scribed and marked off, so that they can be readily ascertained and traced. It is lastly alleged that the requirement of the statute that $100 in value of work and improvement to be done and made on the lode in each year has not been complied with. There was but slight reference to this point at the argument. We think, however, the testimony of Curl, Oak, Brown, and Allen shows that the plaintiffs and their predecessors in interest have performed work and made improvements which are of the required value. We think that it is established that the Black Butte lode has been continuously worked by the plaintiffs and their predecessors in interest since its discovery, and that from the year 1889 the plaintiff's continued to develop it by expending much labor, time, and material. As these were the only points relied upon, it results from these considerations that the decree must be affirmed. 1. Where several persons enter upon land in succession the several possessions cannot be tacked together so as to make a continuity of possession under the law of adverse title, unless there is a privity of estate, or the several titles are connected. 2. While the declarations of a grantor as to the condition of his title may, under Hill's Code, § 685, be offered in evidence to affect his grantee, the declarations of a person in possession of land in assertion of his own title are inadmissible if not within the rule of res gestae. 3. Where the waters of a stream have been appropriated for a beneficial use, it is an appropriation of all the tributaries thereof above the point of original diversion. 4. In a contest over water rights, where it appears that plaintiff's ditches were constructed on land bought by defendants, and were diverting water from the creek flowing through it, at the time they bought, they are not innocent purchasers without notice of plaintiff's claims. 5. After the needs of a prior appropriator of the waters of a stream are satisfied, he, as a riparian proprietor, is not entitled to have the excess flow in the channel of the stream. Appeal from circuit court, Baker county; Morton D. Clifford, Judge. Suit by Leonard Low against Logan Schaffer and Amanda L. Schaffer to enjoin defendants from diverting the water of a certain creek. Decree for defendants, and plaintiff appeals. Reversed. The other facts fully appear in the following statement by MOORE, J.: This a suit to enjoin the defendants from diverting the waters of Hill creek, in Baker county, Or. It appears that the waters of the creek flow through defendants' land, and thence in a northeasterly direction through the plaintiff's adjoining land; that about onehalf of the volume of these waters is supplied from springs on defendants' land; that about 1866 plaintiff settled upon a tract of government land, and, after it had been surveyed and platted, he obtained the United States patent therefor; that at the time of his settlement he dug three ditches from said creek, and diverted and used all the water thereof to irrigate his arid land, and has ever since continued to so use it, except when diverted by others; that about 1876 one Martin Hill settled upon a tract south of and adjoining the plaintiff's said land, built a house and some fencing thereon, dug ditches from said creek, and diverted and used the water to irrigate the cultivated portion of it, and continued to use the water for that purp^^ until about 1880, when he transferred his pos sessory right and improvements upon said land to plaintiff, who continued to irrigate it by the water of said creek until about 1884, when, by a bill of sale, he transferred the possessory right and improvements on said land acquired from Hill to one Thomas Huffman; that Huffman went into possession of said premises, diverted and used the water of said creek, and irrigated the land therewith until about 1885, when one Oscar Hindman contested his right thereto before the local land officers, and as a result of the contest secured the land, and obtained a patent from the United States therefor; that Hindman diverted and used the waters of said creek, and also diverted and used the water from three springs on said tract, which were tributaries of said creek, to irrigate his land, and in May, 1890, and after he had made final proof in support of his claim, he conveyed it to the defendants, who went into possession, and have since that time diverted and used the water appropriated by Hindman to irrigate their land; that the lands of both plaintiff and defendant are dry and arid, and without water are nearly valueless, but by irriga tion are made to produce excellent crops; that another stream, known as "Alder Creek," flows through plaintiff's land, and serves to irrigate the whole tract except about 10 to 15 acres, which has been irrigated from the water of Hill creek. The plaintiff alleges a prior appropriation of the water of Hill creek; that he is a riparian proprietor on said stream; and that the water thereof is necessary for his use. The defendants, after denying the allegations of the complaint, for a separate defense allege an adverse user of the water of said creek by themselves and their grantors and predecessors since 1876; and for a further separate defense allege that plaintiff was one of their grantors and predecessors in interest, and that such water was not necessary for his use, but that he desired it for speculation. The reply denied the allegations of new matter in the answer, and, the issues having been completed, the testimony was taken by a referee, and the court found