facilitate the distribution of the water among those entitled thereto; that they have been selling the use of some water when not employed by those entitled to it, and that the recompense has been expended in keeping the ditch in repair, and not as a matter of profit to the concern. These conditions show such a privity between the Allen Ditch Company and the farmers, or original claimants, as to enable the former to maintain its defense in their behalf. That the water has been of great utility to the territory in proximity to the ditch is unquestioned. Houses and barns have been constructed, and many acres of land reduced from its wild and arid condition to a high state of cultivation. Orchards, shrubbery, and ornamental trees have been planted, and the community is described as thriving and prosperous. The use of the water is absolutely essential to the maintenance of the present condition. But, notwithstanding all this, if the plaintiff has a better right, under the law, to have it flow down the channel of the river, through and beyond its lands, by reason of its riparian ownership, than the farmers have to use it by virtue of a prescriptive right, the injunction should be maintained; otherwise not.

The plaintiff's riparian right to have the water flow in the stream undiminished in quantity, except by the reasonable use thereof by riparian proprietors, is appurtenant to the land running with it as a corporeal hereditament. Adverse possession to realty may have its inception in trespass, and naked possession under a claim of right actual, hostile, open and notorious, exclusive, and continuous for a period of 10 years, will, in this state, ripen into a perfect title. 1 Am. & Eng. Enc. Law (2d Ed.) 795; Joy v. Stump, 14 Or. 361, 12 Pac. 929; Altschul v. O'Neill, 35 Or. 202, 58 Pac. 95. If the riparian owner grants a right to divert the water and convey it away to and upon the lands of the grantee, the grant becomes an easement appurtenant to such lands, which becomes thereby the dominant estate, and the grant an incorporeal hereditament. If title be acquired by prescription, the estate and the right are the same. So that we are confronted with the anomalous proposition that plaintiff has lost a corporeal hereditament appurtenant to its land by reason of the operation of the statute of limitations, and the defendant has acquired an easement or incorporeal hereditament appurtenant to its lands by virtue of the same statute; in other words, that the statute has operated to convert a corporeal hereditament into an incorporeal hereditament, and at the same time to devest plaintiff of the one and invest defendant with the other. Says Mr. Justice Currey, in American Co. v. Bradford, 27 Cal. 360, 366: "The general and established doctrine is that an exclusive and uninterrupted enjoyment of water in a particular way for a period corresponding to the time limited by

the statute within which an action must be commenced for the recovery of property or of the assumed right held and enjoyed adversely becomes an adverse enjoyment sufficient to raise a presumption of title as against a right in any other person which might have been but was not asserted." The term "prescription," strictly speaking, is applicable only to incorporeal hereditaments, and not to land. Anciently, in order to support a title by prescription, the use of the incorporeal right must have continued immemorially; that is, have had a commencement before the reign of Richard I, but latterly it came to be held that a continuous use in a particular manner for 20 years corresponding to the period usually prescribed by statutes of limitations for entry upon lands was sufficient for the purpose. Gould, Waters (3d Ed.) § 329. In analogy to this principle, the acquirement of a prescriptive right has come to be measured by the statute of limitations for the recovery of real property, and such is the rule in this state. Kin. Irr. § 295; Dodge v. Marden, 7 Or. 456. Plaintiff's riparian rights have been invaded by the diversion. This suit is based upon that idea, and there can be no further controversy relative thereto. But the point of time when the invasion commenced so as to set the statute of limitations running is yet a matter of inquiry. To render the enjoyment of any easement exclusive evidence of right, it must have been continued, uninterrupted, or pacific and adverse; that is, under a claim of right, with the implied acquiescence of the owner. 3 Kent, Comm. p. 434. It is said that the rules of law governing the acquisition of a right by prescription in a case where it is to run against the rights of a riparian owner is similar to those governing where the prescription is to run against a prior appropriator. Kin. Irr. § 235. In Huston v. Bybee, 17 Or. 140, 20 Pac. 51, 2 L. R. A. 568, Mr. Justice Thayer says: "The proof must establish an exclusive use of the water under a claim to so use it;" and Mr. Justice Fox, in Water Co. v. Hancock, 85 Cal. 219, 223, 24 Pac. 645, 20 Am. St. Rep. 217, says: "Actual and uninterrupted user, however, with or without the statutory appropriation, if adverse, for a useful purpose, and under a claim of right, continued for the period prescribed by the statute of limitations, gives a prescriptive right which will extinguish the rights of a riparian appropriator. Statutory appropriation, therefore, is not necessary to prescription, but it gives to one who seeks to acquire right by prescription this advantage: that it gives the prior claimant notice that his user is adverse, and under claim of right, and sets the statute in motion against such prior claimant." So the court say in Smith v. Water Co. (Utah) 52 Pac. 283, 286: "The right of the defendant in the water would become fixed only after seven years' continuous, uninterrupted, hostile, notorious, adverse enjoyment; and, to have been ad

