater part of plaintiffs' lands, which were arid, and would raise no crops without irrigation, had been cultivated for 16 years. The court, in passing upon the question, said: "These admissions on the record are significant, and evoke a serious reflection. If the greater part of the plaintiffs' lands has been cultivated for the last sixteen years, it was done with or without defendants' consent. If without their consent, have they not beea guilty of laches, unreasonable delay, and inexcusable neglect, in waiting sixteen years without taking any steps to restrain the wrongful acts of plaintiffs? If the defendants were fairly put upon their guard; if they had actual knowledge

that plaintiffs were diverting waters that belonged to defendants by virtue of prior ap propriation; if they stood by for sixteen years or more, and saw the plaintiff's build their houses, open out their lands, and put them in cultivation, expend their money in the improvements of these homes, pay their proportion of the expenses, and bear their proportion of the labor in building and repairing the acequias, and otherwise do and perform such acts as indicated that plaintiffs believe they had equal rights with defendants to the waters of the Santa Cruz river,-do not all these circumstances serve to imply that defendants waived or abandoned any exclusive prior right to said waters? At least, was there not such unreasonable delay as that they are now precluded from complaining? Will parties be permitted to stand by for sixteen years or more, and see new fields put in cultivation,-irrigated, forsooth, with water to which they have an exclusive prior right, -see large sums expended in erecting new homes, and witness new and important interest intervene, and then be heard to complain? A fortiori, defendants will not be heard to complain if these things were done with their consent. Indeed, our opinion is, in this case, that acquiescence-nonaction-on the part of defendants, for so long a time, gave consent. They could not consent 'till title vested, and then dissent.' So that it is really immaterial whether the irrigation was done with or without the defendants' consent, if they stood passively by. See Smith v. Hamilton, 20 Mich. 433; Park v. Kilham, 8 Cal. 78; Joyce v. Williams, 26 Mich. 332." In Slocumb v. Railway Co., 57 Iowa, 675, 11 N. W. 641, the facts showed that a small creek touching a corner of plaintiff's land was crossed by defendant's railroad upon bridges at two places. The defendant filled the bed of the creek at the two crossings, and turned the channel along the side of the railway, so that the bridges were dispensed with, and the creek did not touch plaintiff's premises. The plaintiff stood by, and saw the work of diversion progressing; and it was not until after it was fully completed, at a cost of more than $5,000, that any objection was made. It was there held, upon those facts, that the trial court did not err in refusing to grant a mandatory injunction for the restoration of the stream. In the case at bar there has been more than a mere voluntary acquiescence, or standing passively by, while the defendants were digging their ditch and improving their lands The plaintiff and his grantor, for eight years, without any objection whatever, aided the defendants in repairing the damages caused by the winter freshets, with knowledge of their appropriation, and of the common understanding that in consideration of such aid the defendants were to enjoy the right of diverting the water for the irrigation of their lands. The defendants thus encouraged by the plaintiff's voluntary acquiescence and participation in a

common purpose, laid out their money and expended their labor in making homes for their families, under an obvious expectation that no obstacle would afterwards be interposed to prevent their enjoyment. The pla'ntiff's objection, in view of the unreasonable delay, and of all the circumstances of the case, now comes too late; and, under the maxim that he who is silent when he ought to speak shall not be heard to speak when he ought to keep silent," he can have no standing in a court of equity to enjoin a diversion and use of the waters of a stream that he and his grantor have tacitly encouraged.

It appears from the evidence that the defendants have been diverting about 240 inches of water from the Little Walla Walla river, without pressure, and that this quantity is necessary for their use, and that fully as much flows in the channel of said stream through plaintiff's land, which, if diverted, would be sufficient for its irrigation. Plaintiff's cause of suit is not based upon a division of the water in proportion to the equitable rights of the parties, but to enjoin the defendants from preventing the water of the stream from flowing through his land in the natural channel, undiminished in quantity; and since it appears that there are other riparian proprietors on said stream, who are interested in the diversion, but are not parties to this suit, no decree could settle their respective rights by a division of the water, and hence it would be useless to remand the cause for that purpose. The decree will therefore be reversed, and the complaint dismissed.

(25 Or. 543)

HYDE, District Attorney, v. CROSS et al. (Supreme Court of Oregon. June 28, 1894.) BAIL BOND-CONTINUING LIABILITY-DISMISSAL OF INDICTMENT-EFFECT.

Sections 1317, 1328, Hill's Ann. Code, provide that, when the original indictment is set aside on motion of defendant,. the court may order that the case be resubmitted to the grand jury, and in such case the bail remains answerable for the appearance of defendant to answer the new indictment, if one be found. Defendant was indicted, and admitted to bail. On motion of the state the court ordered that the matter be resubmitted to the grand jury, and that defendant be held on the same bail bond. A new indictment was returned, but defendant did not appear. Held, that there could be no recovery on the bond, as the first indictment was not set aside on motion of defendant, or with his consent.

Appeal from circuit court, Grant county; Morton D. Clifford, Judge.

Action by Charles F. Hyde, as district attorney, against S. L. Cross and J. W. Greenwell, on a bail bond. Judgment for plaintiff, and defendants appeal. Reversed.

E. H. Peery, for appellants. Geo. E. Chamberlain, Atty. Gen., and Chas. F. Hyde, for respondent.

BEAN, J. This is an action on an undertaking of bail for the appearance of one