that the equities were with the defendants, and decreed to them 20 inches of the water of said creek, from which decree the plaintiff appeals. D. D. Williams, for appellant. H. E. Courtney, for respondents. MOORE, J., (after stating the facts.) The evidence conclusively shows that plaintiff was the prior appropriator of the water of said creek, and that he had diverted and used it for more than 10 years prior to Hill's diversion; and, as a consequence, he is entitled to the use thereof, wiless he has lost it by an adverse user or by abandonment. To constitute an adverse user of more than 10 years the defendants must necessarily tack the use of Huffman to that of Hindman, their grantor. Continuity of use is an essential element of an adverse title. When several persons enter upon land in succession, the several possessions cannot be tacked so as to make a continuity of possession, unless there is a privity of estate, or the several titles are connected. Whenever one quits the possession, the seisin of the true owner is restored, and an entry afterwards by another, wrongfully, constitutes a new disseisin. Melvin v. Proprietors, 5 Metc. (Mass.) 33. The possession of a landlord and his tenant, an ancestor and his heirs, a vendor and vendee, may be tacked to complete the bar of the statute of limitations. Rowland v. Williams, (Or.) 32 Pac. Rep. 402. If there has been any break or interruption in the use, the several uses cannot be tacked so as to make it continuous. If Hill's use in 1876 had been adverse to plaintiff's claim, when in 1880 he transferred his possessory right and improvements to the plaintiff he thereby restored plaintiff to his original claim. Admitting that plaintiff transferred his possessory right to Huffman more than 10 years prior to the commencement of the suit, Hindman could not tack his possession to that of Huffman, since there was no privity of interest or of estate between them; and Hindman did not take the title from Huffman as a tenant, heir, or vendee, but by an independent title from the government, and hence the defense of adverse possession must fail. A prior appropriator of the water of a stream, who has a possessory right to the real estate benefited thereby, may, by a parol transfer, assign his interest in the land as well as his right to the use of water appurtenant thereto. The water appropriated for irrigation is as much a part of the improvements as his buildings and fences, and the transfer of the possessory right to the land carries with it the water so appropriated, unless expressly reserved. Hindman v. Rizor, 21 Or. 113, 27 Pac. Rep. 13. The verbal sale and transfer of his water right by a prior appropriator operates ipso facto as an abandonment thereof, (Smith v. O'Hara, 43 Cal. 371,) and he could not thereafter reassert his original right to the same against another appropriator, (Pom. Rip. Rights, § 88. The plaintiff could not be deprived of his use unless there was a manifest in tention upon his part to abandon it, and this intention must be determined from his declarations and acts in relation thereto. Dodge v. Marden, 7 Or. 460. It appears that Hill had diverted and used the water from Hill creek to irrigate his crops. and that plaintiff, while he claimed the possessory right thereto, had also used the water for that purpose. It appears that the bill of sale evidencing the transfer of the possessory right from plaintiff to Huffman was left with Huffman's attorney, and was not offered in evidence. While plaintiff occupied and cultivated the land now owned by the defendants he never used the water from Hill creek to irrigate the crops growing thereon, except in the early season, when there was an abundance of water in the creek; thus showing that he considered and treated this tract as a servient estate to his own lying below, and that Huffman, while he occupied it, never ased water thereon except by the plaintiff's permission, and then only when it was abundant. The plaintiff testifies that he never sold or assigned to Huffman the right o use any water from the creek, and in this le is corroborated by the testimony of Huffman, who swears that he never purchased any of the water rights thereon, or used any water except by plaintiff's permission. This evidence rebuts the presumpion that plaintiff abandoned the use of he water. There could be no such abandonment without an intention on plaintiff's part to that effect, and his intent is to be gathered from his acts. Mallett v. Mining Co., 1 Nev. 188. Some testimony was offered which tended to show that Huffman said he "had it in black and white" that plaintiff assigned the water to him. These statements were made in the absence of plaintiff, and cannot affect his testimony on that subject. The declarations of a grantor as to the condition of his title may be offered in evidence to affect the grantee, (Hill's Code Or. § 685,) but the declarations of one person in possession of land in assertion of his own title are inadmissible if not within the rule of res gestae, (Rice, Ev. 466.) It is quite apparent that the plaintiff never abandoned or intended to abandon his right to divert and appropriate the water of Hill creek, and that he was not one of the defendants' grantors or predecessors in interest. The law regards the appropriation which is first in time to be prior in right, and that such appropriation constitutes a vested right, which the courts will protect and enforce. When the waters of a stream have been appropriated for a beneficial use, it is an appropriation of all the tributaries