then agreed to compensate him for the losses which he sustained by reason of the transaction. That notwithstanding such promise the plaintiff failed and refused to return the sum of $390, the money so paid, or to compensate him for the losses which he had suffered. The separate defenses as to the other causes of action alleged in the complaint are substantially the same as the averments of the answer hereinbefore set forth, except as to the descriptions of the several lots agreed to be purchased, the times of making contracts therefor, and the payments of sums of money thereon, amounting to $1,440, for which judgment was demanded. The reply put in issue all the allegations of new matter in the answer, and, the cause having been tried, resulted in a verdict and judgment for the defendant for the sum so demanded, and the plaintiff appeals. J. C. Veazie, of Portland (Veazie, McCourt & Veazie, of Portland, on the brief), for appellant. G. G. Schmitt, of Portland (Schmitt & Schmitt, of Portland, on the brief), for respondent. and avenues joining thereon in the manner here alleged. (10) That in addition to such representations the plaintiff and its agents delivered to the defendant pictures, showing improvements already completed at Bayocean Park, and also gave him books and pamphlets representing other improvements that were forthwith to be made on the tract, requesting him to preserve such literature and examine such pictures in order to ascertain the kind of betterments to be made, assuring him that in consequence thereof, if he purchased the lot, the value thereof would enhance within a year or two to double or treble its then value. That at the time the contract to purchase such lot was concluded, the defendant had not seen the land so platted, and was without any knowledge of the character thereof, and believed the representations so made and the statements contained in the books and pamphlets and the portrayal delineated in the pictures so given to him, and, relying thereon, he was induced to purchase the lot for the price and upon the terms stated in the complaint. That in the latter part of the year 1912, the defendant was informed that the representations so MOORE, C. J. (after stating the facts as made were false, whereupon he ceased mak- above). There was received in evidence at ing further payments on account of the pur- the trial in support of the first cause of acchase of the lot. That in July, 1913, he per- tion set forth in the complaint a contract ensonally inspected the land so platted, and for tered into June 17, 1909, between the Potterthe first time discovered such representa- Chapin Realty Company, a corporation, and tions were false in that: (1) The plaintiff Emma Whitney for the sale of lot 10 in had not laid water pipes either in front, in block S9 of Bayocean Park for $750. She on the rear, or across such lot; (2) the corpora- December 30, 1910, for the expressed considtion had not cleared the brush, trees, and eration of $1 assigned all her right, title, rubbish from the lot nor leveled it; (3) the and interest in the contract to the defendant. plaintiff had failed to grade or improve the The second cause was manifested by a constreet abutting such lot; (4) it had neglected tract signed August 5, 1909, by the company to lay sidewalks on either side thereof; (5) last named and M. D. Jameson, for the sale it had not carried into effect or completed of lot 19 in block 80 for $750. He on Februany of the undertakings which it represent-ary 23, 1911, assigned in the same manner ed would be made to improve the tract so platted, in that it did not grade and pave the streets and avenues, clear and level the tract and lots thereof, lay sewer and water pipes, put down sidewalks, build docks, operate a ferryboat, and generally improve such lot and tract; (6) the worth of the lot at the time the defendant agreed to purchase it was not $750, nor has its value enhanced since that time. That such representations were false, and so known to be by the plaintiff when they were uttered, and were made by it and its agents with the intent and for the purpose of inducing the defendant to buy the lot. That, relying upon such representations to be true, he was induced to purchase the premises— "and was thereby defrauded out of the amount of money paid to the plaintiff on said lot, to wit, in the sum of $390." That prior to the commencement of this action, the defendant notified the plaintiff of such fraud and deceit, and thereupon demanded of it the repayment of the money which it had so received from him on the all his interest in the agreement to the defendant. The third cause was upheld by a contract concluded