tion to government surveys. It is said that maintain, repair and operate said pipe, flume, the water is to be taken from the natural or aqueduct and tank or reservoir." There is no designation of metes and bounds and no data or reference to any other source given by which such delimitations can be ascertained and applied to the ground thus mentioned. Considered as an executed contract for the sale of land to which the ex flow of the creek above the large fall. So far as location of the point of diversion is concerned and the water to be taken, there is enough in the deed for identification by the aid of parol testimony. For instance, in Bogard v. Barhan, 52 Or. 121, 96 Pac. 673, 132 Am. St. Rep. 676, it was held sufficient to al-cerpt alludes, the description is so indefinite lude to "the 15-acre farm located one mile as to be void in the absence of any further north of Woodburn, Marion county, Or.," and agreement of the parties. Nothing is sugthe "5-acre residence property lying west of gested and no reference is made to records the Catholic church," and that these designa- as in House v. Jackson, supra, whereby extions might be aided by parol giving the cor- trinsic evidence to explain this description rect metes and bounds. It is true that the could be supplied. The only use for the dicase was reversed because the metes and mensions given is to restrict the size of the bounds given in the amended complaint structures used in transporting the water. It would not close, thus rendering the pleading follows that as a conveyance of the land itamenable to demurrer. In House v. Jackson, self above the falls the instrument is void, 24 Or. 89, 32 Pac. 1027, we have approved the rule that: "Any description by which the property might be identified by a competent surveyor, with reasonable certainty, either with or without extrinsic evidence, is sufficient." and does not pass title as it did to the premises described by metes and bounds with reference to government surveys. [4] Bearing in mind that only that is to be taken by intendment which is reasonably necThere, the written agreement for the sale essary to enjoy the right conferred, it is plain of lands referred to them as situated on that the owners of the easement are entitled "Sauvies Island," and known as the "Jack-to go only so far above the fall as is reasonson Ranch," and more particularly described in certain deeds from Meir & Frank and Richard Hall to W. R. Jackson, and recorded in the records of Multnomah and Columbia counties, Or. The extrinsic evidence admissible was the certain record which cleared up the otherwise uncertain description in the contract. We conclude that the clause in question established an easement to divert water from the Latourell Falls creek on the premises of the plaintiff. ably necessary to divert the water. The language does not confer upon them the privilege of going at will and pleasure clear across the plaintiff's lands, unless it is necessary for fair enjoyment of the right. The instrument speaks of the "natural flow" of Latourell Falls creek. This means the water as it runs in the stream in the original state of nature, unaffected by dams or other artificial contrivances. Reference is made to maintaining a continual flow through a fourinch pipe; also to a tank to feed "said pipe"; also to "where said pipe line leaves the lands of J. C. Latourell"; and the right to “repair and operate said pipe." These terms plainly indicate that the parties contemplat [3] It next becomes necessary to determine the extent of the right and its method of enjoyment. Easements are privileges to be exercised upon the land of another, and are therefore in derogation of his estate. It is a rule, therefore, that in construing them noth-ed and intended that the water should be diing is to be taken by intendment except what is reasonably necessary to the enjoyment of the right, all the while preserving the intent of the parties as manifested by the words of the grant. Goodwillie Co. v. Elec. Co., 241 Ill. 42, 89 N. E. 272. Standing alone, the first sentence of the excerpt mentioned would be enough to convey the right to divert the water. It says: "Also enough water from the natural flow of Latourell Falls creek to be taken above the large falls, to fill and maintain a continual flow through a four-inch pipe at all seasons of the year." By necessary implication enough would go with those words to enable the grantee to enjoy the privilege conferred, even if nothing else was said. But the language continues: "Also ten feet square of ground above the Latourell Falls upon which to build a tank to feed said pipe and a strip of ground ten feet wide from which said creek is tapped to said tank and from said tank to where said pipe line leaves the lands of J. C. Latourell, and the right to enter upon adjacent lands at all times to erect, verted through a pipe and not through an open-box flume such as the pleadings describe and admit has been used in this instance. True enough, it is said that the grantee may "operate said pipe, flume or aqueduct." Unless there should be a pipe to fill with a continual flow, how could there be enough water taken to serve that purpose, and unless there was a pipe to feed, how could there be a tank built to feed it? Then, too, unless there was a pipe line