thereof above the point of original diversion. Irrigation Co. v. Campbell, (Idaho,) 18 Pac. Rep. 52. If the water from tributaries could be diverted it would destroy or im pair the original appropriation. Strickler v. City of Colorado Springs, (Colo. Sup.) 26 Pac. Rep. 313; Strait v. Brown, 16 Nev. 317. The testimony of the plaintiff and his witnesses shows that the springs upon defendants' lands discharged their waters into Hill creek by well-defined natural channels, while the defendants and their witnesses testify that there are no natural channels therefrom, but that the water percolates through the soil, and ultimately reaches the creek. The referee and court, however, have found that these springs are tributaries to said creek, and flow in welldefined channels, and that the diversion of the waters of said springs deprives plaintiff of the use thereof, to which he is entitled by reason of his prior appropriation. The defendants claim that when they bought their land the water was being diverted from the creek and springs and flowing in the ditches upon the land, and in use for purposes of irrigation, by their grantor. The evidence shows that before they purchased the property they examined it, and would not have bought it but for the water rights supposed to be appurtenant to it. The record also shows that they accepted a quitclaim deed from their grantor; that the plaintiff's ditches were constructed on their land, and were diverting water from the creek; and hence it cannot be said that they were innocent purchasers for a valuable consideration without knowledge or notice, (Baker v. Woodward, 12 Or. 3, 6 Pac. Rep. 173,) and defendants must therefore be presumed to have purchased with knowledge of plaintiff's rights in the premises, (Coffman v. Robbins, 8 Or. 278.) Plaintiff contends that because he is a riparian proprietor of Hill creek, and made a prior appropriation of its waters, he is thereby entitled to the flow of water in the stream in excess of his appropriation; that as a prior appropriator he can divert the quantity necessary for his use, and then claim the right as a riparian proprietor to have the surplus water flow in the channel, notwithstanding the fact that defendants are riparian proprietors above him. Each riparian proprietor has the right to the ordinary use of the water flowing past his land for the purpose of supplying his natural wants, even if it take all the water of the stream to supply them. He also has the right to use a reasonable quantity for irrigating his land, if there be sufficient to supply the natural wants of the different proprietors. A diversion of water for irrigation is not an ordinary use, and can only be exercised reasonably, and with proper regard to the rights of the other proprietors to apply the water to the same purposes. Gould, Waters, § 205; Pom. Rip. Rights, $125; Jones v. Adams, 19 Nev. 78, 6 Pac. Rep. 442; Elliot v. Railroad Co., 10 Cush. 194; Coffman v. Robbins, 8 Or. 278. Prior appropriation, under the doctrine of the Pacific coast states, is a paramount right, and the rule stated above must be held to apply only after such appropriation for natural wants has been made, when the riparian proprietor would be entitled to a reasonable use of the water for irrigation. It should be presumed that the prior appropriator, when he makes his appropriation, has taken enough water to supply his natural wants as well as his beneficial use. If his natural wants are supplied, and he has sufficient water for his beneficial use, he ought not to complain because others above divert the water. His right of action is based upon his injury, and, if his wants are all supplied, he cannot be injured. What constitutes a reasonable use depends upon a number of circumstances,-upon the subject-matter of the use itself, the size of the stream, the velocity of the current, the nature of the banks, the character of the soil, and a variety of other facts. Pom. Rip. Rights, § 125. To hold that, after the needs of a prior appropriator had been supplied, he, as a riparian proprietor, was entitled to the flow of the excess beyond his appropriation in the channel of the stream, would be to deny all subsequent appropriations. Such a rule would destroy the very object for which the theory of irrigation was established, and would give the prior appropriator the use of all the water of a stream, without regard to its size or capacity. tiff, by reason of his prior appropriation. was entitled to the amount of water originally appropriated, and, had he then taken all the water from the creek, his rights would be respected and maintained. He is entitled to have the water flow in the channel at the head of his ditches to the extent of his appropriation, and when the defendants and their grantors acquired this land they took the same subject to such prior appropriation. Kaler v. Campbell, 13 Or. 596, 11 Pac. Rep. 301. The plaintiff's rights are to be measured by his appropriation, and the defendants, being riparian proprietors, are entitled, after such appropriation, to a reasonable use of the water. It appears that there are about 10 acres of plaintiff's land which cannot be irrigated from the waters of Alder creek, and must be irrigated, if at all, from the waters of Hill creek, and hence he is entitled to a sufficient quantity from that creek for this purpose. The evidence shows that from one-half inch to three inches is a sufficient quantity to properly irrigate one acre of land, and that in all probability plaintiff's whole tract can be irrigated from Alder creek