February 9, 1910, between the Potter-Chapin Realty Company and Harry M. Howard for the sale of lot 20 in block 70 for $700. He, on December 29, 1910, assigned in like manner all his interest in the agreement to the defendant. The fourth cause was evidenced by a contract consummated August 5, 1909, between the plaintiff and the defendant herein for the sale of lot 18 in block 80 for $750. Each of these contracts contains clauses which read: "The party of the first part agrees to have water pipes laid either in front, or rear, or through each lot sold in Bayocean Park (said water pipe to belong to the party of the first part); to grade and pave all streets in Bayocean Park, and to lay paved sidewalks on each side of same: to lay out and improve grounds to contain not less than six acres, and to erect on said grounds a first-class hotel and such other attractions as may be deemed most suitable and desirable by it; to install at least three docks, or boat landings, on the bay side of Bayocean Park, and to operate a ferryboat between tion, on the eastern side of Tillamook Bay and Bay City, or some other suitable railroad sta the alleged false representations, but, the ob- Based on the same grounds, the plaintiff's "Said first party hereby agrees to work continuously on said improvements, and to expend not less than one hundred thousand dollars ($100,000) each year from January 1, 1909, until same is fully completed. All improvements herein named to be made without expense to party of second part. *** The said second party, in consideration of the premises, hereby agrees that he * will make punctual payments of the above sums as each of the same shall become due respectively, and that in respect to each of such payments time is of the essence of this contract. It is further agreed that in case the said party of the second part shall fail to make any such payments promptly at the time provided in this contract for such payment, or shall fail in the performance of any other agreement herein contained by him to be performed, or violate any other of the agreements herein contained, then and in any such case all payments which shall have been made The evidence discloses that a very narrow by the party of the second part hereunder shall be absolutely and forever forfeited to the said strip of land, forming a peninsula, containparty of the first part, and this contract shall ing about 600 acres, situate between the be null and void as to both parties hereto Pacific Ocean and Tillamook Bay and extendwithout notice, and the said party of the first part shall have the right, without notice, thir- ing southerly from that inlet of the sea, was ty days after the failure of the party of the purchased by the plaintiff, which caused the second part to comply with the stipulations premises to be surveyed and platted as a of this contract, or any one of them, to enter upon the land aforesaid and take immediate summer resort and called Bayocean Park. possession thereof, together with the improve- The surface of this tract is quite uneven and, ments and appurtenances thereto belonging. though composed chiefly of sand dunes, the And the said party of the second part covenants soil contains sufficient alluvion to grow sucand agrees that * *he * * will surrender unto said party of the first part the said cessfully trees, brush, and shrubs. By a sysland and appurtenances without delay or hin- tem of extensive advertising in newspapers, drance." and by a profuse distribution of books and pamphlets, setting forth the assumed marvelous attractions and superior advantages of Bayocean Park, and by the employment of a printed map on which the streets were indicated as open for travel, and many lots were represented as containing buildings, as the resort would appear when completed as contemplated, many parcels of the land were sold at what now appears to have been exorbitant prices, only a very small part of which was paid down, the remainder of the consideration being payable in monthly installments, varying from $6 to $10 according to the purchase price. From the sums of money thus obtained, the plaintiff caused to be erected a hotel, a dancing hall, and other improvements, to be graded and paved several streets, and to be partially buried in the sand a single line of small iron pipe conducting fresh water to the grounds. If the persons * [1] In construing these provisions, contained in a like agreement, it was held in T. B. Potter Realty Co. v. Derby, 75 Or. 563, 147 Pac. 548, that the writing, having stipulated that in case of default in the payment of any of the installments as they matured, all sums of money paid under the terms of