*

verse, it must have been asserted under the claim of title, with the knowledge and acquiescence of the person having the prior right, and must have been uninterrupted. The possession must have been actual occupation, open, notorious, hostile, and under a claim of title exclusive of any other right." This principle has been reaffirmed by the same court in Irrigation Co. v. Lindsay (Utah) 60 Pac. 559, the language there employed being that "the possession must have been actual occupation and use." The adverse holding of land and of an easement constituting the use of water are exactly parallel, so far as the similarity of the property will admit of it. As to land there must be actual occupancy, but the condition may be fulfilled either by pedis possessio or constructively, if the holding is under color of title. Literally, there can be no occupancy of water. There may be a use of it; and some of the authorities above cited seem to indicate that, to be adverse, the use must be actual, which would seem to imply that all the water must have been put to a beneficial use by the claimant from the inception of the adverse right. The manner of making a prior appropriation in this state is now well understood. Three elements must exist,-an intent to apply the same to some beneficial use, diversion, and an actual application within a reasonable time to some useful industry. Low v. Rizor, 25 Or. 551, 37 Pac. 82. If the appropriation is initiated by notice, and there is a diversion within a reasonable time, and application to a beneficial use made within a reasonable time after the diversion, it will be deemed to have been made as of the date of the notice given; but, if there is no notice, it will be deemed to have been made as of the date of the diversion. Ditch Co. v. Bennett, 30 Or. 59, 45 Pac. 472, 60 Am. St. Rep. 777. In such a case there is only constructive use of the water until actually applied, which completes the appropriation. It was said in the case last cited that "all rights acquired prior to this time, at whatsoever step in the process, amount simply to a claim of an appropriation; but they are none the less rights and privileges which may be asserted and maintained against all persons not entitled to priority in rights and privileges of like nature." Now, if actual diversion, followed within a reasonable time by application and actual use, is sufficient for the inception of a valid prior appropriation, why is it not sufficient to set in motion the statute of limitations? The rights of the prior appropriator or riparian owner have been invaded, and he has been deprived of the use of the water, for which he has an action against the trespasser, and the possession passes absolutely under the control of the one making the diversion. There is a claim of right arising from the attempt to make the appropriation, so that this essential to adverse possession is subserved. The other essentials-that it must be open, notorious, exclusive, and con

tinuous-are not incompatible with this kind of possession; so that all the elements of the statute to make it effective are complied with, unless it be that the use must be actual in the exact literal sense of that term. But we do not think that such is the acquirement of the law. If there is a diversion, followed by actual and exclusive possession and control, such as will constitute an invasion of prior acquired rights, with the intent and purpose of applying the water to some need or useful purpose, and there is actual application within a reasonable time, such as will serve to complete a valid prior appropriation, there is such a user as will set the statute of limitations in motion, and, if continued for the statutory period, will confer a valid title to the easement. This is in harmony with the method for the acquirement of water rights by prior appropriation, and is a logical deduction from the principles by which they are sustained and upheld, and would seem to be reasonable and just. In this view the farmers whom the defendant represents are entitled to so much of the water as they are now employing for a useful purpose. Most of it was so employed early in the last decade, and has been continuous to the present time. Several witnesses state that about the same quantity of water flowed in the old Lowe ditch as is now being carried by the Allen ditch, and some are of the opinion that the latter carries more by a fourth. All of that which is carried seems to be used, but a portion is being sold to outside parties, as we have seen. The defendant claims 2,400 inches, but the evidence adduced does not establish its title to this amount. One or two witnesses testify that the ditch, a short distance below the headgate, carries to the depth of two feet, being eight feet or more in width. Mr. Kimbrell, one of the plaintiff's witnesses, a surveyor and civil engineer, says he measured the water at the headgate, and that it was one foot deep by seven and a half feet in width. The measurement was taken eight feet below the headgate. But he further states that the water was nearly two feet in depth above the headgate, and that there must have been one foot pressure. This is the most definite statement that we find in the record as to the amount of water being diverted. An orifice seven and a half feet by one foot with a six-inch pressure will probably pass down to the defendant about the amount of the original diversion, thus giving it 1,080 miners' inches, as understood by many persons of practical experience, and not more than that, to which it is entitled.