except about ten acres, and that one inch per acre is sufficient for that purpose, and that this quantity is the measure of his right. The decree of the court below must therefore be reversed, and one entered here giving plaintiff 10 inches Plain of the water of Hill creek at his point of diversion, and perpetually enjoining the defendants from diverting any of the portion thus awarded the plaintiff. RAMP v. MARION COUNTY. (Supreme Court of Oregon. July 24, 1893.) TAXATION BOARD OF EQUALIZATION RIGHT TO PLACE PROPERTY ON ASSESSMENT ROLL - DUTY TO APPEAR AND DEFEND. Where an owner of property subject to taxation fails to see that it is listed by the assessor and properly valued, the law authorizes the board of equalization to put it on the assessment roll, and place a valuation thereon; and it is the duty of the property owner, if he desire to be heard on his right to a deduction for indebtedness, to appear before the board at the time and place specified in the notice of its meeting. Appeal from circuit court, Marion county; George H. Burnett, Judge. Action by Mary A. Ramp against Marion county to recover taxes collected from plaintiff. A demurrer to the complaint was sustained, and plaintiff appeals. Affirmed. BEAN, J. This is an action against Marion county to recover $143.33 alleged to have been unlawfully collected by the county from the plaintiff as taxes for the year 1890, and comes here on an appeal from a judgment in favor of the county on a demurrer to the complaint. The material allegations in the complaint are that at the time the county assessor called upon the plaintiff for the purpose of listing her property for assessment and taxation she owned no property liable to assessment and taxation in the county, except three certain mortgages, of the ag gregate amount and value of $2,800. But thereafter, and before the meeting of the board of equalization, she borrowed of Ladd & Bush $4,000, and of Samuel Ramp $1,000, which she loaned to her son B. F. Ramp, aking his promissory note therefor; and that the board of equalization, without any notice whatever other than the general notice of its meeting, added the sum of $6,000 to her assessment, and made no deduction on account of said indebtedness. That she had To knowledge of the action of the board un1 after its final adjournment, when she applied to the county court for a rebate and correction of her assessment, by a reduction thereof, and an allowance of $5,000 for indebtedness; but the court refused to make the correction, and ordered the sheriff to collect the tax, which he did by garnishing the interest due on one of plaintiff's mortgages. The case thus presents the question as to whether the assessment and the tax thereon sought to be recovered back in this action were illegal and void, for, if there was simply an overvaluation of the property, or some irregularity in the mode of assessment or proceedings connected therewith, this action cannot be maintained. To support an action to recover back money upen the ground of the illegality of the tax or assessment it must appear that the authority to levy the tax, or levy it upon the property in question, was wholly wanting, or the tax itself wholly unauthorized; thus rendering the assessment and all proceedings taken for its collection not merely irregular, but absolutely void. 2 Dill. Mun. Corp. (4th Ed.) § 940; Winter v. City Council, 65 Ala. 403; Lincoln v. City of Worcester, 8 Cush. 55. For mere irregularities or overvaluation in the assessment the statute has provided a board of equalization, from which one who is wrongfully assessed or unequally taxed may obtain relief. This is his exclusive remedy, and it is his folly if he fails to avail himself of it. 2 Desty, Tax'n, § 116; Davis v. Macy, 124 Mass. 193. Now, in this case, it is not claimed that the county did not have authority by law to levy the tax sought to be recovered back, or to levy it upon the property in question, but the contention for plaintiff is (1) that the board of equalization had no authority to add the $6,000 to her assessment, (2) that her property was overvalued, and (3) that she was not allowed a deduction of $5,000 for indebtedness. Under section 2779 of Hill's Annotated Laws, the board of equalization was authorized and empowered to add to the assessment roll the $5,000 note belonging to plaintiff, and any other property omitted by the assessor, and to place a valuation thereon without any notice other than the general notice of the meeting of the board. Bank v. Jordan, 16 Or. 113, 17 Pac. Rep. 621; Oregon & C. R. Co. v. Lane Co., (Or.) 31 Pac. Rep. 964. If her property was overvalued, either by the assessor or board of equalization, or if she was not allowed the proper deduction for indebtedness, it was but a mere irregularity, which did not render the assessment void, and her remedy was by an application to the board of equalization, and, failing to obtain satisfactory relief there, she could have brought the matter before the courts upon a writ of review; and it was her own negligence if she did not do So. We are not aware that any decided case has held that assumpsit against a county will lie to recover money back paid for taxes, on the ground of any irregularity, error, or mistake in fact or in law in the mode of making the assessment. On the contrary, the law is well settled that in such cases the taxpayer's only remedy is by an application to the tribunal provided by law for that purpose. The plaintiff was chargeable with knowledge that the note and any other property owned by