the contract should be lost to the purchaser and "this contract shall be null and void as to both parties," prescribed an exclusive remedy for the purchaser's failure, neglect, or refusal to keep his engagement, and prevented the vendor from recovering unpaid installments of the purchase price. The conclusion reached in that case, though the decision was rendered after this cause was tried in the lower court, necessarily determines that the plaintiff herein is not entitled to recover any part of the unpaid installments of the purchase price. The question, therefore, to be considered is who agreed to purchase lots had been able, whether or not the case made by the defend-ready, and willing to keep their engagements ant conclusively shows that by reason of the alleged fraudulent representations of the plaintiff he is entitled to recover the sums of money paid on account of his purchase of the several lots in Bayocean Park. It is argued by plaintiff's counsel that the several answers, by way of counterclaims, do not state facts sufficient to constitute defenses, in that they contain neither an averment that the defendant had rescinded or sought to annul the contract, nor an allegation that he had sustained any damages by reason of the asserted false representations. An objection to that effect was interposed to questions propounded to the defendant who, as a witness in his own behalf, was interrogated in respect to by promptly paying the monthly installments 개 depression on the Pacific Coast, as elsewhere | 141, L. R. A. 1915D, 257; Spence v. Hull, in the United States, punctured the bubble 75 Or. 267, 146 Pac. 95. of speculation, which obtained in respect to lots in Bayocean Park, resulting in disaster to the plaintiff and misfortune to the purchasers. [2] These varying and imaginary selling prices of lots in such platted land demanded of a purchaser thereof, who undertook to rescind a sale of any part of the real property by reason of alleged false representations, speedy action in order immediately to place the vendor in statu quo, by returning or offering to give back everything of value that had been received. [4] The defendant had never been in possession of any of the lots which he agreed to purchase, so that the value thereof is unimportant. What he received was the written agreement. These contracts when returned were not canceled by the plaintiff and another agreement executed, but the original writing was assigned by a purchaser to another vendee, who had evidently been secured by the plaintiff. The last payment on one of the causes of action was made December 5, 1912, while the last payment on the other causes was made July 8, 1912. It "Where a party," says Mr. Justice Swayne in will be remembered this action was Grymes v. Sanders, 93 U. S. 55, 62, 23 L. Ed. menced December 2, 1913. It will thus be 798, "desires to rescind upon the ground of mis-seen that a period of 11 months and 27 days take or fraud, he must, upon the discovery of the facts, at once announce his purpose, and adhere to it. If he be silent, and continue to treat the property as his own, he will be held to have waived the objection, and will be conclusively bound by the contract, as if the mistake or fraud had not occurred. He is not permitted to play fast and loose. Delay and vacillation are fatal to the right which had before subsisted. These remarks are peculiarly applicable to speculative property like that here in question, which is liable to large and constant fluctuations in value." com had elapsed in one cause, and 1 year, 4 months, and 24 days in the others before the plaintiff undertook to recover the matured installments. The defendant testified, as averred in the answer, that, having heard rumors to the effect that the alleged statements so made by the plaintiff were false, he ceased making further payments on the contracts, but that he did not visit and inspect the lots until more than six months thereafter when he found that such representations were untrue. The defendant resided at Portland, Or., and in a day he could have made the journey from that city to Bayocean Park. He is chargeable with laches in not sooner ascertaining and properly asserting his rights, and in consequence of such neglect he is not, by reason of an attempted rescission, entitled to recover any part of the sums of money which he paid on account of the contract. by the alleged offer of the defendant to return the written agreements, after he had inspected the lots, if such proposal can be considered a tender, and by his assignments of the contracts, which were evidently made after the verdict in his favor was returned. These assignments were