to leave the lands of Latourell, how would we satisfy that language in the excerpt? Moreover, it would be difficult for the grantee to repair and operate "said pipe" unless there was one there to operate and repair. The primary definition of flume, according to the Century Dictionary, is "a stream, a river." In that sense it is synonymous with the Latin word "flumen," from which it is derived. It is also applied to a lar walls and through which a torrent flows. narrow defile in the hills having perpendicuThe same author describes it thus: “An artificial channel for a stream of water | deed, to go upon the lands of the plaintiff to to be applied to some industrial use." Flumes for conducting water to mill wheels are open or covered passages formed of boards, planks, or stone from which the water falls upon the wheel. Other lexicographers give substantially the same definition of the term. In Joseph Milling Co. v. City of Joseph, 74 Or. 296, 144 Pac. 465, we are told of what is termed a "barrel flume." The structure, therefore, is not necessarily of wood or an open box and, as applied to the instant case and the clause under consideration, it would not be doing violence to the vernacular to say that the designation of "flume" might be applied to a pipe conveying water upon or above the surface of the ground. Taking the language by its four corners, we cannot fairly say that the single word "flume" ought to overcome all the other allusions to a pipe as a conduit for the water. As used in the deed, "flume," is not inconsistent with "pipe line," and, construing the words all together, we think the parties contemplated a pipe line, and not such a structure as the pleadings here describe. They had a right to contract in the manner indicated, and their stipulations should be observed. [5] The Latourell deed was duly recorded in the deed records of Multnomah county before the plaintiff bought his land. He was not entitled to rely upon the abstract as a muniment of title nor as a control of the rights of others previously granted. The record is the standard which the law has erected to decide such questions, and he is bound by the terms of the conveyance as recorded, but no further. [6] It is argued that because the flume is constructed over waste and rocky ground, no damage results to the plaintiff; but every invasion of one's domain beyond what is authorized imputes some damage; and, as taught in Chapman v. Dean, 58 Or. 475, 115 Pac. 154, Stotts v. Dichdel, 70 Or. 86, 139 Pac. 932, and Postal T. Co. v. Forster, 73 Or. 122, 144 Pac. 491, it is against such incessant trespasses, the uninterrupted continuance of which is threatened, that equity will lend its aid without driving a plaintiff to an action at law for every separate and minute invasion of his domain. It is no argument to say that because a man's rights may be small they may be disregarded. In giving to every man a remedy by due course of law for injuries done him in his person, property, or reputation, section 10, art. 1, of the state Constitution does not distinguish between different rights whether they be great or small. It protects the poor and the rich, the weak and the powerful, alike; and, if one is wronged in any degree, the law will protect him. [7] Neither have the defendants the authority, under the terms of the Latourell take out any more water than that mentioned in the conveyance under which they claim. It is said in section 6594, L. O. L.: "Subject to existing rights all waters within the state may be appropriated for beneficial use, nothing herein contained shall be so construed as herein provided, and not otherwise; but as to take away or impair the vested right of any person, firm, corporation, water." to any The section was amended as shown by the laws of 1913 at page 273 in a manner not affecting the language quoted. This section does not give the right to private individuals to invade the premises of any other person for the purpose of diverting water from a stream. It is only by the power of eminent domain, which has never yet been granted to any individual for private purposes, that such a prerogative can be exercised, and then only for public use. To allow the defendants to do so in this instance in excess of the terms of their grant would be to take the property of one man and give it to another. Their rights on the premises of the plaintiff are measured by the terms of the Latourell deed, and, having been given this inch, they cannot take the ell they desire. The conclusion is that the defendants must be restricted in their enjoyment of the watroduced into the stream at a point above ter right to the use of a four-inch pipe inthe falls no farther than is reasonably necessary to give access thereto for the purpose so as to take of the natural flow, without the aid of dams or other artificial appliances, enough water to fill the pipe by which it shall be conducted from the land of the plaintiff. The decree of the circuit court will be modified accordingly. REMEDIES. L. O. L. § 613, provides that mandamus may issue to any inferior court, etc., to compel the performance of an act which the law enjoins, but that the writ shall not control judicial discretion, and shall not be issued in any case where there is a plain, speedy, and adequate remedy at law. Section 