Another question is pressed, which is that the holding has not been continuous. This is based upon the testimony of Hunt and Hamilton, whereby it appears that in 1885 Hunt made an objection to the defendant taking the water out of the river, addressing it to O. Teel, the secretary of the defendant company. Teel denies that any such objection

been recorded, the note was assigned to the La Grande National Bank, which transferred it to plaintiff, who commenced this suit to foreclose the lien; making George W. Sterling, Schuler Sterling, Mary T. Jackson, and Henry V. Sterling, heirs of said deceased, and J. H. Lawrey, Thomas Wade, and A. Fergason, defendant; alleging in the complaint that such heirs were the owners in fee of said premises, and that the other defendants claimed some interest therein, but, if any such they had, it was inferior to plaintiff's lien. The defendants Henry V. Sterling, Thomas Wade, and A. Fergason, alone answered; denying each allegation of the complaint except the appointment and qualification of the administrator, and that said heirs were the only persons inheriting said property. A trial being had, the court found that there was due on the note the sum of $2,267.74, and that $200 was a reasonable sum as attorney's fees, and decreed a foreclosure of the mortgage, from which the defendants so answering appeal.

Turner Oliver, for appellants. Lawrey, for respondent.

John H.

MOORE, J. (after stating the facts). The court having admitted in evidence, over the defendants' objection and exception, the order of the county court of Union county licensing the administrator to secure a loan and to give a mortgage on the real property of the decedent's estate as security therefor, the note and mortgage executed in pursuance of such authority, and the written assignment thereof to the La Grande National Bank, it is contended that the statute under which said order was made violates the organic law of the state; that the method prescribed for invoking the power of the county court to grant such order was not pursued; and that the state land board had no authority to assign the note and mortgage, and hence the court erred in admitting the evidence so objected to.

Considering the objections in their order, the constitutional provision claimed to have been violated is as follows: "Every act shall embrace but one subject, and matters properly connected therewith, which subject shall be expressed in the title." Const. art. 4, § 20. The statute in question, including the title, reads as follows:

"An act to authorize executors and adminis

trators to redeem real estate sold under decree or judgment, and to borrow money upon the property of the estate, to facilitate the settlement of the estates of decedents.

cree of court on foreclosure of mortgage or upon judgment, in the same manner and upon the same terms that property may be redeemed by any debtor.

"Sec. 2. That it shall be lawful for any executor or administrator, at any time hereafter, with the consent of the county court within whose jurisdiction such property may lie, to borrow money upon any property belonging to the estate, and to execute a mortgage thereon as security, for the purpose of funding the indebtedness against the estate, when it is shown by affidavit that the money can be secured for the same or a less rate of interest than that already paid, and for the further purpose of paying the interest on outstanding obligations that are liens on premises to be mortgaged when it is shown by affidavit to be necessary, whether said property has or has not before that time been mortgaged by the decedent or his executor or administrator.

"Sec. 3. That all acts and parts of acts in conflict with the foregoing be and the same are hereby repealed."

34.

Approved October 15, 1898. Laws 1898, p.

It is argued that this act embraces two disconnected subjects, both of which are expressed in the title, viz.: To empower the executor or administrator to redeem real prop| erty belonging to the decedent's estate that may be sold at public auction under a decree or judgment; and also to authorize him to borrow money on the property of the estate, giving a mortgage thereon as security. The object of the constitutional mandate that "every act shall embrace but one subject and matters properly connected therewith, which subjects shall be expressed in the title," was to prevent matters wholly foreign to the sub- . jects specified in the title from being inserted in the body of the act. Simpson v. Bailey, 3 Or. 515; McWirter v. Brainard, 5 Or. 426. An examination of the original bill (house bill No. 58), on file in the office of the secretary of state, shows that it was entitled, "A bill for an act to facilitate the settlement of the estates of decedents." tion 2 thereof was as follows: "That it shall be lawful for an executor or administrator, at any time hereafter, with the consent of the county court within whose jurisdiction such property may lie, to borrow money upon any property belonging to the estate and to execute a mortgage thereon as security, whether said property has or has not before that time been mortgaged by the decedent or his executor or administrator." The judiciary committee of the house of rep