acknowledged September 12, 1914, or 3 days after the trial of the cause was commenced. [3] A party to a contract who has been induced to enter into it by the deceitful practice or willful device resorted to by another with intent to injure him may, upon the discovery of the fraud, treat the agreement as subsisting and maintain an action to recover the damages which he has sustained. He may, however, if he act promptly upon such ascertainment, restore, or offer to return, whatever he has received under the contract, and sue for the consideration which he has [5] That the affirmative defenses interposgiven or paid. He cannot retain the ad-ed to the several causes of action were predivantages of the agreement in order to de-cated on the ground of rescission is evidenced termine whether or not a disaffirmance is the more profitable course to pursue. Rescission demands prompt action on the part of the defrauded party, and any unreasonable delay in asserting a disaffirmance of the contract will be considered as an election to treat it as continuing, and his right of action will be limited to a recovery of the damages which he has suffered. Knott v. Stephens, 5 Or. 235; Wells v. Neff, 14 Or. 66, 12 Pac. 84, 88; Frink v. Thomas, 20 Or. 265, 25 Pac. 717, 12 L. R. A. 239; Clarno v. Grayson, 30 Or. 111, 46 Pac. 426; Crosv. Murphy, 31 Or. 114, 49 Pac. 858; Scott v. Walton, 32 Or. 460, 52 Pac. 180; Vaughn v. Smith, 34 Or. 54, 55 Pac. 99; Sievers v. Brown, 36 Or. 218, 56 Pac. 170; Dundee Mortgage Co. v. Goodman, 36 Or. 453, 60 Pac. 3; State v. Blize, 37 Or. 404, 61 Pac. 735; Waymire v. Shipley, 52 Or. 464, 97 Pac. 807; Elgin v. Snyder, 60 Or. 297, 118 Pac. 280; Van de Wiele v. Garbade, 60 Or. 585, 120 Pac. 752; Hewitt v. Andrews, 69 Or. 581, 140 Pac. 437; Seeck v. Jakel, 71 Or. 35, 141 Pac. 211, L. R. A. 1915A, sen [6] The defendant, referring to the lots which he agreed to purchase testified they were worth nothing to him. Based on this sworn statement, his counsel maintain that the sum of $1,440, which was paid on the contracts by the client, is the measure of the recovery to which he was entitled as damages caused by the fraudulent representations. What property may be worth to a particular individual affords no evidence of its value, which is determined from the sum to be realized from a voluntary sale thereof. The defendant's testimony was incompetent, and as no other evidence on this subject was offered, it must be assumed the lots had some value, so that the judgment rendered of the grantor, with the right to enter on the lands to maintain and repair the pipe flume or aqueduct and tank or reservoir. Held, that while the primary meaning of the word "flume" is a stream or river, but is usually used as designating an artificial channel to be applied to a covered aqueduct, the use of the word "flume" some definite use, and may mean either an open or must not be taken as to authorize the defendants to erect an open box flume, instead of conducting the water in a four-inch closed pipe, the numerous references to pipes showing that a pipe was intended. the defenses interposed be construed as seek-version to where the pipe should leave the lands ing a recoupment of damages. The latter theory presupposes a full performance of the terms of the contract by the vendor, and if such hypothesis were carried into effect, the defendant would be entitled to conveyances of the lots, which he had agreed to purchase, without paying any consideration therefor. It will thus be seen that the affirmative defenses are nothing more than attempts to rescind without tendering the contracts or offering to place the plaintiff in statu quo, which proffer is essential in a law action. Without adverting to the allegations of new matter in the answer, which it is maintained by plaintiff's counsel are insufficient to constitute defenses to the action, it is concluded that an error was committed in not dismissing the action as to both parties. From these considerations it follows that the judgment is reversed, and the action dismissed as indicated. [Ed. Note.-For other cases, see Waters and Water Courses, Cent. Dig. §§ 158, 174-183; Dec. Dig. 156. For other definitions, see Words and Phrases, First and Second Series, Flume.] BONA 5. VENDOR AND PURCHASER 231 [Ed. Note. For other cases, see Vendor and Purchaser, Cent. Dig. §§ 487, 513-539; Dec. Dig.231.] BEAN, BURNETT, and HARRIS, JJ., con- 6. CONSTITUTIONAL LAW 321-TAKING OF PROPERTY-REMEDIES. cur. TALBOT v. JOSEPH et al. (Supreme Court of Oregon. Feb. 15, 1916.) 1. WATERS AND WATER COURSES 153 CONVEYANCE OF WATER RIGHTS-NATURE OF. While an easement as a way must be appurtenant to some land, a water right need not be an appurtenance, and an interest in a water right which was granted to a landowner may be conveyed to one not owning such land, for otherwise the irrigation of arid lands would be impeded. see Waters and Where defendants, without authority, constructed a flume over plaintiff's land to divert water, instead of making the diversion by pipe as authorized, plaintiff, though the land was not used and was of little value, is entitled to redress; Const. art. 1, § 10, declaring that for every injury there should be a remedy. [Ed. Note.-For other cases, see Constitutional Law, Cent. Dig. §§ 950, 952-955; Dec. Dig. 321.] 7. WATERS AND WATER COURSES 127-APPROPRIATION OF WATER-RIGHT TO MAKE. Where defendants were granted the right to take a certain amount of water from a creek [Ed. Note.-For other cases, on plaintiff's land, they cannot enter upon the Water Courses, Cent. Dig. § 158-160; Dec. land and make an additional appropriation of water under L. O. L. § 6594, declaring that, subDig. ject to existing rights, all waters may be appro156-WA-priated for beneficial use. 153.] 2. WATERS AND WATER COURSES TER RIGHTS-CONSTRUCTION-DEFINITENESS. A conveyance of a right to enough water from the natural flow of Latourell Falls creek, to be taken above the large falls, to maintain a continual flow through a four-inch pipe is sufli ciently definite, where the deed stated that the lands were in M. county of the state, to pass title, for the water right, in view of the whole instrument, could be ascertained. [Ed. Note.-For other cases, see Waters and Water Courses, Cent. Dig. $8 158, 174-183; Dec. Dig. 156.] 3. WATERS AND WATER COURSES TER RIGHTS-CONSTRUCTION. 156-WA [Ed. Note.-For other cases, see Waters and Water Courses, Cent. Dig. 8 144; Dec. Dig. 127.] Department 1. Appeal from Circuit Court, Multnomah County; J. P. Kavanaugh, Judge. Action by Guy W. Talbot against George W. Joseph and another. From a decree for defendants dismissing the suit, plaintiff appeals. Modified and affirmed. This is a suit to abate and compel the removal of a "V" flume which the defendants maintain upon the land of the plaintiff. Where a grant of the right to take water from a stream also granted 10 feet square of ground upon which to build a tank to feed the W. W. Cotton and H. W. Strong, both of pipe and a strip of ground 10 feet wide from Portland (John A. Laing, of Portland, on the where the stream should be tapped to where the pipe should leave the lands of the grantor, but brief), for appellant. B. E. Haney and Barno location for the tank or right of way was fix-nett H. Goldstein, both of Portland (Joseph & ed, title to no particular parcel of land passed. Haney, of Portland, on the brief), for re[Ed. Note.-For_other_cases, see Waters and Water Courses, Cent. Dig. §§ 158, 174-183; Dec. Dig. 156.] 4. WATERS AND WATER COURSES 156-WA spondents. BURNETT, J. According to the report of the testimony there is but little dispute about TER RIGHTS-GRANTS-FLUME." Defendants were. granted the right to take the facts. The controversy hinges on the enough water from a natural stream above a construction to be given to a deed from the falls to maintain a continual flow through a four-inch pipe, and also 10 feet square of ground the defendants claim. In 1893 J. C. Latoucommon grantor of the parties under which upon which to build a tank to feed the pipe, as well as a strip of ground from the point of di-rell was the owner of 160 acres of land in For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes Multnomah county, through which flows La- an easement appurtenant to the land describtourell Falls creek. This stream is non-ed in that instrument, and is inseparable navigable, and perhaps but little more than therefrom, so that it could not be transferred a mile in length. It flows northerly through to Joseph except together with an estate in the lands of plaintiff into the Columbia the land itself. The authorities cited by the river. In its course it falls 240 feet over plaintiff in support of his claim on this point a precipice on his premises, and at that point relate to ways appurtenant to land access to is visible from steamers plying on the Co-which could not be enjoyed without the right lumbia river and from trains passing on a of passage. A somewhat different rule applies nearby railway. The waterfall thus form-to an easement for the diversion of water. ed is far-famed as an object of great natural By virtue of a classification too general in beauty. In 1893 Latourell sold a portion its terms and which unduly restricts the use of his tract to one Maffet, who in turn deed- of water as practiced in the Western states, ed the same premises