1701 provides that if a defendant indicted for a crime, whose trial has not been postponed upon his application or consent, be not brought to trial at the next term of the court in which the indictment is triable, after it is found, the court must or der the indictment dismissed, unless good cause In Banc. On petition for rehearing. Petition denied. For former opinion, see 154 Pac. 748. Wilson T. Hume, of Portland, for petitionGeo. M. Brown, Atty. Gen., and Walter H. Evans, Dist. Atty., of Portland, for de er. fendant. BURNETT, J. In a skillfully argued petition for rehearing it is pressed upon our attention that it was the mandatory duty of the circuit court to dismiss the indictment on the motion of the district attorney accompanied by his reasons therefor; and, further, that if this court should adhere to its opinion that the matter was within the discretion of the circuit court, nevertheless it was an abuse of that prerogative to deny the motion under the circumstances stated in the writ. Bearing in mind the legal maxim to the effect that all parts of a statute must be construed together, we reiterate the statement of Mr. Justice Benson that because in the chapter of the Code of Criminal Procedure on the dismissal of actions for want of prosecution or otherwise, the term “may” is used in some places, and the stronger word “must” is employed in others, it was the evident intention of the Legislature to make the duty mandatory in the latter class, and optional in the former. abuse of discretion would be virtually to annul section 1705, L. O. L., for the reason that in effect it would restore the nolle prosequi which is expressly abolished by the statute. This would amount to stultification of the legislative department, and cannot be admitted. [1, 2] With but one exception, Ex parte Chase, infra, the cases cited in the petition for rehearing on the abuse, of discretion relate to administrative functions or cases where the writ of mandamus will issue to compel action without directing what action should be taken. The rule on such subjects is well stated in State ex rel. v. Lafayette County Court, 41 Mo. 222: "The writ of mandamus lies efther to compel the performance of ministerial acts, or is addressed to subordinate judicial tribunals, requir ing them to proceed to exercise their judicial functions, and give judgments in cases before them. Mandamus will not lie to compel an inferior tribunal to give a particular judgment, or to reverse its decision where it has once acted; its peculiar scope and province being to prevent a failure of justice from delay or refusal to act. Where the subordinate tribunal acts judicially, it may be compelled to proceed, but it will be left to decide and act according to its best judgment. In such cases the party aggrieved by the decision has his remedy either by appeal or writ of error, and mandamus never issues except where the petitioner has a specific right and no other specific remedy." This is one of the precedents cited by the petitioner and was an instance where mandamus was issued to compel the county court to approve the bond of the sheriff as collector of taxes. It was held that such a duty was ministerial and not judicial, and hence mandamus issued to compel the proper action. Ex parte Chase, 43 Ala. 303, is the strongest precedent cited by the petitioner, and the only one in which there was an attempt to interfere with judicial discretion. There the petitioner had been indicted for the murder of a negro, and, supported by affidavits, he applied to the trial court for a change of venue. His motion being overruled, the Supreme Court entertained a petition for a writ of mandamus and issued the alternative writ, holding that on the showing court to change the place of trial, but allowed the rule nisi to enable the prosecution to controvert the affidavits supporting the motion. This decision was subsequently followed in principle in appeals in that state; but it was expressly discredited and practically overruled in Kelly v. State, 52 Ala. 361. In the chapter mentioned there is a procedure laid down which the defendant in a criminal case may pursue and another pre-made it was the imperative duty of the trial scribed for the prosecution. Section 1704, L. O. L., declares that the court may dismiss an indictment on its own motion. Beyond question thus far the court may or may not dismiss the indictment as it chooses. The motion of the district attorney noted in the same section is but an application to the court for what the tribunal may do itself. The result and the authority for the same are alike in both instances, and each is referable to the court's discretion. The following section declares that the district attorney cannot discontinue or abandon a prosecution for a crime, except as provided in section 1704. To hold either that the request of the prosecuting officer to dismiss should be allowed without question or that its refusal is an Section 613, L. O. L., codifies the rule that mandamus will not be used to interfere with judicial discretion, and, besides, furnishes yet another reason why the writ should not be allowed in this instance. It reads thus: "It may be issued to any inferior court, corporation, board, officer, or person, to compel cially enjoins, as a duty resulting from an ofthe performance of an act which the law spefice, trust, or station; but though the writ may require such court, corporation, board, officer, TERMINATION. or person to exercise its or his judgment, or | 2. APPEAL AND ERROR The end to be attained by the defendant, petitioner here, is the dismissal of the indictment. He cannot operate under section 1704, for that establishes the procedure to be observed by the prosecuting officer only. It it is said in section 1701, L. O. L.: "If a defendant indicted for a crime, whose trial has not been postponed upon his application or by his consent, be not brought to trial at the next term of the court in which the indictment is triable, after it is found, the court must order the indictment to be dismissed, unless good cause to the contrary be shown." 