Sec

"Section 1. That hereafter it shall be lawful for any executor or administrator of an estate of any decedent to redeem, for the benefit of the estate, any real estate belonging to the estate which may at any time hereafter be sold at public auction, either by de

ferred, recommended an amendment thereto, which, upon motion, was adopted (House Journal 1898, p. 222), and became section' 2 of the act, no other changes having been made in the original bill except the title, which was amended (House Journal 1898, p. 128), as herein before quoted. A comparison

of the original bill with the act as passed discloses that the only amendment adopted contains a statement of the purposes for which money may be borrowed, and prescribes the method whereby the consent of the county court may be secured. The act does not, in express terms, authorize the borrowing of money with which to redeem real property, belonging to the decedent's estate, that may have been sold under a decree or judgment; but, as a lien of this character is an indebtedness against said estate, the right to borrow money for the purpose of funding such indebtedness necessarily carries with its exercise a grant of power to borrow money to be used in redeeming real property from such sales. An analysis of the language of the act, so construed, shows that its subject is to authorize the borrowing of money on the property of a decedent's estate, to redeem it from sale under a decree or judgment, or to fund other indebtedness against the estate, including interest on outstanding obligations that are liens on the premises to be mortgaged. Without the power to borrow money, it might be impossible to redeem such real property from sale, but, by the method prescribed, the legislative assembly has wisely provided a means whereby premises sold for an inadequate sum may be saved to the heirs, and the day of immediate payment of a debt postponed; thereby possibly tiding the property over the period of a ruinous panic. So too, an exercise of the authority to borrow money to be used in funding the indebtedness of a decedent's estate may prevent a sale of the property at an inopportune time; thereby retaining the title until, possibly, the rents and profits pay the mortgage necessarily placed thereon by the executor or administrator, whereupon the heirs may take the premises freed from all obligations. The subject of the act under consideration is, therefore, the granting of power by the county court to an executor or administrator to borrow money, and the incident to the exercise of such power is the right to use the money so borrowed in paying the indebtedness against the estate of a decedent, including the redemption of the real property thereof that may be sold under a decree or judgment. The purpose for which the money may be used is properly connected with an exercise of the power to borrow it. The title of the act might have been transposed so as to conform to the interpretation here given, but in the form adopted by the legislative assembly it fairly expresses the single subject of the act, and, so long as it does so, no reason exists for declaring the statute in contravention of the clause of the constitution invoked to establish its invalidity. Anderson v. City of Camden, 58 N. J. Law, 515, 33 Atl. 846; David v. Committee, 14 Or. 98, 12 Pac. 174; State v. Koshland, 25 Or. 178, 35 Pac. 32.

Did the administrator pursue the method prescribed by the act, so as to confer juris

diction upon the county court to make the order authorizing him to borrow the money and to execute a mortgage as security therefor? It will be remembered that the statute empowers the county court to license an executor or administrator to borrow money upon the property belonging to the decedent's estate, and to give a mortgage thereon as security for the loan, when it is shown by affidavit that the money, to be used in funding the indebtedness against the estate, can be secured for the same or a less rate of interest than that already paid. The petition, filed by the administrator June 6, 1900, upon which the order of the county court is based, is as follows:

"In the county court of the county of Union, state of Oregon. In the matter of the estate of M. Sterling, dec'd. To the Hon. B. F. Wilson, county judge of Union county, Oregon. Comes now J. L. Caviness, and represents that he is the duly qualified and acting administrator of the estate of M. Sterling, late of Union county, Oregon, now deceased. That said estate has paid all claims and expenses due by the same with the exception of balance of claim of J. L. Caviness, which was not a preferred claim, but presented after the first six months of administration, now amounting to the sum of $1,884.00, together with the fees due the administrator of about $600.00. That said claim is drawing interest at the rate of eight per cent. per annum, and that a loan can be had on the lands of the estate at no greater rate, and probably for less, to wit: 7 per cent. per annum. That, by obtaining a loan of $2,484.00, the said claim may be fully paid, the administration closed, and the estate lands turned over to the heirs with such mortgage, and save further administration and expense. That it will be for the best interests of the said estate to obtain a loan upon the estate lands, and mortgage so much thereof as is necessary to obtain said loan, and pay said estate, and prevent further expense, so that the heirs may have said lands. Wherefore your petitioner, the said administrator, prays for an order and license empowering him to execute a mortgage on the estate lands, or so much thereof as shall be necessary, and close up said estate. J. L. Caviness, administrator.

"State of Oregon, County of Union-ss.: I, J. L. Caviness, being first duly sworn, say that I am the duly appointed, qualified, and acting administrator of the estate of M. Sterling, deceased, in said above-entitled court, and the foregoing, my petition, is true, as I verily believe. J. L. Caviness. Subscribed and sworn to before me this 31st. day of May, A. D. 1900. [Seal.] C. H. Finn, notary public for Oregon."

It is argued that, as an executor or administrator at common law was powerless to mortgage the real property of a decedent, a statute conferring such authority should be strictly construed, and that, giving to the act under consideration such interpretation, a