her in Marion county was liable to assessment and taxation in the county, and that, if she did not see that it was listed by the assessor, and properly valued, the law authorized and empowered the board of equalization to add it to the assessment roll, and place a valuation thereon; and it was her duty, if she desired to be heard either on the question of its valuation or her right to a deduction for indebtedness, to have appeared before the board at the time and place specified in the notice of its meeting, and submitted the matter to it for consideration. This she did not do, but, as we must assume, took her chances on the assessor or board of equalization discovering her property; and, having done so, she cannot now, because the result is unfavorable, have the relief here she might have obtained had she appeared before the board and given a true statement of her property and its condition. The judgment is therefore affirmed. HOWARD v. HOWARD et al. (Supreme Court of Oregon. July 24, 1893.) RESULTING TRUST IN LAND-EVIDENCE. In an action to establish a trust in favor of plaintiff, through his deceased father, in land held by defendant, defendant admitted the trust character of the deed under which he held the land, but alleged that the trust was in favor of another, instead of decedent. Held, that the trust being admitted, and there being evidence, though conflicting, to support plaintiff's allegations, a decree for plaintiff will not be disturbed on appeal. Appeal from circuit court, Lane county; J. C. Fullerton, Judge. Action by Tilman A. Howard against S. N. Howard and others to establish a trust in land. Plaintiff had decree, and defendants appeal. Modified and affirmed. A. C. Woodcock and L. Bilyeu, for appellants. R. Mallory, for respondent. MOORE, J. This is a suit to establish a resulting trust. The complaint alleges that on October 25, 1878, the defendants, S. N. Howard and Ira Allen, and D. C. Howard, plaintiff's father, now deceased,-purchased from one James M. Horn, who was the owner in fee thereof, the premises described in the complaint, and agreed to pay therefor $9,000; that $1,800 was paid down, and the balance was made payable in yearly installments of $1,000 each, with interest; that the title to the land so purchased was taken in the name of S. N. Howard, who was to hold it in trust for himself, Ira Allen, and D. C. Howard, in equal proportions; that the purchasers immediately entered into possession, cultivated and improved the premises, sold the products thereof, and applied the money to the deferred payments; that up to the death of D. C. Howard the defendants recognized his title to an undivided one-third of said premises; that the money remaining unpaid at the time of the purchase has since been paid either from the proceeds of grain produced by them jointly, or with money borrowed on their joint credit; that $4,000 was so borrowed of one S. S. Spencer, which had not been paid at the commencement of this suit; that D. C. Howard died November 14, 1888, [ leaving plaintiff his sole heir, who since the death of his father demanded of the defendant S. N. Howard the conveyance of an undivided one-third interest in said land to him, which has been refused. The defendant S. N. Howard denies all the material allegations of the complaint, and for a separate defense, in effect, alleges that in pursuance of an agreement between the defendant Ira Allen, one J. M. Howard, and himself, the said land was purchased, and the title taken in his name, in trust for himself, Ira Allen, and J. M. Howard. The defendant Ira Allen filed an answer, in which, upon information, he denied the material allegations of the complaint. The plaintiff, in his reply, denies the allegations of new matter in the answer of the defendant S. N. Howard. The testimony was taken, and upon a report thereof the court found for the plaintiff, and that the defendant S. N. Howard, within 30 days from the entry thereof, make, execute, and deliver to plaintiff a good and sufficient deed of an undi vided one-third of the said real property, and that plaintiff have his costs and disbursements, from which decree the defendant Howard appeals. The answer of the defendant S. N. Howard admits that he held the legal title to said property in trust, but substitutes J. M. Howard for D. C. Howard, as one of the parties for whom he is trustee. The trust character of the deed having been admitted. the only question, then, is whether said defendant was trustee for D. C. Howard or for J. M. Howard. We have carefully examined the testimony, and, while there is an irreconcilable conflict therein, we think, without quoting any portion thereof, that it supports the conclusions reached by the trial court. The complaint further alleges that at the time the suit was commenced there was a debt of $4,000 upon said property, due one S. S. Spencer. The court, in its decree, did not provide that one-third of this sum should be a charge upon the land to be conveyed to the plaintiff. The decree will therefore be modified so that a conveyance of the undivided one-third of the premises described in the complaint shall be made subject to said charge, and as so modified the decree will be affirmed, with costs to respondent. BOARD OF COM'RS OF PROWERS COUN- The power to assess a special tax in school districts of the third class being vested by Gen. St. §§ 3036, 3057, 3058, as amended by Acts 1887, p. 398, § 29, in the electors, an assessment by directors is unauthorized, and a levy thereon void. Error to district court, Prowers county. |