847-APPEAL-DE Cases in equity on appeal are determined from an inspection of the transcript of evidence. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3053-3056; Dec. Dig. ☺ 847.] Department 1. Appeal from Circuit Court, Multnomah County; Henry E. McGinn, Judge. Suit for divorce by Victor Leon against Dela Leon. Decree for divorce was granted the wife, and from an order awarding the custody of a daughter to the husband, defendant appeals. Order modified to give defendant custody of the child. Grant B. Dimick, of Oregon City, and Q. L. Matthews, of Portland (Dimick & Dimick, of Oregon City, and M. Morehead and Christopherson & Matthews, all of Portland, on the brief), for appellant. A. E. Hooker and M. J. MacMahon, both of Portland, for respondent. From a refusal of the court to dismiss the indictment under this section, an appeal is granted by the terms of section 1606, L. O. L., as amended by Act Feb. 10, 1915 (Laws 1915, p. 70). As stated in the former opin ion the petitioner was twice brought to trial, but in each instance the result was a mistrial. The indictment was therefore triable at any subsequent term. In order to subserve the right of the accused to a public trial by impartial jury awarded him by section 11, article 1, of the state Constitution, it was the duty of the prosecution to bring the cause to trial to the end that the issue might be determined. If this was not done the defendant could move for a dismissal under section 1701, L. O. L., and unless good cause were shown why the order should not be made, it was the duty of the court to dismiss the indictment, as held in State v. Rosenberg, 71 Or. 389, 142 Pac. 624. The whole question is treated in the case of In re Von Klein, 67 Or. 298, 135 Pac. 870. Hav-order the defendant appeals. ing a plain remedy according to the regular course of the law by his own application to the court for a dismissal of the indictment, coupled with a cumulative remedy by appeal to this court from an adverse decision, the writ of mandamus cannot be entertained to compel the circuit court to grant the request of the district attorney. MOORE, C. J. This was a suit by the husband for a divorce on the alleged ground of adultery by the wife, and to obtain the custody of their daughter now six years old. The answer denied the charge of marital infidelity, and by way of cross-complaint and for affirmative relief averred that the plaintiff had been guilty of cruel and inhuman treatment of the defendant and of personal indignities rendering her life burdensome. The reply denied the allegations of new matter in the answer, and, the cause having been tried, the decree of divorce was granted to the wife, but the custody of the child was awarded to the husband, and from the latter The petition for rehearing is denied. LEON v. LEON. (Supreme Court of Oregon. Feb. 23, 1916.) 1. DIVORCE 298-CUSTODY OF CHILDRENMOTHER'S RIGHT. Where a wife is properly granted a divorce on her answer in her husband's suit in which he charges her with adultery, and there is no showing that she has been and is immoral, or is not a fit person to have the custody of her six year old daughter, the action of the trial court in awarding the custody to the husband will be reversed on appeal, the question of the wife's fitness being, at all times, subject to further inquiry in the court below. [Ed. Note.-For other cases, see Divorce, Cent. Dig. $$ 781-787; Dec. Dig. 298.] [1] The plaintiff's testimony was taken before the trial court, but no stenographic report thereof was made. Several days thereafter the testimony of the defendant and her witnesses was received, and from a perusal of a transcript thereof it is certain the wife was entitled to the decree of divorce. It does not appear from such evidence that she is or has been immoral, or that she is not a fit or proper person to have the care, custody, and control of her daughter. [2] It must have seemed to the trial court from the plaintiff's testimony, or from some other source, that the best interests of the natural right of the mother to keep a daughlittle girl would be promoted by denying the ter of such tender years. But, however this may be, as cases in equity on appeal are determined from an inspection of the transcript of the evidence, there is no alternative except to modify the order and temporarily award the custody of the daughter to her mother. If, however, we are in error in this respect, it will not be difficult for the trial court, which during their minority retains supervision of