to the present defend- some authors make every easement necesant Maffet. By apt metes and bounds the sarily dependent upon the ownership of a deed conveys a designated part of the land, dominant estate in lands. That a right to and then continues in these words: divert water upon the lands of another, al"Also enough water from the natural flow of though an easement in a certain sense, can Latourell Falls creek to be taken above the large be classed as a separate estate and is not falls, to fill and maintain a continual flow through a four-inch pipe, at all seasons of the unavoidably appurtenant to other lands is year. Also ten feet square of ground above the taught by Goodrich v. Burbank, 12 Allen Latourell Falls upon which to build a tank to | (Mass.) 459, 90 Am. Dec. 161, Poull v. Mockfeed said pipe and a strip of ground ten feet ley, 33 Wis. 482, Columbia W. P. Co. v. Cowide from where said creek is tapped to said tank and from said tank to where said pipe line lumbia Elec., etc., Co., 43 S. C. 154, 20 S. leaves the lands of J. C. Latourell, and the right E. 1002, and De Witt v. Harvey, 4 Gray to enter upon adjacent lands at all times to (Mass.) 486. Such a right may well enough erect, maintain, repair and operate said pipe, be said to fall within that category within flume or aqueduct and tank or reservoir." the meaning of Jackson v. Trullinger, 9 Or. 393, where Mr. Chief Justice Lord says that: After "An easement is defined to be the right which one man has to use the land of another for a specific purpose." In Ruhnke v. Aubert, 58 Or. 6, 10, 113 Pac. 38, 40, Mr. Justice McBride explicitly states that: "The right to take or divert water from the land of another constitutes an easement." By mesne conveyances the plaintiff became owner of the remainder of the original tract on June 21, 1911. It is to be determined how the excerpt above set out affects the plaintiff's holding. In purchasing, he relied upon an abstract of title and not upon a search of the records. In the abstract no mention was made of the deed to Maffet. The plaintiff declares that he had no actual notice whatever of the quoted portion of that deed. In that particular instance the water was The defendant Maffet conveyed to the de- to be used to irrigate a certain tract of land fendant Joseph an undivided half interest to which it was indeed appurtenant under in the privilege conferred by the quoted the doctrine of that case, but it was not inclause of the Latourell deed, all prior to the tended to say that in every instance water time the plaintiff acquired title to his tract. taken out upon the land of one person should The defendant Joseph does not own nor necessarily become inseparably annexed to claim any interest in the premises described another parcel of realty. If it were the hard by metes and bounds in that deed. and fast rule that an easement for the diverthe plaintiff acquired title, the defendants, sion of water must indispensably be made without his knowledge, went upon his land appurtenant to some dominant estate, it and constructed a flume from a point about would utterly defeat all projects for appro1,200 feet south of and above the falls and priation of water for sale and general disthence running substantially parallel to the tribution to the public, for often such approstream northerly about 900 feet, where it priators do not own land themselves, but are leaves the lands of the plaintiff, turns on a only purveyors of water to those who do have northeasterly course, and afterwards crosses real property. We hold, therefore, that the a corner of his premises. The flume is con- defendant Joseph is the owner of an undistructed of boards nailed together at right vided half of the water right conferred upon angles in a V-shape, one side being 22 inches Maffet by the Latourell deed, and cannot be and the other 24 inches in width. It is erect-prevented from the proper enjoyment thereof. ed upon trestlework and is of sufficient ca- [2] The plaintiff attacks the grant assertpacity to contain all the water of the streaming that it is void for uncertainty. In conat its ordinary stage. The defendants claim the right not only to divert the quantity of water mentioned in the Latourell deed, but also to appropriate 21⁄2 second feet by virtue of an application to the state board of control. [1] The plaintiff contends that in any event struing the clause establishing the privilege we are entitled to take the whole instrument of which it is a part. The stream and the fall are natural objects upon the premises owned by the grantor at the time. The deed states that the lands are in Multnomah county, state of Oregon. The part indicated by |