children whose parents it has divorced, to notify the parties to appear, take further testimony, make a transcript thereof,, taking on appeal, constituting the technical decide which party, if either, should have transcript, were filed in this court on October control of the daughter, having in view the 28th, and on the same day the bill of excepbest interests of the child, and to make an tions was filed here. On November 17th, purorder to that effect. If either party is dis-suant to a written stipulation signed by the satisfied with such determination, it can be attorneys of record, the court extended the reviewed on appeal. time for filing an abstract of record to and including November 29th, and the abstract was filed on November 29th. In the meanwhile, however, the defendant will be given the care, custody, and control of her daughter, and the order complained of will be temporarily modified in this respect. BENSON, BURNETT and MCBRIDE, JJ., P. H. Murdoch, H. E. Hall, and Arthur I. Moulton, all of Portland, for appellant. Sheppard & Brock, Stapleton & Sleight, and Coy Burnett, all of Portland, for respondents. HARRIS, J. (after stating the facts as above). [1] Within 5 days after the service of the undertaking on appeal the adverse party shall except to the sureties in the undertaking, or be deemed to have waived the right 1. TIME 10-PERFECTING APPEAL-STATU-to except. From the expiration of the time TORY PROVISIONS-SUNDAY. allowed to except to the sureties, "the appeal shall be deemed perfected." Section 550, L. Under L. O. L. § 550, as amended by Laws 1913, p. 617, providing that from the expiration of the 5 days allowed to except to the sure-O. ties in the undertaking on appeal, the appeal shall be deemed perfected, an appeal became perfected with the expiration of Monday when the fifth day after the filing of the undertaking fell on Sunday. [Ed. Note.-For other cases, see Time, Cent. Dig. $$ 34-52; Dec. Dig. 10.] L., as amended by chapter 319, Laws of 1913. The fifth day after September 28th, when the undertaking was filed, fell on Sunday, October 3d, and consequently the appeal became perfected with the expiration of Monday, October 4th. Pringle Falls Power Company v. Patterson, 65 Or. 474, 128 Pac. 820, 2. APPEAL AND ERROR 623 FILING OF 132 Pac. 527. TRANSCRIPT-TIME TO FILE. [2] Unless the time is extended by an ap Where an appeal was perfected on October 4th, a transcript filed on October 28th fol-propriate order of the court, the appellant lowing was filed within 30 days after the appeal was perfected, as prescribed by L. O. L. § 554, as amended by Laws 1913, p. 618. [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. § 2736; Dec. Dig. 623.] 3. APPEAL AND ERROR 628-FILING PRINTED ABSTRACT-TIME TO FILE. OF A respondent who formally consented to delay in filing on appeal the printed abstract of record cannot complain of the failure to file the same within the statutory period. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. 88 2750-2764; Dec. Dig. 628.] In banc. Appeal from Circuit Court, Multnomah County; George R. Bagley, Judge. Action by Isabella Cauldwell against the Bingham & Shelley Company and others. From a judgment for defendants, plaintiff appeals. Motion to dismiss appeal denied. must file the transcript within 30 days after the appeal is perfected. Section 554, L. O. L., as amended by chapter 320 of Laws of 1913. The statute allows 30 days to file the transcript, regardless of whether that period terminates before or after the commencement of a new term of court; and when the transcript was filed on October 28th, it was filed within 30 days after the appeal was perfected. The bill of exceptions was filed in time. West v. McDonald, 74 Or. 421, 144 Pac. 655. [3] The respondents formally consented to the delay in filing the printed abstract of record, and cannot now complain. See St. Mar tin v. Hendershott, 151 Pac. 706. CANUTO v. WEINBERGER, Constable. (Supreme Court of Oregon. Feb. 23, 1916.) 1. MANDAMUS 159-FORM OF WRIT. The court may allow the writ of mandamus either in the alternative or peremptory form. [Ed. Note. For other cases, see Mandamus, The defendant Bingham & Shelley Company, a private corporation, moves to dismiss the appeal prosecuted by plaintiff. A judgment in favor of defendants was entered on July 29, 1915, and all that followed occurred in the same year. The plaintiff filed and served a notice of appeal on September 23d, Cent. Dig. §§ 324, 325; Dec. Dig. 159.] and on September 28th an undertaking on 2. MANDAMUS 157-NOTICE-STATUTE. appeal was served and filed. A proposed bill damus may be allowed with or without notice to Under L. O. L. § 614, providing that manof exceptions was tendered to and received the adverse party, as in the case of a writ of by the trial judge on September 23d. The review, an order that the writ issue, returnable bill of exceptions was settled and allowed on at a date specified, and that defendant show cause why the writ should not issue, amounted September 28th, and it was filed with the to a direction to serve notice on defendant. county clerk on October 5th. Certified copies [Ed. Note.-For other cases, see Mandamus, of the judgment, notice of appeal, and under-Cent. Dig. §§ 317-323,.371; Dec. Dig. 157.] For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |